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  • Mustapha vs. Mshelizah
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  • 2003-12-01
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Mustapha vs. Mshelizah

ALHAJI KACHALLAH MUSTAPHA

ALHAJI SABO

ALHAJI BABA GANA

V

ILIYA S. MSHELIZAH

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/78/97

MONDAY, 10TH MARCH, 2003

APPEAL - Grounds of appeal - Whether must be read with the particulars

APPEAL - Issues for determination - Need to be rooted in the grounds of appeal

APPEAL - Preliminary objection to hearing of appeal - Proper ways to raise before the Court of Appeal

COURT - Court of Appeal - Preliminary objection to hearing of appeal -  Proper ways to raise

CUSTOMARY LAW - Customary law - Sale of land thereunder - How validly done and proved

EVIDENCE - Defendant whose evidence and pleadings are totally discredited - Whether the defence put forward should be allowed in any way

EVIDENCE - Title to land - Five ways of proving

JURISPRUDENCE - Legal systems governing land transactions - How to determine whether customary law or English law governs a

land transaction - Whether evidence of purchase receipt or agreement to sell is sufficient

LAND LAW - Acquisition of land - Two legal systems under which land can be validly acquired - How to determine whether customary law or English law governs a land transaction

LAND LAW - Certificate of occupancy - Whether a conclusive proof of ownership of land which root of title is in dispute - How estates and interest rank in the order of their creation

LAND LAW - Claims of title to land - How to determine a better title

LAND LAW - Customary law - Sale of land thereunder - How validly done and proved

LAND LAW - Declaration of title - Proof of the area of land in dispute Whether necessary where the land is identifiable and known to both parties

LAND LAW - English legal system - Sale of land thereunder - How validly done and proved

LAND LAW - Estates and interest - Principle upon which they are ranked in the order of their creation

LAND LAW - Law governing land transaction - Duty of court to determine where issue as to whether title to or interest in land has been validly acquired by purchase arises

LAND LAW - Legal systems governing land transactions - How to determine whether customary law or English law governs a land transaction - Whether evidence of purchase receipt or agreement to sell is sufficient

LAND LAW - Proof of title - Five ways of proving title to land

LAND LAW - Proof of title - Pleading that land is in an urban area and that the certificate of occupancy was granted by a Local Council -  Effect

LAND LAW - Sale of land - How validly done under customary law How proved

PLEADING - Land -  Proof of title - Pleading that land is in an urban area and that the certificate of occupancy was granted by a Local Council - Effect

PRACTICE AND PROCEDURE - Appeal before the court of Appeal - Preliminary objection to hearing of appeal - Proper ways to raise

PRACTICE AND PROCEDURE - Defence - Where the pleadings and evidence of the defendant is totally discredited - Whether the defence pleaded should be allowed in any way

PRACTICE AND PROCEDURE - Issues for determination - Whether must be rooted in the grounds of appeal - Whether grounds of appeal must be read with the particulars

Issues:

1.              Having regard to the evidence before the court, has the respondent proved any title or right of occupancy which is better than that of the appellants?

2.              What is the identity of the land claimed by the respondent?

3.              Whether the respondent has proved any title or right of occupancy which is better than the appellants’ and whether exhibit A could convey a valid title.

Facts:

The plaintiff/respondent claimed declaration of entitlement to right of occupancy, and injunction in respect of a piece of land measuring 100 feet x 100  feet situate at Bulumkutu South Maiduguri covered by sales agreement dated 26/3/1992 (exhibit A).

The pleadings showed that the plaintiff bought the piece of land from the 1st defendant/appellant in 1982 in the presence of named witnesses, and exhibit A was then made, and possession was given to him in the presence of the witnesses. He packed some building materials on the land, such as gravel, sand and iron rods. His building operations were put on hold thereafter. In 1992  he noticed the presence of strangers on his land and some structural developments thereon, whereupon he reported the matter to the police who then arrested the 1st defendant/appellant. The said defendant admitted disposing of the land to another person as he had not seen the plaintiff for about 9 years. He promised to compensate the plaintiff but never did.

Upon the institution of this action, the 1st defendant in his defence denied selling the land to the plaintiff and denied making exhibit A. The 2nd defendant/appellant claimed to be the owner of the land as a holder of certificate of occupancy covering the same.

After hearing evidence in the matter, the learned trial Judge awarded judgment to the plaintiff. Dissatisfied, the defendants filed this appeal.