Adamu Adom V. Alutso Damkor (1995)

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A.I. KATSINA-ALU, J.C.A. 

The appellant Adamu Adom was the plaintiff before the Grade II Area Court of Shangev-Ya holden at Mbaduku. In that court he sued the respondent Alutso Damkor as defendant claiming a declaration of title over a piece of land situated at Mbakyomon Mbejiraka Shanger-Ya. Judgment was given in favour of the plaintiff. In the course of its judgment the trial area court said:

“…There is also evidence that the forest reserved by Mbaduku elders for many years now. Our own observation during the inspection, this forest is more than ten years without anybody entering it to cut trees even to farm. One will ask a certain question that are the elders of Mbaduku have no more interest for their forest again? Why are they silent over this matter and some other people are disputing it again? Is the Plaintiff claiming the forest for his own use or for elders? Have they authorized to farm on this piece of land?

Upon the above stated reasons and above questions the plaintiff won his case, because he is one of the elders.”

The defendant who was dissatisfied with the judgment of the Grade II Area Court Shangev-Ya appealed to the Katsina-Ala High Court. The High Court sitting in its appellate jurisdiction allowed the appeal and dismissed the claim of the plaintiff. The High court judgment reads.

“The plaintiff asked he be declared the owner of a piece of farmland. He called amongst his witnesses the PW2 who testified that the land claimed by the plaintiff now Respondent was a forest reserved by the elders.

The trial court seemed to believe the evidence and speculated that may be the plaintiff/respondent was claiming the forest land for the elders. Mr. Uji who argued the appeal for the Respondent had conceded that the speculation was wrong. He agreed with Mr. Fanyan on that. He later asked for retrial.

We have read the record. There were fact that the plaintiff/Respondent claimed title to the disputed land by way of inheritance and his witnesses, PW2. Testifying in effect that the title over the land vested in the elders is enough on the issue that the plaintiff did not prove the title he had asserted.

A retrial is not ordered for an otherwise hopeless case to be later perfected. In effect the trial court found that the Plaintiff did not prove his case and that the defence of the present appellant was impenetrable by the plaintiff. The consequential order open to the trial court in the circumstance was dismissal of the plaintiff’s case. This we so order. ”

The plaintiff has further appealed to this court upon the following grounds of appeal:

1. The trial High Court erred in law when it failed to remit the case for retrial.

Particulars of Error

(a) The plaintiff otherwise proved his title to the land by inheritance and the court held that the land was his own and awarded title to the land to him.

(b) In law, the trial Area Court was in a pre-eminent position to make findings of fact based on the evidence before it which was the case in this suit.

2. The High Court erred in law by concluding that as a result of the speculation by the trial Area Court as to the status of the forest On the land in dispute, the trial court in effect found that the plaintiff did not prove his case and that the defence of the present appellant (Defendant in the Area Court) was impenetrable by the plaintiff.

Particulars of Error