Mallam Tanko Wanzami & Anor V. Alhaji Isa Salisu & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Kaduna State in Suit No. KAD/KDH/520/2003 delivered by Honorable Justice J. S. Abiriyi (as he then was) on the 23rd of March, 2005 dismissing the suit as an abuse of process. The facts of the case leading up to this appeal are pretty straight forward.

By an amended statement of claim dated 30th of March 1998 and taken out in Suit No. KDH/KAD/80/97, the first Respondent herein, Alhaji Isa Salisu, as plaintiff, claimed against the second Respondent herein, Mallam Abubakar Muhammed, one Alhaji Tanko Wanzami, not the Appellant herein, and the fourth Respondent herein, Kaduna South Local Government, as first to the third defendants, thus:

i. A declaration of title over a piece of land measuring 50 feet by 100 feet situate, lying and being described as Plot No. LA 10 Zango Road Extension contained in Certificate of Occupancy No. 028303 dated the 18th of March, 1981 and registered as No. 028303 Vol. X page 74 at former Kaduna Local Government Administrator’s Office now Kaduna South Local Government, Makera, Kaduna.

ii. A declaration that the first Defendant’s entry into the said plot and the demolition of the development thereon, which had reached roofing level, amounted to trespass.

iii. A perpetual injunction restraining the first and second Defendants, their agents and privies howsoever from entering into and doing any act in the said Plot No. LA 10 Zango Road Extension, T /Wada, Kaduna.

iv. General and special damages against the first Defendant in the sum of N150.000.00.

v. Any other relief the Honorable Court may grant in the circumstances of this case.

The amended statement of claim contained averments of nineteen paragraphs in support of the claims. The second Respondent herein and the said Alhaji Tanko Wanzami, as first and second defendants in the suit filed a statement of defence and counterclaim dated the 26th of March, 2002 and their claims by the counterclaim were for:

i. A declaration that the second defendant is the legal and rightful owner of a piece of land situate and known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna covered by Certificate of Occupancy No. 031642 dated 15th of December 1982 and registered in Volume X at Page 278 of the Lands Register, Kaduna.

ii. A declaration that the purported allocation of the right of occupancy by the Kaduna South Local Government, Kaduna of the piece of land known as Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna or in whatever name to the plaintiff is null and void.

iii. A declaration that the first defendant is now the equitable and/or bona fide owner of the Plot No. LA 10 Zango Road, Extension Tudun Wada, Kaduna based on the sale agreement and/or purchase receipt dated 9th of March, 1983 between the two defendants coupled with assumption of undisturbed and continuous possession of the said property until sometime in December, 1996 by the first defendant.

iv. An order of perpetual injunction restraining the plaintiff, his agents, servants and/or privies whomsoever from further committing acts of trespass upon the aforementioned piece of land or doing any other acts incompatible and inconsistent with the first defendant’s rights or interest thereon.

v. N50,000.00 being damages against the plaintiff for trespassing unto the aforementioned piece of land.