OSAYI V. IZOZO

• Pages: 177-180

OSAYI V. IZOZO

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177

These findings were made the subject of complaint before the learned Judge on

appeal and he, rightly in our view, upheld the findings of the President of the Cus-

tomary Court. In these circumstances it is manifest that the plaintiffs had failed to

satisfy the court:-

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(i)

as to the original grant of the land being claimed by them to their ancestor;

(ii)

that they were in exclusive !possession of the land in dispute; and

(iii)

that the plan produced by them accurately shows the land in respect of which

they sought a declaration cf title and the precise limits of such land.

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The learned appellate Judge Jaye no reasons whatsoever for ordering a re-

trial and although he made such an order we are clearly of the view that he had

before him no material which would have entitled him to order a re-trial. The suc-

cess of the plaintiffs before the le,rned appellate Judge on grounds of appeal Nos

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4 and 5 cannot,

ipso facto,

entitle the plaintiffs to succeed on the appeal unless

they could show as well that the error in law or misdirection alleged by them must

have affected the judgment in a vvay which is crucial to the decision. The matters

discussed by us make it abundantly clear that on those findings of the President

of the Customary Court that were upheld by the learned appellate Judge the plain-

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tiffs had failed to prove their case

in toto.

In such circumstances the proper order

is one of dismissal of their case. See

Kodilinye v. Mbanefo Odu

2 W.A.C.A.336.

This appeal therefore succeeds and it is allowed. The judgment of the High

Court, Abeokuta, in Appeal No AF

3

/

1

3A/64, including the order for payment of costs

by the defendants is hereby set tside. It is ordered that the appeal of the plaintiffs

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to that court be dismissed with costs and that this should be the order of the court.

It is also ordered that as the defendants have succeeded before us in this appeal

they will be entitled to costs payable to them by the respondents before us and

fixed at 15 guineas in the High Court and 75 guineas in this Court.

Appeal allowed.

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OSAYI V. ZOZO

35

ROBERT OSAYI



APPELLANT

(For himself and on behalf)

of Elders of Emuhu)

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

V

OGUDE IZOZO

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RESPONDENT

(For himself and on behalf

of people of Ogbemudei)

SUIT NO. SC 129/1966

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SUPREME COURT OF NIGERIA

COKER,



J.S.C.

LEWIS,



J.S.C.

MADARIKAN,



J.S.C.

11th April, 1969.

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Civil Practice and Procedure - Non-suit wrongly ordered without hearing Counsel

- Judge made no findings of fact - Defendant entitled to ask for retrial -

Cost in non-suit always to defendant - Here defendant and plaintiff equally

at fault so each side to bear its own cost.