Christiana Utsu V. Iorna Uju (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR BABANDI GUMEL, J.C.A: (Delivering the Leading Judgment)

This is an appeal against the judgment of the Benue State High Court, Makurdi Division delivered on 9th July, 2004 in Suit No. MHC/146/2000. The Appellant was the Plaintiff at the Lower Court and in a statement of claim dated 21/06/2000 but filed on 26/6/2000 she prayed and sought for a declaratory and injunctive reliefs. She also claimed for monetary compensation by way of general and special damages. The reliefs are in the following terms:-

a. A declaration that Plaintiff is the rightful owner of plot No. BNC 2749 lying and situated at Yina layout Logo No. 1 Makurdi.

b. An order of perpetual injunction restraining the defendant, his agents, assigns, successors in-title and whomsoever claiming through him from further trespassing on the Plaintiff’s land; and

c. Special and general damages in the sum of N500,000.

The relevant particulars of special damages were also endorsed on the statement of claim.

The Respondent, as the Defendant, denied the claim and counter-claimed as follows:-

a. A declaration of title to the said piece of land;

b. An order of perpetual injunction restraining the plaintiff; her agents, privies, assigns and any person claiming through her from trespassing into the said land; and

c. N1 million general damages for trespass.

The plaintiff/appellant filed a reply and defence to the statement of defence and counterclaim of the defendant/respondent.

The matter proceeded to trial during which oral and documentary evidence were adduced. At the conclusion of the trial, the lower court delivered its judgment wherefore it decided against the plaintiff/appellant and found in favour of the defendant/respondent in terms of his counterclaim to the extent of the declaratory and injunctive reliefs only, while it refused the claim for damages for trespass. The plaintiff/appellant was dissatisfied with this decision and appealed to this court in a notice of appeal dated and filed on 20th September, 2004. It incorporates 6 grounds of appeal with particulars thereto.

To argue the appeal, learned counsel to the Appellant filed a brief of argument dated 10/09/2005 in 12/12/2005 which was deemed properly filed and served on 30/11/06. For the Respondent, learned counsel filed a brief of argument on 21/12/2006. At the hearing of the appeal, respective learned counsel identified, adopted and relied on their briefs, without more. While learned counsel to the Appellant urged on us to allow the appeal. Learned Counsel to the Respondent urged for the appeal to be dismissed. In paragraph 5.00 of his brief learned counsel to the Appellant formulated and argued the following 4 issues. They are:-

1. Whether the Trial Court Judge was right when she held dismissing appellant’s suit that she failed to establish the boundaries of her land with certainty but held that Respondent established the boundaries his land with certainty despite material inconsistencies and contradictions.