KINE & ORS v. DAMPO & ORS
(2020)LCN/14124(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, April 22, 2020
CA/YL/20/2017
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1. AMINTA KINE 2. RICHARD KINE 3. AUSHINI KATAU APPELANT(S)
And
1. MASHI DAMPO 2. ANGELO DAMPO 3. SUNDAY SHONVA 4. ISHAYA SANTI 5. TIMOTHY SHONVA RESPONDENT(S)
RATIO
DUTYOF THE AREA OR CUSTOMARY COURT
A trial in an Area Court or Customary Court should be a simple search for the truth and a trial Judge should be able to recognise the truth when it is represented to him. In this case although the truth stared the trial Court in the face, it rather resorted to unnecessary play on words as defined by Blacks’ Law Dictionary which were not in issue before it. The Court below therefore had no difficulty in setting aside the trial Courts judgment. PER ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 13th October, 2016 in the High Court of Taraba State sitting in Jalingo in its appellate jurisdiction. The Respondents were Plaintiffs at the Upper Area Court Jalingo. Their claim before the Upper Area Court was dismissed. They appealed to the High Court (the Court below) against the judgment of the Upper Area Court (the trial Court). The Court below allowed the Appeal and entered judgment in favour of the Respondents by declaring them entitled to the land in dispute.
The claim of the Respondents at the trial Court as contained in their amended statement contained in the “supplementary record” filed on 11th January, 2018 and deemed duly filed and served on 27th February, 2018 was for a declaration of title to the land in dispute, five hundred thousand naira general damages and other reliefs.
Concisely stated, the facts of the case for the Respondents are as follows: The parents of the Respondents were hunters. They got to the land in dispute and asked one Mallam Sambo a Fulani man who they met there if there was anybody on the
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disputed land. Mallam Sambo said there was nobody on it so their parents settled there.
In 1995, the Respondents gave a portion of the land to PW 6 for the erection of church building.
In 2008, the 1st and 2nd Appellants trespassed into the land and commenced building near the church. The Respondents asked the 1st and 2nd appellants to leave their land.The 1st and 2nd appellants refused to leave. The Respondents reported the 1st and 2nd Appellants to the ward and village heads, to Galadima Muri and even to the Local Government Chairman.
In 2010, the 3rd Appellant also trespassed into the land that is why he was sued together with the 1st and 2nd Appellants.
The Appellants’ defence was that they inherited the land from their parents Noghau and Kine who also inherited it from their father Bekeja who was a hunter, saw the land and settled thereon. That the Respondents are now on the land. That the Respondents required the land from Noghau and Kine to stay on and Kine and Noghau permitted them.
The Appellants have appealed to this Court against the judgment of the Court below sitting on appeal by a notice of appeal dated and filed on 20th
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December, 2016. The notice of appeal contains six grounds of appeal. From the six grounds of appeal, the Appellants in the Appellants’ brief of argument dated 7th March, 2018 and filed on 8th March, 2018 presented the following lone issue for determination:
“ Whether, having regard to the evidence adduced before the trial Upper Area Court, the Court below was justify (sic) to have set aside the judgment of the trial Court and in its place grant the claims of the Respondents save for the claim of general damages.”
The Respondents adopted the lone issue formulated by the Appellants.
Appellants’ reply brief is dated and filed on 19th September, 2019.
Arguing the lone issue, learned Counsel for the Appellants submitted that the evidence led by the Respondents with regard to who founded the land was self-contradictory. It was his submission that it was not clear from the evidence of the Respondents whether they founded the land as first settlers or their parents got the land by way of grant from PW1’s father Mallam Sambo.
The Court below, it was submitted, did not demonstrate from the evidence on record that
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the Respondents’ parents were the first settlers on the land and that what transpired between their parents and Mallam Sambo was mere inquiry as held by the Court below.
It was submitted that the finding of the Court below that Respondents’ fathers, one Bazing and Dampo were the first people to settle on the land in dispute and that the Respondents got the land through the founders who are their parents and grandparents cannot stand in the face of clear evidence by PW1 that his father was the owner of the land, he founded the land and and later gave it to the Respondents.
It was submitted that the Appellants after establishing their claim to the land, proceeded to explain how the Respondents came into the land through DW 3 at page 71 of the record.
Learned Counsel for the Respondents submitted that a careful perusal of the pieces of evidence adduced by the Respondents who were the Plaintiffs at the trial Court will reveal that there was ample evidence which the trial Court ought to have relied upon to find for the Respondents and the trial Court erred when it dismissed the case of the Respondents.
Evidence of PW1, PW2, PW3, PW5
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and PW6, it was submitted, shows that the founders of the disputed land were Bazing and Dampo. From the evidence, it was submitted, the Respondents’ grandparents Bazing and Dampo first saw the disputed land and as strangers had to enquire from Jauro who then was the custodian of every land within the locality if the land did not belong to anybody and Jauro father of PW1 then gave approval and the Respondents grandparents went into the land, cleared it and were cultivating it. That the Respondents had been in possession of the land since pre-independence and have exercised numerous acts of ownership over the land including giving a portion to a Church which has been worshipping there for over fifteen years without resistance from any one including the Appellants.
A trial in an Area Court or Customary Court should be a simple search for the truth and a trial Judge should be able to recognise the truth when it is represented to him.In this case although the truth stared the trial Court in the face, it rather resorted to unnecessary play on words as defined by Blacks’ Law Dictionary which were not in issue before it. The Court below therefore had
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no difficulty in setting aside the trial Courts judgment. PW1 in his evidence in chief stated that the Respondents were the first people to settle on the land and had been on the land without any problem until the Appellants came claiming the land. Under cross-examination the PW1 said Dampo and Bazing (Respondents grandparents or parents) were the founders of the land in dispute and that the Respondents have been on the land for over forty years. PW3 and PW4 testified to the fact that 1st and 2nd Appellants trespassed into the land in 2008 and the 3rd Appellant in 2010. When 1st and 2nd Appellants trespassed into their land in 2008, the Respondents told them to leave the land. The 1st and 2nd Appellants refused to leave.The Respondents reported the 1st and 2nd Appellants to PW2 their ward head.PW2 confirmed that the report was made to him. He invited the 1st and 2nd Appellants and they refused to go to him. He (PW 2) reported the Appellants to Galadima Muri who in turn referred the matter to the Local Government Chairman.
The above evidence was not shaken under cross examination. On the evidence of PW1 that the Respondents were the first to settle on the
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land and that Appellants only trespassed into the land in 2008 and started building and were reported to the local authorities and they refused to listen to them, the trial Court should not have lightly dismissed the claim of the Respondents.
But that was not the only evidence tilting the scale of justice to the side of the Respondents. PW6 testified to the fact that in 1995, the Respondents gave them a portion of the land for their church and in 2008 the 1st and 2nd Appellants came and built near the church. The evidence of PW6 did not only confirm the claim of the Respondents to the land, it also confirmed the evidence of the Respondents that the 1st and 2nd Appellants only trespassed into the land in 2008. 2nd Appellant as DW3 under cross examination confirmed that they built houses around the church that is after 1995 when Respondents gave PW6 a portion of the land for the church.
On the above evidence the trial Court erred when it dismissed the claim of the Respondents.
The Court below therefore rightly allowed the appeal of the Respondents to it, setting aside the decision of the trial Court and declaring Respondents as the persons
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entitled to the land in dispute.
The only issue presented for determination is therefore resolved in favour of the Respondents and against the Appellants; and the appeal dismissed.
The order of the Court below declaring the Respondents the persons entitled to the land and all other reliefs sought by them except the refusal to award general damages is affirmed by me.
Respondents are awarded N100,000.00 costs to be paid by the Appellants.
CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment delivered by learned brother, JAMES SHEHU ABIRIYI, JCA.
I agree with the decision arrived at in dismissing the appeal, I have nothing to add. I abide by the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
N. Chia For Appellant(s)
T.D. Ubandoma For Respondent(s)
