AKPASUBI V. UMWENI

• Pages: 438-444

AKPASUBI V. UMWENI

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438

UWA1S, J.S.C.: I have had the opportunity of reading in draft the ruling read by

my learned brother Aniagolu, J.S.C. I agree with the reasons and conclusion

therein. I have nothing to add.

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AKPASUBI V. UMWENI

10

DAVID EBOSE AKPASUBI

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APPELLANT

V

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MADAM IYAGBAYE UMWENI

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RESPONDENT

SUIT NO. SC 9/1982

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SUPREME COURT OF NIGERIA

IRIKEFE,

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J.S.C.

BELLO,

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J.S.C.

ESO,

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J.S.C.

NNAMANI,

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J.S.C.

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UWAIS,

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J.S.C.

19th November, 1982

Civil Appeal - Land claim - Declaration of possesory title' - Damages for trespass

- Injunction - Identity of land in dispute - Claim wrongly dismissed for

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failure to discharge onus - Reversed on appeal - Further appeal - Sole ground

of appeal one of fact - No leave sought from any court - Effect - s.213(3)

of are 1979 constitution - Appeal dismissed for want of jurisdiction in absence

of leave to appeal.

30 Appeals - Witness discredited by trial court - No appeal against discredit -

Whether such witness testimony can be referred to in the course of arguments

on appeal.

ISSUES:

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1. Whether a party can refer, in the course of arguments on appeal, to the evidence

of a witness which has been rejected by the trial court and which rejection has

not been challenged on appeal.

2. Whether the Supreme Court hear a question of fact without the appropriate

leave of the Court.

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FACTS:

The plaintiff/respondent had instituted an action in the Mid- Western High Court

against the appellant/defendant claiming a declaration of possessory title to a cer-

tain parcel of land, £500 damages for trespass and a perpetual injunction to re-

strain the defendants from further acts of trespass.

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The trial judge after considering the evidence of both parties came to the con-

clusion that the plaintiff had failed to discharge the onus on her in the case and

dismissed the claim.

The plaintiff then appealed to the Federal Court of Appeal, where the trial

judge's decision was set aside and an order made in favour of the plaintiff in the

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terms of her claim

The defendants thus appealed to the Supreme Court contending amongst

others, that the plaintiff had failed to prove the identity of the land in dispute with

the certainty required by law. No leave was obtained by the appellant either from

the Federal Court of Appeal or the Supreme Court. In the course of arguments be-