JOHN BANKOLE & ORS. V. MOJIDI PELU & ORS.

• Pages: 639-660

JOHN BANKOLE & ORS. V. MOJIDI PELU & ORS.

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639

JOHN BANKOLE & ORS. V. MOJIDI PELU & ORS.

5

1.

JOHN BANKOLE

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)

2.

LAMIDI OLOSUNDE

10 3. AKINTOLA SUNMONU IGE

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~~

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APPELLANTS

4. AMIDU IGE

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~~

(For themselves and on behalf

of the Beku-Onimaba family.)

V.

15 1. MOJIDI PELU

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)

2. MUDA ANWOYI

3.

AMUSA OWUYE

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RESPONDENTS

4.

ASANI PELU

(For themselves and on behalf )

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

of the Osumba family.)

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)

APPEAL No. SC. 184/1989.

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,

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J.S.C.

25

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KAWU,

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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.

30 15th November, 1991.

Appeals - Tying issues for determination to grounds of appeal - Need for - Consideration

of the issues for determination as opposed to the grounds of appeal - Duty of Court

thereof - Raising new points of fact or law not raised or tried by a trial Court on appeal

35

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-

When done - When not done - Concurrent findings of fact by lower Courts - Attitude

of appellate courts thereto.

Evidence Onus of Proof in a case for declaration of title - Wherein lies - Estoppel -

Requirements of - Absence of - Res .1 udicata - When not applicable.

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Judgment -

Minor errors in judgment - Effect of

Land Law -

Declaration of title to land - Damages for trespass - Perpetual injunction -

Conflict in traditional evidence - How resolved - Composite plan - Who files.

Practice and Procedure -

Issue neither pleaded nor canvassed by parties but considered suo

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motu by Court - Propriety of

ISSUES:

1.

On whom lies the onus of proof in a claim for declaration of title?

2.

When will the estoppel operate against a party?

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3. When may the Supreme Court grant leave to a party to raise a point (in the

Supreme Court) not raised in the court below?

640

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NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

4. What is the attitude of the Supreme Court to concurrent findings of fact by lower

courts?

FACTS:

In 1967 the appellants sued the respondents for declaration of title to part of

their land called Moba, damages for trespass and an injunction. The respondents

denied these claims and asserted that the land claimed is part of their land called

Mope. Pleadings and plans were filed and exchanged by the parties. The appel-

lants plans showed the land in dispute and the whole of their land, whilst the

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respondents plan cover not only the land in dispute but a larger parcel of land

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1

inclusive of it which they claimed to be theirs. After hearing the witnesses and

considering the exhibits, the learned trial judge

(Oshodi, J.)

made findings of fact

inter alia,

that although the appellants pleaded that they have many tenants on the

land in dispute none was shown on their plan, neither of the two witnesses whose

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farms were shown on their plan was called to testify, some members of the

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appellant's family admitted in previous proceedings renting part of the land in

dispute from and paying rents to the 1st respondent. Consequently

Oshodi, J.

held that the appellants had failed to prove their case and accordingly dismissed

their claims. Dissatisfied, the appellants appealed to the Court Appeal. The Court

of Appeal confirmed the conclusion of the learned trial judge.

Dissatisfied still, the appellants appealed to the Supreme Court, arguing

inter

alia,

that the lower court wrongly placed the onus of proof with respect to

ownership, possession and tendering of a composite plan on them and also

contested the jurisdiction of the Customary Court to adjudicate on some of the

previous proceedings tendered as exhibits to raise the issues of estoppel and

res

judicata

at the lower courts (this last point was not raised at the trial court).

HELD:

1.

The normal onus of proof in a case for declaration of title is on the plaintiff to

prove his case and in so doing he must rely on the strength of his case and

not on the weakness of the defendant whose duty is only to defend the action

and no more.

In the instant case, the onus is squarely on the appellants to prove their title to

the area verged red in Exhibit A, which is the limited area in dispute; and which

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also is enclosed by both Exhibit B, the whole land of the appellants, and Exhibit

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3

F and G, showing all the land of the respondents.

(See p.650, lines 37-40,&

43-46).

2.

It is trite law that to constitute estoppel the parties in two cases must be the

same, the cause of action or issue in both actions must be the same and must

have been litigated to finality.

(See p.652, lines 27 - 31)

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3.

What the Court of Appeal has to consider are not grounds of appeal but issues

for determination framed. These issues may be those framed by either one or

both parties or those re-framed, after a consideration of issues as set out and

the grounds of appeal filed, by the Court of Appeal. The Court of Appeal is at

liberty to reject all the issues framed by the parties and frame its on issues if in

its view, the issues as framed, will not lead to a proper determination of the

appeal.

(Seep. 647 lines 31-38).

4.

Mere comments on and/or criticisms of issues for determination filed by an

appellant are not admissible as issues for determination by a respondent.

(See

p. 647 lines 15-17).