Umaru Bangari V. Yakubu Musa Danbiyu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO J.C.A. (Delivering the Leading Judgment)

The appeal herein is against the judgment of the Adamawa State High Court of Justice delivered on 16th May, 2006 in suit number ADSY/5/05 by Hon. Justice Ambrose D. Mammadi.

The background facts giving rise to this appeal can be compressed as follows: The respondent herein as plaintiff in the lower Court instituted an action vide a writ of summons dated 9th June, 2005 against the appellant as defendant. The action was for a declaration of title to a piece of land situated at Jiddel Ward in Michika Local Government Area of Adamawa State. Consequent upon the aforementioned suit, the respondent as plaintiff claimed for the following reliefs against the appellant as defendant; namely:-

1. “For declaration of title to a piece of land lying and situated at Jiddel Ward in Michika Local Government Area;
2. The sum of N1,000,000.00 damages for trespass;
3. An order of perpetual injunction restraining the defendant, his agents, relations or anybody claiming from him from further entering into or tempering with or using the land in manner whatsoever.

(ii) Cost of action.”

The appellant filed a memorandum of appearance dated 17th June, 2005 out of time, pursuant to order for enlargement of time granted on 27th July, 2005. The plaintiff filed his statement of claim out of time pursuant to an order of court made on 7th December, 2005 and the defendant was given 30 days to file and serve his statement of defence. The case was thereafter adjourned to 11th January, 2006. The Court could not sit on the 11th January, 2006 hence a further adjournment was made to 22nd February, 2006. The plaintiff’s Counsel and the defendant were not in Court on the 22nd February, 2006 hence a further adjournment to 15th March, 2006. The Court could not sit on the 15th March, 2006 and another adjournment was made to 27th April, 2006.

Both the defendant and his Counsel were not in Court on 27th April, 2006 hence the learned Counsel for the Plaintiff applied orally for judgment in default of defence. The learned Counsel made the application pursuant to Order 14 Rule 3 of the Gongola State High Court (Civil Procedure) Rules 1987, applicable to Adamawa State. The Court adjourned the matter to 16th May, 2006 for ruling, and on the said date gave judgment in favour of the plaintiff in the following terms:

“I am therefore inclined to agree with Mr. M. B. Sawa that this is a proper case to proceed under Order 14, Rule 3 particularly where the plaintiff has filed and served his statement of claim on the defendant. In the absence of any defence, I hold that plaintiff is entitled to the reliefs sought.

Accordingly judgment is entered in his favour in the following terms.

1. A declaration of title to a piece of land lying and situated at Jiddel Ward in Michika Local Government Area.
2. An order of perpetual injunction restraining the defendant his agents, relation or anybody claiming from him from further entering with or tampering with or using the land in dispute or any part thereof in any way or manner whatsoever.
3. The sum of N150, 000.00 (One Hundred and Fifty Thousand Naira Only) as general damages.
4. Cost of the action”

Irked and aggrieved by the aforementioned decision, the defendant challenged same vide a notice of appeal dated 5th June, 2006 and filed on the 13th June, 2006. The said notice of appeal was anchored upon four grounds of appeal. The defendant will hereinafter in this judgment be referred to as the appellant, while the plaintiff as the respondent. In compliance with the Rules of Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument settled by Williams Bello Esq. is dated and filed on 4th October, 2013. The respondent’s brief of argument dated 4th November, 2013 was filed on the same date. On the 5th November, 2013, Mr. S. N. Nzonzo for the appellant adopted the appellant’s brief and urged the Court to allow the appeal. Mr. J. E. Owe for the respondent adopted the respondent’s brief of argument and urged the Court to allow the appeal, having conceded to same.

The appellant nominated two issues for determination on pages 3 and 4 of the appellant’s brief of argument, as follows:

“1. Whether the trial Court was right to have granted the Plaintiff relief for declaration, injunction and damages, without hearing evidence. Grounds 1, 2 and 4.

2. Whether the absence of service of hearing notice and motion for judgment does not render the judgment delivered by the Lower Court null and void. (Ground 3)”

The respondent on page 2 of the Respondent’s brief adopted the issues for determination as formulated by the appellant.

On issue one, the appellant submitted that declaration of title can only be granted on the strength of the plaintiff’s case and upon credible and cogent evidence to the satisfaction of the Court. It was contended that declaration of title is not granted on admission or default of defence by the defendant. In support, reference was made to the following cases. Okhuarobo V. Aigbe (2002) 9 NWLR (pt.771) 29 at 54, Ezeokonkwo V. Eweka (1981) 12 NSCC 48 at 62.

It was argued that the respondent did not call any evidence as to the identity of the land in dispute or his root of title and the case was only adjourned for mention, when the oral application for judgment was made. It was further contended that the reason given for the judgment by the learned trial Judge, namely default of filing statement of defence is not appropriate for declaratory reliefs. The appellant further posited, that the declaration of title granted was therefore unmerited.