FINNIH V. IMADE

• Pages: 56-81

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

facts proved in favour of the appellant. With regards to (a) the police investigation,

as is now more commonly the case, was though poor, sufficient to support the

conviction arrived at. On (b) counsel for the appellant drew attention to some

pieces of evidence which he complained about. In my view they are not enough

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to upset the findings and conclusions of the learned trial judge, who meticulously

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considered this case.

For these reasons, I am in agreement with my learned brother, Belgore, J.S.C.

that this appeal should be dismissed, I accordingly dismiss same and confirm the

conviction and sentence of the court below.

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Appeal Dismissed.

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FINNIH V. IMADE

15

LT.COL. MRS. R.A.F. FIN

NIH

V.

J.O. IMADE

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,

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J.S.C.

OMO,

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J.S.C.

BABALAKIN,

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J.S.C.

24th January, 1992.

DEFENDANT/APPELLANT

PLAINTIFF/RESPONDENT

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APPEAL No. SC. 160/1987.

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Appeals -

Ground of appeal - Omnibus ground that "judgment is against the weight of

evidence" - Implication of - Brief writing - Arguments - Need to base same on issues

formulated and not on grounds of appeal - Findings of fact of a trial court - When may

an appellate court interfere - Omnibus ground of appeal and Allegation of Misdirection

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- Distinction between.

Evidence -

Judicial notice - Duty of court thereto - Section 73(I)(a) Evidence

Act.

Land Law -

Bini Customary Land Law -Acquisition of land thereunder - Procedure for -

Approval by the Oba of Benin - Effect of - Competing claims - Priority - Whether general

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principles of land law are applicable to title to land in Benin City.

Practice and Procedure -

Pleadings - Plea of conclusions of law or of mixed fact and law -

Propriety of - Plea of a public statute - Whether necessary to set out contents thereof-

Principle of audi alteram partem - When applicable - Whether the principle is infringed

where a court, suo morn, takes judicial notice of a statute and applies same without

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inviting counsel to address it on the statute - section 2(1)(m), Boundary Dispute

(Determination) Edict No.6 of 1977, Bendel State.

ISSUES:

1.

When may the Court of Appeal upset the findings of fact of a trial court?

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FINNFH V. IMADE

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2. Whether by virtue of section 73 of the Evidence Act a court needs to call on

both counsel to address it before it can take judicial notice of a law.

FACTS:

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The plaintiff sued the defendant in a Benin High Court for a declaration of

statutory right of occupancy to a piece of land in Benin. Plaintiff also claimed

special and general damages for trespass and perpetual injunction. After hearing

evidence, the trial judge found that the plaintiff did not prove his case for title and

trespass. He, however, proceeded to award to the plaintiff the sum of N60,100.00

10 as special damages in respect of the damaged uncompleted building and mate-

rials on the site. The claim for perpetual injunction was dismissed.

The defendant appealed to the Court of Appeal against that part of the trial

court's judgment awarding damages to the plaintiff. The plaintiff also aggrieved,

cross-appealed to the Court of Appeal against that part of the judgment dismissing

his claim for the declaration of statutory right of occupancy. After hearing argument

15 of the parties, the Court of Appeal found,

inter alia,

that the approval by the Oba

of Benin of the grant to the plaintiff ranked in priority to that of the defendant.

Therefore, the Court of Appeal allowed the plaintiff's cross- appeal and dismissed

the defendant's appeal.

Dissatisfied with the judgment of the Court of appeal, the defendant further

20 appealed to the Supreme Court where it was contended,

inter alia,

that the learned

justices of the Court of Appeal were in error in holding that the grant to the

plaintiff/respondent was better and ranked in priority to that of the defendant/ap-

pellant, and also that the Court of Appeal

suo motu

raised and applied the provision

of the Boundary Dispute (Determination) Edict of 1977, Bendel State without calling

25 on the parties to address it on the law. It was also argued before the Supreme

Court that the Edict was not an issue pleaded by either of the parties.

HELD:

1.

The Court of Appeal will be reluctant to upset the findings of fact of a trial court

but where the learned trial court draws wrong conclusions from the totality of

the evidence before it, the Court of Appeal will and in fact has a duty to reverse

the wrong conclusions and make findings that the facts before it demand.

Thus, where the trial court has drawn the wrong inference from primary facts

the appellate court can reject the inference and make what it considers to be

the right inference supported by evidence.

(See p.67, lines 21 - 26; 30 -

32).

On the facts of the instant case, the decision arrived at by the learned trial

judge was at variance with the evidence before him. The Court of Appeal rightly

reverted the erroneous finding of the trial court.

2.

A Court, by virtue of section 73 of the Evidence Act, is entitled to take judicial

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notice of all laws and need not call on both counsel to address it before doing

so. (See

p.68, lines 21 - 24).

Thus in the instant case, the Court of Appeal was entitled to take judicial notice

of the Boundary Dispute (Determination) Edict, 1977

suo motu

without calling

on counsel to address it before doing so.

15 3. Once issues for determination are formulated all arguments in the brief of

argument in that case must be with reference to those issues for determination

and not with reference to,the grounds of appeal.

(See p.69, lines 30 - 33).

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