KABIRU BUBALDE V.MODIBBO MUHAMMADU JAURO LUGGA
March 23, 2025MOHAMMED LAMINU GONI V. UMAR TAHIR
March 23, 2025Legalpedia Citation: (2022-06) Legalpedia 47371 (CA)
In the Court of Appeal
Holden at Makurdi
Fri Jun 3, 2022
Suit Number: CA/MK/171/2013
CORAM
IGNATIUS IGWE AGUBE
CORDELIA IFEOMA JOMBO-OFO
MUSLIM SULE HASSAN
PARTIES
TERHILE TION
APPELLANTS
JOHN TERSEER MBAPUUN
RESPONDENTS
AREA(S) OF LAW
AREAS OF LAW: ACTION, APPEAL, COURT, LAND LAW, LAW OF EVIDENCE, LIMITATION LAW, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Respondent commenced this action before the Benue State High Court sitting at Sankera by a Writ of Summons, wherein he sought against the Appellants, a declaration of title to the land covered by the Certificate of Occupancy no. BN 1226; Order of perpetual injunction; and general damages. The Respondent claimed that his ancestor, Pa Mbapuun Gbor settled on the land in dispute since 1952, and they had since then remained in possession till 2008 when the Appellant without any just cause trespassed upon the land; and that his parents obtained local government certificate of occupancy over the land and sometimes in 2008, same went missing prompting the making of police report and affidavit of loss to that effect. The Appellants were farming on the disputed land upon request and permission granted to them by the Respondent’s family, until the Appellants trespassed on same in 2008, a situation which the Respondent reported to the elders of the community and same was resolved in Respondent’s favor. But the Respondent out of good neighborliness obliged the Appellant a portion of the land to be farming on, but the Appellant still encroached on the land and are destroying the economic tress of the Respondent. The Appellants filed their defence and counter claim and stated that the land was found in the mid-1800s by their great grandfather Mbagar which was inherited by their fathers. That it was in 1911 when the Tiv NKST mission came and was introduced in Zaki Biam, and when Tion Ala became the head of the family, that he showed Pastor Yakubu Amachigh a portion of the land to reside with his staff, and that was how Pa Mbapuun came to be on the land as a mission staff in 1953 and he never contested title of the land with the Appellants. His sons who lived and died were buried in their land at Mbagir. That when the Appellant cleared a portion of the land in dispute in 2008 and the matter was reported to the elders, the elders resolved ownership of the land in dispute in favor of the Appellants; that the disputed land is presently inhabited by over 27 families of the Appellants. At the end of the trial, the lower Court in its judgment entered judgment in favor of the Respondent, and dismissed the Appellants Counter claim, hence the present appeal.
HELD
Appeal Dismissed
ISSUES
Whether the lower court properly evaluated the evidence adduced by both parties and drew the correct inference from facts which it found to have been proved before it?
Whether the parties proved their respective claims and counter claim on the requisite standard to be entitled to judgment.
Whether the respondent’s claim was caught up by the Benue State statute of limitation, 1988.
RATIONES DECIDENDI
SERVICE OF ORIGINATING PROCESS – FUNDAMENTAL REQUIREMENT OF SERVICE OF A NOTICE OF APPEAL ON A RESPONDENT
“The Notice of Appeal being an originating process must be serve personally on parties directly affected by the appeal before an appellate Court can have jurisdiction to entertain a matter before it, the notice of appeal must as of necessity be served on the Respondent. It is the foundation upon which every other process or proceeding in the appeal rest. Being an originating process, it is a fundamental requirement not only of the Rules of this Court but also of the constitutional right of fair hearing guaranteed under Section 36 (1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to read thereto and place his own side of the case before the court. In an appeal, service of the notice of appeal on the Respondent provides him with an opportunity to participate in the compilation of records and to file a cross-appeal, if necessary. See Anwakobe & Ors v. Esumei & Ors (2018) LPELR-47255 (CA). -PER M. S. HASSAN, J.C.A
EVALUATION OF EVIDENCE – DUTY OF A PARTY WHO COMPLAINS OF IMPROPER EVALUATION OF EVIDENCE
“The law is well settled that an Appellant who complains that the decision of a trial Court is wrong or perverse for lack of adequate or proper evaluation of oral and documentary evidence placed before the trial Court, must prove or establish that the trial Court made improper use of the opportunity of seeing the witnesses testified before him. The Appellant must demonstrably show that there was misapplication of the oral and the documentary evidence tendered and proffered before the trial Court. He must show that relevant laws or decisions on the subject matter before the trial Court were misapplied or misconstrued. He must show above all that the wrong inferences or wrong evaluation of the pieces of evidence before the trial Court have led to miscarriage of justice making it imperative for the Appellant Court to intervene and re-evaluate the oral and documentary evidence. -PER M. S. HASSAN, J.C.A
CASES CITED
STATUTES REFERRED TO
Benue State High Court (Civil Procedure) Rules 2007
Court of Appeal Rules, 2007
Court of Appeal Rules, 2011
Court of Appeal Rules, 2021
