Major S. G. Idakwo (Rtd) V. Mall. Aliyu Ibrahim & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal is an offspring of a judgment of the High Court of Kaduna State, presided over by Hon. Justice James S. Abiriyi, in suit No. KDH/KAD/94/96, delivered on 02/08/2002. To tidy up the record, the original first respondent, the plaintiff in the lower court, died on 04/03/2006 and was substituted with the present first respondent by an order of this court made on 15/02/2007.

Flowing from the available processes filed, the facts of the case leading to this appeal are not complicated. The first respondent, on 21/02/1991 entered into an agreement with one Alhaji Yakubu Kubarachi for the purchase of the latter’s land situated at and known as plot No. AB 2 Constitution Road, Kaduna (now in dispute) at the price of N65, 000.00. The first respondent paid the sum of N5,000.00 to Alhaji Yakubu Kubarachi with an outstanding balance of N60,000.00 to be paid on 31/07/1991. In breach of that agreement, Ahaji Yakubu Kubarachi sold the same plot to the second respondent, Major Bala Lawal Gusau (Rtd.).

Sequel to the above situations, the first respondent sued them (Alhaji Yakubu Kubarachi and Major Bala Lawal Gusau (Rtd.) in the Upper Area Court, Daura Road, Kaduna. That suit was struck out on 29/04/1993 for want of jurisdiction of that court to adjudicate over it. As a result, the first respondent, in Suit No.KDH/KAD/192/93, sued both parties in the High Court of Kaduna State for specific performance of that agreement of 21/02/1991 and setting aside the sale, of the same plot, to Major Bala Lawal Gusau (Rtd), the second respondent herein, by Alhaji Yakubu Kubarachi. That High Court, presided over by Hon. Justice K. B. Akaahs, now Justice Court Appeal, granted the first respondent’s prayers by making orders for specific performance of that contract and declaring that subsequent sale as null and void on 27/11/1995. That judgment was affirmed by this court in Appeal No. CA/K/85/98. The judgment of that High court was admitted as exhibit 1 in the lower court.

Meanwhile, on 01/05/1993, the second respondent herein, Major Bala Gusau (Rtd.), had transferred the disputed plot of land, No, AB 2 constitution Road, Kaduna, plus an adjoining plot known as LD1 Damaturu Road, Kaduna, to the appellant for the sum of N1M. The appellant obtained a single certificate of occupancy No. KD 149, dated 05/10/95, covering the two plots and the certificate was exhibit 12 in the lower court.

Following that purchase from the second respondent, the appellant mounted a notice-board stating his ownership of the disputed plot. It was that signboard, with the notice thereon, that attracted the attention of the second respondent who demanded, through his lawyer’s letter, that the appellant renounced same and removed the signboard. The appellant did not comply with that demand.

Consequent upon that refusal, the first respondent, on 12/02/1996, took out a writ of summons before the lower court, in Suit No. KDH/KAD/94.96 against the appellant and claimed as follows:

14. WHEREUPON the plaintiff’s claim against the Defendant is for the following reliefs:-
15. A DECLARATION that the plaintiff is the lawful and beneficial owner and has the title, ownership and interest, to the exclusion of the Defendant, to all that piece or parcel of land measuring about 140 X 180 situate, being and known as plot No. AB.2 Constitution Road, Kaduns and covered by Kaduna Local Government Certificate of Occupancy No. KDA/A/006631 which plot of land he purchased from one Alhaii Yakubu Kubarachi as confirmed by the High Court of Justice, Kaduna in its judgment in Suit No. KDH/KAD/192/93 delivered on the 27th of November, 1995.
16. A DECLARATION that the Defendant’s entry into the said plot of land some days after the aforementioned judgment of the High Court of Justice, Kaduna, is wrongful and amounts to trespass thereof and or interference with the plaintiff’s legal right to the ownership, user and peaceful possession and enjoyment of the said plot of land.
17. A PERPETUAL order of injunction restraining the Defendant by himself, his servants, privies, agents or assigns whomsoever and howsoever from trespassing or further trespassing or otherwise interfering with the plaintiff’s peaceful possession, enjoyment and use of the said plot of land.
18. General damages for trespass.”?

On being served with the first respondent’s writ of summons and statement of claim, the appellant filed an amended statement of defence which, also, hosted his counter-claim against the first respondent and third party claim against the second respondent.

The matter went through the crucible of full-scale trial in the lower court. The first respondent, as the plaintiff, testified in person, as PW1, and fielded another witness, PW2. The appellant, as the first defendant, testified in person as DW1. The second respondent, the third party, did not give evidence. After the addresses of learned counsel for the parties, the lower court delivered its judgment on 02/08/2002. It granted the first respondent’s claims except the one for general damages. It dismissed the appellant’s counter-claim as unproved. It, however, granted the appellant’s claims for N 1M purchase price of the land and N150,000.00 legal fees against the second respondent, the third party, and dismissed the other reliefs in the third party claim.

Being aggrieved by the judgment of the lower court, the appellant on 2/10/2002, filed a notice of appeal hosting nine grounds wherein he prayed for: “An order allowing the appeal, setting aside the judgment and orders of the lower court made in favour of the Respondents and entering judgment in favour of the Defendant based on his counter-claim, alternatively, an order entering judgment in favour of the Defendant against the 3rd party for interest and other claims as per the 3rd party claim.” Briefs of argument were filed by and exchanged between the appellant and the first respondent.

On 14/04/2011, the appeal came up for hearing. On that day, learned counsel for the appellant, Mrs. J.K. Nuhu (holding brief for Prince Lanke Odogiyon) adopted the appellant’s brief of argument, filed on 31/03/2004, but deemed filed on 18/05/2005, as representing the submissions in support of the appeal. The court registrar informed the court that the first respondent’s counsel and the second respondent were served with notices of hearing for that day’s proceedings or hearing on 08/04/2011 and 06/04/2011 respectively. The first respondent’s brief of argument was filed on 30/08/2005. Although, the first respondent’s counsel was not present to adopt the brief, the court, taking refuge under the provision of order 18 rule 9(4) of the court of Appeal Rules, 2011, treated the appeal as been duly argued and reserved same for judgment.

In the appellant’s brief of argument, he crafted seven issues for determination of the appeal to wit:

“(i) Whether the Appellant was bound by the judgment in Suit No. KDH/KAD/192/93 and his – interest thus determined by that judgment as the trial court held.

(ii) Whether the 1st Respondent satisfied all legal requirements for the declaration of title to land in his favour when he failed to register the transfer to him officially, nor prove that he acquired title in accordance with any of the modes recognized by law and failed to prove the identity and boundaries of the land claimed by him.