FATUADE V. ONWUAMANAM

• Pages: 442-454

FATUADE V. ONWUAMANAM

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442

As for the decision in

Okiji V. Adejobi (supra)

all that it said was that an outright

grant in those early times was improbable, not that it was impossible. The highest

one can say of it is that in those times, because traditionally land belonged to the

community and not to the individual an outright sale by an individual was then

improbable, at best, it created a rebuttable presumption. In this case, any presump-

tion against outright sale has been rebutted by positive evidence called at the trial

which has been believed by the courts below.

For the above reasons, and the fuller reasons contained in the judgment of my

learned brother, Nnamani, J.S.C. which I adopt as my own, I also dismiss the appeal

with the same orders as made by him the lead judgment.

Appeal Dismissed.

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FATUADE V. ONWUAMANAM

S.FATUADE

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V

EC. ONWUAMANAM

SUPREME COURT OF NIGERIA

NNAMANI,

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J.S.C.

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UWAIS,

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J.S.C.

KAWU,

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J.S.C.

AGBAJE,

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J.S.C.

WALT,

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J.S.C.

30th March, 1990.

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APPELLANT

RESPONDENT

SUIT NO SC. 23

2

/

1

986

Land Law - Possessory title - How established - Declaration of title - Proof - How

discharged.

Evidence - Due execution - How established - s.99, Evidence Act considered - Evidence of

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a witness given in an earlier proceeding Whether relevant in a later trial.

Practice and Procedure - Appeals - Findings of Fact - When appellate court may interfere.

ISSUES:

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1. When may an appellate court interfere with the findings of fact of a lower court?

2.

On whom lies the burden of proof of identity of a disputed land in an action for

declaration of title?

3.

When may the identit'

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of a disputed land be in issue?

4.

How relevant is the evidence of a witness given in an earlier proceeding in a later

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trial?

FACTS:

The plaintiff instituted an action against the defendant in the Lagos High Court

claiming possession of the house situate, lying and known as 52A, Aiyetoro Street,

Ajegunle, the sum of N1,270.00 being special damages suffered by her when the

defendant without lawful authority collected rents on 11 rooms in the said premises

at N3.00 per month per room from January 1968 - December 1971, and injunction

restraining the defendant from going on to the premises to collect rent.

The defendant's case is that he bought the house from the plaintiff's husband

called Stephen Nwamara (which incidentally is not the real name of the plaintiff's

husband) for N1,000.00 through the alleged plaintiff's husband's brother one Jacob

Nwamara pursuant to an alleged power of attorney executed by the Plaintiff's