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  • 2002-10-28
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Kumaganam v. Kyari

ALHAJI ABBA KYARI KUMAGANAM

V

MALLAM A. GONI KYARI

ALHAJI GONI GAMBORU

ALHAJI BASHIR

ALHAJI SALEH

YA FANTA

ALHAJI TIJANI GALADIMA

BABA FANNAMI

THE ATTORNEY GENERAL, BORNO STATE

COURT OF APPEAL

( JOS DIVISION )

A. MARIAM MUKHTAR, JCA ( Presided and Read the Lead Judgment )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA

CA/J/145/95

WEDNESDAY, 27TH FEBRUARY, 2002

APPEAL - Findings of trial court - Attitude of appellate court thereto

COURT - Findings of trial court - Attitude of appellate court thereto

EVIDENCE - Burden of proof - On whom lies - Failure to discharge the burden - Effect thereof - Section 135 Evidence Act

EVIDENCE - Production of evidence that is required in proof of a case Failure of a party who puts up a case to do so - Presumption that the evidence if produced will be unfavourable to the party’s case

PLEADINGS - Bindingness of - Evidence that are not in line with averments in pleadings - Effect

PRACTICE AND PROCEDURE - Rules of court - Non-compliance therewith by a party - Other party objecting thereto - When can be estopped from doing so

Issues:

1.            Whether having regard to the pleadings, the evidence before the trial court and the applicable law, the learned trial Judge was right in dismissing the plaintiff/appellant’s case.

2.            Whether the learned trial Judge was right in her approach and ultimate finding/decision that the defendants have made out their case for the reliefs claimed in their counter-claim.

Facts:

The appellant as plaintiff in the High Court of Borno State holden at Maiduguri, claimed against the respondents as defendants amongst other declarative and injunctive reliefs a declaration that the piece of land, plots Nos. 12 and 14 of Plan Number BODP Baga Road, Maiduguri in the Industrial Area Layout Extension covered by Certificate of Occupancy No. BO/2934 issued by the Borno State Government in favour of the plaintiff is the property of the plaintiff to the exclusion of any other person. It was the case of the appellant that he applied and was granted statutory right of occupancy and went into physical possession of the land, the subject-matter of this suit. The 1st-7th respondents trespassed on the land and disturbed the appellant from exercising his right over the land. The 1st-7th respondents in their joint statement of defence denied that the land in dispute was in fact granted to the appellant under a certificate of occupancy, as they had equitable interest in the land from persons in undisturbed long possession having customary law title. They counter-claimed and sought declarations and injunctions. A third party notice was issued pursuant to the order of the court to the Attorney-General of Borno State. In the notice, the defendants claimed against the Attorney-General as representative of Borno State Government inter-alia for an order directing the cancellation of the said certificate of occupancy No. B02934.

At the conclusion of trial, the learned trial Judge gave judgment against the appellant. Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.

The court considered the provisions of Order 11 rule 17 of the Borno State High Court (Civil Procedure) Rules which provide:

“17(1) Where in any action a defendant claims as against any person not already a party to the action (in this section called ‘the third party’).

(a)           That he is entitled to contribution or indemnity or;

(b)          That he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some reliefs or remedy claimed by the plaintiff, or

(c)           That any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between any or either of them, the court or a Judge in chambers may give leave to the defendant to issue and serve a third party notice.”

Section 34(5) of the Land Tenure Law Cap 59, Laws of Northern Nigeria, 1963, was also considered. It provides:

“34(5) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Minister and notice thereof shall be given to the holder.”