Mr Mathew D. Ahmadu V. Mrs Rifkatu Solomon (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kaduna State High Court presided by Hon. Justice James Abiriyi delivered on the 8th day of August, 2003, whereby the court below granted the declaratory reliefs and General damages sought against the Appellant.

A brief fact of the case are that one Adio Okanlawon who testified as PW1 at the court below acquired the property known as No. 25 Gadam St, Trikania a.k.a No. AF17 Gadam St Trikania, Kaduna from one Gwari man who issued him a written document i.e., Exhibit 3. He built a house up to lintel level and then sold it to the Respondent. He handed over to the Respondent a certificate of occupancy and a written agreement which are Exhibits 1 and 3 respectively. The said Adio and the Respondent made an agreement therein which is Exhibit 2. After buying the uncompleted building, the Respondent added “two coaches” of blocks for the purpose of roofing.

Since the Respondent resides in Katsina, she used to visit the property from time to time for purposes of clearing it. In June, 1999, the Respondent went and cleared the site. However, in December, 1999 when she returned to the site, she discovered that the building had been completed with doors and even painted. She reported the matter to both her solicitor and the police. Police invited one Mallam Ibrahm Dogo who was found doing work on the property and he made statement and produced documents bearing the Appellant’s name. The Respondent then filed this matter in court below making the following claims:-

(a). A Declaration that PROPERTY LYING, KNOWN AND SITUATE AT No.25 Gadani Street, Trikania Street Kaduna by certificate of occupancy No. KCH/C/000143 dated 18th day of October, 1988 otherwise called AF 17, Gadan Street, Trikania, Kaduna by the 1st Defendant belong to the plaintiff.

(b). A declaration that the plaintiff is the one entitle (sic) to statutory right of occupancy over the said property No. 25, Gadan Street, Trikania, Kaduna which the 1st Defendant called No. AF 17, Gadan Street, Trikania, Kaduna over which 1st Defendant had applied to the 2nd Defendant for statutory right of occupancy.

(c). A declaration that the 1st Defendant trespassed into the property of the plaintiff which is No. 25 Gadan Street, Trikania, Kaduna that the 1st Defendant claimed to have bought from Kaduna State Winding up Committee on ‘Abandoned Properties’ as she never abandoned her property.

(d). Perpetual injunction restraining the 1st Defendant from further trespass into the property No. 25 Gadan Street, Trikania, Kaduna otherwise called No. AF 17 Gadani Street, Trikania Kaduna, by the 1st Defendant.

(e). Perpetual injunction restraining the 2nd Defendant from issuing a Statutory Right of Occupancy to the 1st Defendant over the plaintiff’s property No. 25 Gadani Street, Trikania, Kaduna which the Defendant called No. AF 17, Gadani Street, Trikania, Kaduna.

(f). N500,000,00 damages against the 1st Defendant for trespass onto the Plaintiffs premises or property No. 25 Gadani Street, Trikania, Kaduna which he called No. AF 17 Trikania, Kaduna.

(g). Cost of this action.

Two witnesses testified for the Respondent. The Appellant did not contest this claim at the lower court. At the end, the learned trial Judge granted all the declaratory reliefs sought and the sum of N100,000=00 as general damages with N5,000=00 costs on 8/8/03.

Dissatisfied with the said judgment, the Appellant filed notice of appeal dated 7/5/04 on 10/5/04. Four grounds of appeal were filed out of which the Appellant has formulated two issues for the determination of this appeal namely:-

1. Whether the Respondent discharged the burden of proof as required by law to warrant the Honourable trial court making or granting the Declaration sought for in the writ of summons and statement of claim filed before the Honourable Trial Court.
2. Whether, bearing in mind the circumstances and facts of this case, the Honourable trial court was right in declaring the Appellant a Trespasser and awarding Damages against him.

The learned counsel for the Respondent in his brief adopts the issues formulated by the Appellant for the determination of this appeal. I shall determine this appeal on these two issues accordingly.