Adamu Adom V. Alutso Damkor (1995)
LawGlobal-Hub Lead Judgment Report
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:
- 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.
- 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
(a) The appellant proved his title to the land to the satisfaction of the trial Area court and it awarded the land to him.
(b) In law, where the court raises a point suo motu as was the case here on the status of the forest, it should have allowed the parties to address it but here it failed to do so.
(c) The parties did not make the presence of a forest an issue at the trial court.
The High Court erred in law by failing to remit the case for retrial when it found fault with and issue raised by the court suo motu.
Particulars of Error
(a) In law where a court raises a point suo motu, it should allow the parties to address it on it but the court failed to do so and the plaintiff should not be made to suffer for the technical shortcomings of the trial court.
- The High Court erred in law by all wing a legal technicality to prevail and this occasioned a miscarriage of justice.
Particulars of Error
(a) In law the administration of justice entails that mere technicalities should not be allowed to d feat the cnd5 of justice.
Both parties filed and exchanged briefs of argument. The appellant raised three issues for determination in this appeal in his brief of argument. These are:-
- Did the plaintiff prove his title to the land before the trial court sufficient to entitle him to the judgment?
- Was the status of the forest per se the case of the plaintiff?
- Was the retrial a proper order to be made by the High Court of Appeal?
For his part, the respondent formulated two issues which read as follows:-
- Did the appellant prove his case at the trial area court?
- After allowing the appeal before it, what was the correct order for the High Court to make?
The first issue is whether the appellant as plaintiff in the court of trial proved his title to the land in dispute. It was said for the plaintiff that he relied on inheritance as the basis of his title. It was contended that he gave sufficient evidence in this regard. He also gave evidence of acts of ownership exercised over the years including farming the land by his relations. He also led evidence to the fact that his relations named Aboki and Ugese were buried on the land in dispute. The land in question was later converted to a Forest Reserve. It was also pointed out that the trial court visited the locus in quo.
The appellant conceded that the trial court did not properly evaluate the evidence of the parties but suo motu delved into speculations about the status of the forest and thereafter entered judgment for the plaintiff. It was contended that there was sufficient evidence however, upon which the court could have found in favour of the plaintiff. We were urged to allow this appeal.
For the respondent it was submitted that the plaintiff failed woefully to prove his case of the trial Area Court and that at the close of his case there was no prima facie case made out to arrant the respondent being called upon to enter his defence. It was said that the plaintiff’s case should have been dismissed at that point in time. It was submitted that throughout the evidence led by the plaintiff, there was no evidence as to the location and extent of the land he claimed. It was further submitted that a plaintiff in a claim for declaration of title to land, must give the exact location and extent of the land he claims. For this proposition learned counsel relied on the case of Awote v. Owodunni (1987) 5 SCNJ 1 at 4 – 6.
It is now settled law that in a claim for declaration of title, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence: Kodilinye v. Odu (1935) 2 WACA 336; Elufisoye v. Alabetutu (1968) NMLR 298; Akpapuna v. Obi Nzeka II (1983) 7 SC 25; Oje v. Babalola (1991) 4 NWLR (Pt.185) 267.
In Kodilinye v. Odu (supra), Webber CJ Sierra Leone in delivering the judgment of the Court said at p.337:
“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. Plaintiff in this case must rely on the strengths of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him, and the judgment is for the defendant.”
This statement has over the years since 1935 guided the courts in this country in their adjudication on declaratory actions and both the lawyers and courts have followed it with religious dedication. A plaintiff must therefore establish the title he claims on the evidence brought by him. Where he was failed to do so, he will not be entitled to a declaration in his favour. It must also be mentioned that the first duty of a plaintiff who claims a declaration of title to land is to show the court clearly the area of land to which his claim relates. See Baruwa v. Ogunsola & Ors.  (1938) 4 WACA 159; Omoregie v. Idugiemwanye (!985) 2 NWLR (Pt.5) 41.The question now is whether the plaintiff called sufficient evidence in proof of his claim. He testified. He said:
“The defendant is building houses on my piece of land but now he complete three round houses he also dug yam farm on this portion of land. That is the reason why I sued his claiming my piece of farm land.”
This piece of evidence is deficient in several respects. It does not tell us how the plaintiff acquired the land in dispute. Was it by inheritance, purchase etc. it does not also state the boundaries of the area of land in dispute. And it does not state where the land is situated. The plaintiff’s witnesses PW1 and PW2 gave evidence and said the land in question belongs to the father of the plaintiff. They did not however say how the father of the plaintiff acquired the land. PW2 added that the land claimed by the plaintiff was later reserved by the elders of Mbaduku as a forest. In other words the area claimed was now the communal property of the elders of Mbaduku. This is clearly at variance with the case of the plaintiff.
It is particularly plain from one foregoing that the plaintiff failed to prove his claim for declaration of title. The consequence of course is that he is not entitled to a declaration in his favour. The High Court, Katsina-Alu sitting in its appellate jurisdiction rightly in my view allowed the appeal of the defendant.
As I have already indicated the High Court allowed the appeal of the defendant and dismissed the plaintiff’s claim. The plaintiff argues in this appeal that the proper order in the circumstances was one for a retrial. The defendant disagrees. He maintains that the order of dismissal of the plaintiff’s case was the most appropriate in the circumstances of the case. I am in complete agreement with the contention of the defendant. A retrial is not ordered for an otherwise had and hopeless case to give the plaintiff a second bite at the cherry. A retrial is appropriate where among other things there is an error or irregularity in the judgment but the evidence taken as a whole discloses a substantial case the dismissal of which will not be in the interest of justice. See Abodundu & Ors. v. The Queen (1959) 4 FSC 70 at 73. There is no evidence whatsoever in the present case outside the speculation of the learned trial judge on the ownership of the forest reserve to support the plaintiff’s case at the trial Area Court for a declaration in his favour.
For the foregoing reasons the appeal falls and it is dismissed. I affirm the decision of the Katsina-Ala, High Court sitting in its appellate jurisdiction given on 28 March, 1994. The defendant/respondent is entitled to costs which I assess at N1,000.00.
Other Citations: (1995)LCN/0226(CA)
