Alhaji Uba Abubakar V. David Pwaspo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of Justice J. S. Atsi of the High Court of Justice Jos. The Respondent herein was granted the following reliefs:

(a) A perpetual injunction restraining the Appellant.

(b) N15,000 as general damages with an order directing the appellant remove all blocks surrounding the mosque.

Being dissatisfied with the judgment, the Appellant has filed this appeal. The Respondents claims at the lower Court are on page 1 and 2 of the record of appeal while the judgment is on page 65 of the record of appeal. The parties both formulated three issues for determination distilled from the 2 grounds of appeal which are the same though couched differently. I shall however adopt the Respondents issues for determination which read as follows:

1. Whether the lower court was right in its judgment that the Appellant trespassed on the Respondent’s land by building a mosque thereon.
2. Whether there was evidence before the lower court to support the judgment in favour of the Respondent.
3. Whether the calling of an independent witness by the lower court violated the Appellant’s right of fair hearing.

The brief facts of this case are as follows:

The Respondent is the owner of the property known as No. KN 316 T. Angwan Rukuba, Jos. The Respondent bought the said properly in 1989 from one Alhassan Adamu, a muslim, who had kept a small portion of the premises as a private mosque and demarcated the said ground with stones. After the sale of the premises to the Respondent, the Appellant and his group continued to use the said portion of land as prayer ground and the Respondent not being of the same faith protested the use of the said premises which he claimed was part of his premises.

After the acquisition of the property, by the Respondent, the Appellant and other muslin faithfuls erected a four course block work structure to replace the stones without the prior consent of the Respondent. The Appellant however claimed that the land upon which the mosque was built does not belong to the Respondent but that the area of land is government land.

Both the Appellant and the Respondent in the lower court called witnesses to support their claims and in the end the court deemed it necessary to call an independent witness to throw more light on certain facts. Both parties cross-examined the said witness after his testimony and the visit to the locus in quo. The court however found that the mosque was on part of the Respondent’s land and that the rest of the land was the Respondent’s government demarcated set back land which can only be developed with the consent of the Respondent.

The court below then entered judgment for the Respondent as per his claims, hence this appeal.

ISSUE NO. 1 Whether the lower court was right in its judgment that the Appellant trespassed on the Respondent’s land by building a mosque thereon.

Whether the lower court was right in its judgment that the Appellant trespassed on the Respondent’s land by building a mosque thereon.

Learned Counsel to the Appellant submitted that the subject matter of the dispute is a public mosque which could not have been sold to the Respondent. That the documentary evidence before the trial court did not show that the mosque in dispute was included in the sale transaction of the Respondent’s house. That the sale agreement and the site plan of the house bought by the Respondent did not include the mosque. He concluded on that point that the documentary evidence before the trial court ought to have been used as a hanger to assess the oral evidence adduced therein. He cited the cases of

1. Kimdey Vs Gongola State Government (1988) 2 NWLR (Part 77) 445 at 473,
2. Fashanu Vs Adekoya (1974) 6 SC 83; (1974) All NLR (Part 1) 35 and
3. Onibudo & Ors vs. Akibu & Ors (1982) 2 FNR 224 at 225 – 6 per Bello, J.S.C. (as he then was); (1982) 7 SC 60.

Learned Counsel further submitted that on the authority of Onibudo’s case (supra) the Respondent’s vendor could not have sold the mosque in dispute to the Respondent. That the Appellants contention that the mosque was in existence before the purchase of the house by the Appellant was proved by the Respondent’s witnesses in the lower court. See page 43 lines 27 – 29 of the record. He further cited the case of OJE v BABALOLA & Ors (1991) 5 SCNJ 110.