Ma’ajor Roka & Ors V. Ishaku Wutan (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment)

The instant appeal is against the judgment of the Taraba State High Court of Justice sitting in Jalingo delivered on 29th March, 2011 in suit number TRSJ/50/2010.

Simply put and briefly stated, the facts of this case are as follows: The respondent herein as plaintiff instituted an action against the appellants as defendants in the lower court, vide a writ of summons dated 13th May, 2010. The respondent as plaintiff claimed for the following reliefs against the appellants as defendants, namely:

“i. A declaration that the plaintiff is the owner of the parcel of land in dispute at Mile Six Jalingo after UMCN Secretariat and bounded to the South by a stream, North and West by the land of Jauro Kanze and East by the land of Kanze Nyamiri.

ii. A declaration that the building of thatch houses on the land by the 2nd, 4th and 5th defendants constitutes an act of trespass.

iii. General damages of Six Hundred Thousand Naira (N600,000.00) for trespass.

iv. An order of perpetual injunction restraining the defendants, their privies, agents or any other person claiming through the defendants from further Acts of trespass.

v. Cost of filing and prosecuting this suit.”

Upon settlement of pleadings, the matter proceeded to hearing. The defendants in the main denied the claim of the plaintiff and averred that the land in dispute is their family land, which was a subject matter of exhibit D1 a case in suit No.TRSJ/69/94. The plaintiff testified as PW4 and called 3 other witnesses PW1 to PW3, in support of his case. The defendants also called four witnesses DW1 to DW4 and tendered judgment in suit No. TRSJ/69/94 which was admitted as exhibit D1 through DW4. Upon the close of evidence, written addresses were filed, exchanged and adopted in court.

The lower court gave judgment in favour of the plaintiff on 29th March, 2011 in the following words:

“In the whole I find that the plaintiff has successfully discharged the burden of proof placed on him and is accordingly entitled to judgment.

In the result I hereby find for the plaintiff as follows:-

1. Title to the parcel of land situate at Dansenkon after UMCN secretariat mile- six Jalingo and boarded to the North by Jauro Kanze, West and East by a steam and the south by the land of Nega Kushon, is hereby declared to the plaintiff.
2. That the thatch houses built on the land by the 2nd, 4th and 5th defendants constitutes an act of trespass.
3. I hereby grant perpetual injunction restraining the defendants, their privies, agents or any other person claiming through them from further acts of trespass.
4. The sum of Two Hundred Thousand (N200,000.00) Naira damages against the defendants in favour of the plaintiff.
5. The sum of Twenty Thousand (N20,000.00) as cost of this action is granted in favour of the plaintiff.”

Distressed and aggrieved by the aforementioned decision, the defendants challenged same vide a notice of appeal dated 28th November, 2012 and filed on 30th November, 2012. The notice of appeal is predicated upon five grounds of appeal. In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellants’ amended brief of argument was filed on 22nd April, 2014 though deemed properly filed and served on 28th April, 2014. The appellants’ reply brief was filed on 22nd April, 2014. The respondent’s brief of argument was filed on 25th April, 2014 but deemed properly filed and served on 28th April, 2014. The respondent also filed a notice of preliminary objection on 2nd January, 2014.

On the date fixed for hearing the appeal being, 28th April, 2014 the respondent sought leave of court, which was duly granted to move the preliminary objection. The respondent abandoned Ground one of the preliminary objection and relied on Ground two of same. Consequent upon the foregoing, Ground one having been abandoned is hereby struck out. The respondent adopted arguments in support of the preliminary objection as contained on pages 1 to 8 of the amended respondents brief, and urged the court to strike out Grounds 1, 2, 3 and 5 of the grounds of appeal. The respondent further urged the court to dismiss the appeal, because the only ground remaining is Ground 4 which has been argued along with other incompetent grounds. In response to the preliminary objection, the appellants adopted the arguments contained on pages 1 to 3 of the appellants’ reply brief and urged the court to discountenance preliminary objection.