ELIAS V. DISU & ORS.

• Pages: 152-155

152

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NIGERIAN SUPREME COURT CASES

[1962] N.S.C.C.

As regards the cross-appeal, the trial judge had prepared a judgment dismis-

sing the claim with costs, but owing to the absence of counsel for the defendants

when judgment was delivered he made no order in their favour. It is not the prac-

tice in Nigeria to require a formal application for costs and the absence of coun-

sel was, with respect, no ground for depriving the successful parties of their costs.

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I would allow the appeal of the defendant and award them by way of costs in the

Court below the sum which the trial judge would have awarded i.e. 100 guineas.

I would award them costs of the appeal and cross-appeal assessed at 35 guineas.

Unsworth, F.J.

I concur.

Taylor, F.J.

I concur.

ELIAS V. DISU & ORS.

ALHADJI A.W. ELIAS

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APPELLANT

V

1.

OLAYEMI DISU

2.

MUJIBATU DISU

3.

MRS. AYOOLA AGORO (nee DISU)

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RESPONDENTS

4.

AFOLABI DISU (By his next friend:)

MRS. RALIATU AJIKE DISU.

SUIT NO. FSC 128/1961

FEDERAL SUPREME COURT

BRETT,

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F.J.

UNSWORTH,

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F.J.

TAYLOR,

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F.J.

27th April, 1962.

Land Law - Real Property - Sale and Conveyance of family land - consent of

all or Substantial majority of members of family, sui juris required - transaction

voidable at instance of members who did not consent provided they acted in

time.

Evidence - Burden of proof - issue of consent - Court unable to resolve conflict

of evidence in terms of credibility of parties and witnesses - onus of proving

that they did not consent on the plaintiffs - Does not shift to the defendants

- Competence of Witnesses - Plaintiff in suit gives no evidence at trial -

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called as witness for the defence - No objection - No subpoena issue

Plaintiff, a competent witness for the defence.

ISSUE:

1. Whether a plaintiff can be a competent witness for the defence.

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FACTS:

The plaintiffs/respondents had brought an action against the defendants, one

of whom was the appellant, for the court to set aside the sale and conveyance of

the family property to two of the defendants because it was without their consent.

Two of the plaintiffs and the next friend of a third who was a minor gave evi-

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dence and later, an application was made by the counsel for the defendant to call

the 4th plaintiff who had not given evidence, as a witness for the defence. Coun-

sel for the plaintiffs did not object.

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