Alhaji Gidado Baa V. Adamawa Emirate Council & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

The 1st Respondent, Adamawa Emirate Council, filed a Writ of Summons before the Adamawa State High Court on 3rd March, 2011 against the Appellant and the 2nd and 3rd Respondents seeking the following reliefs:

1. A declaration that the plaintiff as the traditional landowner is the lawful owner of a farmland located at Mallam Madugu Girei Local Government measuring 1461 x 854m, 1461 x 854m 1124.7694 Hectares) entrusted to the 3rd defendant by the plaintiff in his former position as the former District Head of Girei.
2. A declaration that the title, interest, right and privileges in and over the farmland in paragraph 1 above vests in the plaintiff as the traditional owner of same to the exclusion of any other person.
3. A declaration that the purported gift of the farmland in paragraph 1 above located at Mallam Madugu (subject matter of the dispute) purportedly made by the 3rd defendant (trustee of the farmland) to the 2nd defendant on 20/7/2008 as null and void and without effect since same was purportedly made without the consent and approval of the plaintiff.
4. A declaration that the purported sale of the farmland referred to in paragraph 1 above made by the 2nd Defendant to the 1st defendant on 3/10/2009 but signed and stamped by the 3rd defendant on 5/9/2009 as null and void and without legal effect in any manner whatsoever.
5. Order of court revoking the purported gift of the farmland in paragraph 1 by the 3rd defendant (trustee of the farmland) to the 2nd defendant and subsequent purported sale of the farmland by the 2nd defendant to the 1st defendant.
6. A declaration that the entry of the farmland by the 1st defendant and carrying out some developments therein as amounting to trespass.
7. A perpetual injunction restraining the defendants whether by themselves, their agents, servants or privies from entering into the farmland and utilizing same either for farming, grazing of animals, planting of trees, fencing, demarcating or plotting of same or dealing in the farmland in any adverse way that will jeopardise the interest of the plaintiff.
8. Order on the 1st defendant to remove any structure or development made on the farmland in paragraph 1 above.
9. N1, 000, 000,00 general damages for trespass.
10. Cost of the action.
11. Any other order the court may deem fit to make in the circumstance.

On the 31st March, 2011, the 1st Respondent/Plaintiff filed a motion ex parte and, simultaneously on the same date, filed a motion on notice seeking interim and interlocutory orders of injunction respectively against the Defendants. Both motions essentially sought injunctive orders restraining the Defendants from entering the farmland in dispute and from dealing with it in any way whatsoever. On the 5th April, 2011, the motion ex parte was heard and granted as prayed, while the motion on notice was argued on 13th May, 2011, and subsequently granted on 16th May, 2011. In his ruling, the learned trial Judge, Bansi CJ, (as he then was), granted the application as prayed and ordered an accelerated hearing of the substantive suit.

Dissatisfied with this decision, the Appellant filed his Notice and Grounds of Appeal on the 27th May, 2011 wherein he complains on three (3) grounds. The Grounds of Appeal bereft of their particulars, state as follows:

“Ground 1

The learned trial Judge erred in law when he granted the interlocutory application of the Applicant/1st Respondent which should have been refused based on the authority of the Supreme Court’s case of Kotoye vs. C.B.N. (1989) 1 NSCC 238; (1939) 1 NWLR (pt. 98) 419; (2006) 16 WRN 71; (2001) FWLR (Pt.49) 1567; and the authority of the Court of Appeal case of Leasing Co. Nig. Ltd V. Tiger Ind. Ltd (2007) 14 NWLR (Pt. 1054) 346 @ 374 paragraph C-H.

Ground 2

The learned trial Chief Judge erred in law when he consider (sic) the monetary value involved in the transaction in granting the Applicant/1st Respondent’s application.

Ground 3

The learned trial Chief Judge erred in law when he granted the application of the Applicant/1st Respondent without due compliance with the rules guiding affidavit evidence as provided in Section 89 of the Evidence Act.

On the 8th May, 2013, when the Appeal was called up for hearing, learned Counsel for the Appellant, Mr. Adikwu, adopted and placed reliance on the Appellant’s Brief of argument filed on 27-05-11 as his arguments in this Appeal. In response to the preliminary objection raised and argued in the 1st Respondent’s Brief, he filed an Appellant’s Reply on points of law on 17-05-13. He also filed an Appellant’s Reply to the 1st Respondent’s Brief of argument in respect of the substantive Appeal on the same date, which he similarly both adopted. He urged the Court to allow the Appeal and set aside the Ruling of the lower Court.

Mr. Igwe, learned Counsel for the 1st Respondent, filed a notice of preliminary objection vide a motion on notice on the 13th March, 2012. He argued the said objection at pages 2-3 of the 1st Respondent’s Brief of argument dated 07-05-13 and filed on 08-05-13. He consequently adopted and relied on the said pages of the Brief as his arguments in respect of the preliminary objection. He also adopted and relied on the arguments in the rest of the Brief as his arguments in this Appeal. He thus urged the Court to dismiss the Appeal.

Mr. Okorie, learned Counsel for the 3rd Respondent, stated that the 3rd Respondent filed a Notice of intention to contend for a variation of the Ruling of the lower Court dated 15-03-13. However, on noticing that he had not filed the said notice as contended, and had only argued same in his Brief, Counsel withdrew the 3rd Respondent’s Brief of argument filed on 26-06-12 entirely, as well as all other processes filed in the Appeal. He, instead, conceded to the Appeal.

It is noted that the 2nd Respondent, even though duly served with all the processes of the Appeal, neither filed a Respondent’s Brief in response to the Appellant’s Brief nor did he appear before the Court, either in person or through Counsel, to contest or concede to the Appeal.