Mai Angwa Buba, A. Hullere V. Dr. Mohammed Abba & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling of Hon. Justice I. K. Banu of Adamawa State High Court delivered on 2nd March, 2011.

The Appellant together with the 2nd Respondent were the Defendants at the lower court at the suit of the 1st Respondent.

The 1st Respondent took out a writ dated 30th January 2006 claiming the following reliefs against the Appellant and the 2nd Respondent as 1st and 2nd Defendants respectively.

1. A declaration of title to the piece of land measuring about 15.3 hectres in an area known as Golamba covered by Yola Local Government Customary Certificate of Occupancy No. 003357.
2. An order nullifying the sale between first and second Defendants and their privies in respect of any part of the land covered by Yola Local Government Customary Certificate of Occupancy No.003357.
3. An order directing the Defendants, their agent and privies to demolish and remove all illegal structures erected on any part of the said land covered by the Certificate of Occupancy No. 003357.
4. An order of perpetual injunction restraining the Defendants, either by themselves, their servants, agents, privies, or successors in title or anybody claiming from them from trespassing or contravening from their acts of trespass on the property covered by Yola Local Government Customary Certificate of Occupancy No. 003357.
5. Hansel damages for trespass of the sum of N500,000.00 (Five Hundred Thousand Naira) only.
6. Cost of the suit.

See page 5 of the record of proceedings.

From the record of proceedings, the parties filed and exchanged pleadings and the matter was set out for full trial. The Plaintiff commenced his case and called evidence at the end of which he closed his case. The matter was then adjourned for defence. On the adjourned date for defence, the 1st Defendant brought an application to amend his statement of defence, re-call Plaintiff’s addresses and it was refused by the lower court. After several adjournments to enable the 1st Defendant to open his defence, but to no avail, the trial Judge saw the attitude of the 1st Defendant as a delay tactics and foreclosed the case of the 1st Defendant.

The 1st Defendant then brought an application dated and filed on the 14th of February, 2011. And brought pursuant to order 1 Rule 1(1) of the High Court Civil Procedure Rules, 1987 and the inherent jurisdiction of the court preserved under Section 6(6) of the 1999 Constitution praying for an order of the court re-opening the case of other 1st Defendant. There were counter affidavits filed in opposition to their application, at the end of which the court refused the application.

The Appellant is now before this court to challenge the said ruling of the lower court refusing the application. The parties herein filed and exchanged their briefs of argument. In his brief of argument dated and filed on 13th April, 2012 and deemed duly filed on 27th day of June, 2012, the Appellant formulated only one issue for determination i.e.:-

“Whether the learned trial judge was right in refusing the application to re-open the foreclosed case of the Appellant”.

On his own side, the 1st Respondent informed this court that he filed a Notice of Preliminary Objection dated 31st May, 2012 and filed on 1st June, 2012 and incorporated the ground for the objection in his brief of argument dated 31st May, 2012 and filed on 1st day of June, 2012. In the brief, two issues were identified for determination to wit:

1. Whether the Appellant has a competent appeal before their court for the court to hear and determine?
2. Whether the learned trial judge was not right in refusing the application to re-open the foreclosed case of the Appellant?

The 2nd Respondent did not file any brief of argument and so their appeal will be determined based on the briefs of argument filed by the Appellant and the 1st Respondent.

In this appeal Appellant’s sole issue and 1st Respondent’s 1st issue shall be our focus because the contented facts and points of law are covered in the issues. Thus, the issues for determination in this appeal are:-

1. Whether the Appellant has a competent appeal before this court for the court to hear and determine?
2. Whether the learned trial judge was right in refusing the application to reopen the foreclosed case of the Appellant?

I am obliged to consider the 1st Respondent issue no. 1, first because it is a preliminary objection which determines the life of the Appellant’s sole issue and even the centre appeal at this stage.

ISSUE ONE: