CORAM

---

TIJJANI ABDULLAHI,JUSTICE, COURT OF APPEAL

JUMMAI HANNATU SANKEY, JUSTICE, COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JUSTICE COURT OF APPEAL

---

PARTIES

---

ALHAJI HASSAN A TUKUR

APPELLANTS 

---

1. ALHAJI IBRAHIM SADIQ

2. MUSA MUHAMMED

RESPONDENTS 

---

AREA(S) OF LAW

---

ACTION, APPEAL, COURT, LAND LAW, PRACTICE AND PROCEDURE, JUDGMENT AND ORDER

 

---

SUMMARY OF FACTS

This is an appeal against the Judgment of the High Court of Justice, Taraba State (Coram) J. F. Agya (J) in Suit No. TRSG/9/2012 delivered on 20th day of May, 2014 wherein the lower Court in a-well-considered Judgment dismissed both the Plaintiff/Appellant’s claim and the Defendants/Respondents’ counter claim. In the Court below, the Appellant as Plaintiff filed this suit via a Writ of Summons dated 21st day of March, 2012 and claimed against that the acts of the Respondents/Defendants on the Plaintiffs’ land situate along Gembu to Dembe Road in Gembu, Sardauna Local Government Area of Taraba State amounts to trespass; an order of injunction restraining the Defendants from further acts of trespass; a declaration of title of the said land to the Plaintiffs; and general damages for trespass in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira Only). Issues were joined on these claims wherein the Defendants/Respondents via their joint Statement of Defence denied the Plaintiff/Appellant’s claim and the 1st Defendant counter claimed that he is the legal and lawful owner of the disputed land, and that any purported sale, allocation, re-allocation or assignment of same by any individual or authority to any other person(s) is illegal, null and void. The case proceeded to hearing with each side calling witnesses in support of their various positions. After the close of the parties’ case and filing and adopting their respective written addresses, the lower court in a-well-considered Judgment dismissed both the Plaintiff/Appellant’s claim and the Defendants/Respondents’ counterclaim. Aggrieved by the Judgment of the trial court, the Plaintiff/Appellant approached this court and filed a Notice of Appeal on 31st October, 2014.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

Whether the trial court was right to have dismissed the Appellant’s case for want of proof.

After the dismissal of the Appellant’s case for declaration of title, whether the trial court has a duty to still consider the Appellant’s case for trespass, damages and injunction.

 

---

RATIONES DECIDENDI

---

ROOT OF TITLE – WHETHER A PARTY WHO TRACES HIS ROOT OF TITLE TO A PARTICULAR PERSON/SOURCE MUST PROVE IT

---

“It is trite law that where a party traces his root of title to a particular person or source which is being challenged, to succeed, he must not only prove his title but he must also prove the title of the person or source from whom he claims. He relied on the case of Adole v. Gwar (2008) 64 LRCN page 157 at 162, where the Supreme Court per Onu JSC forthrightly held that:

“This is because this court has held repeatedly that once a party pleads and trace his root of title to a particular source and the title is challenged, to succeed, the party must not only establish his title to the land in issue, he must also satisfy the court as to the title of the source from whom he claims” – Per ABDULLAHI, JCA

 

---

HEARSAY EVIDENCE – WHETHER A PIECE OF EVIDENCE WHERE THE PERSON MAKING THE STATEMENT DISCLOSES HIS SOURCE OF INFORMATION, IS HEARSAY

---

“The law is also trite that a piece of evidence is not hearsay and therefore admissible when the person making the statement disclose the source of the information and the name of the informant. He cited and relied on ACN v. Nyako (2002) (Pt. 2) NSCQR page 560 at 567, where the Supreme Court held that:

“Therefore where the deponent has averred to an information not from his personal knowledge or witness account, it is mandatory that he discloses the source of that information otherwise he infringes the relevant provisions of the Evidence Act (as amended) such as section 86, 88 and 89. This is in keeping with legal principles that on the face of it, hearsay evidence is inadmissible and so to be taken seriously such evidence needs its source be put on display including the name of the informant and the circumstances”.

Thus contrary to the submission of learned Counsel to the Appellant, the evidence of PW6 relied upon by the trial court is not hearsay evidence.” – Per ABDULLAHI, JCA

 

---

HEARSAY EVIDENCE – ON WHAT QUALIFIES AS HEARSAY EVIDENCE

---

“A piece of evidence qualifies as hearsay when the object of the evidence is to prove the truth of the fact asserted by the statement but this is not the case here. See the case of Odogwu v. State (2004) 233 LRCN page 200 at 206.”- Per ABDULLAHI, JCA

 

---

INTERFERENCE WITH EVALUATION OF EVIDENCE – CIRCUMSTANCE(S) WHEN AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY A TRIAL COURT

---

“The law is now settled that where a trial court properly evaluates the evidence before it and justifiably appraised the facts, it is not open to the appellate court to substitute its own views for that of the trial court. See the cases of I.B.N. v. A.T.M. Co (1996) 42 LRCN page 1523 at 1528 and Egharvbe v. Osagie (2009) 40 NSCQR page 469 at 473 where the Supreme Court held as follows:

“In my view, the learned trial Judge did a good job. He properly evaluated the evidence before him and came to the correct conclusions. I am therefore not in  a position to fault him. The Court of Appeal was not there. So too this court… It is trite law that an appellate court has not the jurisdiction to go on its own to make findings which are not borne out from the record. Such findings will be perverse and this court will not allow them to stand”. ”- Per ABDULLAHI, JCA

 

---

TITLE TO LAND – WHETHER ACTS OF POSSESSION CAN BE CONSIDERED WHERE TITLE PLEADED HAS NOT BEEN PROVED

---

“… it is a trite law that where title pleaded has not been proved, it is unnecessary to consider any acts of possession. See the case of Nkado v. Obiano (1997) 50 LRCN page 1084 at 1095.

Therefore in the instant case since the Appellant failed to prove his title to the disputed land the trial court cannot rely on any purported act of possession of the Appellant to declare the Respondents trespassers.” – Per ABDULLAHI, JCA

 

 

---

INJUNCTIONS – ON PURPOSE OF AN INJUNCTIVE ORDER – WHAT AN APPLICANT SEEKING INJUNCTIVE RELIEF NEEDS TO ESTABLISH

---

“An order of injunction can only be granted to protect a valid established legal right. See the case of Atungwu v. Ochekwu (2013) 56 (Pt. 2) NSCQR pages 1072 at 1083 – 1084, where the Supreme Court held as follows:

“…they must be reminded that an injunctive order is available to restrain a party such as the 2nd Appellant from the repetition or continuation of the particular wrongful act complained of with a view to supporting Respondent’s established legal right. Had the Respondent not established a legal right recognized by the court, the injunction he obtained would not have lawfully been granted…”

In view of the above preposition I am of the considered view that no injunction can be granted in favour of the Appellant since the Appellant has no valid established legal right to protect.” – Per ABDULLAHI, JCA

 

---

ORDER OF COURT – WHETHER AN INCIDENTAL ORDER CAN BE GRANTED WHERE A PRINCIPAL ORDER IS REFUSED

---

“It is settled law that where a principal order sought was refused by a court, incidental order cannot be made. See the case of Eyigebe v. Iyaji (2013) NSCQR page 959 at 987.” – Per ABDULLAHI, JCA

 

---

CASES CITED

---

NONE

 

---

STATUTES REFERRED TO

---

Evidence Act, 2011

 

---

CLICK HERE TO READ FULL JUDGMENT