Mallam Dauda Alhaji Ahmadu Sabon Fegi Biye V. Alhaji Saleh Ibrahim Biye (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kaduna State High Court of Justice sitting in Zaria, delivered on 19th April, 2007 by Binta F. Isah J. The Appellant was the Plaintiff at the Lower Court while the Respondent was the Defendant.

By a writ of summons dated 6th November, 2004 the Appellant instituted an action against the Respondent claiming the following reliefs;

1. “A declaration of title over a large piece of farmland situate to the eastern part of Biye by Ahmadu Bello University Teaching Hospital, Shika which the plaintiff’s father had purchased from Ahmadu Hassan.
2. An order of perpetual injunction restraining the defendant by himself, his agents, servants, privies or any person acting on his behalf, howsoever from entering and or trespassing into the said farmland.
3. General damages in the sum of N100,000.00 for trespass.
4. Any other relief(s) the Hon. Court may consider appropriate to grant in the circumstance.”

The case of the Appellant was that he is the first son of Alhaji Ahmadu Biye who is now very old. The Appellant’s father purchases the disputed farmland situated at Biye by Ahmadu Bello University Teaching Hospital Shika near Zaria from one Mal. Ahmadu Hassan on 3/5/1977, the transaction was documented and receipt evidencing payment of the purchase price was given to him.

The Appellant’s father had a number of cases with the Respondent over the disputed farmland and the results of these cases were that the Respondent was declared the owner of the disputed farmland.

Before issues were joined, the Respondent by motion on notice dated 14/07/2004 filed a notice of preliminary objection seeking for an order striking out the suit for being incompetence and lack of jurisdiction on the grounds that the Appellant has no locus standi to sue, no leave was obtained to sue in a representative capacity, the claim was Res judicata and statute barred.

After hearing the arguments of counsels the trial Court on 19/05/2005 refused the application and held inter alia as follows;

“I do not think the plaintiff lacks the locus standi to sue.

The reasons so stated in paragraph 3 of statement of claim vest the right to sue on the plaintiff The fad that no leave was sought for and granted can be seen as mere irregularities, which do not touch on the substance of this case. ….. It is not in dispute by both parties that the case was litigated before the various Area and Upper Area Courts; the question is, were (sic) those Courts competent to have tried those previous suits? The applicants counsel only pleaded previous litigations and no more. She did not in any way either accompany previous record of proceedings, copy of judgments etc to buttress her plea. …….Since the plea of Res judicata raised by the Applicant’s counsel has not satisfied one of the requirements of the second objection, it has failed too…”

Issues were joined and witnesses were taken on both sides, the Appellant called 4 witnesses, while the Respondent called one witness.

On 27/09/2006 DW1 the Assistant Chief Registrar of High Court of Justice Kaduna state, sought to tender records of proceedings of the Area Court, Upper Area Court and certificate of judgment of the HIGH COURT (the lower sitting on Appeal against the decision of the upper Area Court) in evidence, which were objected to by the Appellant’s counsel on the ground that the documents did not comply with the requirements of section 111 of the Evidence Act and were not certified by the proper officer. The trial Court overruled the Appellant’s counsel objections, and held that the documents strictly complied with the provision of section 111 (2) and 112 of the Evidence Act. The Respondent closed his case on 14/11/2006.

The trial Court delivered a considered judgment on 19th April, 2007 in favour of the Respondent, where in it held inter alia as follows;

“…On issue of wrongly admitting exhibit A, B and C which counsel asked me to expunge from the record of this Court again by simple reply is I stand by my earlier ruling of 27 September, 2006 concerning these issues. In totality, the plaintiff claim has failed, it being caught up by the doctrine of estoppel RES JUDICATA. Consequently, all the plaintiff’s claim have failed in totality while the suit is accordingly dismisses, and I hereby so dismissed same.”

Dissatisfied with the said judgment the Appellant filed a notice of appeal containing two (2) grounds of appeal. The two grounds of appeal without their particulars are identical and they both read as follows;