ELEMIDE V. OBAWUNMI & ORS

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148

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

That he was suffering, and had been so suffering, from the disease geroderm

from birth; that such a disease also carries with it some degree of mental trouble,

and that such condition grows worse as the patient grows older are facts amply

established by the evidence of the medical expert. Where this evidence falls short

of what is required by law is as to the extent to which this disease-geroderm-had

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affected the appellant's will, and his ability to control his action, at the time of the

act complained of. In the absence of that, the evidence of P.W. 2 that appellant

acted normally before the incident coupled with the fact that on the evidence of

this same witness the appellant's action before the incident was shown to have

been thought out, and the further fact that the defence set up by him on the evi-

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dence was that he killed in revenge because the 2nd P.W. refused to tell him where

she kept the money that she made out of him through native juju, all point to the

correctness of the verdict of which the trial Judge came.

We are of the view that this appeal should be dismissed.

Appeal dismissed.

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ELEMIDE V. OBAWUNMI &

ORS

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G.A. ELEMIDE

V

M. OBAWUNMI & OTHERS

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

15th June, 1964

APPELLANT

RESPONDENTS

SUIT NO. FSC 271/1961

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Land Law - Declaration of title - Trespass - Injunction - Reliance of trial Judge

on earlier judgment - Misdirection - Proper order of appellate court - Retrial

or review of evidence available from lower court.

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ISSUES:

1.

Whether it will amount to a misdirection for a trial judge to accept as evidence

before him evidence given in a previous case.

2.

In a case where evidence has been wrongly admitted what is the duty of the

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court of appeal.

FACTS:

The land in dispute had been the subject of an action in 1928. The defendants

in this action denied that it was the same land which was being litigated upon.

Court view of the evidence of the plaintiff was unsatisfactory and dismissed the ac-

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tion. Plaintiff appealed on the grounds of the judge's reliance on the 1928 case

and also that the defendants did not dispute plaintiff's claim on a portion of land

and that should not have been rejected Supreme Court agreed and.

HELD:

1. It is a misdirection and wrongful user of evidence for a court to accept evidence

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given in an earlier case when the evidence was not put to witnesses in the case

before him.