Mohammed Usman Lubo v. Mr. K. K. Lubo (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED DANJUMA, JCA (Delivering the leading judgment)

This appeal is against the decision of the High Court of Justice, Gombe State sitting in its original jurisdiction in suit No: GM/254/2015 delivered on the 8th day of February, 2017 by Hon. Justice B. L. Iliya, wherein it dismissed the claim of the appellant in its entirety.

Displeased with the decision, the appellants appealed to this court on eight (8) grounds of appeal as contained on the appellants notice of appeal dated the 14th day of February, 2017.

Brief statement of facts

The appellant as plaintiff before the trial court commenced this action against the respondent, as defendant, for trespass damages and perpetual injunction over a portion of a large expanse of a farmland situated at Shipra, Lubo Town of Yamaltu L.G.A of Gombe State which he claimed was cleared by his father since 1954, two years after his father ascended the throne of the District Head of Lubo in 1952 and that he has been in quiet and peaceful possession of same, exercising acts of ownership such as farming and borrowing to others including one Alhaji Abbaji, a Nomadic Fulani, who was given the portionnow in contention, to settle free of charge but subject to the right of reversion upon death or moving out of the land.

The respondents statement of defence at the trial court is at pages 18-20 of the record of proceedings to the effect that plaintiff’s father had no title to pass on to the plaintiff.

While suit GM/10/2006 whose judgment was delivered on 21st October, 2008 was pending, the said Ali Abbaji was in court with appellants father at Diffa Area Court to Upper Area Court Deba and High Court Appeals Gombe in appeal No: GM/13/2007. The Deba Upper Area Court Appeal No: CVA/05/06 was pleaded in paragraph 10 of the respondents defence at page 19 of the record of proceedings.

The suit/appeal No: GM/13/2007 granted title to Ali Abbaji since 2007 against appellants father. The Difa Upper Area Court judgment was delivered on 7/10/2006 against Ali Abbaji and judgment of the Upper Area Court Deba was delivered on 05/03/2007 reversing the Area Court judgment and conferred title on Ali Abbaji (Ali Abbaji is also known as Ardo Ali Abbaji). The judgment was affirmed by the High Court sitting on appeals on 3/8/2009 (exhibit7), by Hon. Justice M. A. Pindiga presiding and Hon. Justice Abubakar Jauro, J. in the following words:

That the judgment of the Upper Area Court Deba in Appeal No: CVA/06/06 delivered on the 3/5/2007 which set aside the judgment of the trial Difa Area Court in suit No: 37/2006 delivered on 7th October, 2006 is hereby affirmed.

This judgment has now been appealed.

In this suit No: GM/254/2015 between Mohammed Usman Lubo V. Mr. K. K. Lubo, the appellant relies on the title of his father to claim the land.

Issue for determination

In the appellants brief of argument dated 4th June, 2022 and filed 14th June, 2022, the appellant, through his counsel, Mr. A. Y. Galadima, Esq; formulated the following issues for determination of this appeal:

1. Whether the trial court was right in holding that title to the land in dispute was not in issue in exhibit 1 (1-16) and exhibit 2 (1-26) and that same does not declare title on the appellant. (Distilled from ground 2).
2. Whether in view of exhibit 1 (1-16) and exhibit 2 (1-26), the lower court was right in holding that exhibit 5 (A) and (B) is legally alive and hastransferred title to the respondent. (Distilled from grounds 1 and 6).
3. Whether or not, the lower court was right when it found that exhibit 1 (1-16) and exhibit 2 (1-26) cannot operate as estoppel against the respondent on the issue of title to the land in dispute. (Distilled from ground 3).
4. Whether the lower court was right when it relied on exhibit 3 (1-46) and exhibits 6 and 7 to hold that the defence of res judicata avails the respondent and accordingly declared the present action as an abuse of court process. (Distilled from ground 4 and 5).
5. Whether or not, the lower court was right when it found that the appellant admitted that exhibit 1 and 2 was an action in trespass and not title. (Distilled from ground 7).
6. Whether from the totality of the evidence properly placed before the court the judgment of the lower court is not against the weight of evidence. (Distilled from ground 8)

Learned counsel to the appellant, Mr. A. Y. Galadima, Esq; arguing issues 1, 2, 3, and 5 jointly, submits that the appellant as plaintiff before the trial court pleaded in paragraphs 3, 4, 5, 6, and 7 of his statement of claim and paragraphs 1 and 2 of his reply to the defence, to the effect that he inherited the land in dispute from his father who cleared same sometime in 1954 and that ever since then has been in quiet and peaceful possession exercising acts of ownership without let or hindrance until sometime in 2006 when the respondent sued him before the High Court of Justice, Gombe for trespass, injunction and damages over the land in dispute which matter went up to the Court of Appeal and that he was successful both at the High Court and the Court of Appeal.