Aminu Iya Pate V. Idris Saleh Muhamm (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Justice Kaduna State (the lower Court) in suit No. KDH/Z/16/2008, delivered on the 1st of August 2012, by Bello J. The respondent, as plaintiff, at the lower Court instituted suit No. KDH/Z/16/2008 against the appellant who was the defendant seeking for a declarative relief and an injunction order over a parcel of land lying and situate at No. 20 Sambo Kwasallo Road TPO 661 Gaskiya Mixed Commercial/Residential Layout, Zaria, Kaduna State.

The respondent’s case was that the parcel of land in dispute was originally allocated to Ibrahim Lawal Ibrahim who sold same to Abdulkadir Sallah Zuntu which he purchased vide a sale agreement. In 2007 he discovered that the appellant encroached on to the land. He did all he could to stop him from further trespassing to the land to no avail.

The appellant claimed that the original title holder of the disputed parcel of land sold same to Alhaji Salisu Na-Ayuba, from who he purchased and acquired title vide sale agreement. Dissatisfied with the encroachment on to the land by

1

appellant, he instituted an action at the lower Court. Pleadings were filed and exchanged, issues joined and the matter went to trial during which witnesses testified and documents admitted in evidence. The learned Judge of the lower Court delivered his judgment on the 1st of August, 2012, in favour of the respondent. Peeved and piqued by the judgment of the lower Court, the appellant filed Notice and Grounds of appeal to this Court on the 5th of October, 2012, challenging the decision of the lower Court.

The appellant’s brief of argument was filed on the 6th of November, 2014 wherein 4 issues were distilled from the grounds of appeal on page 6 thereof for the determination of this Court. The respondent’s brief of argument dated 11/12/15 was filed on 21/1/16, wherein the 4 issues on page 4 of the appellant’s brief of argument were adopted on page 3 thereof. The 4 issues for determination in the appeal are therefore thus:

1. Whether the trial Court was right to have adopted other procedure of proof for the plaintiff apart from the one provided for by Order 33 Rule 1 of the Kaduna State High Court Civil Procedure Rules 2007.
2. Whether the learned

2

trial Judge was right to have admitted EXHIBIT 1 (Sale Agreement) same being an unregistered Registrable Instrument.

3. Whether the Learned Trial Judge rightly invoked and applied doctrine of priority (qui prior est tempore portior est jure) when the prerequisite for its invocation and application was not available.
4. Whether the finding of the learned trial Judge and evaluation of evidence before him was not perverse.

On issue one (1) Adedokun, Esq., submitted that where Rules of Court provide for a specific way or manner of doing an act, such provisions must be complied with before doing such an act. Counsel referred to Order 33 Rule 1 (1) and (2) of the Kaduna State High Court (Civil Procedure) Rules, 2007 which provides that facts shall be proved by depositions of witnesses on oath, and cross-examination of such witnesses to be predicated on the depositions, after having been adopted by the witness at the trial. That oral testimony, other than cross-examination shall not be resorted to where documents are to be tendered for admission in evidence. Counsel pointed out that pw1 and pw2 did not adopt their depositions on oath before they gave

3

evidence and cross-examined by learned counsel to the respondent at the trial Court which contravened the provisions of Order 33 Rule 1 (1) and (2) of the 2007 Rules of Court.

Counsel submitted further that any deposition on oath by a witness which has not been adopted at the trial is deemed to have been adopted which the learned trial judge held so in a ruling when Exhibit I was admitted on the 17th of March 2009. Learned counsel referred to the proceedings of the lower Court on 27/5/2008 when PW1 testified orally without adopting his depositions on oath.

On 25th of June, 2008, PW2 testified without adopting his deposition on oath. That having not adopted their depositions on oath at the trial, same have been abandoned. That of all the witnesses who testified for the respondent, only PW3 adopted his depositions on oath as provided by Order 33 Rule, (1) and (2) of the Rules of Court, 2007.