Alhaji Hamdana Kankia V. Ali Maigemu & Ors (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

The plaintiff, in the Katsina State High Court of Justice, took out a writ of summons against the defendants claiming a declaration of title to a parcel of land situate at Kofar Bai quarters, Katsina; N50,000.00 general damages for trespass and perpetual injunction.

Parties, with exception of fourth defendant, filed and exchanged pleadings which were settled at statements of claim, and defence as well as reply to the statement of defence. The plaintiff testified on behalf of himself and called another witness in support of his claim.

The defendants called a witness, in person of third defendant to testify for the defence. The fourth defendant too testified. Thereafter, learned counsel addressed the court. At the end of learning, the learned trial Judge Abdullahi M. Yusuf, J., in a reserved and well considered judgment, dismissed the claim.

The plaintiff was dissatisfied with the judgment, being aggrieved appealed to this Court in a notice of appeal containing three grounds of appeal. Efforts were made to amend the notice of appeal and seems abandoned on 3rd October, 2001 when the motion on notice filed for amendment of the notice of appeal was struck out. Pursuant to the notice of appeal contained at pages 93 and 94 of the record of appeal, briefs of argument were filed and exchanged.

Subsequently, the plaintiff (hereinafter referred to as appellant) brought application for enlargement of time to file a fresh brief instead of amending the existing previous brief. This application was granted on 22nd November, 2000 when the previous appellant’s brief was withdrawn and struck out. Consequently, the first, second, third and 5th respondents filed their joint respondents’ brief of argument. Fourth respondent who failed to file a statement of defence at the trial has equally defaulted on brief writing.

At the hearing of the appeal, both appellant and fourth respondent were not in court. The appellant was duly served. The fourth respondent was not served, as previous efforts to serve him had proved abortive, the hearing had to proceed notwithstanding failure to serve him. The appeal was then heard by deeming the appellant’s appeal heard on the strength of his brief considered filed with effect from nnd November, 2000 by virtue of Order 6 rule 9(5) of the Court of Appeal Rules, Cap.62 of the Laws of Federation of Nigeria, 1990. Learned counsel for the remaining respondents, without further elaboration on their brief, adopted same.

The appellant formulated 2 issues in his brief of argument which formulations are set down immediately hereunder:

“1. Whether the learned trial Judge properly evaluated the evidence in this case.

2. Whether in the circumstance of this, case, a sketch plan was a sine qua non for the appellant to establish his case.”

On the other hand, respondents in their brief of argument framed or identified only one issue for determination. It reads as follows:

“Whether the appellant’s claims were properly dismissed by the trial court.”

In the appellant’s brief, it was contended on his behalf by his learned counsel that the learned trial Judge set out the appellant’s claim at p.72 reviewed evidence of witnesses at pages 73 – 74 and evaluated evidence at lines 6 – 41 of page 86 before coming to the conclusion that appellant has not proved his title to the land in dispute as a result of which he dismissed the claim in toto. It was further contended that the raison d eter that influenced the learned trial Judge’s decision was appellant’s failure to call witnesses to support his claim. It was then submitted that the decision was informed by improper evaluation of evidence and the proper approach for evaluation of evidence is to place the evidence adduced by either side on an imaginary scale to ascertain the side to which it tilts: He cited the case of The State v. Aibangbee (1988) 3 NWLR (Pt.84) 548; (1988) 7 SCNJ (Pt.2) 154, 168.

Learned counsel for appellant after summarizing the fact of the case submitted that where title to land is in issue the court is only concerned with the relative strength of the titles proved by the parties.

He cited in support of this submission the case of Arase v. Arase (1981) NSCC 101, 118. He further submitted that the evidence of second defence witness destroyed the basis of the respondent’s case.