Lt. Col Abdullahi Dan’ Asabe (Rtd) & Anor V. Alh. Ibrahim Babale (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kano State High Court in suit No. K/430/2000, delivered on 21/12/2004 by HON. JUSTICE SAKA YUSUF, as he then was, whereof his lordship entered judgment for the Plaintiff as the legal and lawful owner of the property in dispute, restrained 1st Defendant his servants, agents, privies and assigns from trespassing or continuing to trespass on the land and granted N500,000.00 damages to the Plaintiff against the 1st Defendant.

The two Appellants and two other persons were the Defendants at the Lower Court in the suit filed by the Respondent (plaintiff at the Lower Court) for the following reliefs:

1. A Declaration that the plaintiff is the legal and lawful owner of the piece of property and appurtenance situate and lying along Mallam Bakatsina Road, Nasarawa Quarters Kano State and covered by Kano State Certificate of Occupancy No. LKN/RES/95/2422.
2. A Declaration that the 1st, 2nd and 3r Defendants trespassed into the property and appurtenance covered by Kano State Certificate of Occupancy No, LKN/RES/95/2422 and that the said act of trespass is unlawful.
3. An order of perpetual injunction restraining the Defendants whether acting by themselves or through their servants, privies, agents, assigns or whatsoever called from trespassing, continuing trespass, entering, taking possession or erecting any structure on the property and appurtenances covered by the Kano State Certificate of Occupancy No. LKN/RES/95/2422.
4. Special and General Damages in the sum of Five Million Naira (5,000,000.00) against the Defendants jointly and severally for trespass into the property and appurtenance covered by Certificate of Occupancy No. LKN/RES/95/2422 belonging to the plaintiff.
5. Cost of filing this suit.”

The Appellants (as 1st and 2nd Defendants) filed their defence and counter-claim denying the claims of the Respondent. The 3rd and 4th Defendants filed no pleadings but the 4th Defendant was represented by Counsel throughout the trial. In the course of the trial, the Appellants sought to amend their pleadings and counter-claim but were refused on 27/10/2003. Appellant sought leave to appeal against the Ruling and for stay of proceedings. The Lower Court granted them leave to appeal but refused to stay the proceedings and so the case was heard on the merits and judgment delivered in the substantive matter on 21/12/2004.

Being dissatisfied with final decision, the Appellants filed Notice of Appeal, dated 27/12/2004, which is contained on pages 296 to 300 of the Records of Appeal. Appellants later obtained order to amend their Notice of Appeal to incorporate their appeal against the interlocutory Ruling of 27/10/2003. The Amended Notice of Appeal was filed on 12/4/2012, disclosing 8 grounds of Appeal as follows:

GROUND ONE

The learned trial judge erred in law by awarding declaration of title to statutory right of occupancy to the Respondent on the basis of documents that are registered.

PARTICULARS

a. Whereas the deed of sale between the Respondent and his vendor (i.e. Exhibit B) merely hand written and not registered as required by law. The trial judge awarded declaration of title to the Respondent based on it.

GROUND TWO

The learned trial judge erred in law when he awarded declaration of title of statutory right of occupancy to the Respondent when the Respondent did not prove his root of title as required by the law. PARTICULARS

a. Whereas the Respondent merely tendered the deed of sale between himself and his vendor (i.e. Exhibit B).

b. Whereas the Respondent did not prove how his vendor got his own title.

c. Whereas exhibit C and C1 are merely documents which have no nexus in the matter but the trial Court utilized the exhibits in support of the Respondent’s case.