LAWAL V. IJALE

• Pages: 94-97

94

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

LAWAL V. IJALE

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5

MUSTAFA LAWAL

V

ABDUL GBADAN10S1 IJALE

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

AJEGBO,

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J.S.C.

LEWIS,

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J.S.C.

17th March, 1967

APPELLANT

RESPONDENT

SUIT NO. SC 43

2

/

1

965

10

15

Civil Action - Practice and Procedure - Judgments - Execution of - Claim to

attached property - Judgment debtors and claimant both members of the same

family - Prima facie evidence that attached property was family property -

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Claimant's onus prima facie discharged unless judgment creditor proves the

contrary

Evidence - Dispute as to ownership - Burden of proof - Prima facie person in

possession owner until contrary is. proved - Onus on person asserting the

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contrary - Evidence Act, Section 145

Appeals - Costs paid under judgment set aside - Automatic refund.

ISSUES:

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1.

Whether in a claim of interest in attached property (which claim alleges that

attached property is family property), unchallenged evidence of occupation

establishes a

prima facie

case that the property in dispute is family property.

2.

Whether in the absence of evidence to the contrary the onus is on the claimant

to establish his claim that certain property is family property.

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3.

Which party bears the burden of proof of ownership under Section 145 of the

Evidence Act, when it is alleged that the party in possession of disputed property

is not the owner.

4.

Whether a successful appellant is entitled to a refund of general costs awarded

against him in the High Court.

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FACTS:

The appellant was the claimant in the court below who claimed by an inter-

pleader action an interest in the property which the respondent as judgment credi-

tor in the court below had had attached in an attempt to recover a judgment debt.

The claimant called evidence to show that the property attached was family

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property to which he and the judgment debtor and others were entitled as mem-

bers of the same family. He further testified that he and the judgment debtor lived

in it. The judgment creditor had nothing to challenge this evidence but denied the

claim and put the claimant to proof thereof. In spite of the claimant's unchallenged

evidence the trial judge nonetheless held that the claimant had not satisfied him

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that the property did not belong to the judgment debtor, and he therefore dismissed

the claim and ordered execution to proceed. The claimant appealed.