Mrs Abishag Dan Habu V. Alhaji Kawuji Isa (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

The respondent in this appeal [as plaintiff] took out a writ of summons on May 20, 2008 against the appellant herein [as defendant] at the Taraba State High Court. His claim was endorsed in these terms:

The plaintiff claims against the defendant as follows:

(6) Declaration of the title over the piece of land lying and situate in Jalingo more particularly along the road leading to Government Comprehensive Secondary School (GCSS) Jalingo …

(7) An order for perpetual injunction to restrain the defendant or any person claiming through her from interfering with the plaintiff’s right over piece of land.

(8) General damages against the defendant for trespass in the sum of N500,000.00

(9) An order to the defendant to remove anything she brought deposited, constructed or affixed unto the piece of land in dispute (which does not form the natural part of land)

(10) The cost of this suit

Pleadings were, duly filed; served and exchanged; amended; served and exchanged. The respondent, and three other witnesses, testified in proof of his case. He tendered two documents, namely, exhibits “PEI” and “PE2,” respectively. The appellant testified in person. She tendered thirteen documents. She claimed that the land in dispute forms part of the larger portion of land acquired by the Taraba State Government for a government lay-out. The court: [coram Bashir J] (hereinafter referred to as the lower court): in its judgement of July 2, 2010, found in favour of the plaintiff [now respondent].

As an expression of her disagreement with the outcome of the case, the appellant filed this appeal. From her seven grounds of appeal, she has formulated the following issues for the determination of this appeal:

1. Whether interest or title to land to which section 34 (5) and (6) of the Land Use Act relates or applies can be validly transferred or alienated without the consent of the Governor of the state first sought and obtained;
2. Whether a court of law can competently, properly and completely adjudicate and determine the issue as to whether or not a land in dispute has been acquired by a state government without making the state government a party to the suit;
3. Whether the contradictions in the respondent’s pleadings and evidence called by him were inconsequential and immaterial or consequential and material enough to affect the case of the respondent and whether from the totality of evidence, the learned trial judge was right in declaring title in favour of the respondent;
4. Whether estoppel binds only parties to a transaction or extends to parties directly or indirectly connected with the cause of action.

ARGUMENTS OF COUNSEL

ISSUE 1

Whether interest or title to land to which section 34 (5) and (6) of the land use Act relates or applies can be validly transferred or alienated without the consent of the Governor of the state first sought and obtained (ground one of the grounds of the appeal)”.

At the hearing of this appeal, learned counsel for the appellant, F. K. Idepefo, leading C.C. Okeke and B. Simon, placed reliance on the appellant’s brief of argument and reply brief. First, he drew attention to paragraph 3 of the Statement of Claim. He noted that upon the commencement of the Land Use Act, 1978 [hereinafter simply referred to as the Act], only two kinds of interests in land can be held in an urban area, to wit: (a) actual grant under section 5 of the Act or (b) deemed grants under section 34(5) and (6) of the said Act.