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Alibe v. Yaro

MAJOR BUKAR ALIBE (RTD.)

V

ALHAJI YARO

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/100/95

MONDAY, 9TH APRIL,2001

ACTION - Civil claims - Proof of - Whose duty - Whether a weak defence removes the burden of proof on the plaintiff

APPEAL - Appellate court - Whether entitled to evaluate evidence after the trial court has done so - Circumstances when to interfere

COURT - Appellate court - Whether entitled to appraise or evaluate evidence afresh - Circumstances where same will interfere in the evaluation of evidence and findings of fact of trial court - Circumstances when it will not

COURT - Judgment and Proceedings of court - How proved

EVIDENCE - Evaluation of evidence  - Whose primary function Circumstances when appellate court will interfere - Circumstances when appellate court will not interfere

EVIDENCE - Judgment and Proceedings- Proof of - How done

EVIDENCE - Material evidence - Party in possession of - Failure of to tender or produce same - Unfavourable inference of fact to be drawn against him - Circumstances which may warrant such inference Section 149 (d) Evidence Act

JUDGMENT AND ORDER - Judgment and Proceedings of court - How prove

LAND LAW - Ownership of land - Determination of where rival claimants have a common root of title by grants - How done - Whether claimant whose title is later in time can maintain action against the one who first obtain title - Relevance of the principle of nemo dat quod non habet

LAND LAW - Trespass - Claim therein - Whether legal entry can defeat same

LAND LAW - Trespass - Plaintiff’s claim therein - Need for to be based on possessory right to title

PRACTICE AND PROCEDURE - Civil claims - Proof of - Whose duty - Whether a weak defence removes the burden of proof on the plaintiff

PRACTICE AND PROCEDURE -  Evaluation of evidence - Whether appellate court entitled to evaluate evidence afresh after the trial court has done so

PRACTICE AND PROCEDURE - Evaluation of evidence - Whose primary function - Circumstances when appellate court will interfere Circumstance when appellate court will not interfere

STATUTE - Evidence Act - Section 149(d) thereof - Party in possession of material evidence failing to tender or produce same - Unfavourable inference of fact to be drawn against him - Circumstance which may warrant such inference

Issues:

1.            Whether the learned trial Judge was right in holding that by the evidence before him the owner of the piece of land sold same to both appellant and respondent.

2.            Considering the evidence adduced before the trial court, who between the parties had a better title to the land as at the time of commencing this action in the High Court?

Facts:

The appellant as plaintiff sued the respondent as defendant claiming damages for trespass and injunction from further acts of trespass on plaintiff’s piece of land lying and situate immediately behind plaintiff’s residential house on No. 24, Waziri Kolo Street, Gamboru Liberty, Maiduguri. The appellant claimed that he bought the land from one Baba Talba Alkali on 18/3/93 as shown on his purchase receipt (exhibit ‘A’). The respondent on the other hand pleaded that he had title to the land which he bought from the same Baba Talba Alkali on 9/7/91 as shown on Local Government Alienation Permit dated 19/7/91 (exhibit ‘B’) issued to him and the said Baba Talba Alkali.

After hearing the case, the learned trial Judge entered judgment for the defendant on the reasoning that his title was better in time than that of the plaintiff. Dissatisfied, the plaintiff has filed this appeal.