AKPAN V. THE STATE

• Pages: 111-114

AKPAN V. THE STATE



111

In our judgment, therefore, the learned trial judge should not on the evidence

before him have found that the defendant had established his right to exclusive

possession of the property in di:-

.pute as he had not discharged the onus, which

we have indicated in our view was put upon him of so proving. In our view the

5



plaintiff was entitled to judgment on his claim for a declaration of title. The learned

trial judge in his judgment in fact indicated that if he had not accepted the defence

story of an exclusive grant then his admitted long possession would have defeated

the plaintiff's claim for

a

declaration but Mr. Lardner for the respondent conceded

that this was not an accurate statement of the law in regard to family property and

10



he conceded that if we were against the main line of argument as to exclusive pos-

session, as we have indicated that we are, then the judgment could be sustained

by virtue of this alternative finding.

We accordingly allow this appeal, set aside the judgment of the High Court and

order that judgment be entered for the plaintiff for his claim as set out in his

15



amended writ of summons for a declaration of title that the land in dispute was

Laro family property of Oshogbo.

Appeal allowed.

20

AKPAN V. THE STATE

25 SUNDAY AKPAN



APPELLANT

V.

THE STATE



RESPONDENT

SUIT NO. SC 14/1967

SUPREME COURT OF NIGERIA

30



BRETT,



J.S.C.

AJEGBO,



J.S.C.

LEWIS,



J.S.C.

20th March, 1967

35



Criminal Law and Procedure - Evidence - Sworn evidence of a child - Desirability

of corroboration of such evidence - Evidence Act, Section 182 (E.N.) -

Corroboration - treating wrong evidence as corroboration - effect - evidence

- Dying declaration - Res gestae - Corroboration - Nature of

40

ISSUES:

1.

Whether the right of a trial Ji dge to act on the uncorroborated sworn evidence

of a child is unqualified.

2.

Whether an appellate court is bound to allow an appeal where a Jury is not

warned (or where the trial Judge is sitting alone does not warn himself) of the

45



danger of acting on such uncorroborated evidence.

3.

When will the failure of a triJ Judge to warn the Jury (or himself) of such risk

not amount to a miscarriage of justice.

4.

Whether evidence of a dying declaration of a deceased person (or

res gestae),

as narrated by a child (whose evidence requires corroboration) is

50



corroboration of the child's own evidence.

5.

What is the effect of treatinc wrong evidence as corroboration?