ADIKA AND OTHERS v. DOE

JUDGMENT OF PREMPEH J.

In this appeal, it is clear that the plaintiffs-respondents utterly failed to prove their title to the land which they claimed in paragraph 1 of their writ of summons. Quite apart from this fact, the native trial court erroneously shifted the burden of proof to title to the disputed land on the defendant-appellant. At the close of the case, the appellant submitted that the respondents had failed to establish their claim, and that they had therefore made no case against him to answer, but the court proceeded to enter judgment for the respondents, granting them title to the land. On the evidence as to the respondents' first claim it is my view that the trial court erred in ruling out the submission of the appellant, and that it further erred in giving judgment for the respondents as it did.

In this court, counsel for the respondents did not seek to support the trial court's judgment in any way. He in fact urged that the whole judgment should be set aside, not on the grounds as contended by the appellant, but on account of the fact that the trial court had no jurisdiction to entertain the plaintiffs’ claims appearing in paragraphs 2 and 3 of the particulars of claim, and referred to that part of the judgment which purported to deal with the second remedy sought by the respondents in paragraph 2 of the particulars of claim. I think this is an interesting point.

The respondents' second remedy in the particulars of claim is clearly one in tort for £G600 damages for unlawful arrest, and one in which if damages were allowed, an appeal could not lie to this court: see Solomon Jonah v. Kojo Owu.[1] In that case, plaintiff sued for:

“the sum of £25 damages from the defendant to show cause why if the plaintiff promised to show him boundary of land of forest on his own wish and has not got the chance to do so, the defendant seized the plaintiff from entering into the said land of forest in which farms are made for foodstuffs.”

This is a case which is strikingly like the one in paragraph 2 of the plaintiffs' particulars of claim, and in that case their Lordships held that the cause of action was not one relating to land, and accordingly set aside the judgment of the Provincial Commissioner's Court which purported wrongly to entertain an appeal from the native court and the native appeal court on the issue.

The particulars of the respondents' claim herein was not at any stage of the proceedings amended to delete paragraph 2 thereof. On the