CORAM

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CHIDI NWAOMA UWA – – JUSTICE, COURT OF APPEAL

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PARTIES

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NIGERIA ROAD CONSTRUCTION CO. LTD

APPELLANTS 

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1.MADUGU COMMERCIAL AND CONSTRUCTION CO. LTD.

2. MUSA GARBA

3. COMMISSIONER OF POLICE ADAMAWA STATE

4. ATTORNEY GENERAL OF ADAMAWA STATE

5. PRIAM GROUP OF COMPANIES

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURAL LAW, LAW OF EVIDENCE, PLEADINGS, PRACTICE AND PROCEDURE.

 

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SUMMARY OF FACTS

This is an appeal against the Judgment of the Adamawa State High Court (trial court), the Appellant as Plaintiff brought an action of trespass to property against the Respondents. The trial court dismissed the claim of the Appellant because the Government of Adamawa State had reallocated the said land to the 5th Respondent. The trial court consequently held that the 5th Respondent successfully established ownership of the land in dispute as the title to the land has been revoked by the Government of Adamawa State. The Appellant being dissatisfied with the High Court of Adamawa State has approached this court by way of appeal for an order setting aside the judgment of the trial court.

 

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HELD

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Appeal dismissed.

 

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ISSUES

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 1. Whether the learned trial judge was right to have held that exhibit ‘D’ or notice of revocation was served on the Appellant that extinguish all rights to the land in issue and the judgment of the court below is not perverse and has not therefore, occasioned a miscarriage of justice?

2. Whether the learned trial Judge was right in law to have held that the 5th Defendant successfully proved its counter claim, against the Appellant.

 

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RATIONES DECIDENDI

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BURDEN OF PROOF – ON WHOM LIES THE BURDEN TO PROVE A CASE

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 Now, Section 131(1) and (2), and 132 of the Evidence Act 2011 have stipulated that whoever desires any Court to give judgment in his favour has the burden to prove his case.  He will only succeed by adducing credible evidence that satisfies the Court that he is entitled to judgment on his claim. Per – Mohammed Lawal Abubakar JCA

 

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SERVICE – IMPORTANCE OF NOTICE OF REVOCATION OF RIGHT OF OCCUPANCY

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It should be noted that service of Notice of Revocation of a Right of Occupancy is very important.  By virtue of Section 28(6) of the Land Use Act, a Notice of the Revocation of a Right of Occupancy must be given to the holder. Per – Mohammed Lawal Abubakar JCA

 

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SERVICE – EFFECTIVE METHOD OF SERVICE OF NOTICE OF REVOCATION OF RIGHT OF OCCUPANCY.

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By Section 44(a) (b) and (c) of the Land Use Act any notice required to be served on any person shall be effectively served on him:- (1) By delivering it to the person on whom it is to served or (2) By delivering it at the usual or last known place of abode of that person or by sending it in a pre-paid registered letter addressed to that person at his usual or last known place of abode.  See the case of ADMIN/EXEC ESTATE ABACHA Vs. EKESPIFF (2009) 7 NWLR (Pt. 1139) 97 SC. Per- Mohammed Lawal Abubakar JCA

 

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ADMITTANCE TO SPECIFIC PLEADINGS- FAILURE TO DENY IS DEEMED ADMITTANCE

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Am of the firm view that the appellant having failed to deny those specific pleadings is deemed to have admitted same and thereby lessen the burden of prove on the 1 st , 2 nd and 5 th Respondents.  See ALABI Vs. AUDU (2017) LPELR – 42872, SALISU Vs. ODUMADE (2010) 6 NWLR (Pt. 1190) pg. 228 @ 238. Per – Mohammed Lawal Abubakar JCA

 

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VISIT TO LOCUS IN QUO – THE COURTS CAN VISIT THE LOCUS IN QUO TO CONFIRM/CONTRADICT AN EVIDENCE

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Moreover, when the trial Court visited the locus in quo the averment contained in paragraphs 13, 14, 15 and 16 of the amended statement of claim and paragraphs 14 – 17 of PW1 evidence in chief were found to be false to support trespass.  See pages 426 of the Record. Per – Mohammed Lawal Abubakar JCA

 

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PERVERSE FINDING – WHEN IS A FINDING PERVERSE

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A finding is perverse only when it runs counter to the evidence on record and pleading or when the Court shut its eyes to the obvious.  Consequently, I hold that this issue is resolve against the Appellant and in the favour of the 1 st , 2 nd and 5 th Respondents. Per- Mohammed Lawal Abubakar JCA

 

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COUNTER CLAIM

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MEANING OF COUNTER CLAIM It is settled law that a counter-claim is a separate and independent action.  It is an action by the Defendant against the Plaintiff and the counter-claimant is duty-bound to prove the same.  The mere fact that the Plaintiff’s claim has failed does not automatically mean that the counter-claim must succeed.  See the case of MUSA Vs. YUSUF (2006) 6 NWLR. Per – Mohammed Lawal Abubakar JCA

 

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JOINING OF ISSUES – WHEN ARE ISSUES SAID TO BE JOINED

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It is settled law that issues are joined on the pleadings when the facts averred by a party are properly traversed or denied by the other party. The Supreme Court has held that for a traverse in pleading to amount to denial, it must be explicit, unequivocal and should not leave any one in doubt as to the intention sought to be portrayed and that where a traverse does not meet that threshold, it is improper and amounts to an admission. Per – Habeeb Adewale Olumuyiwa Abiru JCA

 

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PLEADING – WHAT IS THE RULE OF PLEADING

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In Oseni V. dawodu (1994) 4 NWLR (Pt.339) 390 the Supreme Court explain the point thus:

“The rule of pleading is that in order to raise an issue of fact, there must be a proper traverse. If a defendant refuses to admit a particular allegation in a statement of claim, he must state so expressly and specifically and he does not do this satisfactorily by pleading that he is not in a position to admit or deny a particular allegation or/and that he will at the trial put the plaintiff to the strictest proof thereof. Paragraph 1 of the Respondent’s amended statement of claim was therefore not effectively or successfully traversed and on the state of the authorities must be deemed as admitted”. Per – Habeeb Adewale Olumuyiwa Abiru JCA

 

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ORAL EVIDENCE – EFFECT OF ORAL EVIDENCE BEING COGENT AND RELEVANT

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It is good law that an unchallenged or un-contradicted oral evidence is admissible to establish the existence of a fact on which it was based. Where Oral evidence is cogent and relevant,Mthere is no need for documentary evidence as the oral evidence has properly covered the evidential scene. Per – Habeeb Adewale Olumuyiwa Abiru JCA.

 

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ADMITTED FACTS – ADMITTED FACTS NEEDS NO FURTHER PROOF

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It is trite law that an admitted fact is deemed established, without requirement of further proof. It is trite law that an admitted fact needs no further proof. . Per – Habeeb Adewale Olumuyiwa Abiru JCA.

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Evidence Act 2011

Land Use Act

 

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