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Kano v. Maikaji

MALLAM ALI KANO

V

ALHAJI NUHU MAIKAJI

COURT OF APPEAL

( KADUNA DIVISION )

T. N. ORJI-ABADUA JCA ( Presided and Read the Lead Judgment )

JOSEPH TINE TUR JCA

OBANDE F. OGBUINYA JCA

CA/K/359/2004

MONDAY, 16 MAY 2011

APPEAL - Respondent’s counsel - Duty thereon on appeal

EVIDENCE - Facts - Admitted facts - Nature of - Proof thereof - Needlessness thereof

EVIDENCE - Party who asserts - Duty thereon to prove

LAND LAW  - Title to land - Proof thereof - When possession will not stand for

LAND LAW - Customary sale of land - Validity of

LAND LAW - Customary tenancy - Nature of

LAND LAW - Customary tenancy - Party alleging - Duty thereon to establish same

LAND LAW - Declaration of title to land - Claim for - Party asserting root of title therein - Duty thereon to prove

LAND LAW - Declaration of title to land - Trial court therein - Duty on

LAND LAW - Survey plan - When unnecessary in action for declaration of title to land

LAND LAW - Title to land - Declaration of - Claim therefor - Identity of land in dispute therein - Importance of ascertaining

LAND LAW - Title to land - How proved

LAND LAW - Title to land - Where founded on allegation of customary tenancy - Nature of claim thereof

Issues:

  1. Whether a claimant to land having failed to prove his root of title as pleaded through sale can fall back and rely on acts of possession (presumption in section 145, Evidence Act) acts of ownership or on other matters to establish title.
  2. Whether plaintiff’s occupation and possession of portions of the disputed area is conclusive evidence of claim to title to the whole land.

3:         Whether facts mutually pleaded (or admitted) by parties need further proof at the existing trial.

4.         Whether the trial court was right in dismissing the counterclaim.

Facts:

The respondent was the plaintiff before the High Court of Kaduna State, wherein he claimed against the appellant, declaration of title over a disputed plot of land described both as Plot W. 20B, Rama Road and Plot 17 B, Danwaka Road, Kano. He also sought an order of perpetual injunction restraining the appellant from trespassing on the property and an order compelling the appellant to issue him all necessary documents of title in respect of the property which was allegedly sold to him by the appellant in 1966.

The appellant counterclaimed seeking an order of forfeiture by the respondent with respect to the land; an order ejecting the respondent from the said property and mesne profit at the rate of N100 (one hundred naira) per month from January 1984 when the respondent allegedly began denying the appellants’ over-lordship over the property in dispute.

The trial court dismissed appellants counterclaim and found for the respondent holding that the respondent was entitled to ownership of the property on the basis of long possession and acts of ownership.

Dissatisfied, the appellant appealed to the Court of Appeal.