Shua’ibu Bobbo Hamid V. Alfred K. Hamadu (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 Judgment of Hon. Justice A, Mammadi of Adamawa State High Court of Justice delivered on the 5th day of February, 2009. The Respondent was the Plaintiff at the lower court who had commenced a suit against the Defendant who is here in the Appellant and claimed as follows in the court below:-

1. A declaration of title to all that piece of land lying and situate at Vinikilang granted under certificate of customary Right of occupancy SLG No. 000048 dated 18th day of September, 1981.
2. An order of perpetual injunction restraining the Defendant either by himself or through his representative, agents or anyone whosoever claiming to act or under his authority from trespassing or doing any further acts on the said piece of land which are inimical to the Plaintiffs lawful title to the said piece of land.
3. The cost of the suit, See Page 2 – 4 of the records of appeal.

The parties filed and exchanged their pleadings and the matter went to trial. At the end of the trial, the trial court found for the Respondent herein declaring title to him, hence this appeal.

The Appellant in his brief of argument dated 18th February, 2009 and filed on 13th December, 2010 but deemed filed on 11th May, 2011 formulated two issues for determination by this honourable court and the issues are:

1. Whether the learned trial Judge was right in granting declaration of title in favour of the Respondent when the Respondent did not establish the root of title of the village Head Vinikilang who allegedly granted the land to the Respondent. (Ground 2)
2. Whether the learned trial Judge was right in not dismissing the Respondent’s claim based on the evidence before him particularly after rejecting Exhibit “2”, (the Respondent’s Customary Certificate of Occupancy) (Ground 1 – 5).

On the other hand, the Respondent, in his brief of argument dated 10th December, 2010 and filed on 11th May, 2011 distilled only one issue for determination by the honourable court to wit:

“Whether from the totality of the evidence before the trial High Court the Honourable trial judge was wrong to found for the respondent?

In the determination of this appeal, the issues as formulated by the Appellant will be adopted for being encompassing and embracing. However, the arguments of the learned counsel for Appellant will be considered jointly for appealing to one basic point, i.e. whether from the totality of the evidence before the trial High Court, the Honourable trial Judge was wrong to have found for the Respondent’s Counsel and the two issues adopted in this appeal will be resolved separately for clarity and analytical purposes.

1. Whether the learned trial judge was right in granting declaration of title and injunction in favour of the Respondent when the Respondent did not establish the root of the title of the village Head of Vinikilang, who allegedly granted the land to the Respondent.
2. Whether the learned trial judge was right in not dismissing the Respondent’s claim based on the evidence before him particularly after rejecting Exhibit “2”, the respondent’s Customary Certificate of Occupancy.

The Appellants Counsel, Yakubu Ahmadu Esq. submitted that the Respondent’s claim for declaration of title to the disputed land was based on a grant made to him by the village Head of Vinikilang. Paragraph 4 of the respondent statement of claim as found at page 5 of the record of appeal was referred to.

It was argued that for the respondent to succeed on this averment the title of the village Head must be proved, otherwise it is fatal to the respondent’s case. The cases of Okorie Echi & ORS (2000) 5 SCNJ 155 at 157, Ukaegbu v. Ololo (2009) ALL FWLR (Pt 466) 1852. Prince Ngbene v. Chuke Igbo (2000) 2 & 3 SCNJ 136. Ekpechi v. Owhonda (2003) 9 -11 SCNJ ratio 5 were referred to.

The court was urged to resolve this issue in favour of the Appellant.

On issue two (2). It was submitted that when the respondent testified he alleged that it was the “Ward Head” Mallam Saba who gave him the land contrary to his pleading that it was the village head that gave him the land and that to further underscore the fact that the “Village Head” and the “Ward Head” cannot be the same, the Respondent under cross-examination at page 20 of the record said as follows in lines 14 – 17.

“The ward head is under the authority of the village head. I do not know the village head at the time I was given the land by the ward head, I did no see the land with the village head of Vinikilang”. Pages 22, 24, 34 were referred to.

It was further submitted that the trial Judge appeared to have been swayed by what he regards as evidence of long possession from his decision found at page 54 of the record thus:

“However from the facts herein, Plaintiff has shown herein that Exhibit “1” was given to him by the ward head of the Vinikilang and since then he has been in possession and occupation of the said land for a period ranging from the year 1976 until the year 1998 when the Defendant through the instrumentality of the Ubandoma started interfering with the land. From the evidence of the witnesses, I cannot wish away the long possession of the which the Plaintiff examine the land before the district head gave to the Defendant”.