Malam Zubairu Badamasi V. Alhaji Sa’adu Badamasi (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A.(Delivering the Leading Judgment)

The Respondent instituted an action against the Appellant before the High Court of Kano State in suit No. K/416/2005. In his Statement of Claim dated 7/7/2005, he sought for five reliefs against the Appellant thus:

“1. A declaration that the Plaintiff is the rightful owner of a House consisting of 3 bedrooms, a kitchen and a toilet/bathroom known as Gidan Gabas in Kwaji Quarters, Kano.

2. A declaration that the defendant is a mere licensee of the said House known as Gidan Gabas belonging to the plaintiff.
3. A mandatory order of this Honourable Court compelling the Defendant to deliver up the possession of the said House known as Gidan Gabas in Kawaji Quarters, Kano consisting of 3 bedrooms, a kitchen and toilet/bathroom to the Plaintiff or ejecting the defendant from the said house.
4. A mandatory order of injunction restraining the defendant from disputing the title of the Plaintiff to the said house.
5. General Damages and the cost of this action.”

The Appellant as the Defendant filed a Statement of Defence in which he counter-claimed against the Respondent as follows:

“(i) A declaration that the Defendant is the rightful owner of the house known as Gidan Gabas situated at Kawaji Quarters consisting of three bedrooms, kitchen, toilet/bathroom apartment known as Gidan Gabas to the exclusion of Plaintiff and of any other person or persons.

(ii) An order of perpetual injunction restraining the Plaintiff by himself, his servants or agents from unnecessary harassments, intimidations of the defendant any further attempt to disturb Defendant ownership and peaceable possession of the house in question.

(iii) An order of perpetual injunction restraining the Plaintiff by himself, his agents or servants or otherwise howsoever from parading himself as the owner or title holder of the house known as Gidan Gabas Kawaji Quarters or any part thereof.

(iv) The sum of N350,000 as exemplary damages for the harassments and embarrassments caused to the Defendant by the Plaintiff as a result of his millions claim and the cost of defending this action.”

Upon receipt of the Appellant’s Statement of Defence and Counter-Claim the Respondent filed a Reply to the same as prescribed by the Rules of Kano State High Court. The matter proceeded to trial and the parties presented three witnesses each including themselves.

At the conclusion of the hearing and after address of respective Counsel for the parties, the trial Court found for the Respondent, awarded his reliefs and then dismissed the Counter-Claim of the Appellant. The Appellant was agitated by the judgment that he lodged this appeal against the same. The appeal was based on five grounds of appeal. Three issues were framed by the Appellant, Counsel out of the five grounds. They are:

“1. Whether from the evidence legally and properly admitted at the trial the Respondent has established his claim and whether the trial Court was correct to rely on Exhibits A, B and D.

2. Whether the Respondent’s evidence at the trial are not consistent with his claim as adumbrated in his Plaintiffs.
3. Whether on the evidence adduced at the trial, Appellant is not entitled to Judgment for his Counter-Claim and the decision of the Court below is not perverse.”

The rephrased issues for determination presented on behalf of the Respondent read thus:

“1. Whether the lower Court was not right in fact and in law when it entered Judgment in favour of the Plaintiff/Respondent and dismissed the Defendant/Appellant’s Counter-Claim having regards to the evidence adduced at the trial Court.

2. Whether the documentary evidence tendered by the Respondent and admitted as Exhibits A, B and D by the trial Court were not admissible in law in proof of the Plaintiff/Respondent’s claim (Ground 1).
3. Whether the trial Court was not right when it refused the Appellant’s counter-claim and dismissed same.”

With respect to issue No. 1, it was contended on behalf of the Appellant that Exhibit “A”, the root of P.W.1’s title was not pleaded at any paragraph of the Statement of Claim and as such, it ought not to have been admitted in evidence. Learned Counsel for the Appellant, S. A. Nasir Esq., then placed reliance on the decisions in Adenuga v. Ilesanmi Press (1991) 5 NWLR Part 189 page 82 at 95-96, Ayanwale v. Atanda (1988) 1 NWLR Part 58 page 22, Bamgboye v. University of Ilorin & Anor (1999) 5 SCNJ 295 at 324 lines 30-35, Egbue v. Araka (1988) 3 NWLR Part 84 page 598 at 609, Adenle v. Olude (2001) 9 SCNJ 94 at 109 lines 5-13; Messengers v. Nwachukwu (2004) 5 SCNJ 55 at 71 and 72 and Section 132 of the Evidence.