Mallam Ali Kano V. Alhaji Nuhu Maikaji (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

By the Amended Statement of Claim dated 16/11/99 but filed on 2/12/99 in suit No. KDH/KAD/353/99 at the High Court of Kaduna State, the Respondent, claimed against the Appellant, as follows:

1. An order of Court Declaration that plot W.20B Rama Road, now plot 17B Danwaka Road, Kawo Kaduna belongs to the Plaintiff and not the Defendant.
2. An order of perpetual injunction restraining the Defendant, its agent, servant and or assigns from further trespass into the Plaintiff property.
3. An order of Court compelling the Defendant to issue the Plaintiff with all necessary documents of title for the portion sold to the Plaintiff by the Defendant in 1966″ .

The Appellant for his part, filed an Amended Statement of Defence, in which he counter-claimed as follows:

“(i) A Declaration that the Plaintiff having denied the Defendant’s over lordship over the piece of land in dispute forfeits his right to stay on the said piece of land from the date of his misbehaviour.

(ii) A Declaration that whatever, development or building carried out by the Plaintiff on the property in dispute, those developments/buildings belong to the Defendant in law.

(iii) An order ejecting the Plaintiff from the piece of land forthwith.

(iv) An order that the Plaintiff pays the Defendant mesne profit at the rate of N100 per month from January, 1984 when he (Plaintiff) started denying the Defendant’s over lordship over the piece of land in dispute.

(v) Such further order or orders as this Honourable Court may deem fit to make in the circumstance”.

The matter went to trial, and, after hearing the respective witnesses of the parties and the submissions of their respective Counsel, the trial Court held as follows:

“The Writ of Summons in this case was issued in August 1991. The Exhibits 4 and 44 were made in December 2001 and October 1997 respectively. In other words, they were made while proceedings were going on. No weight will be ascribed to them. See section 91(3) of the Evidence Act 1990.

On the counter-claim, the D.w.2 did not lead credible evidence to show the required amount for mesne profit.

He also did not lead credible evidence to establish the counter-claim. Instead, his evidence under cross examination supports the Plaintiff’s case that Plaintiff has been in possession. He also showed that there is a barrier between the house he presently occupies and that occupied by the Plaintiff.

The evidence before the Court is an exception to the rule which says the Plaintiff relies on the strength of his case.

In this respect the Plaintiff is entitled to rely on the evidence that supports his case.