Nafiu Gambo Haruna V. Alhaji Lawal Yaro (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Kaduna State delivered on the 24th of September, 2014 in suit No. KDH/2/13/2010. The genesis of the dispute before the lower Court (High Court of Justice, Zaria, Kaduna State) was that the respondent (then plaintiff) bought the property, subject matter of the litigation, from Alhaji Muhammed Sule Ringim. Alhaji Muhammed Sule Ringim bought the house from Alhaji Gambo Haruna (deceased), the father of the appellant (defendant at the lower Court). The respondent was given sale agreements of the transaction between himself and that of the transaction between Alhaji Muhammed Sule Ringim and Alhaji Gambo Haruna. He went to the Upper Sharia Court and obtained certificate of purchase, which is evidence of title to the disputed property. Thereafter, the appellant and his mother claimed that they had inherited the property as their share of the Estate of late Alhaji Gambo Haruna, the father of the appellant. The respondent did all he could to persuade the appellant from claiming title to the property to no avail. The respondent then decided

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to institute an action at the lower Court against the appellant, claiming as follows:
(a). A Declaration that the house known as No. 17 Jibga Road, Tudun Wada, Zaria belongs to the plaintiff.
(b). An Order of perpetual injunction restraining the Defendant, his agents, assigns and privies from interfering with the plaintiff’s possession of the house known as No. 17 Jigba Road, Tudun Wada, Zaria.
(c). special damages in the sum of N100,000.00 per annum from November 2005 till judgment is delivered.
(d). General damages in the sum of N1,000,000.00 (One Million Naira Only) for interfering with the plaintiff’s possession of his house and preventing him from rehabilitating same from the year of purchase till date.
(e). Cost of action.

Pleadings were filed, issue joined and the matter proceeded to trial. The respondent (as plaintiff,) called witnesses who testified in support of his claims. The appellant (as the defendant) called witnesses who testified on his behalf to prove his title to the property. After addresses of learned counsel to the parties, the learned trial Judge of the lower Court delivered his judgment on the 24h of

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September, 2014, granting all the relief sought by the respondent. Aggrieved by the decision of the lower Court, the appellant (then plaintiff) filed Notice of appeal against the decision of the lower Court on the 30th of September, 2014, on four (4) grounds. The grounds of appeal, without the particulars are thus:
GROUND ONE
The decision of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
GROUND TWO
The trial Court erred in law when it admitted and relied on all the documents (Exhibits A, B, and C) tendered by the respondent to enter judgment against the appellant on the sole ground that the appellant has not established that the land, subject-matter of the suit is in an urban area of Kaduna State, and thereby occasioned a miscarriage of justice,
GROUND THREE
The trial Court erred in law when it relied solely on the inadmissible documents to grant a declaration of title of the subject-matter to the respondent.
GROUND FOUR
The trial Court erred in law when it affirmed the void sales as between PW1 and appellant’s late father on one hand and as between PW 1 and

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the respondent on the other, when none of the purported sale transaction had the consent of the Governor of Kaduna State.

The appellant’s brief of argument dated 8th of May, 2015, was deemed filed on the 13th of October, 2015, wherein two (2) issues have been distilled from the 4 grounds of appeal on page 7 thereof. The respondent’s brief of argument was filed on the 2nd of November, 2015, wherein a sole issue has been culled from the grounds of appeal on page 5 thereof. Therefore, the issues to be resolved which would ultimately determine the appeal, either way, are these:
(i). Whether in the general circumstances of the case, the trial Court ought to take judicial notice of its proceedings and Ruling in the course of the trait and the extant Kaduna State (Designation of Land in urban Area) Order published by gazette in its determination that the Appellant failed to prove by evidence that the land, subject matter of this case’ is in an urban Area, which renders inadmissible Exhibits A, B, & C.
(ii). whether an instrument purportedly made to alienate a vested interest in land situate in an urban Area ought not to be governed by the

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provisions of Sections 22(1) and 26 of the Land Use Act, 1978.
(iii). whether or not the trial Court was right in entering judgment in favour of the Respondent and against the Appellant in the circumstance of this case.

ISSUE ONE
Obande Esq, did submit that the learned trial Judge erred in law when he held that the appellant failed to adduce evidence that house No. 17 Jigba Road, Tudun Wada Zana is in an Urban Area, therefore Exhibits A, B, and C could not have conferred title to the respondent, being inadmissible in evidence for that purpose. Counsel submitted further that the evidence of respondent under cross-examination admitted that the house in dispute is in the Urban Area. It has also been contended that, the lower Court ought to have taken judicial notice of a subsidiary legislature, that is, Legal Notice No, 4 of 1990 in Gazette No. 9 Vol. 24 of Kaduna State which designated Urban Area in Kaduna State, and relied on same. That if the learned Judge had taken judicial notice of same, he would have realised that the disputed property is within an urban Area, therefore Exhibit “A’, ?B? and ?C” could not have conferred

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