Kurungu Kaude V. Alh. Audu Maigishiri (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This matter started as suit No. 42107 before the Tangale Waja Civil Area Court Billiri, Gombe State presided by Alhaji Idris Umar Reme,Principal Judge. Judgment was delivered on 2/08/07 in favour of the Appellant herein. (see page 20 of Record of Appeal).

The Respondent herein Alhaji Audu Maigishiri appealed to Upper Area Court, Billiri in Suit No. JUD/BUAC/43183 dated 6/08/08 -Coram Alh. Umar Tukulma (Judge) and Mr. Dan Asabe Audu (Member). In a judgment dated 23/4/09, the Upper Area Court dismissed the appeal and affirmed the Judgment of the Tangale Waja Civil Area Court, Billiri in favour of Kurungu Kaude.

In a notice of appeal dated and filed on 24th April,2009, Alhaji Audu Maigishiri appealed against the Judgment of the Upper Area Court, Billiri to the Gombe State High Court. It is appeal No.GM/40A/09. In a Judgment dated 6th August, 2010, the High court (coram Heman, CJ and Awak, J) decided thus:-

“In the result, we hereby resolve the issue in favour of the Appellant and hold that the judgment of the Trial court which was affirmed by the lower court was against the weight of evidence. We hereby allow this appeal, set aside the judgments of the Trial Court and of the upper Area court and dismiss the Respondent’s claim in favour of the Appellant.”

(see page 48 lines 22 – 26 of record of appeal).

The Appellant herein, as the Respondent at the High Court, was dissatisfied with the Judgment and appealed to this Court in a notice of appeal filed on 16/8/2010. It is predicated on 4 grounds of appeal with copious particulars. For reasons of exigency and convenience I hereby set out these grounds of appeal with their particulars. They are:-

GROUND ONE:

The decision of the lower court is against the weight of evidence.

PARTICULARS OF ERROR

1. Plaintiff’s at the trial court clearly established Appellant’s roots of title.
2. Defendant/Respondent’s witnesses were unable to controvert the plaintiff’s witnesses yet lower court did not factor this in Judgment.

GROUND TWO

Lower court erred in law as it interfered with trial courts findings of fact in the absence of evidence in rebuttal.

PARTICULARS OF ERROR

1. PWI at trial court clearly stated the root of title of the plaintiff Appellant and which was believed by the court and the Upper Area Court.
2. Testimonies of the Appellants witnesses remained certain, convincing, and uncontroverted as certified by the trial and Upper Area Court (Court of 1st Appeal).
3. PW1, II and III remained consistent in the fact that land belonged to the Appellant through BALA his progenitor.
4. Whereas respondent traced his root of title through Alhassan -no evidence was led to sustain Alhassan’s root of title as against those of the Appellant.

GROUND THREE: