Michael Nwakalor V. Bukar Kalambe (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A.(Delivering The Leading Judgment)

In the amended statement of claim filed on 22nd March, 2010, at the High Court of the Federal Capital Territory, Abuja Judicial Division (“the Lower Court” for short) in suit No.FCT/HC/CV/347/2007, the appellant (qua; plaintiff) claimed as follows against the respondent (qua; defendant)

“(I) A declaration that he is the rightful owner of plot No.1334 Cadastrial Zone A7, Wuse District Abuja, Subject of Certificate of Occupancy No. FCT/ABJ/AN.3090.

(II) A declaration that the land and what is on it is his and should revert to him, under the principle of “quic quid plantatur solo solo cidi”

(III) Order that all rent previously collected by the trespasser be paid to him.

(IV) Order that all rent accruable to the House be paid into this Honourable Court pending the final determination of this suit

(V) The sum of N50,000,000.00 (Fifty Million Naira) only be paid to him as damages, for trespass”.

After full trial and adoption of final address of the appellant’s counsel, the Lower Court non-suited the appellant for want of evidential proof”.

Aggrieved by the judgment, the appellant has appealed to this court by way of a notice of appeal which bears five grounds of appeal.

After settlement of briefs, learned counsel on both sides, on the hearing date, adopted and relied on their briefs of argument. In his brief Chief Karina Tunyan (SAN) of counsel, for appellant formulated three issues out of the five grounds of appeal. The issues are;

“1. Whether the order of non-suit for lack of evidential proof as given by the trial court after considering the High Court Civil Procedure Rules of the FCT, 2004 and the totality of the evidence before the trial court is proper in law (Distilled from Grounds I and V)

“2. Whether the Approved Building plan as tendered by the Respondent as exhibit D1 in the trial court as his proof of title if juxtaposed with the Appellant’s Certificate of occupancy creates a superior title (Distilled from Grounds III and V).

“3. Whether the trial court was right in considering the issue of the purpose for the redesignation of the plot which was not an issue for determination before the court as a ground for non-suiting the case of the plaintiff appellant? (Distilled from Grounds II and V)”.

On his part, Max Ogar, Esq. for the respondent in his brief of argument, adopted the issues formulated by appellant’s counsel.