Mohammed Nyavo V. Benjamin Zading (2016)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

 This is an Appeal against the Judgment of the Taraba State High Court of Justice sitting in Jalingo, in suit number TRSJ/60/2013, delivered on the 31st July, 2015.

The Appellant herein (as Plaintiff before the trial Court) took out a Writ of Summons jointly with one Shavo S. Mago, against the Respondent claiming as follows as per their joint Statement of Claim dated and filed on 16th May, 2014:
1. A DECLARATION that the Plaintiffs are the rightful owners and holders of all the titles and interest over the land lying and situate at Danpudi in Lau bounding to the North and west with Koppo Mountain and to the South with the main road to Zing and to the east with Jarang Stream and a large portion of the family land of the Plaintiffs and the larger portion of the Plaintiffs family land of the Plaintiffs and the larger portion of the Plaintiffs family.
2. AN ORDER of perpetual injunction restraining the defendant, his privies, heirs, agents/or whosoever claiming through him from trespassing in to the land or doing anything prejudicial to the interest of the

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Plaintiffs on the said land.
3. AN ORDER of this Honourable Court compiling the defendant to hand possession of the said land.
4. The cost of litigation.

The Respondent did not file any defence to the claim of the Appellant. The case of the Appellant, being declaratory in nature, he adduced evidence through two witnesses and closed his case. The Appellant?s Counsel later addressed the Court, and on 31st day of July, 2015, the trial Court in its Judgment, dismissed the Appellant?s claim. It is against this Judgment that the Appellant has now appealed on seven grounds vide his Notice of Appeal dated 22nd September, 2015 and filed on the 23rd September, 2015.

A succinct statement of the facts leading to the Appeal is that, a dispute arose between the Appellant and the Respondent over a parcel of land lying and situate at Gada Village in Lau Local Government Area of Taraba State. The Appellant contended that he inherited the disputed land from his mother who also acquired same via a gift from her brother, Selleng who, in turn had deforested and founded the land before his demise. Selleng died without a child and so the gift to his

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sister, the Appellant?s mother. The Appellant and his younger brother, Shavo S. Mago, also now deceased, filed the suit against the Respondent before the trial Court. After the demise of the 2nd Plaintiff, the Appellant continued with the case to conclusion.

The Writ of Summons was filed on 26th June 2013 and same was served on the Respondent. The Respondent did not put up a defense against the claim despite several adjournments granted at his instance to enable him file a Statement of Defence and to join issues with the Appellant. The Appellant thereafter adduced evidence in proof of his claim through two witnesses who were duly cross-examined by the Respondent. At the end of the trial, the Appellant?s Counsel filed and adopted his Written Address, after which the trial Court entered Judgment dismissing the case of the Appellant.

When the Appeal was called up for hearing on 19th May, 2016, L.J. Ezekiel, (Mrs.), learned Counsel for the Respondent, with the leave of Court, argued the Respondent?s Notice of preliminary objection to the hearing of the Appeal filed on 29-02-16. She adopted the arguments on the objections at pages 3-5 of

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the Respondent?s Brief of argument also filed on 29-02-16 in urging the Court to strike out the Notice of Appeal on the ground of incompetence.
Martin Milkman Esq. appearing with P.E. Owachu Esq., in response to the submissions on the preliminary objection, adopted his arguments at pages 1-7 of the Appellant?s Reply Brief of argument filed on 18-04-16 in answer thereto, and urged the Court to dismiss the objection for lacking in merit. In respect of the main Appeal, Mr. Milkman adopted and relied on his submissions as contained in the Appellant?s Brief of argument filed on 23-12-15 and pages 7-14 of the Appellant?s Reply Brief filed on 18-04-16, in urging the Court to allow the Appeal, set aside the Judgment of the Lower Court and enter Judgment for the Appellant in terms of the reliefs claimed before that Court.
In response, Mrs. Ezekiel, learned Counsel for the Respondent, adopted her submissions in the Respondent?s Brief of argument in urging the Court to dismiss the Appeal.
Before going into the merits or otherwise of the Appeal, it is expedient to address the issues raised in the Notice of preliminary

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