Terheme Abe & Anor V. Gabriel Damawa & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT M.O. KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Benue State, Makurdi division delivered on 27/9/05 in favour of the plaintiff (1st respondent herein) against the 2nd defendant (2nd appellant herein) and dismissing the 2nd defendant’s counter claim. The appellants being dissatisfied with the decision filed a notice of appeal on 7/12/05 containing four grounds of appeal.

The parties duly filed and exchanged their respective briefs of argument. The appellants’ brief settled by M.A. Tsuwa Esq. is dated and filed on 3/12/07. The 1st respondent’s brief settled by J.I. Orsal Esq. is dated 10/5/07 and filed on 19/6/07. The 2nd respondent’s brief settled by P.M. Ukande Esq. is dated 11/1/2010 and filed on 18/2/2010. It was deemed filed on 24/11/2010. The Appellants also filed a reply brief in respect of both respondents’ briefs. It is dated and filed on 3/12/2010.

The appellants formulated 3 issues for determination:

1. Whether or not the 1st respondent proved his case on a balance of probabilities and preponderance of evidence and was entitled to a declaration of title to the land in dispute. (Grounds 1 and 3)
2. Whether or not Exhibit A1, the Right of Occupancy No. BNC 7143 issued to the 1st respondent by the 2nd respondent while the case was already pending in court was a document capable of being admitted in evidence and if the answer is in the negative whether the learned trial Judge was right to have admitted it in evidence and relied on it as the fundamental basis of his finding in favour of the 1st respondent. (Ground 2)
3. Whether or not the learned trial Judge was right in holding that the 2nd Appellant’s counter claim lacks merit and whether he was right in dismissing it.

The 1st respondent formulated 2 issues for determination:

1. Whether or not the 1st respondent proved his case to be entitled to judgment. (Grounds 1, 2 and 3) And if not;
2. Whether the 2nd Appellant proved his counter claim to have judgment. (Ground 4)

The 2nd respondent formulated a single issue for determination:

Whether or not the trial court was right in upholding the 1st respondent’s claim and dismissing the 2nd appellant’s counter claim.

At the hearing of the appeal on 7/4/2011, M.A. Tsuwa Esq. for the Appellants, J.I. Orsal Esq. leading M. Ikya Esq. for the 1st Respondent and P.M. Ukande, Principal State Counsel, Ministry of Justice Benue State for the 2nd respondent adopted and relied on their respective briefs of argument. Mr. Tsuwa urged the court to allow the appeal while Messers Orsal and Ukande urged the court to dismiss it.

It was the 1st respondent’s case at the trial court that he had been in possession of a plot of land near Judges Quarters Makurdi measuring 1120m since 1970 and had planted mango and orange trees thereon. That in April 2001 he applied to the 2nd respondent, Ministry of Lands and Survey, Makurdi for the issuance of a statutory right of occupancy in respect of the said land. That the 2nd respondent, after conducting necessary investigations, allocated the land to him with a Right of Occupancy No. BNC 7143. He tendered the process file as Exhibit B. Sometime in 2003 he went to the land and met the 1st appellant working there and that he (1st appellant) informed him that he was on the land with the authority of the 2nd appellant. He (1st respondent) told the 1st appellant that the land belonged to him. Notwithstanding this information the 1st appellant began to erect a building on the land. He made a report to the 2nd respondent who issued a stop work notice and invited the parties for a meeting. The 2nd appellant and the 1st respondent attended the meeting. At the meeting the 2nd appellant allegedly stated that a process file had been opened for him in respect of the land at the 2nd respondent’s office but was missing. According to the 1st respondent the 2nd appellant was unable to produce the file number or any other information to show that he had documents to back his claim to the land.

He took out a writ of summons against the appellants on 16/4/03 when they refused to desist from their acts of trespass.

In paragraph 15 of the Amended Statement of Claim at pages 23 – 24 of the record he sought the following reliefs:

(a) “N300, 000.00 general damages in trespass.

(b) N300, 000.00 general damages for the delay caused plaintiff’s intended development of plot.

(c) Perpetual injunction restraining the defendant, his privies and agents from further trespass or disturbance of the plaintiff on the plot.