Simon Apala Aboshi V. Manase Fele & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A., (Delivering the Leading Judgment)

The Appellant (who was the Plaintiff) filed an action against the Respondents before the High court of Justice, Benue State, Makurdi, claiming declaration of title to a piece of land lying and situate beside NITEL Headquarters, Akpehe, Makurdi-Gboko road, Makurdi, on 12th March, 1996. See pages 1 – 5 of the Record. The Respondents subsequently filed and exchanged pleadings with the Appellant, albeit, with leave of Court having failed to do so within time. See Pages 45 and 47 of the Record. The Appellant at the lower court claimed as follows:

1. “A declaration that the plaintiff is the rightful occupier of plot No. BNA 2614 situate at Akpehe Layout, off Makurdi – Gboko road, Makurdi.
2. An order of perpetual injunction restraining the 1st defendant, his servants, agents and privies from further trespassing into or tampering with plaintiff’s plot No. BNA 2614.
3. General damages for trespass limited at N1,000,000.00 (one million naira). See page 5 of the record.

The 1st Respondent counter-claimed against the Appellant which warranted the filing of defence thereto by the Appellant. See pages 22 – 26 and 35 -36 of the record. The Appellants defence to the counter-claim was subsequently amended. See pages 40 – 41 of the record. The counter-claim of the 1st Respondent incorporated into the statement of defence at paragraph 28 claims thus:

“a. A declaration that the plaintiff is the rightful owner and title holder of plot No. BN 778 and TPS 184 bounded by beacons No. PC 1199 MKB 381, PC 1198 laying (sic) and situate at Logo 11 Akpehe village in the Makurdi Urban Area, measuring approximately 0.1131 hectares.

b. A perpetual injunction restraining the defendants (sic) by himself, servants agents, privies or successors in title or by whomsoever from entering upon the said property or doing any acts thereon incompatible or inconsistent or prejudicial to the plaintiff’s title and interest on the said plot of land.

c. Special damages in the sum of Eighty thousand and Six hundred naira only. ”

PARTICULARS OF SPECIAL DAMAGES

N K

1. Fifty (50) bags of cement at 400.00: per bag 20,000 00
2. One thousand (1,000) cement blocks at N19.00 per block 19,000 00
3. 4 trips of gravel at N1,800.00 per trip 7,200 00
4. 7 trips of sharp sand at N800.00 per trip 5,400 00
5. 6,000 burnt ricks at N300 per block 18,000 00
6. Cost of construction and roofing for a round-hut 5,000 00
7. Cost of sinking a well 6,000 00

TOTAL: Eight (sic) thousand and six Hundred Naira 80,600 00

d. Aggravated damages in the sum of N200,000.00 (Two Hundred Thousand Naira only)

e. General damages in the sum of N5 million (five million Naira only)”

At the hearing, the Appellant called four witnesses including himself. He tendered documents which were admitted in evidence as Exhibits A – D while one of his documents was rejected. The 1st Respondent called two witnesses including himself. He tendered Exhibits F -Z, Z1, Z2 and Z3. The 2nd and 3rd Respondents called one witness, to wit: DW3 who happened to be the Higher Deeds Registrar with the 2nd Respondent’s. Documents tendered through him and admitted in evidence were Exhibits, Z3(i), Z4(i), (ii) & (iii).

The trial Court delivered its judgment without counsel’s final addresses. In its judgment delivered on 5th April, 2001, the trial Court dismissed the claim of the Appellant in its entirety. On the other hand, the Court entered judgment for the 1st Respondent in respect of his counter-claim and awarded the total sum of N86,600 as special and general damages. See pages 73 – 81 of the record.

Dissatisfied with the judgment of the court, the Appellant has filed an appeal to this court. The Notice of Appeal filed on 4th July, 2001 and containing thirteen (13) Grounds of Appeal is at pages 82 – 88 of the record.