Sheriff Usman V. Nasiru Audu Baba (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of His Lordship, Justice Y.A Bashir of the High of Court of Taraba State in suit no: TRSJ/8/2009 delivered on the 25th May, 2010. The plaintiff’s herein the Respondent’s claim for the declaration of title over a piece of land and other ancillary reliefs were granted by the trial Court against the Defendant herein the Appellant. Being dissatisfied with the whole decision, the Appellant filed a notice of Appeal containing 7 grounds of appeal against the said decision.

The Respondent who was the plaintiff at the trial lower court had taken out a writ against the Appellant as the Defendant claiming the following reliefs:

1. An order of declaration that the plaintiff is the person rightly entitled to be declared the owner of the piece of land measuring 2700 square metres covered by a certificate of occupancy no: TS/118 lying and situated at TSJP 3 layout on plot no: 6 (E) road in Nyama salla ward Jalingo town.
2. An order of declaration that the entry of the Defendant on the plaintiff’s land and the erection of the fence thereon amount to acts of trespass.
3. An order upon the Defendant to remove or demolish the fence unlawfully erected on the plaintiff’s land.
4. An order of perpetual injunction restraining the Defendant by himself his heirs, assigns, privies, successors or any person laying claim of title or ownership upon the plaintiff’s land through him from further acts of trespass.
5. The sum of N1, 000,000.00 general claimages for trespass.
6. Costs of filing and prosecuting the suit.

See pages 1 – 6 of the records of appeal.

Pleadings were ordered, filed and exchanged. The matter proceeded to trial and the Respondent testified himself and called (a) four other witnesses and tendered (7) Exhibits, viz: PE1, PE2, PE3, PE4, PE5, PE6 and PE7.

The Respondent’ claim to the disputed land at the trial lower court was based on a certificate of occupancy granted to his assignor and by a deed of assignment dated 14th August, 1996, the land was sold and transferred to him.

The Respondent further claimed that prior to the acquisition of the land in dispute, the land was originally owned by one Abba upon whose death Umaru Abba (PW4) inherited the land and later sold same to Mallam Saidu (the father of PW1) from whom the Taraba State Government acquired the land and paid compensation.

Nevertheless, the Appellant on his own part denied the Respondent’ claim and led evidence by himself and one other witness as DW1 and DW2 respectively to the effect that the disputed land was originally, the property of one Nuhu Mading who inherited same from his father and later sold it to the Appellant’s vendor, Ibrahim Aliyu Yawuri. The Appellant tendered three (3) Exhibits viz: Exhibits DE1, DE2, and DE3. At the close of the case, judgment was found in favour of the Respondent to the effect that the certificate of the occupancy (Exhibit PE5) transferred to the Respondent by PW5 was rooted on good foundation. Aggrieved by the said decision and the consequential orders thereto, the Appellant has appealed to this court vide a notice of appeal dated 15th July, 2010 on seven (7) grounds.

In his brief of argument dated 25th March, 2012 but filed on 28th march 2012, the following 4 issues were formulated by the Appellant from the grounds of Appeal:

1. Whether the learned trial judge rightly held that based on the legally admissible evidence on records, the Respondent proved his radical root of title to the disputed land derivable from the right of occupancy he is brandishing (Grounds 1, 5, 6 and 7).
2. Whether the learned trial judge was right when held he that the evidence by the Respondent’s witness was not of variance with the Respondent’s pleading (Ground 2).
3. Whether the learned trial judge was right when he held that the identity of the land in dispute was not in issue (Ground 3).
4. Whether the learned trial Judge was right when he held that since the proceeding was not to determine the guilt of the Respondent’s witnesses lying on oath would not affect their testimonies (ground 4).

The Respondent in his own brief of argument dated and filed on the 26th of April, 2012 anchored his submissions on the issues as formulated by the Appellant.

Therefore, the issues as articulated by the Appellant above will be considered in the determination of this appeal.

ISSUES ONE:

Whether the learned trial judge rightly held that based on the legally admissible evidence on record, the Respondent proved his radical root of title to the disputed land derivable from the right of occupancy he is brandishing.

The learned counsel for the Appellant L.T. Ayaba Esq. submitted that one of the grounds on which the Appellant rested his case at the trial court was that for a certificate of occupancy to have potency and be effective in law, it must be rooted on a good foundation. The case of Alhaji Sani Mani & 208 v. Alhaji Shehu M. Shanono (2006) 15 WRN 1 – 192 pass 128 at ratio 13 was referred to.