AYOOLA V. ADEBAYO & ORS.

• Pages: 173-177

AYOOLA V. ADEBAYO & ORS.

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173

AYOOLA V. ADEBAYO &

ORS.

5

ISAAC AYOOLA

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APPELLANT

V

10 1. JINADU ADEBAYO

2.

DAUDA IDOWU

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RESPONDENTS

3.

SOLABOMI IYAOBA

SUIT NO. SC 355/1967

SUPREME COURT OF NIGERIA

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COKER.

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J.S.C.

LEWIS,

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J.S.C.

FATAI-WILLIAMS, J.S.C.

11th April, 1969.

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Civil Practice and Procedure - Rt-trial ordered by High Court on appeal - Should

not have ordered when plaintiffs case has failed in toto and no irregularity

of substantial nature - Error in plan may be ground of non-suit.

ISSUES:

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1. What should a trial Judge taka into consideration before giving an order for

retrial, and what are the implications of such order ?

2.

Whether an order for retrial is the correct order to give when it is clear that the

plaintiff's case failed

in toto.

3.

Whether it is necessary for a plaintiff to prove that he is in possession, or has

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a right to possession of disputed property in an action for declaration of title.

4.

Whether a person can claim damages for trespass, without proof of possession.

FACTS:

The plaintiffs/respondents, instituted an action against the appellants in a Grade

A Customary Court, claiming a declaration of title to land and damages for tres-

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pass. They both gave evidence, and after due consideration, the president of the

Customary Court dismissed the plaintiffs claims. The plaintiff's thus appealed to

the High Court, contending a misdirection by the President of the Customary Court,

in dismissing the case. The High Court allowed the appeal and remitted the case

to the lower court for re-trial. The appellants thus appealed to the Supreme Court,

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contending that the appeal in the lower court should have been dismissed instead

of ordering a re-trial.

HELD:

1.

An order for a retrial inevitably implies that one of the parties, usually the plaintiff,

is being given another opportJnity to relitigate the same matter and certainly

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before deciding to make such an order an appellate tribunal should satisfy itself

that the other party is not thereby being wronged to such an extent that there

would be a miscarriage of justice.

2.

An order for retrial is not apprcpriate where it is manifest that the plaintiff's case

has failed

in toto

and no irregularity of a substantial nature is apparent on the

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records or shown to the Courl:.

3.

In a claim for a declaration of title the plaintiff must show conclusively that he

is either in or entitled to the possession of the land as of right and that he is the

person in whom the title of the land lay. In this case the plaintiff's clearly failed

to prove that they were in possession, mediate or immediate.