OMOREGIE & ORS. V. IDUGIEMWANYE & ORS.

• Pages: 838-855

OMOREGIE & ORS. V. IDUGIEMWANYE & ORS.

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838

The complaint in the first ground of appeal is about the failure of the Court of

Appeal to consider joinder of some issues which were set out by the appellants.

This complaint raises the question of joinder of issues which, though an issue of

law, cannot be resolved without reference to the facts alleged in the pleadings. In

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my view, therefore, this ground raises questions of mixed law and facts.

With regard to the second ground of appeal, it seems to me two points have

been raised. The first one is about the failure of the learned trial Judge to set out

the issues joined by the parties and make specific findings on them. This, un-

doubtedly, raises an issue of law as it is the duty of a court to hear and determine

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all issues properly raised before it. But the second point, made in the same ground

of appeal, complaining about the failure of the Court of Appeal to consider appel-

lants' submission in connection with their survey plan, in my opinion, involves only

questions of fact.

In my view, therefore, each of the two grounds raise questions of mixed law

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and fact, and since no leave of either the Court of Appeal or the Supreme Court

was obtained in accordance with the provisions of S.213(3) of the Constitution,

the grounds are incompetent, and this Court has no jurisdiction to hear the appeal.

These are my reasons for striking out the appeal at Enugu on 26th March, 1985.

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Appeal struck out.

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OMOREGIE & ORS. V. IDUGIEMWANYE & ORS.

ROWLAND OMOREGIE AND 3 ORS.

V

30 IDUGIEMWANYE AND ORS.

SUPREME COURT OF NIGERIA

IRIKEFE,



J.S.C.

APPELLANTS

RESPONDENTS

SUIT NO. SC 133/1984

ESO,

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

NNAMANI,

KAZEEM,

OPUTA,

14th June, 1985

J.S.C.

J.S.C.

J.S.C.

J.S.C.

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Appeals (Civil) - Findings of fact by trial court - Role of Appellate Court in

relation to such findings - Order of re-trial - When made

Land Law - Proof of title under Benin Customary Law - Ways of proving title

to land - Rule in Idundun v. Okumagha (1976) 9-10 S.C. 224 - Boundary

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in dispute - Principles applicable.

ISSUES:

1. What should be the attitude of an Appellate Court to findings of fact made by

the trial Judge?

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2. What need be established in an action of declaration of title where only the

boundary is in dispute?

3.

How can a party prove ownership of land under Bini Customary Law?

4.

What are the general principles on which the Courts act in order to grant a

declaration of title?

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NIGERIAN SUPREME COURT CASES [1985] 2 N.S.C.C.

FACTS:

The plaintiffs brought an action for declaration that they were entitled to oc-

cupy, farm and use a piece of land in Bendel State. At the close of pleadings and

evidence, there was abundant evidence to show that the plaintiffs farm on the land

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in dispute, have their shrines there and that the boundary (which was in dispute)

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was a moat and that the defendants owned no part of the land in dispute. The trial

Judge found for the plaintiffs. The defendants appealed to the Court of Appeal

which set aside the trial Court's decision and reversed its findings. The Court of

Appeal based its decision on the fact that since the features on the land in dispute

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were not proved, reliance could not be placed on the plan solely. The plaintiffs

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appealed to the Supreme Court.

HELD:

1. In an appeal against the findings of fact by a trial court, an Appellate Court

must-

(a)

attach the greatest weight to the opinion of the trial Judge who has the duty

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to see and indeed has seen and heard the witness.

(b)

not disturb the findings of fact made by the trial Judge except where such

findings are unsound.

2. In deciding whether the findings of the trial Judge are sound or not an Appellate

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Court is left only to examine the grounds that led to the conclusion reached,

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and the inferences that have been drawn from such conclusions of the trial

court.

3. Under Benin Customary Law, title to land is established if a party claiming such

title can show that his predecessors-in- title claimed such land through the Oba

of Benin or if he otherwise traces his title to the Oba of Benin.

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4. In an action for declaration of title where only the boundary is in dispute, and

the identity of the land and the accuracy of the plan is not in dispute, the plaintiff

need not establish the features on the land in dispute and all the boundaries of

such land except the boundary on the side in dispute.

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5. There are 5 ways of establishing ownership of land as stated in

Idundun v.

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Okumagba,

(1976) 9 - 10 S.C. 227. These are

(a)

By traditional evidence;

(b)

By production of documents of title;

(c)

By acts of ownership extending over a sufficient length of time which acts

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are numerous and positive enough to warrant the inference that the person

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is the true owner;

(d)

By acts of long possession and enjoyment of land;

(e)

By proof of possession of connected and adjacent land in circumstances

rendering it probable that the owner of such connected or adjacent land

would in addition be the owner of the land in dispute.

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[EDITORIAL NOTE: It is the duty of the trial court to evaluate facts and make

findings thereon; and an appellate court will not usurp this function unless the trial

court has omitted to utilize this unique privilege.

See further:

Incar Nig. Ltd. v Adegboye

[1985] 2 N.W.L.R. 453.

Okuoja v Ishola

(1982) 7 S.C. 314 at 349.

Okafor v Idigo

(1984) 6 S.C. 1 at 36.

Ntiaro v Akpan

3 N.L.R. 9 at 10.]

CASES REFERRED TO IN JUDGMENT:

1.

Lawal v. Dawodu

(1972) 1 All N.L.R. 270, 286.

2.

Mogaji v. ()dein

(1978) 4 S.C. 31.

3.

Woluchem & Ors. v. Simon Gudi

(1981) 5 S.C. 319, 326.

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