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  • Kankia v. Maigemu
  • 206
  • 2004-05-10
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Kankia v. Maigemu

ALHAJI HAMDANA KANKIA

V

ALI MAIGEMU

NASIRU SHUAIBU

HAMZA HAJI-HAJI

M. LAWAL BUJE

KOFAR BAI DEVELOPMENT ASSOCIATION

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided and Read the Lead Judgment )

MAHMUD MOHAMMED, JCA

JOSEPH JEREMIAH UMOREN, JCA

CA/K/1/97

MONDAY, 18TH FEBRUARY, 2002

APPEAL - Appellate court - Duty on not to interfere with finding of fact of trial court

APPEAL - Appellate court - Whether can interfere with evaluation of evidence by trial court

APPEAL - Visit to locus in quo - Where improperly considered - Need for to form a separate ground of appeal

COURT - Appellate court - Duty on not to interfere with finding of fact of trial court

COURT - Appellate court - Whether can interfere with evaluation of evidence by trial court

COURT - Trial court - Whether ascription of probative value to witness is exclusive duty of

CUSTOMARY LAW - Principle of prescription under customary law Whether different from what obtains under Islamic law

EVIDENCE - Document made during the pendency of a suit -

Inadmissibility of - Section 91(3) Evidence Act

EVIDENCE - Document written in language different from the language of court - Effect of

EVIDENCE - Evaluation of evidence by trial court - Whether appellate court can interfere with

EVIDENCE - Identity of land - Quantum of evidence required to determine - Test to be applied in measuring same

EVIDENCE - Inadmissible document - Whether parties can by consent -  admit same

EVIDENCE - Inadmissible evidence - Duty on court to expunge where improperly received in evidence

EVIDENCE - Plaintiff’s case - Whether can be supported or strengthened by defendant’s evidence - Nature of defendant evidence that can strengthen plaintiff’s case

EVIDENCE - Proof - Declaratory action - Burden of showing identity of land to which plaintiff’s claim therein relates - How discharged

EVIDENCE - Witnesses - Ascription of probative value thereto - Whether exclusive duty of trial court

ISLAMIC LAW - Principle of prescription - Application of under Islamic law

ISLAMIC LAW - Principle of prescription under customary law - Whether different from what obtains under Islamic law

JUDGMENT AND ORDERS - Orders of court - Importance of

LAND LAW - Declaration of title - Plaintiff seeking same - Duty on to show identity of land his claim relates

LAND LAW - Declaratory action - Burden of showing identity of land to which plaintiff’s claim therein relates - How discharged

LAND LAW - Identity of land - Quantum of evidence required to determine - Test to be applied in measuring same

LAND LAW - Survey plan - Requirement to tender sketch plan of disputed land - When dispensed with

LAND LAW - Title - Right to title - Whether can be founded on prescription under native law and custom

LAND LAW - Title to land - Party claiming through another person Duty on to establish the title of that other person

LAND LAW - Title to land - Where rival claimants relied on titles - Who succeeds

NATIVE LAW AND CUSTOM - Whether right to title can be founded on prescription under native law and custom

PLEADINGS - Reply to statement of defence - Purpose of - When necessary to file

PRACTICE AND PROCEDURE - Plaintiff’s case - Whether can be supported or strengthened by defendant’s evidence - Nature of defendant’s evidence that can strengthen plaintiff’s case

PRACTICE AND PROCEDURE - Visit to locus in quo - Where improperly considered - Need for to form a separate ground of appeal

Issues:

1.              Whether the learned trial Judge properly evaluated the evidence in this case.

2.              Whether in the circumstance of this case, a sketch plan was a sine qua non for the appellant to establish his case.

Facts:

The appellant herein asserts that he purchased the land in dispute situate at Kofar Bai quarters, Katsina, on which he built his houses, Hamdana Houses and its surroundings from one Alhaji Ibrahim Mai Unguwar Butsinma contrary to the averment of the respondents that he bought only the piece of land on which his twin houses are built from one Alkalin Batsari. It is also his case that his act of possession and ownership included depositing of building material on the land, the building of incinerator therein for public use and giving of consent to some unnamed or faceless persons to install a public tap on the land. And that he has been in peaceable enjoyment of the land without any disturbance whatsoever for about 10 years before the institution of the action.

At the notice of the alleged trespass by the respondents, the appellant took out a writ of summons, against the defendants at the Katsina State High Court, claiming a declaration of title to the said parcel of land, general damages for trespass and perpetual injunction.

At the conclusion of trial, the trial court dismissed the plaintiff’s claim in the entirety.

Being dissatisfied, the appellant has appealed to the Court of Appeal.