Major Bukar Alibe (Rtd) V. Alhaji Yaro (2001)

LawGlobal-Hub Lead Judgment Report

C. NZEAKO, J.C.A. 

At the High Court of Justice, Borno State of Nigeria, the appellant herein, was the plaintiff. By a writ of summon filed on 20/3/93, he sought the following relief:

1. N30,000 damages for trespass.
2. An injunction restraining the defendant from further acts of trespass, on plaintiff’s piece of land lying and situate immediately, behind plaintiff’s residential house on No. 24 Waziri Kolo Street, Gamboru Liberty, Maiduguri.

After parties filed and exchanged pleadings and led evidence, the learned trial Judge dismissed the plaintiff’s claim in its entirety.

Dissatisfied, the plaintiff has appealed to this court by notice of appeal upon 2 grounds.

Ground 1: That the decision is against the weight of evidence.

Ground 2: That the learned trial Judge erred in law and misdirected himself on the evidence before him, when he held in his judgment, thus:-

“…I believe the evidence before me, that the owner of the plot Talba sold the plot to both the plaintiff and the defendant. The defendant however bought it in 19/7/1991, by Exhibit ‘C’ whereas, the plaintiff bought it after on 18/3/92. The defendant therefore, was on the plot before the plaintiff.”

Counsel for the parties filed and exchanged briefs of argument. Appellant’s brief was filed on 20/11/96, pursuant to the order of this court of the same date. The respondent’s filed on 7/10/97, pursuant to the order of the court made on 20/1/98 was deemed properly filed and served.

In his brief of argument, learned Counsel for the appellant S.B. Bess Esq., identified the following two issues for determination, said to relate to the two grounds of appeal:

1. Whether or not the learned trial Judge was right in holding that by the evidence before him, the owner of the piece of land sold same to both appellant and respondent?
2. Considering the evidence adduced before the trial court, who between the parties, had a better title to the land as at the time of commencing this action in the High Court?

For the respondent, learned Counsel, M. Monguno Esq., adopted the two issues as framed by the appellant and also urged that the following 2 other issues arise for determination:-

(i) Was there any conclusive and legally admissible evidence before the trial High Court, that the sale of the land in dispute to the respondent was set aside by any court?

(ii) Assuming there was a court order setting aside the sale of the land in dispute to the respondent, can such order be binding on the respondent, and the vendor (Talba Alkali) when they were not joined as parties to the case?

It seems to me that the two issues mutually adopted by the parties will answer the controversy in this appeal. In answering to those issues, the two additional issues being proposed by the respondent will be taken care of. They arise within the argument on the two issues agreed upon, which I adopt for this judgment. The background to this appeal was that, the appellant brought this action claiming damages for trespass and injunction, against the defendant over a piece or parcel of land, which belonged to one, Talba. The appellant claimed that he bought the land from Baba Talba Alkali on 18/3/93. as shown on his receipt admitted in evidence as Exhibit ‘A’. The purchase price was N10,000. The appellant averred in his statement of claim, thus:

Paragraph 8:” The plaintiff further avers that the defendant without any justification unlawfully entered into the piece of land sold to him started to develop it by trying to erect a building on the piece of land.