OKE & ORS. V. EKE & ORS.

• Pages: 547-559

OKE & ORS. V. EKE & ORS.

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547

Appeal allowed.

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OKE & ORS. V. EKE & ORS.

ONYEMA OKE & ORS

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APPELLANTS

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V

AMOS EKE & ORS

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RESPONDENTS

SUIT NO. SC 18/1982

SUPREME COURT OF NIGERIA

IRIKEFE,

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BELLO,

IDIGBE,

OBASEKI,

ESO,

10th December, 1982

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J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

Land Law - Declaration of title - Identity of land in dispute - location of

plaintiffs' boundary not precisely established on the evidence - Appeal on

facts - Need for leave to appeal - Retrial - Appropriate case for - Unsolved

conflicts in evidence as to plaintiffs' boundary and as to topography of land

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in dispute - Retrial order by Federal court of Appeal affirmed.

ISSUES:

1.

Whether an appeal can be filed on grounds of fact without first obtaining leave

of the court.

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2.

Whether a plaintiff who cannot prove the identity of land in dispute with certainty,

can claim a declaration of title.

3. Whether a trial court can pronounce for or against a plaintiff in an action for

declaration of title, without first resolving conflicting issues.

FACTS:

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The plaintiffs brought an action for declaration of title to land. They tendered

plans and other documents, but there were various conflicting issues which the

learned trial judge did not address hip, mind to. The trial judge held for the plain-

tiffs. The defendants appealed against the decision, that various conflicting issues

were not resolved. The Federal Court of Appeal upheld the appellants' conten-

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tion and reversed the decision of the trial judge and ordered a re-trial. The plain-

tiffs, being dissatisfied with this order, sought to appeal to the Supreme Court on

various grounds of fact, but did not obtain leave. The court nevertheless con-

sidered the merits of the appeal.

HELD:

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1. An appeal based on facts cannot be entertained without obtaining leave.

2.

In a claim for declaration of title to land, it is necessary to first prove the identity

of the land in dispute. A declaration cannot be granted to unidentified land.

3.

It is necessary for a trial judge to first resolve conflicting issues in an action for

declaration of title, before he can make any pronouncements in relation to the

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land, and since various conflicting issues were not resolved by the High Court,

the case was to be remitted for retrial. Appeal dismissed. Decision of Appeal

Court upheld.