FASORO V. ABDALLAH -

• Pages: 857-865

FASORO V. ABDALLAH

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B57

FASORO V. ABDALLAH

5

E.A. FASORO

V

10 J.H. ABDALLAH

APPELLANT

RESPONDENT

SUIT NO. SC 195/1985

SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

NNAMANI,



J.S.C.

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UWAIS,



J.S.C.

KARIBI-WHYTE,



J.S.C.

OPUTA,



J.S.C.

12th June, 1987

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Appeals (Civil) - Findings of fact - Concurrent findings of fact by two lower

courts - Supreme Court generally will not disturb those findings - Except

where error on face of record occasions miscarriage of justice.

Tort - Volenti non fit injuria - When applicable.

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ISSUES:

1.

Whether the Supreme Court will on further appeal to it disturb concurrent

findings of fact made by two lower courts.

2.

Under what circumstances should a trial court apply the principle of

Volenti non

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fit injuria

to the facts of a case.

FACTS:

The appellant as landlord of certain premises situate in Ibadan, sublet part of it

to the respondent under an agreement which provided that the tenant should not

make alterations and additions to the demised premises without the express per-

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mission of the appellant. The respondent applied to the appellant in writing for

permission to build some additional structures, including a fence to demarcate his

own holding, which permission the appellant gave. The respondent proceeded

to build the fence. Later the appellant sued the respondent in the Ibadan High

Court claiming possession, damages and an injunction on the ground,

inter-alia,

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that the parties did not agree on the line of demarcation. The trial judge after hear-

ing evidence from both sides dismissed the appellant's claims holding that the ap-

pellant's claim that he did not agree on the line of demarcation was false. The

appellant unsuccessfully appealed to the Court of Appeal, where the court held

that as the issues arising from the ground of appeal before it were issues of facts,

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it could not lightly disregard the findings of the trial judge who saw, heard and

believed. The appellant further appealed to the Supreme Court.

HELD:

1. Where the two courts below have examined issues of fact and made concurrent

findings of fact on those issues, unless there has been an error on the face of

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the record occasioning a miscarriage of justice, the Supreme Court will not

disturb those findings. All the issues on appeal in the instant case are issues

of fact and these issues have been considered by both the High Court and the

Court of Appeal. Both courts were

ad idem

on their findings and since there