CORAM

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PARTIES

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UBAYO D. KEDENGS

APPELLANTS 

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YAKONG TADI

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL LAW AND PROCEDURE, CONSTITUTIONAL LAW, COURT, DAMAGES, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant as Plaintiff instituted this suit at the High Court of Gombe State holden at Gombe and claimed against the Respondents as Defendants the following among other reliefs:

1. A declaration of title over the land laying situate at Kentengereng Billiri, Billiri Local Government bought by Plaintiff from 2nd Defendant for N700, 000.00 (Seven Hundred Thousand Naira Only.)

2. A declaration that the continued stay of the Defendants on the land constitutes trespass.

The 1st Respondent on his part counterclaimed for a declaration of title to this land upon 1st Defendant as representing his mother Mrs. Fibi Tadi.h among other reliefs.

According to the Appellant, the land in dispute was initially sold to PW1 by 2nd Respondent but when PW1 could not make full payment, it was offered to him. He bought the land for seven hundred thousand naira (N700, 000.00).He took possession of the land in 2006. In August, 2012, the 1st Respondent trespassed into the land.

However, the case of the 1st Respondent according to the DW2 is that the 1st Respondent is her son and the 2nd Respondent is her younger brother. She bought the land a long time ago with the help of her husband now late from one Ibrahim Manaja Poshiya for eight hundred naira (N800). That their father had no landed property at Billiri town and as such the 2nd Respondent could not have inherited any. That all her siblings including the 2nd Respondent grew up under her care. She is therefore surprise that the 2nd Respondent is now claiming her property as his own. That the 2nd Respondent cannot inherit her property while she is still alive. After buying the land she built a four bedroom bungalow on the land. She allowed members of LCCN Church who requested to make use of the building to use it for worship.

The defence of the 2nd Respondent is that the land in dispute devolved on him by inheritance from his late father. The Appellant purchased the land in 2006. In 2012 the Appellant told the 2nd Respondent that the 1st Respondent was interfering with his peaceful and quiet enjoyment of the land by various acts of trespass.

After considering the evidence adduced by the respective parties, and addresses of learned counsel for the parties, the trial Court dismissed the claim of the Appellant and entered judgment in favour of the 1st Respondent/Counterclaimant. The trial Court also granted the two declaratory reliefs sought by the 1st Respondent, an order of perpetual injunction, special and general damages.

Dissatisfied with the judgment of the trial Court, the Appellant has filed the instant appeal vide a Notice of Appeal dated and filed on 13th August, 2014 which contains eleven grounds of appeal.

 

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HELD

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Appeal dismissed.

 

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ISSUES

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Whether the learned trial High Court Judge was right when he held that from the pleadings and evidence of all the parties they are ad idem on the identity of the land (distilled from grounds 1 & 3).

Whether the learned trial High Court Judge was right when he held that the pieces of evidence about the measurement of the land of 100x100ft pleaded by Appellant and 100x60ft pleaded by 1st Respondent and 100x80ft testified by DW2 (1st Respondent mother) is a discrepancy and not contradictory and did not affect the identity of the land. (distilled from ground 2).

Whether the learned trial High Court Judge was right in resolving the differences in the certificates of occupancy in the Court in the absence of an expert evidence or measurement of the land in dispute to ascertain which of the certificates actually relates to the land preferring to settle on which was first issued (distilled from grounds 6 & 7).

Whether the special damages of N300, 000.00 awarded against the Appellant/2nd Respondent was specially pleaded and proved and Appellant afforded a fair hearing in the entire case (distilled from grounds 9 & 10).

Whether the Appellant did not proof (sic) his case before the trial High Court. (distilled from grounds 4, 5, 8 & 11).

 

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RATIONES DECIDENDI

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IDENTITY OF LAND- BURDEN OF PROVING IDENTITY OF LAND AND WHEN IT MAY ARISE

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 “The plaintiff has a duty to prove the precise area to which his claim relates. However, the burden will not arise where the identity of the land in dispute was never a question in issue. The issue will only arise where the defendant raises it in his statement of defence and supported by evidence.” – Per ABIRIYI, J.C.A.

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Evidence Act 2011

 

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