Danjuma Tanka V. Osita Echendu (2010)
LAWGLOBAL HUB Lead Judgment Report
FRANCIS FEDODE TABAI, J.S.C.
This action was commenced at the Suleja Judicial Division of the High Court of Niger State on or about the 10th of April, 1995 with the Appellant herein being the Plaintiff and the Respondent herein being the Defendant.
The Appellant as Plaintiff claimed against the Respondent as Defendant the following reliefs:-
(a) A Declaration of title to the said farm land to the extent of encroachment into same only.
(b) An order of perpetual injunction restraining the defendant, his agents, privies, servants or whosoever claiming through him from further trespassing and/ or encroachment into the plaintiffs farm land.
(c) The sum of N20,000.00 (twenty thousand naira) only as general damages for trespass into the plaintiff s farm land.
Pleadings were duly filed and exchanged.
The actual trial commenced on the 29th of April, 1997 with the testimony of the Plaintiff/Appellant as the PW1. Two other witnesses also testified in support of the Plaintiff s case. All the three witnesses testified in the absence of the Defendant/Respondent or his counsel. On the 22nd of April, 1998 however the PW1 was, with the leave of court, recalled and was extensively cross-examined. Further leave was also granted for the recall and cross-examination of the PW2 and PW3, on the 17th of March 1999 however, the Defendant/Respondent decided to dispense with the intended cross-examination of the PW2 and PW3 and opened, his defence. The Defendant/Respondent was the only witness for the defence.
In its judgment on the 26th of June, 2000, the trial court allowed the claim and granted all the reliefs as claimed.
The Defendant was not satisfied with the decision of the trial court and thus proceeded on appeal to the court below.
The notice of appeal filed on the 20th of June, 2003 raised three grounds of appeal. The grounds of appeal without their particulars are:-
- The Honourable Justices of the Court of Appeal erred in law when they held that the suit was a boundary dispute.
- The Honourable Justices of the court of Appeal erred in law when they held that the Plaintiff (now appellant) was not in possession of the land in dispute: and
- The Honourable Justices of the Court of Appeal erred in facts and in law when they held that Plaintiff did not in his pleading and evidence lead evidence to identify the portion of his land which was allegedly trespassed upon by the defendant.
The parties, through their counsel, filed and exchanged their respective briefs of argument. The Appellant’s Brief was prepared by Kamal O. Fagbemi of Lateef O. Fagbemi SAN & co. It was filed on the l3th of October, 2007 but deemed properly filed on the 16th of April, 2008. While the Respondent’s briefs was prepared by E.C. Chukwu. It was filed on the 23rd of September, 2008 but deemed properly filed and served on 23rd of April, 2009.
In the Appellant’s brief Mr. Fagbemi formulated two issues for determination which he couched as follows:-
(i) Whether the Appellant has not proved his case to entitle him to judgment in the trial court; and
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