Awua Adu V. Targbanger Mon (1998)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The appellant was the plaintiff at the Grade 1 Area Court of Katsina-Ala, Benue State where he claimed against two defendants of whom the present respondent was the second for declaration of title and an injunction in respect of a farmland. The parties testified before the Area Court and called witnesses. At the close of evidence, the Area Court inspected the land in dispute. Parties counsel addressed the court. On 25/4/94, the Area Court in its judgment made a declaration of title as claimed in favour of the appellant. The respondents were restrained from further trespassing on the land with effect from 31/7/94.

The 2nd defendant before the Area Court (and now the respondent) brought an appeal against the judgment of the Area Court before the High Court. The High Court in its judgment given on 20/6/95 did not interfere with the order for declaration of title made in favour of the present appellant (hereinafter referred to as the plaintiff). It however set aside the order that the respondent (hereinafter referred to as the defendant) should vacate the land.

The plaintiff has brought this appeal before this court on seven grounds of appeal as set out in the Notice of Appeal filed on 14/12/95. The plaintiff sought and obtained the leave of this court to appeal on 7/12/95. Time to appeal was also extended. The issues for determination in this appeal were set out thus in the brief of argument filed by the appellant.

“(1) Before setting aside the decision of the Area Court, did the High Court take into cognisance the fact that this being a decision of an Area Court, it had to examine the entire evidence to determine the real cause of action? .

(2) The Area Court having found that original title vests in the plaintiff/appellant and having made an order for ejectment/or forfeiture was the High Court right to have on the facts of this case set aside that order?”

The respondent formulated the issues for determination thus:

“(i) Whether having found that the respondent was an absolute grantee, it was competent for the trial court to have made an order of forfeiture and whether the court below was not right to have reversed the said order of forfeiture.

(2) Whether having failed to file a cross appeal or a respondents notice urging the court below to set aside the findings of the trial court contained on page 32 lines 2-23 or to confirm the judgment of the trial court on other grounds, it is now open for the appellant to challenge the said finding before the Court of Appeal.

(3) Whether the Court of Appeal can validly interfere with the priminary by the court below without a proper appeal before it and without a good cause shown.”

It is helpful to begin a consideration of the issues formulated for determination by an examination of the case put before the court of trial by the parties. In his evidence the plaintiff testified thus:

“The land is mine because I inherited it from my forefathers. My fathers who first settled on the land in dispute was Gbaaodo who farming (sic) thereon. Gbaaondo and Agbile took over the land. Agbile body was on this land when Gbannondo came there to settle…

The defendant is not my blood relation. I know Agbatyo Nor. He is the son of our daughter who delivered him at Usambe and we brought him back and kept him on the land in dispute. The defendant now claims this land on the ground that Abatyo is his brother.

Under cross-examination, the plaintiff said: