CORAM

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HON. JUSTICE A. A. B. GUMEL JUSTICE, COURT OF APPEAL

HON. JUSTICE U. A. OGAKWU JUSTICE, COURT OF APPEAL

HON. JUSTICE M. DANJUMA JUSTICE, COURT OF APPEAL

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PARTIES

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1. SAMUEL AFUDE
2. LUKA AFUDE

APPELLANTS 

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1. JOSHUA PELE
2. MALLAM ZAKAYO BOYI
3. IBRAHIM BILAL
4. SAMBO PELE
5. MATHEW KUNA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, LAND LAW, EVIDENCE, TRESPASS, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants sued the Respondents at the High Court of Gombe State claiming five reliefs including declaration of trespass, perpetual injunction, special damages of N5 million, exemplary damages of N3 million, and N1 million cost of litigation. The Respondents denied the claims and counter-claimed for similar reliefs including declaration of trespass against the Appellants, perpetual injunction, special damages of N10 million, exemplary damages of N6 million and N1.5 million cost. The Appellants called 8 witnesses while Respondents called 7 witnesses. The trial court delivered judgment on December 21, 2020 dismissing the Appellants’ claims and granting the Respondents’ counter-claims. Dissatisfied, the Appellants appealed.

 

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HELD

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The appeal was dismissed. The judgment of the High Court was affirmed. Cost of N100,000 awarded against the Appellants.

 

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ISSUES

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1. Whether the trial High Court was right in holding that the Appellants “were economical with the truth as such their evidence is unreliable.?

2. Whether the trial High Court was right in holding that “it believed the Appellants deceived the Respondents into withdrawing the case in exhibit A, B and B1.?

3. Whether the trial High Court was right to have dismissed the claim of the Appellants on the ground that the area shown during visit to locus inquo exceeded by 100 meters.?

 

 

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – WHEN TO TRUNCATE HEARING OF AN APPEAL

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A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct.” – Per RHODES-VIVOUR, JSC

 

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TITLE TO LAND – BURDEN ON PLAINTIFF WHERE DEFENDANT CLAIMS OWNERSHIP

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“A claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, or he has the right to such possession of the land in dispute, but once a defendant claim to be owner of the land in dispute, title to it is put in issue, and in order to succeed, the plaintiff must show better title than that of the defendant” – Per FATAYI, JSC

 

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CONSISTENCY IN EVIDENCE – EFFECT OF CONTRADICTION

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 “In the instant case, the evidence of the Plaintiffs’ witnesses are not consistent so far….. a party will not be allowed to present at trial evidence which are inconsistent with the case he has pleaded.” – Per Mohammed, J

 

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RELIABILITY OF WITNESSES – EFFECT OF DISCREDITED TESTIMONY

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“The evidence of the Plaintiffs witnesses were contradictory on the area in dispute as they were thoroughly discredited and made unreliable witnesses as their evidence taken as a whole in the light of the pleadings and cross-examination…. The submission of the Plaintiff counsel though built out and alluring is not supportive of the evidence led by the witnesses.” – Per Mohammed, J

 

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PROOF OF LAND BOUNDARIES – BURDEN ON CLAIMANT

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 “In an action which seeks for a declaration of title to land, the proof of the identity and boundaries of the land in dispute is squarely on the claimant which can be discharged either by oral evidence or by survey plan showing clearly the area to which his claim relates.” – Per Mohammed Danjuma, JCA

 

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LOCUS IN QUO – EFFECT OF DISCREPANCY IN MEASUREMENTS

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“Evidently, on visit to locus in quo, all attempt by counsel to guide the 2nd Plaintiff on what is required on a visit to locus in quo failed as he would not even listing (sic) to the guidance sought to be given by his counsel.” – Per Mohammed, J

 

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PROFESSIONAL LITIGANTS – COURT’S ATTITUDE TO MULTIPLE CLAIMS

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 “The Plaintiffs on the record of this court had case with other people around the disputed land. I think this must have emboldened them at striving to becoming professional litigants as by 2nd Plaintiff when he admitted having two or more cases around the disputed land.” – Per Mohammed, J

 

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FINDINGS OF FACT – WHEN APPELLATE COURT WILL NOT INTERFERE

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“The law is that the conclusions of the trial court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upturn the judgment on the facts.” – Per Mohammed Danjuma, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act 2011

2. Court of Appeal Rules

3. High Court Law of Gombe State

 

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