Dr. S.U. Isitor V. Mrs Margareth Fakarode (2007)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal against the judgment of the Kaduna State High Court of Justice delivered by Honorable Justice Dalhat Ja’afaru in Suit No. KDH/KAD/921/99 on the 15th day of April, 2002. The facts of this case as can be gathered from the record of proceedings and the parties’ brief before the court are as follows:-

The respondent as plaintiff at the trial court, commenced an action against the appellant as defendant claiming as per paragraph 15(1) – (7) of the amended statement of claim dated 10th October, 2001 thus:-

“1. A DECLARATION that the defendant’s action in entering into and continuing the erection of structures on the property of the plaintiff No. R.27, Giraji Abdulwahab Road, Mando, Kaduna without the consent and authority of the plaintiff constitutes trespass.

2. A DECLARATION that the plaintiff is the legal owner of the other part of the property now known and referred to as NO.R.27 Giraji Abdulwahab Road, Mando, Kaduna respectively, the said property being carved out of her larger plot which was sub-divided into plots Nos. R.26 and R.27 respectively.
3. A DECLARATION that the purported sale or assignment of the said plot No. R.27 Giraji Abdulwahab Road, Mando, Kaduna to the defendant by person other than the plaintiff is illegal, null, void and of no effect whatsoever.
4. An ORDER of perpetual injunction restraining the defendant either by himself, agent, servant or privies or anybody whatsoever, from further trespass, entering into or carrying on any construction/building on the said property.
5. An ORDER setting aside the purported sale of the said property to the defendant
6. An ORDER directing the defendant to vacate the said property forthwith;
7. GENERAL DAMAGES of N500,000.00 for trespass against the defendant jointly and severally.”

In support of her case, the respondent testified for herself as PW1 and tendered four exhibits. The appellant despite the service of writ of summons and hearing notices on him failed and or refused to file memorandum of appearance and statement of defence. He did not defend the suit in any form or manner.

At the close of the case, the learned counsel to the respondent addressed the court and the trial Judge delivered his judgment on the 15th day of April, 2002 in favour of the respondent by granting reliefs Nos. 1, 2, 4 & 6 of paragraph 15 of the amended statement of claim and dismissing reliefs Nos.3 and 5 thereof.

Being dissatisfied with the judgment, the appellant has appealed to this Honorable Court vide a Notice and Grounds of Appeal dated the 15th day of October, 2004 filed pursuant to the leave of this Honorable Court granting the appellant enlargement of time within which to appeal against the aforesaid judgment.

We heard this appeal on 30th January, 2007. Mr. G.E.I Iyoke counsel for the appellant adopted his brief of argument dated 7th February, 2005 and filed on 9th February, 2005 and urged the court to allow the appeal and set aside the judgment of the lower court. Mr. T. Oladoja counsel for the respondent filed his brief of argument dated 22nd November, 2006 and deemed filed on 24th January, 2007. Counsel adopted the brief of argument and urged the court to dismiss the appeal.

Upon the five grounds of appeal as contained in the Notice of Appeal filed by the appellant dated 15th October, 2004, learned counsel for the appellant formulated three issues for determination. The Issues are:-

“1. Whether considering the cause of action which requires proof of title and injunction the respondent met the minimum standard of proof in such matters in the absence of proof by the respondent of the identity of the land in issue or of the 5 methods set out in the decided authority of Idundun V Okumagba (1976)1 NMLR 2000.

2. Whether the admittance and reliance of the trial court on documents of title to land which documents were neither stamped, registered and unrelated to the land in dispute is proper.
3. Whether the failure of the trial court to properly evaluate the document admitted in evidence before it in order to test their cogency and credibility before finding on them is proper.”

The respondent also formulated three Issues for determination. The Issues are stated thus:-

“1. Whether in view of the state of pleadings and the evidence adduced, the learned trial Judge was right in granting title to the disputed land in favour of the respondent.

2. Whether in view of the state of pleadings and evidence led, the identity of the land claimed in dispute was unascertainable.
3. Whether Exhibits 1, 1A and 4 are inadmissible in law.

The Issues formulated by the appellant and the respondent are not exactly dissimilar accordingly, the Issues as formulated by the appellant would adequately dispose of this appeal.

Issue No.1 – Whether considering the cause of action which requires proof of title and injunction the respondent met the minimum standard of proof in such matters in the absence of proof by the respondent of the identity of the land in issue or of the 5 methods set out in the decided authority of Idundun V Okumagba (1976)1 NMLR 2000.