LAWANI V. ADENIYI

• Pages: 231-234

LAWANI V. ADENIYI

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231

defendant's claim to the land in dispute in the suit; and the learned Judge dismissed

the claim.

The plaintiffs have appealed, and their complaint is that on an application for

leave to withdraw, it was not right for the trial Judge to dismiss the claim with a

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reasoning which relates to the pleadings and, therefore, to all appearance, on the

merits of the dispute. Counsel for the defendant concedes that the course taken

by the trial Judge was mistaken. All that remains, therefore, is to consider what

course we should adopt in disposing of this appeal, having regard to the circum-

stances of this case.

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Counsel for the plaintiffs has ask€d us to remit the case for trial. Counsel for

the defendant does not agree. We are of the view that the only point that arises is

to replace the decision of the court below with what in our opinion should have

been the right decision of that court in the circumstances.

We think that the judgment of the court below should be replaced by an order

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in these terms:-

Leave to withdraw the claim is granted with costs of suit against the plaintiffs.

We order that those costs shall be taxed in the court below on the application

of either side.

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As to the costs of this appeal, the appellants are allowed forty-five guineas

in all.

The costs of appeal may be set off against this costs in the court below, and

if there is any balance in favour of the defendant, the plaintiffs shall not bring a

fresh suit relating to the land in dispute in the present suit before such balance

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is paid.

The appeal from the High Court decision of 1st March, 1962, in the Benin

Suit No. W/40/56 is allowed on the above terms.

Onyeama, J.S.C.

I concur.

Ajegbo, J.S.C.

I concur.

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Appeal allowed.

LAWANI V. ADENIYI

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JIMO ADENIYI

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APPELLANT

V

40 SALAWU LAWANI

(for himself and on behalf of

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RESPONDENT

the (TIRE family)

SUIT NO. SC 139/1963

SUPREME COURT OF NIGERIA

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BAIRAMIAN,

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J.S.C.

ONYEAMA,

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J.S.C.

AJEGBO,

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J.S.C.

30th October, 1964

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Land Law - Customary tenancy denied - absolute grant alleged - Long possession

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laches and acquiescence - assignment of portions to others by defendants

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entitled to forfeiture for such act.