Iliya Akwai Lagga Vs Audi Yusuf Sarhuna (2008)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C

Iliya Akwai Lagga, the appellant herein, was the plaintiff at the Upper Area Court Saminaka, Kaduna State (trial Court). The original defendant was one Mallam Umaru Yusuf Sarhuna who died and was substituted by Audu Yusuf Sarhuna, the respondent. The claim of the plaintiff against the defendant reads as follows

“Statement of Claim – Alhaji Akwai said I sued Mallam Umaru because originally the farmland is for my grandfather Dogara which the grandfather of Umaru Magogori has nowhere to farm he went to one of my grandfather’s friend called Namata he complained to him that he should find a farming place for him then Namata said he is on the base of a hill he has no enough farming place then Namata told him there is a friend of him Dogara (sic) has a place for one to stay I will ask him for you, when he came to my grandfather Dogara; he asked him that he has a stranger who wants to be given a place so that he (sic) work, Dogara agreed that he wants people then he gave this place to Namata so that he gives his friend Magogori, but he gave him on loan and this was done for many years ago I cannot remember,(sic) but all of them that did this they don’t know the man Magogori that was given the loan, Namata that mediate (sic) with Dogara he gave the loan, then this year I heard Umaru have (sic) added an acre of. The farmland and I did not agree I came to sue so that (sic) know the farmland is my own or his own. That is all my suit.”

In response to the above claim, the respondent stated as follows:

” I heard the statement I understood I did not agree with what he said, what I know my grandfather Moh. Magogori and my father Hassaini (sic) I grew up and met then (sic) working in the place was my grandfather Magogori asked the Chief of here (sic) Mijinyawa to give him and he gave him the place even before I was born”

The plaintiff called four witnesses. The defendant called four witnesses as well. At the end of his evaluation of the evidence, the evidence of one of the witnesses called by the defendant based on the number of witnesses each of the parties had and whose evidence the trial court admitted, the trial court went on to administer oath to both parties. After the oath taking procedures were completed, the trial judge divided the land in dispute into two with each party taking half of it.

The plaintiff was dissatisfied with the trial court’s decision. He filed his Notice of Appeal to the High Court of Justice, Kaduna State (High Court). The notice of appeal contained the omnibus ground. The defendant was also aggrieved and he cross-appealed. After taking submissions from learned counsel for the respective parties, the High Court dismissed both the appeal and the cross appeal.

The defendant/respondent/cross-appellant was not happy with the High Court’s decision he filed a Notice of Appeal to the Court of Appeal, Kaduna. Division (court below). The notice of appeal contained nine (9) grounds of appeal. He prayed the Court below to set aside the decision of the High Court which affirmed the trial court’s judgment and that an order dismissing the plaintiff’s/appellant’s/cross – respondent’s claim be entered by the court below. After hearing the parties, the court below allowed the appeal by setting aside the judgment of the High Court in it’s place, a judgment was entered dismissing the plaintiff’s/respondent’s claims.

The plaintiff/respondent and appellant before us now, felt aggrieved and he appealed to this court His Notice of Appeal (pages 112 – 116 of the record) contained six (6) grounds of appeal. He prayed this court to set aside the decision of the court below including the order of dismissal of the appellant’s claims and that judgment be entered in his favour or an appropriate order be made in the alternative.

Briefs were filed and exchanged by the parties including a reply brief in compliance with our rules.

In his brief of argument, learned counsel for the appellant M. Y. Saleh Esq. (now SAN) formulated the following issues:

“Issue One:

Whether the dismissal of the appellant’s case after setting aside the judgments of the trial court and that of the High Court sitting on appeal was proper and did, not occasion a miscarriage of justice in the circumstance. (Grounds One. And Two).

Issue Two: