Engr. Yahaya Mafindi V. Abbas Umaru Saleh (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. B DONGBAN-MENSEM J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Taraba State High Court of Justice delivered on the 25th November, 2010 and presided over by Hon. Justice Ali I. Andenyangtso (Judge) wherein the Court sitting as a Court of first instance declared title to the land in dispute in favour of the Respondent.

The Appellant before the trial Court was the Defendant while the Respondent was the Plaintiff. The Respondent by a Writ of Summons dated 31st day of January, 2006 issued a Writ against the Appellant for declaration of title to a piece of land lying and situate at No.40 Hammaruwa Way, Jalingo, Taraba State.

The Writ of Summons issued for the commencement of Suit No. TRSJ/4/2006 was initially issued by Alh. Umaru Saleh as the Plaintiff who later died in the course of the action before the lower Court. By a motion dated 12th March, 2008 (the motion is contained at pages 78 – 82 of the records for this appeal. The Respondent being the son, substituted the late Alh, Umaru Saleh.

At the conclusion of evidence and addresses of learned Counsel the learned trial Judge found and held that the Respondent proved his case and was entitled to the declaration of title, injunction and award of general damages as claimed.

The Appellant, dissatisfied with the Judgment of the trial Court has appealed to this Court. The Appellant’s Notice of Appeal dated 14th January, 2011 was filed on the 18th January, 2011.

APPELLANT’S BRIEF

Counsel on behalf of the Appellant formulated 6 issues for determination from the 8 grounds of appeal. These are:-

1. Whether Exhibit “US1”, “US2” and “US3” relied upon by the learned trial Judge as evidence of transfer of interest in land are capable of transferring interest in land when in fact they are registerable instrument which were not registered? (Distilled from Ground 1 of the Appellant’s Ground of Appeal).
2. Whether a purchaser of land who did not obtain Governor’s consent to the alienation of interest in land in his favour can sue for and be entitled to a declaration of title to land without the prior consent of the Governor of the state being first sought for and obtained? (Distilled from Ground 2 of the Appellant’s Ground of Appeal).
3. Whether the finding of the learned trial Judge that there was evidence before him that Sulai Muri family land was partitioned amongst the Sulai brothers in 1995 was supported by the evidence on record of the Lower Court as adduced by the parties? (Distilled from Ground 3 of the Appellant’s Grounds of Appeal).
4. Whether the finding of the learned trial Judge that the Appellant on discovering the plot lying behind the plot of the Respondent decided to take the portion of the land left in front of the Respondent’s foundation a storey building and build stores thereon is supported by evidence adduced at the trial? (Distilled from Ground 4 of the Appellant’s Ground of Appeal.
5. Whether the learned trial Judge decided rightly when he declared title and an injunction in favour of the Respondent and against the Appellant over the piece of land measuring 100ft x 100ft? (Distilled from Ground 5, 6 and 8 of the Appellant’s Grounds of Appeal).
6. Whether the award of a General damages of a sum of Five Hundred Thousand (N500,000.00) only by the learned trial Judge against the Appellant, in favour of the Respondent is not excessive, extravagant and manifestly unwarranted? (Distilled from Ground 7 of the Appellant’s Grounds of Appeal).

The Respondent adopts the issues formulated by the Appellant.

ISSUE 1

The learned Counsel to the Appellant submits that the trial Judge declared title in favour of the Respondent by virtue of Exhibit “US1”, “US2”, & “US3”. (See page 177 lines 6-20) of the records for this appeal and that the same exhibits were pleaded in paragraph 4 and 5 of the Respondent statement of claim as contained at page 85-86 of the record of the lower Court.

He went further to draw the attention of this Court to page 39-51 and page 40 lines 15-16 of the record where late Umaru Saleh testified as PW2 and pleaded the payment of purchase price and how Idepefo (Counsel to the Appellant) objected to the admissibility of “US1” on ground that it is a registrable document which was not registered contrary to the provisions of Section 2 & 15 of the Land Registration Law of Taraba State. In overruling the objection on the admissibility of Exhibit “US1” at page 47 lines 5 – 10 of the records, the learned trial Judge held thus:-

“The position taken by the defence counsel is correct in law where the document is being tendered as evidence of transfer of title of land. But where, as in this case, it is being tendered in proof of consideration been passed between the parties as pleaded in paragraph 4 of the amended statement of claim it is admissible as evidence of consideration which indicates purchase price and no more.

Based on this I overruled the objection of the learned defence Counsel and admit the document into evidence. It is admitted and marked as Exhibit “US1”.