CORAM

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HON. JUSTICE, ITA.G. MBABA (PJ), OFR JUSTICE, COURT OF APPEAL

HON. JUSTICE, PATRICIA A. MAHMOUD JUSTICE, COURT OF APPEAL

HON. JUSTICE, PETER O. AFFEN JUSTICE, COURT OF APPEAL

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PARTIES

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ALHAJI ISIYAKU YAKUBU

APPELLANTS 

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1. MALLAM ADAMU ALHAJI YAKUBU KARAL

2. MALLAM MISA (WARD HEAD KARAL

3. ALHAJI ISA MUSTAPHA

(DISTRICT HEAD OF NAMTARI)

4. FAISAL MOHASMMED ABBA WAZIRI

5. THE HON. COMMISSIONER, MINISTER OF LAND AND SURVEY YOLA, ADAMAWA STATE

6. ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE, ADAMAWA STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant claimed to have acquired the land in dispute from his elder brother, Alhaji Sa’adu Sarki Yakubu, who had been allocated the Statutory Right of Occupancy No. GS/13941, in respect of the land, measuring 18,900 square meters. ADSYP.2 was given to the said elder brother of Appellant as alternative land to the one earlier allocated by the 5th Respondent to the said Alhaji Sa’adu Sarki Yakubu (elder brother of Appellant). Before the events that culminated in the re-allocation of the (alternative) land to the said Alhaji Sa’adu Sarki Yakubu, he had sold his interest in some lands to his brother (Appellant).

The lands in Exhibits C and C1 were bought by Appellant in 1993 from his elder brother at Commissioners’ Quarters, Dougirei, Jimeta-Yola, but the lands were later allocated to one Alh. Adamu Zakari, who sold it to late Alh. Dogora Kakanda, and the same resulted in Court litigation between the parties. The settlement of the Court case saw the re-allocation of the land in dispute to the said Alhaji Sa’adu Sarki Yakubu (elder brother of Appellant) by the 5th Respondent, in exchange for the lands in Exhibits C and C1 (which the government took from Alhaji Sa’adu Sarki Yakubu and allocated to someone else). Appellant pleaded that, his elder brother (Alhaji Sa’adu Sarki Yakubu) therefore entered into agreement with him (Appellant) to transfer his (allottees) interest in the re-allocated land to him (Appellant) as replacement land for the lands in Exhibits C and C1.

The 1st to 4th Respondents were ward/Village heads and leaders of Village of the location of the land in dispute, who claimed ancestral right to the land in dispute. Of course, the 5th and 6th Respondents represented the Government of Adamawa State, which had acquired the land in dispute and allocated same to the Appellant’s brother (Alhaji Sa’adu Sarki Yakubu and other allotees).

At the time Appellant took out the Suit against the Respondents in 2013, upon being disturbed by the 1st to 4th Respondents, who claimed ancestral rights over the land, the allotee (Alhaji Sa’adu Sarki Yakubu) had died and so Appellant sought declaration of title over the land, damages, and injunction.

The 5th and 6th Respondents did not deny allocating the land to Alhaji Sa’adu Sarki Yakubu (elder brother of Appellant) but denied the Appellant, saying no instrument of transfer of the land from Alhaji Sa’adu Sarki Yakubu to Appellant existed, though they were not in any position to deny the transaction between Appellant and his said elder brother over the land in dispute.

The trial Court had dismissed the claim of the plaintiff case. Aggrieved by the decision, the Appellant filed the instant appeal.

 

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HELD

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Appeal allowed in part (Case Non-suited)

 

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ISSUES

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1. Whether having regards to the facts and evidence presented before the trial Court, the trial Judge was not wrong to have held that Appellant failed to prove the area to which Appellant sought declaration and an order of injunction?

2. Whether the trial Judge was not wrong to have raised suo motu the Issue of non-compliance with Section 22(1) of the Land Use Act and decided on same without calling on parties to address the Court on same?

3. Whether the trial Judge was not wrong when the trial Court dismissed the claim of the Appellant and held that the Government of Adamawa State can allocate same to any indigene of the State that apply for a grant of a right of occupancy?

 

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RATIONES DECIDENDI

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GROUND OF APPEAL – WHERE NO ISSUE IS DISTILLED FROM A GROUND OF APPEAL

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Appellant did not distill any Issue from ground one of the Appeal, which is an omnibus ground and the same is hereby, struck out, having been abandoned. The law is trite, that a ground of Appeal from which no issue is distilled for determination is deemed abandoned and must be struck out. See Ezerioha & Ors Vs Mgbeajulu & Ors (2018) LPELR – 43811 CA; Kente Vs Bwacha & Ors (2023) LPELR – 59743 SC. – Per I. G. Mbaba, JCA

 

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GROUND OF APPEAL – WHERE RESPONDENT’S ARGUMENT IS NOT FOUNDED ON APPELLANT’S GROUND OF APPEAL

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The above line of arguments appears strange to this Appeal, as they are not founded on Appellant’s grounds of appeal; and cannot be entertained, the Respondent having not filed any cross appeal to question the admission of the documents as exhibits, to justify the call to expunge the same. – Per I. G. Mbaba, JCA

 

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SUO MOTU – WHETHER THE BAR TO RAISE A MATTER SUO MOTU BY THE COURT RELATES TO APPLICATION OF LAW TO EVIDENCE CANVASSED IN COURT

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It should also be stated, that the rules governing the bar to raise a matter/issue suo motu by the Court, relates more to issues of facts, not application of the law to evidence, canvassed in Court. See NNOLIM VS. NNOLIM (2017) LPELR – 41642 (CA) and IDACHABA & ORS VS. UNIVERSITY OF AGRICULTURE MAKURDI & ORS. (2021) LPELR – 53081 (SC), where it was held:

Finally, I must strongly warn here that it is not an irrevocable principle that a Court cannot raise an issue suo motu. The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the Appellants. The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu. In fact, this matter was laid to rest, Per OLABODE RHODES-VIVOUR, JSC in OMOKUWAJO V. FRN (2013) LPELR-20184(SC) (PP. 37-38, PARAS. F-D), when he held that: The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record, serious questions of the fairness of the proceedings is evident.” Per ABBA AJI, JSC (Pp. 21-22, paras. E-D)

See also BRITISH AMERICAN TOBACCO PLC VS. THE AG KANO STATE & ORS (2021) LPELR – 56670 (CA), where we held:

“The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the Appellants. The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu. In fact, this matter was laid to rest, Per OLABODE RHODES-VIVOUR, JSC in OMOKUWAJO V. FRN (2013) LPELR-20184(SC) (PP. 37-38, PARAS. F-D), when he held that: The need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the Judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record, serious questions of the fairness of the proceedings is evident.” Per ABBA AJI, JSC In the case of Orugbo Vs Una (2002) 9-10 SC 61, the Supreme Court held: “A Court of law has no legal duty to confine itself to only authorities cited by parties. It can, in an effort to improve its judgment, rely on authorities not cited by the parties… that per se is not breach of fair hearing.” – Per I. G. Mbaba, JCA

 

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LAND – WHERE THE IDENTITY OF THE LAND IS NOT IN DISPUTE

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In our recent decision in the case of ANDREW HASSAN KATSALA BUNU VS. AUBADMAN BINDIMO BRAMWEMA (2024) LPELR – 61687 CA, we held:

“Thus, the exact measurement of the land in dispute is never a critical requirement to establish the identity or certainty of the land claimed by a party, where, as earlier stated, the land in dispute is known to the parties and they have expressed same in the case.” – Per I. G. Mbaba, JCA

 

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LAND – WHERE A PIECE OF LAND HAS BEEN ALLOTED TO AN INDIVIDUAL

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…In fact, that sentiment of the ruling/decision was uncalled for, as it was against the tenor of evidence which showed that Alhaji Sa’adu Sarki Yakubu (Late) had been allotted the said land. Thus, even when he died, the same formed part his estate and cannot be available for allocation by the Government of Adamawa State to any indigene of the State, who may apply for such allocation. That cannot be, until the said pending allocation is revoked. – Per I. G. Mbaba, JCA

 

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NON-SUIT – WHEN AN ORDER OF NON-SUIT IS APPROPRIATE

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In the case of OKORIE VS. OKORIE (2016) LPELR – 41503 (CA), this Court held as follows, as to when an order of non-suit is appropriate:

“I think this is the type of suit that an order of non-suit would have been appropriate, as it appeared it was not possible to hear the suit on the claims before the Court and come to a just determination, whatever the evidence. In the recent decision of this Court in the case of Eze A.I. Oguzie & Ors Vs Chijioke Oguzie: CA/OW/92/2014, delivered on 21/10/16, (page 32), we held: “A Court can only make an order of non-suit where the party (particularly the plaintiff) failed to or is unable to prove his case due to blunders and it will be unjustifiable to dismiss the case, in its entirety, or where there was failure by the trial judge to make proper and specific findings and an appellate Court cannot correct the error, based on the printed evidence; or where, on the evidence before the Court neither party will be entitled to judgment. The essence of order of non-suit is to ensure that a party is not foreclosed from coming back to Court to seek appropriate remedy, in the event of such blunders stated above. It is only meant to terminate the suit temporarily or prematurely, where it is obvious that interest of justice so demands. See that case of Olusola & Ors vs Trust House properties Ltd & Anor (2010) LPELR – 4769 (CA); Awote Vs Owodunmi (No.2) (1987) NWLR (Pt.57) 366; Onwuka Vs Ononuju & Ors (2009) LPELR – 2721 (sc); (2009) 11 NWLR (Pt.1151) 174.” – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Land Use Act Cap 5 LFN 2004

2. Evidence Act, 2011

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