Mrs. R. A. Idakula V. Alh. Mohammed Adamu (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A

This appeal is against the ruling of Oyetunde, J. of the Plateau State High Court holden at Jos in the motion No. PLD/J774m/99 within the suit No. PLD/774/95 wherein he granted the sole relief sought in the said motion in these terms:

“I hold that this is the property sold to the applicant and which the applicant paid for.The applicant is therefore entitled to the order of possession that he is seeking and the same is hereby granted. The applicant is hereby granted possession forthwith of one bungalow attached with boys quarters at No.15 along Miango Road, Jos”.

Aggrieved by the decision the defendant (as appellant) has appealed to this Court and raised 3 (three) grounds to meet it to wit:

1. “The learned trial Judge erred in law when he finally determined part of the substantive suit between the parties by his decision in the interlocutory application filed by the respondent.”

PARTICULARS

(a) By his amended statement of claim dated 19/6/98 and filed on the 22/6/98, the respondent in paragraph 14(c) claims as follows:-

“An order of this Honourable Court that the defendant delivers up the property situate( sic) and lying at plots 15/16 Miango Road, Jos, Plateau State, now being withheld by the defendant.”

(b) By his motion on notice dated and filed on the 7/7/99, the respondent prayed inter alia for:

(a)”An order that the defendant/respondent deliver up possession of a bungalow flat with boys quartres at No. 15 along Miango Road, Jos, to the plaintiff/applicant”.

(c) Both the prayer in motion paper and the third relief sought by the respondent in the main suit are the same and have one effect.

(d) That prayer sought by respondent and granted by the Honourable Court has the effect of a final judgment as it was not sought to be made nor was it made subject to or pending the determination of the substantive suit.

(e) By granting the prayer sought, the Honourable Court has, in an interlocutory proceeding, determined the third relief sought by the respondent in the main suit in respondent’s favour, without hearing evidence from either party and without the Appellant admitting the claim or submitting to judgment.

2. The learned trial Judge erred in law when he granted possession of the land and premises situate at No. 15 along Miango Road, Jos to the respondent when he had no jurisdiction to do so.

PARTICULARS

(a) The claim of the respondent is for mesne profit and possession of the land in issue from the appellant.