AKANDE V. ALAGA

• Pages: 402-413

402

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NIGERIAN SUPREME COURT CASES [1988] 2 N.S.C.C.

These inconsistencies have been adequately highlighted in the lead judgment and

for the lucid reasons given by my learned brother Kawu, J.S.C., I agree that these

two Appellants ought to have been given the benefit of the doubt and acquitted of

the charge against them.

Accordingly, I hold that the appeal of the 1st and 3rd Appellants succeed and it

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is allowed, whilst that of the 2nd Appellant fails and it is dismissed.

I make the same consequential orders as are contained in the lead judgment.

Appeal of 1st and 3rd appellants

allowed.

Appeal of 2nd appellant dismissed.

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1(

AKANDE V. ALAGA

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15

CHIEF BUSARI ADEPOJU AKANDE

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APPELLANT

V

ALHAJA HUNMOANI ALAGA

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RESPONDENT

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20

SUIT NO. SC 74/1985

SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

OBASEKI,

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J.S.C.

KAWU,

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J.S.C.

AGBAJE,

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J.S.C.

8th July, 1988.

Practice and Procedure - Pleadings - Documents - Reference in document pleaded to

another- Whether pleadings - Trials Judge's visit to locus - Calling of witnesses sue) nzotu

against consent of party - Effect.

Land Law - Declaration of title to land, injunction for trespass.

Evidence - Estoppel - Estoppel per rein judicatam - When plea may avail - Bona fide

purchaser without notice interest acquired prior to suits - Applicability of res judicator to

- Witnesses - Calling of witness by judge szto moat without consent - Regularity - Burden

of proof - Ownership - Owner in possession - Section 145, Evidence Act - Defendants

onus.

ISSUES:

1.

Whether a plea of

estoppel per rem judicatam

can operate, in a subsequent suit,

against a

bone fide

purchaser without notice, where he acquired his interest, prior

to the suit on which the plea is sought to be founded.

2.

Whether a document can be said to have been pleaded, merely because

reference was made to it in a document actually pleaded in a case.

3.

What must a defendant who seeks to rely on a plea of

estoppel per rem judicatam

prove in order to be availed of the defence.

4.

Where a claimant to a declaration of title

is in possession of the property in dispute

and the defendant denies his title, on whom does the burden of proof lie, as to

the ownership of the property.

5.

Whether it is regular fora trial court to call a witness of its own violation and without

the consent of the parties to the case before it.

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