Alhaji Auwalu Darma & Ors V. Alhaji Ghali Mustapha (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Kano State High Court in suit No K/133/2011, delivered on 19/7/2012 by Hon Justice Patricia Mahmud against the Defendant (now Appellant). The Respondent had claimed against the Appellants as follows:

“1A declaration that the plaintiff as the owner of property covered by certificate of occupancy NO/LKN/CON/2002/55 (sic) is entitled to the right of enjoyment of ingress and egress attached to the property by both sides of the property as contained in the survey plan attached of (sic) the Land.

2 A declaration that the act of the defendants in creating plots of land and developing them out of the road and the exit of the plaintiff’s land at the southern side of the plaintiff (sic) Land is illegal, and encroachment into his right and enjoyment of his use of land.

3 An order… directing the defendants to demolish any structure made on the road reservation, blocking the exit of the plaintiff’s land.

4 An order of perpetual injunction restraining the defendants…,

After hearing the case, the trial court held for the Respondent and granted all the reliefs sought. Appellants being dissatisfied, filed their Notice of Appeal on 2/8/12 and disclosed 3 grounds of appeal as follows:

“1 The trial court erred in when it hold that the appellants/defendants created structures on a public way, when there was no proof of such assertion.

Particulars:

(A) Exhibit 6 as tendered by DW3 shows a strip of land (on which the Appellants /Defendants erected their structures) that has not been designated by the Kano State urban protection and development agency (KNUPDA).

(B) DW3 clearly stated that the subject matter was not within the planned area, as the planning authority (KNUPDA) has not designated the area.

2 The judgment of the lower court is null and void as it was delivered outside the statutory period.

Particulars:

Parties closed their case, adopted their final addresses on 5th March, 2012. However judgment was delivered on 9th day of July 2012.