Mr. Tony Moneme V. Mr. Atta Onoja & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High court of Justice, Kaduna State holding at Kaduna coram: Honourable Justice G.I. Kurada on the 1st June, 2006. The Appellant who was 1st defendant in the action before that court appealed to this court on 6th June, 2006.

FACTS

The Appellant was the 1st defendant in an action at the trial court in suit No. KDH/KAD/594/99 instituted by the 1st Respondent claiming a declaratory relief in respect of the plot of land measuring 50’x 100′ lying, being and situate at 84 Unguwar Television, Kaduna, N100, 000.00 being general damages for trespass against the appellant, the 2nd, 3rd and 4th respondents jointly and severally and a perpetual injunction restraining the appellant and the Respondents from further trespass to the said plot of land.

The 2nd, 3rd and 4th Respondents in their joint amended statement of defence date d 24th January, 2005 and filed on the 28th day of January, 2005 made a counter claim against the Appellant who was the 1st Defendant in the suit.

The Appellant in his amended statement of defence dated 2nd day of May, 200 2 and filed on the 3rd May, 2002 denied both the 1st – 4th Respondents claims to the plot of land in dispute and asked the court to affirm that he Appellant (1st defendant in court below) was the owner of the disputed land.

The 1s Respondent testified as PW1 and called three witnesses PW2 PW4. The Appellant testified as DW1 and tendered in evidence the first allocation paper as Exhibit ‘A’, final allocation paper as Exhibit ‘4A’ and the certificate of occupancy as exhibit ’48’. He also tendered the letter dated the 17th November, 1992 written to him by the 2nd defendant requesting for permission to construct an access road through the appellant’s land to its land as Exhibit 5 while the receipt and demand notice were admitted in evidence also as Exhibits ‘6’ and’6A’ respectively.

The Appellant was cross-examined by the 1st Respondent’s counsel Mr. Odigie while Mr. Iroagalachi learned counsel for the 2nd – 4th respondents also cross examined the appellant. The appellant then called DW2, Mansur Ahmed to testify.

The 2nd – 4th Respondents testified through DW3, DW4 and DW5 who were cross-examined by the respective counsel of 1st Respondent and the Appellant, The parties then addressed the Court and on the 1st June, 2006 the learned trial judge delivered his judgment dismissing the claim of the plaintiff (now 1st respondent) while allowing the counter claim against the appellant who was the 1st defendant in the suit.

The Appellant being dissatisfied appealed to this Court by a Notice of Appeal which nine (9) grounds thereof I shall restate without their particulars hereunder:-

“GROUNDS OF APPEAL

1. That the learned trial judge erred in law in that he gave judgment in this suit in favour of the counter-claimants and against the appellant when the evidence clearly shows:-

(a) That the plot of land awarded to the Counter- Claimants is not the one covered by the Certificates of Occupancy exhibits 7, 8 and 10 tendered and admitted as exhibits in this suit.

(b) The evidence of DW4 and DW5 clearly show that the disputed plot of land is outside the plots of land covered by exhibits 7, 8, 9 and 10.

(c) That the learned trial judge by granting the Counter-Claimants the plot not covered by exhibits 7, 8, 9 and 10 has hereby extended the plots of land not granted to the Counter- Claimant by the appropriate authority and thereby occasioned a miscarriage of justice in this matter.