CORAM

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HON. JUSTICE A. A. B. GUMEL JCA

HON. JUSTICE U. A. OGAKWU JCA

HON. JUSTICE M. DANJUMA JCA

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PARTIES

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ALH. SALIHU ADAMU SAMBO

APPELLANTS 

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1. ALH. BAPPAYO IBRAHIM

2. HON. COMMISSIONER OF LAND AND SURVEY GOMBE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, LAND LAW, LIMITATION OF ACTIONS, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The 1st Respondent filed a suit claiming damages for trespass and a perpetual injunction against the Appellant regarding Plot No. R 37A, covered by Right of Occupancy No: GM/843 in Gombe. The Appellant and the 2nd Respondent defended the action, arguing that the 1st Respondent’s title documents were obtained through fraud. The trial court granted the 1st Respondent’s claims and nullified the Appellant’s title documents. The Appellant appealed against this decision.

 

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HELD

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1. The Writ of Summons was valid, having been signed by the Registrar as required by court rules.

2. The action was not statute-barred as it was filed within the 10-year limitation period.

3. The evidence presented by the 1st Respondent was properly admitted and evaluated.

4. The trial court had inherent powers to make consequential orders including damages.

5. The doctrine of laches and acquiescence was not properly pleaded and could not be raised for the first time on appeal.

6. Mere existence of a jurat was insufficient to conclude a witness was illiterate or that statements were made in Hausa.

 

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ISSUES

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1. Whether there was a valid Writ of Summons before the lower court?
2. Whether the claims of the 1st Respondent were statute-barred and justiciable?
3. Whether the 1st Respondent proved his claim through credible and admissible evidence?
4. Whether the trial court properly granted relief not specifically claimed?
5. Whether the trial court should have applied the doctrine of laches and acquiescence?
6. Whether the court properly received and relied on English-translated depositions without the Hausa versions?

 

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RATIONES DECIDENDI

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VALIDITY OF WRIT OF SUMMONS – REQUIREMENTS FOR VALID WRIT:

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“The Writ of Summons commencing the action is at pages 1-2 of the record, and it is clear from the face of the Writ that the Registrar of the Court signed it. Thus, by necessary implication, the said Writ was signed and issued as required by the rules of court.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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WHEN ACTION IS STATUTE-BARRED – COMPUTATION OF LIMITATION PERIOD:

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“It is clear that the purported withdrawal of the title of the 1st Respondent was in 2010. It is also clear that the action was commenced in 2017—seven years after the right of action accrued. It follows, therefore, that the 1st Respondent commenced the action within the statutory limit of ten years.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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PLEADING SPECIAL DEFENCES – REQUIREMENT TO PLEAD LIMITATION AND LACHES:

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“The law is settled that defenses like illegality, fraud, limitation, laches, and acquiescence, etc., must be specifically pleaded and strictly established by evidence. Where they are not raised at the trial level, they are deemed waived and cannot be raised on appeal.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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SECONDARY EVIDENCE – EFFECT OF NOTICE TO PRODUCE:

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“The failure to produce these exhibits entitles the 1st Respondent to tender them, and the trial court appropriately acted on them.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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CONSEQUENTIAL ORDERS – COURT’S POWER TO MAKE CONSEQUENTIAL ORDERS:

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“The Supreme Court has stated and restated in several decisions that a court of law has inherent powers to make consequential orders in deserving cases, whether such orders were asked for or not.” – Per Ali Abubakar Babandi Gumel, J.C.A.

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WAIVER OF IRREGULARITIES – EFFECT OF PARTICIPATING IN PROCEEDINGS:

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“The law is trite that a party who actively participated in the proceedings at the lower court without raising a formal objection to any perceived irregular procedure would be estopped from complaining and praying the court to set aside the action on the sheer ground of irregularity.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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CLAIMS FOR TRESPASS AND INJUNCTION – TITLE AS AN ISSUE:

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“Wherever a claim for damages for trespass is joined with a claim for a perpetual injunction, title is automatically in issue.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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TRANSLATED DOCUMENTS – PROOF OF TRANSLATION:

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“In the absence of evidence that the 1st Respondent made his statement on oath in Hausa, as in Gundiri’s case, the mere existence of a jurat is not enough to conclude that a witness is illiterate.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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OBJECTION TO COMPETENCE OF WRIT – PROPER PROCEDURE:

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“Challenges to the competence or validity of a Writ can be made by: (a) entering an appearance on protest; (b) entering a conditional appearance; and (c) then filing a motion asking the court seized of the matter to set aside the purported Writ.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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PROOF OF ILLITERACY – REQUIREMENT OF OBJECTIVE EVIDENCE:

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“The issue of illiteracy is a factual matter to be objectively established by evidence.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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RECORD OF PROCEEDINGS – PRESUMPTION OF CORRECTNESS:

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“This Court and all the parties herein are fully bound by the contents of the record of appeal.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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CONTINUING CAUSE OF ACTION – TRESPASS AS CONTINUING WRONG:

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“This Court and all the parties herein are fully bound by the contents of the record of appeal.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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CASE AUTHORITIES – APPLICATION OF PRECEDENTS:

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“Each case is an authority for what it decided… It needs to be stressed that each case must be determined based on its own peculiar circumstances, as no two cases can be identical.” – Per Ali Abubakar Babandi Gumel, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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