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  • 2004-10-11
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Mulima v. Goniram

ALHAJI BUKAR MULIMA

V

HAJJA GAMBO GONIRAM

HAJJA BANA

ATTORNEY-GENERAL OF BORNO STATE

COMMISSIONER FOR LAND & SURVEY, BORNO STATE

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

IKECHI FRANCIS OGBUAGU, JCA

CA/J/227/99

TUESDAY, 20TH APRIL, 2004

APPEAL - Adjournment - Appeal against exercise of discretion of trial court in respect of - Onus on appellant

APPEAL  Discretionary power of court - Exercise of by trial court When appellate court will interfere with

COURT - Adjournment - Discretionary power of court to grant - Need for discretion to be exercised judicially and judiciously

COURT - Discretionary power of court - Exercise of by trial court - When appellate court will interfere with

EVIDENCE - Admission - Needlessness of proof of

EVIDENCE - Burden of proof - Onus on he who asserts to prove

EVIDENCE - Burden of proof - Primary burden of proof on the plaintiff -  Failure of a defendant to prove his case - Whether relieves the plaintiff of his primary burden of proof

EVIDENCE - Declaration of title to land - Claim for - Onus of proof therein - When will be placed on defendant

EVIDENCE - Declaration of title to land - Precise area of land to which title relates - Onus on party seeking declaration to prove

EVIDENCE - Onus of proof - Where appellant offered no evidence in his defence - Nature of -  Onus of proof therein

EVIDENCE - Pleadings - Whether amount to evidence - Effect of not proffering evidence in support of pleadings

EVIDENCE - Title to land - Ways of proving

EVIDENCE - Traditional history - Plaintiff who relies thereon to prove root of title to land - Duty on to trace how land descended on him in proof thereof

EVIDENCE - Traditional history - Requirements to lead evidence in proof of traditional history supporting title to land - Exception to where title of plaintiff is admitted by the defence

EVIDENCE - Uncontroverted or uncontradicted evidence of a plaintiff - Effect

JUDGMENT AND ORDERS - Slips and errors in judgment - When will lead to reversal of judgment

JUDICIAL PRECEDENCE - Citing of wrong law by counsel - When fatal - Consequential only when it occasions a miscarriage of justice

JUDICIAL PRECEDENCE - Legal authorities cited by counsel - Need for to be applicable to the point in issue and circumstances of a particular case

LAND LAW - Certificate of occupancy - Status of as proof of title to land

LAND LAW - Declaration of title - Identity of the land in dispute - Issue of - When would arise in an action for declaration of title to land

LAND LAW - Declaration of title - Onus of proof therein - When will be placed on defendant

LAND LAW - Declaration of title - Principle that a plaintiff in a claim for declaration of title to land must rely on the strength of his own case and not the weakness of the defence - Exception thereto

LAND LAW - Declaration of title to land - Precise area of land to which title relates - Onus on party seeking declaration to prove

LAND LAW - Land Use Act and Land Tenure Law - Applicability of to acquisition of land and the grant and revocation of the right of occupancy

LAND LAW - Title to land - Party who relies on grant or title according to the custom of any person, family or community for his title Duty on to prove and plead the origin of such grant or title

LAND LAW - Title to land - Ways of proving - Idundun vs. Okumagba restated

LAND LAW - Traditional history - Plaintiff who relies thereon to prove root of title to land - Duty on to trace how land descended on him in proof thereof

LAND LAW - Traditional history - Requirements to lead evidence in proof of traditional history supporting title to land - Exception to where title of plaintiff is admitted by the defence

LEGAL PRACTITIONER - Legal authorities cited by counsel - Need for to be applicable to the point in issue and circumstances of a particular case

PLEADINGS - Whether amount to evidence - Effect of not proffering evidence in support of pleadings

PRACTICE AND PROCEDURE - Adjournment - Application for Discretionary power of court to grant - Need for discretion to be exercised judicially and judiciously

PRACTICE AND PROCEDURE - Adjournment - Application for - Party who appeals against an order in respect of - Onus on

PRACTICE AND PROCEDURE - Counsel - Legal authorities cited by -  Need for to be applicable to the point in issue and circumstances of a particular case

PRACTICE AND PROCEDURE - Discretionary power of court -

Exercise of by trial court - When appellate court will interfere with

STATUTE -  Land Use Act and Land Tenure Law - Applicability of to acquisition of land and the grant and revocation of the right of occupancy

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 giving judgment for the 1st and 2nd respondents.

2.              Whether having regard to the pleadings and the evidence before the trial court, the identity of the land in dispute was made an issue between the parties?

3.              Whether from the record of proceedings in this appeal and having regard to all the circumstances of the case, the trial court was in error by refusing to grant the adjournment applied for by the appellant as a defendant in the action and whether the appellant suffered a miscarriage of justice as a result of the refusal.

Facts:

This is an appeal in a land dispute which commenced at the High Court of Justice, Borno State, Maiduguri Division and in which judgment was delivered in favour of the plaintiffs against the defendants who were four in number jointly and severally. The appeal is filed by the 2nd defendant.

The plaintiffs’ claim is for declaratory and injunctive reliefs and an order of cancellation of the certificate of occupancy and subsequent assignment to the 2nd defendant. According to the plaintiffs, the land which is the subject-matter of the suit is situate at Bolori Area in Maiduguri metropolitan area of Borno State and is bounded by Flour Mill Road and Yerima Road and by an adjoining land belonging to one Bukar Kyari Kolo. The original owner of the land was one Lawan Bolo, the great grandfather of the plaintiffs. After the death of Lawan Bolo, Lawan Bolorima, grandfather of the plaintiffs, inherited the land and later gave it as a gift to Alhaji Goni Fatumi, his son and the father of the plaintiffs, who, throughout his lifetime, was in an undisturbed possession of the land. On the death of Alhaji Goni Fatumi about 50 years ago, the land was inherited by the plaintiffs and they have since then exercised acts of ownership and possession on the land.

The defendants on their part denied the claim of the plaintiffs. At the trial court, judgment was given in favour of the plaintiffs.