Malam Ali Wazirin Gwantu V. Isiyaku Sarkin Yaki & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

Appellant was the plaintiff at the Court below. He filed the suit KDH/KAF/45/98 on 30/9/1998 against the Defendant – JIBRIN SARKIN YAKI (who later died and was replaced by the Respondents) claiming general damages for trespass, in the sum of N75, 000.00, and an order of perpetual injunction from further trespass into a parcel of land, located in North Western outskirt of Gwant Town, which he claimed. In his amended statement of claim, filed on 14/12/2004, the plaintiff claimed in paragraphs 9 and 10, as follows:

“… the sum of N75, 000.00 (seventy five thousand naira) only as general and punitive damages… perpetual injunction restraining the Defendant by themselves or land agents or privies or successors in – title form (sic) any further acts of trespass on the said farm land in dispute” (page 33 of the Records).

Appellant was in possession of the land, at the time of the dispute.

The Respondents, on the other hand, filed a defence and a counter-claim, seeking a declaration of title for them over the disputed land and an order for the Appellant to vacate the land and perpetual injunction.

At the hearing, the Appellant called five (5) witnesses in support of his claim, while the Respondents called three (3).

The Court visited the locus in quo. At the close of the case and addresses by Counsel, the trial Court, in a considered judgment, dismissed the plaintiff’s case and declared title for the Defendants, as per their counter-claim, except in respect of the portion occupied by plaintiff. That was on 29/6/2006, when DAVID S WYOM J; held:

“Judgment is entered in favour of the defendants on their counter-claim in respect of the disputed subject matter as identified by the defendants.

Since it is not disputed by the defendants that the plaintiff had been in possession of portion of the land which he now occupies, that portion shall remain with the plaintiff. The order of perpetual injunction restraining the plaintiff, by himself, agents, privies and successors-in-title whomsoever and howsoever from further trespassing into the disputed farm land is hereby granted.”

(See pages 118 – 119 of the Records),

That is the judgment Appellant appealed against in this appeal, as per the Notice and grounds of appeal, filed on 27/7/2006. He later filed Amended Notice of appeal, with the leave of this Court on 14/1/2010, disclosing 5 grounds of Appeal as follows:

“GROUNDS OF APPEAL

GROUND 1:

The trial judge erred in law and occasion (sic) substantial miscarriage of justice on the plaintiff when he declared title of the disputed land in the Defendants/Counter claimants while the Defendants/Counter claimants did not plead nor prove the boundaries of the disputed land.