Legalpedia Citation: (2023-05) Legalpedia 30697 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Thu May 25, 2023

Suit Number: CA/K/516/2019

CORAM

AMINA AUDI WAMBAI JCA

MOAHAMMED BABA IDRIS JCA

MUSLIM SULE HASSAN JCA

PARTIES

ALHAJI HAMISU

APPELLANTS

HAJIYA (DR) MARYAM ABACHA AND ANOR

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant was the Defendant, while the Respondents were the Plaintiffs at the trial Court. The Respondents claimed that they are the Administrators of the Estate of late Sani Abacha and sometimes in 1973, the Late Sani Abacha applied for allocation of the disputed land and same was granted to him in 1974. That in 2004, they applied to the Kaduna State Urban Development board to develop the property and they were granted permission upon which they built fence round the disputed property and a security house where they employed Mallam Lawal Abdullahi to guard the property.

The Appellant on the other claimed that he is the bona fide owner of the parcel of land by virtue of purchase and that Respondents have no claim or title over the land for what he termed “lack of compliancy” in his defence. That due to noncompliancy, the land was taken away from the Respondents and allocated to one Alhaji Kabiru Umar in 1979, to which he Kabiru processed C of O over the land and sold it to Alhaji Mahmud Hassan, who in turn sold it to Alhaji Lawal Garba, and he purchased the said land from Alhaji Lawal Garba.

The trial court entered judgment in favor of the Plaintiff/Respondent. The Appellant/Defendnt was dissatisfied with the judgment hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether the Respondent’s suit which gave rise to the instant appeal is statue barred having regards to the provisions of S. 4 and 5 (2) of the Kaduna State Limitation Law Cap. 89 Laws of Kaduna State 1991 and thus divested the lower court of jurisdiction to entertain same?

Ø Whether the trial court was justified in granting declaration of title and other ancillary reliefs in respect of the disputed property in favor of the Respondents having regard to the evidence led by the parties and the surrounding circumstances of this case?

Ø Whether the trial court was right in refusing to expunge from the record Exhibit D8 for being legally inadmissible?

Ø Whether it was right for trial court to allow PW1 (Philemon Emmanuel) to testify without deposition and leave of court to call him as an additional witness and tender Exhibit 1 (File No. LAN/C/5234) which was never pleaded as a document to be relied upon at trial by the Respondents?

 

RATIONES DECIDENDI

DOCUMENTS – DOCUMENTS A COURT SHOULD LOOK AT IN DETERMINING WHETHER AN ACTION IS STATUTE BARRED

It is settled law that the only documents a court shall look at in determining whether an action is statute barred is the writ and statement of claim. – Per M. S. Hassan, JCA

TITLE TO LAND – PROOF TO TITLE TO LAND

The law is certain that the proof of title to land is either by traditional history where a party claiming title to land must establish the root of his title from the founder and how it devolve to him, or by title documents issued by the state. – Per M. S. Hassan, JCA

EVIDENCE – EVALUATION OF EVIDENCE

It is a cardinal principle of law that evaluation of evidence is the duty of the trial court, the appellate court can only do that where a party has shown that the trial court was perverse in her evaluation of evidence adduced. – Per M. S. Hassan, JCA

 

EVIDENCE – IMPROPERLY ADMITTED EVIDENCE

While it is settled law that where a document admitted in evidence was later discovered to be improperly admitted, the trial court had the powers to expunge same from its record. In order to tender a document to contradict a witness, the witness’s attention must be drawn to the document and the contradiction in the two statements highlighted before the statement maybe tendered. – Per M. S. Hassan, JCA

SUBPOENA – TYPES OF SUBPOENA

There are two types of subpoena and a witness may either be subpoenaed to testify, or to tender documents. A witness can also be subpoenaed to tender document and testify. PW1 is clear was subpoenaed to tender documents and he was cross examined by the Appellant on the documents so tendered. There is no-where that a witness subpoenaed is obligated to have a written statement on oath. – Per M. S. Hassan, JCA

CASES CITED

STATUTES REFERRED TO

1. Kaduna State Limitation Law Cap. 89 Laws of Kaduna State 1991
2. Evidence Act, 2011
3. Kaduna State High Court (Civil Procedure) Rules, 2007

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