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Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
Between
ALHAJI ABATCHA MOHAMMED KOLO –Appellant
AND
ALHAJI MOHAMMED LAWAN – Respondent
…………………….A…………………….
OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Jos division delivered on 12th day of May, 2010 wherein the Court of Appeal, herein referred to as “the Court below”, affirmed the decision of the Borno State High Court, hereinafter called “the trial Court”, delivered on 26th September, 2008.
The appellant as plaintiff before the trial Court had claimed as follows:
1. A declaration that judgment in suit No. M/132/96 delivered on 5/4/2006 is nullity having been obtained by fraud.
2. A declaration that the plaintiff is the title holder of the land covered by Certificate of Occupancy No. BO/12336.
3. An order directing the defendant to give vacant possession to the plaintiff forthwith.
4. An order restraining the defendant, his servants, agents, assigns or any person whosoever from trespassing or interfering with the land covered by Certificate of Occupancy No. BO/12336.
5. Damages from trespass to be assessed by the Court.
6. Cost of the suit.
Before I proceed further in this judgment, it is interesting to note that the respondent herein and one Mohammed Ali had been parties in Suit No. M/187/1996 over the same parcel of land – the land in dispute in the instant. The respondent had earlier sued the said Mohammed Ali who had entered and claimed the land in dispute as his own on the ground that he had purchased same from the present appellant who had surrendered to him, the original title documents to wit: Certificate of Occupancy No.80/12336 purportedly granted and issued to the appellant by the Borno State Government.
The said action in Suit No. M/LS7/9G was heard and decided against the said Mohammed Ali, who then laid claim to the land in dispute, and he appeared. It was during the pendency of his appeal at the Court below in appeal No. CA/J/17/2004 that the instant appellant who had passed his title to the said Mohammed Ali, instituted the action, at the Borno State High Court, which culminated into the instant appeal.
At the conclusion of the trial before the Borno State High Court, the appellant’s claims were dismissed. The Certificate of Occupancy – Exhibit C, held by the appellant was held to be void as there was in existence, a deemed right of occupancy over the same land in favour of the defendant, instant respondent.
Aggrieved, the appellant filed an appeal to the Court below and the said appeal was dismissed. The judgment of the trial Court was accordingly affirmed with costs awarded against the appellant but in favour of the respondent.
Further aggrieved, the appellant has appealed to this Court on seven grounds of appeal filed on 8/7/2011. Pursuant to the Rules of the Court, upon service of the records of appeal, parties filed and exchanged briefs of argument. Appellant’s brief of argument which was filed on 21/01/2012 was deemed properly filed and served on 11/01/2017; while the respondent’s brief of argument was filed on 22/03/2017 within time. The appellant subsequently filed a Reply brief of argument to the respondent’s brief of argument on 26/04/2017.
On the 6th of February, 2018 when this matter came upon for hearing, Mr. Oru of counsel, leading other counsel for the appellant, identified appellant’s main brief and reply brief of argument to urge the Court to allow the appeal, set aside the concurrent decision of the lower Court and enter judgment for the appellant in terms of his claims.
Mr. Ntafa of counsel leading B. O. Yerima Esq. for the respondent identified and adopted the respondent’s brief of argument to urge the Court to dismiss the appeal and affirm the concurrent judgments of the Court below.
In their respective briefs of argument, the parties formulated five issues each for determination of the appeal, based on the seven grounds of appeal contained in the Notice and Grounds of Appeal earlier filed by the appellant. The said five issues as distilled by the appellant which are not dissimilar to that of the respondent read thus:
1. Whether or not their Lordships of the lower Court were right when they relied on unpleaded and unproved facts to hold that the respondent has proved that he bought the land in dispute since 1977 and traced his root of title to four generations of vendors. (Distilled from Grounds 1 and 6).
2. Whether in the circumstances of this case, especially considering that the respondent failed to tender the purchase receipt to prove that he bought the land in 1977 or any document to show the size(s) and location of the land he bought and there being no evidence of any development on the land by the
1. A declaration that judgment in suit No. M/132/96 delivered on 5/4/2006 is nullity having been obtained by fraud.
2. A declaration that the plaintiff is the title holder of the land covered by Certificate of Occupancy No. BO/12336.
3. An order directing the defendant to give vacant possession to the plaintiff forthwith.
4. An order restraining the defendant, his servants, agents, assigns or any person whosoever from trespassing or interfering with the land covered by Certificate of Occupancy No. BO/12336.
5. Damages from trespass to be assessed by the Court.
6. Cost of the suit.
Before I proceed further in this judgment, it is interesting to note that the respondent herein and one Mohammed Ali had been parties in Suit No. M/187/1996 over the same parcel of land – the land in dispute in the instant. The respondent had earlier sued the said Mohammed Ali who had entered and claimed the land in dispute as his own on the ground that he had purchased same from the present appellant who had surrendered to him, the original title documents to wit: Certificate of Occupancy No.80/12336 purportedly granted and issued to the appellant by the Borno State Government.
The said action in Suit No. M/LS7/9G was heard and decided against the said Mohammed Ali, who then laid claim to the land in dispute, and he appeared. It was during the pendency of his appeal at the Court below in appeal No. CA/J/17/2004 that the instant appellant who had passed his title to the said Mohammed Ali, instituted the action, at the Borno State High Court, which culminated into the instant appeal.
At the conclusion of the trial before the Borno State High Court, the appellant’s claims were dismissed. The Certificate of Occupancy – Exhibit C, held by the appellant was held to be void as there was in existence, a deemed right of occupancy over the same land in favour of the defendant, instant respondent.
Aggrieved, the appellant filed an appeal to the Court below and the said appeal was dismissed. The judgment of the trial Court was accordingly affirmed with costs awarded against the appellant but in favour of the respondent.
Further aggrieved, the appellant has appealed to this Court on seven grounds of appeal filed on 8/7/2011. Pursuant to the Rules of the Court, upon service of the records of appeal, parties filed and exchanged briefs of argument. Appellant’s brief of argument which was filed on 21/01/2012 was deemed properly filed and served on 11/01/2017; while the respondent’s brief of argument was filed on 22/03/2017 within time. The appellant subsequently filed a Reply brief of argument to the respondent’s brief of argument on 26/04/2017.
On the 6th of February, 2018 when this matter came upon for hearing, Mr. Oru of counsel, leading other counsel for the appellant, identified appellant’s main brief and reply brief of argument to urge the Court to allow the appeal, set aside the concurrent decision of the lower Court and enter judgment for the appellant in terms of his claims.
Mr. Ntafa of counsel leading B. O. Yerima Esq. for the respondent identified and adopted the respondent’s brief of argument to urge the Court to dismiss the appeal and affirm the concurrent judgments of the Court below.
In their respective briefs of argument, the parties formulated five issues each for determination of the appeal, based on the seven grounds of appeal contained in the Notice and Grounds of Appeal earlier filed by the appellant. The said five issues as distilled by the appellant which are not dissimilar to that of the respondent read thus:
1. Whether or not their Lordships of the lower Court were right when they relied on unpleaded and unproved facts to hold that the respondent has proved that he bought the land in dispute since 1977 and traced his root of title to four generations of vendors. (Distilled from Grounds 1 and 6).
2. Whether in the circumstances of this case, especially considering that the respondent failed to tender the purchase receipt to prove that he bought the land in 1977 or any document to show the size(s) and location of the land he bought and there being no evidence of any development on the land by the
…………………….B…………………….
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