DUTY OF A PARTY ALLEGING BREACH OF RIGHT TO FAIR HEARING

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CASE TITLE:  PERO v. ALLASURE (2019) LPELR-47145(CA)

JUDGMENT DATE: 25^TH MARCH, 2019

PRACTICE AREA: LAND LAW

LEAD JUDGMENT: CHIDI NWAOMA UWA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on land law.

FACTS

This is an appeal against the judgment of the High Court of Taraba State, delivered by J. F. Agya, J.

The facts as given by the Appellant are that Appellant purchased a parcel of land situate opposite College of Agriculture, ATC, Kofai, Ardo – Kola Local Government Area of Taraba State, through his late father, Baba Ishaya Ambairi Pero. The land was said to have been initially purchased from Honourable Dominic Bukuni in 1995. The Appellant’s father farmed on the said land until 1999 when one Alhaji Abubakar S. Umar (deceased) challenged the Appellant’s father who was then in possession by instituting an action against him in Court over the said land. The Appellant later found out that Dominic Bukuni, his vendor, did not have title over the land in dispute, he approached Alhaji Abubakar S. Umar and indicated his interest to repurchase the land from him. Same was sold to him.

The Appellant made out that the disputed land was sold by Alhaji Abubakar S. Umar to the Appellant through his father Ishaya Pero while the Appellant was working in Lagos. The land was said to have been sold for the sum of N220,000.00 (Two Hundred and Twenty Thousand Naira) and that the vendor acknowledged the receipt of the said amount evidenced in a document. The Appellant’s father was said to have continued farming on the land until his demise in 2005, after which the Appellant’s elder brother, Jimmy J. A. Pero, took possession of the land and continued farming on it until 2014 when the Respondent trespassed into the land.

Appellant instituted an action against the Respondent, seeking the following reliefs:
“a) A DECLARATION of title of all that parcel of land lying and situate along Jalingo Sukani Road, A. T. C, Kofai Ward bounded thus:

North: An Access Road.

South: Land sold to Pacy inter-global concept Ltd Block industry by Alh. Junaidu Abdullahi Lau.

East: An Access Road, after it, Pacy Inter-Global Concept Ltd Block Industry.
West: Alh. Junaidu Abdullahi Lau’s Land.

b)A DECLARATION by this Honourable Court that the action of the defendant amounted to trespass ab-initio;

1. c) AN ORDER of this Honourable Court evicting the Defendant and his privies from the land in dispute;
2. d) AN ORDER of this Honourable Court for Perpetual Injunction restraining the Defendant, his Heirs, Privies and Assigns from further acts of trespass on the land in dispute.
3. e) The Sum Five Million Naira (N5,000,000.00) only as General Damages for trespass.
   f) The cost of filing and prosecuting this suit.”

At the close of the trial, the learned trial judge dismissed the Appellant’s claim. Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

For the determination of the appeal, the Appellant distilled two (2) issues as follows:
“1.Whether the failure by the learned trial judge to consider and pronounce on the issues validly raised by the Appellant as well as Exhibit ‘A’ amounts to a denial of fair hearing?

2. Whether having regard to the pleadings and evidence on record, the judgment of the trial Court dismissing the case of the Appellant is perverse and liable to be set aside?”

DECISION/HELD

In the final analysis, the Court of Appeal allowed the appeal in part. In view of the resolution of the appellant’s issue two in his favour, the Judgment of the trial Court was set aside.

RATIOS:

• CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING: Duty of a party alleging breach of the right to fair hearing

• CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING: Instance where it cannot be said that a right to fair hearing has been breached

• LAND LAW- IDENTITY OF LAND: Instance when the identity of land will not be in issue

• LAND LAW- ROOT OF TITLE: When a party need not plead and prove the root of title of his vendor