ELUFISOYE V. ALABETUTU

• Pages: 201-205

ELUFISOYE V. ALABETUTU

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Despite his careful direction to himself on the law we are of the opinion here

that when giving his reasons the learned trial judge did in the two respects that we

have dealt with shift the onus wrongly on to the accused to establish his plea of

accident and that being so we consider we cannot allow the conviction to stand.

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The appeal is accordingly allowed, the conviction and sentence are set aside and

a verdict of acquittal is entered.

Appeal allowed.

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ELUFISOYE V. ALABETUTU

15 BAKARE ELUFISOYE

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APPELLANT

(For himself and other

members of Agbefe Family)

V

SAMUEL ALABETUTU

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RESPONDENT

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SUIT NO. SC 541/1965

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

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25th October, 1968.

Land Law - Declaration of title - Failure of plaintiff to prove title - Onus on

plaintiff weakness of defence notwithstanding

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Practice and Procedure - Nature of evidence required to discharge onus depends

on particular issues raised by a particular case - Non-suit - When to order

in lieu of dismissal of claim When the High Court Civil Procedure Rules

Order 28 r.3 applies in cases on appeal from Customary Courts.

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ISSUES:

1.

Whether a court is required to invite counsel for parties to address court before

making an order of Non-suit.

2.

Whether the plaintiff in a case for declaration of title can rely on the weakness

of the defendant's case.

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3. Whether the High Court Civil Procedure rules (Western State) Order 26 rule 8

applies to proceedings in the High Court on appeal from Customary Courts.

FACTS:

In the Grade

B

Customary Court at Ife, the respondent as plaintiff sued one Bu-

raimoh Agbele, for whom, on his death the present appellant was substituted. The

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claim was for declaration of title and injunction. The Grade

B

Court found in fa-

vour of the respondent and granted him title. The defendant appealed to the High

Court Oshogbo. There, Delumo J. reviewed the facts and held "that the plaintiff

did not fully or satisfactorily establish his claim either for declaration of title or in-

junction." He therefore allowed the appeal. Without hearing the parties as to the

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propriety of entering a non-suit, he proceeded to make an order non-suiting the

plaintiff's claim. The defendant appealed to the Supreme Court against the High

Court's order, contending that a non-suit was improper in the circumstances.