WHEN THE PRINCIPLE OF PRIORITY OF INTEREST OR TITLE WILL BE INVOKED

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CASE TITLE: ISTIFANUS v. ISMAILU (2019) LPELR-47043(CA)

JUDGMENT DATE: 26^TH MARCH, 2019

PRACTICE AREA: LAND LAW

LEAD JUDGMENT: SAIDU TANKO HUSSAINI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Land Law.

FACTS

This is an appeal against the decision of the High Court of Taraba State.

The case for the appellant was that she bought the piece of land in dispute from one Ayuba Vande Jonathan who also bought the same from one Thomas Gbampo. Upon taking possession of the land in dispute, she entrusted it to Thomas Gbampo (i.e. the Original owner) since he lived in the vicinity where the land in dispute is situate. Thomas Gbampo died subsequently and in order to secure her property, the appellant/plaintiff went back to the land to plant beacons/stones and to properly demarcate the land since the land was only demarcated with flowers before then. It was at this point that one Mathew Thomas (son to Thomas Gbampo) challenged her saying that the land in question belongs to someone else. The appellant instituted action when she noticed that the respondent was carrying out some developments on the land in dispute and laid claim of ownership vide a document she described as a forged document.

Respondent’s claim to the land in dispute of a size measuring 100 x ’50’ at Shavo Mile 6, Jalingo was by dint of the transaction by which one. Mrs Eunice D. Ambikpu sold the land to her (Appellant) in 2014. Eunice D. Ambikpu, it was claimed, bought the land from one Mohammed Efon, who bought a piece of land measuring 100 x 12ft from Mathew Thomas in the year 2012. Earlier in the year 2009, Mohammed Efon had sought a piece of land measuring 100 x ’38’ from Thomas Gbampo. He merged those two pieces of land together as land measuring 100 ‘x 50’ and he thereafter sold the land to Eunice D. Ambikpu in 2014. The present respondent was said to have bought the land from Eunice D. Ambikpu. Exhibits A, B and E were tendered by the appellant as the plaintiff at the trial Court while the respondent tendered Exhibits C, D and F. In the judgment delivered on the 1st June 2017, the High court dismissed the claim.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on this sole issue couched as follows:

“Whether from the pleadings, evidence and Exhibits tendered, the learned trial Judge was right when he dismissed the claim of the Plaintiff/Appellant.”

DECISION/HELD

On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the High Court was therefore set aside.

RATIOS:

• APPEAL- UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court
• EQUITY- ORDER OF PRIORITY IN EQUITY: When the principle of priority of interest or title will be invoked
• EVIDENCE- BURDEN OF PROOF/ONUS OF PROOF: Burden of proof on a claimant in an action for declaration of title to Land; how same can be discharged
• LAND LAW- PURCHASE OF PROPERTY: Position of the law where a party is able to prove his ownership/title to land by purchase