Practice and Procedure

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CASES BEFORE THE COURT.

Duty of parties in civil cases.“I think that I must stress here that in civil cases, it is the duty of

the parties to tidy up their cases and produce their witnesses, and as far as possible, either party

should be alert throughout the trial.” – PerUmoren, J.S.C., in Anyafulu v. Agazie Suit No.

CA/E/169/2001; (2005) 3 N.W.L.R. (Pt. 912) 416 at 429.

Duty on plaintiff and how discharged.“I must observe that a plaintiff swims or sinks with his

pleadings. Judges cannot assist a plaintiff to win his case, because cases are not decided on

emotions, sentiment, or some misguided consideration. Cases are won on pleaded facts supported

by compelling evidence.” – Per Rhodes-Vivour, J.S.C., in Adekeye v. Adesina Suit No. S.C.

216/2004; (2010) 18 N.W.L.R. (Pt. 1225) 449 at 494.

Principles guiding determination of civil cases.(1) “A civil case is decided on preponderance

of evidence. The decision having to be on the balance of probability. In determining which is

heavier, the Judge will naturally have regard to whether the evidence is admissible, relevant,

credible, conclusiveor more probable than that adduced by the other party. See the cases of Mogaji

v. Odofin(1978) 4 S.C. at 91; Akani v. Odejide(2004) All F.W.L.R. (Pt. 218) page 827 at 858

paras. E-H (2004) 9 N.W.L.R. (Pt. 879) 575.” – Per Fasanmi, J.C.A., in Womiloju v. Kiki Suit No.

CA/I/76/2004; (2009) 16 N.W.L.R. (Pt. 1166) 143 at 153. (2)“The Court will advert its mind to

the evidence before it and will thereafter ascribe probative value to the evidence and then proceed

to weigh the evidence before it on that imaginary scale and appreciate upon the preponderance of

evidence which side the scale weighed having regard to the burden of proof. Agbonifo v.

Aiwereoba(1988) 1 N.W.L.R. (Pt. 70) pg 325; MISR (Nig.) Ltd. v. Ibrahim(1975) 5 S.C. Pg. 55;

Egonu v. Egonu(1978) 11 -12 S.C. pg. 111; Mogaji v. Odofin(1978) 4 S.C. Pg. 91; Abisi v.

Ekwealor(1993) 6 N.W.L.R. (Pt. 302) 643.” – PerAdekeye, J.S.C., in Dakolo v. Rewane-Dakolo

Suit No. S.C. 169/2004; (2011) 16 N.W.L.R. (Pt. 1272) 22 at 55.

What Court should base its consideration of a case on.“The duty of the Court is to consider

the case before it in the light of the party’s complaints and submissions. See Ojo-Osagie v. Adonri

(1994) 6 N.W.L.R. (Pt. 349) 131 S.C.” – Per Nwodo, J.C.A., in Rockshell Int’l Ltd. v. B.Q.S. Ltd.

Suit No. CA/L/512/2006; (2009) 12 N.W.L.R. (Pt. 1156) 640 at 667.

CASES PRESENTED TO COURT BY PARTIES.

Basis of determination of a case before the Court.“It is a fundamental principle of our law that

a case must always be decided on the issues raised before the Court by the parties and not on what

was raised by the Court “suo motu.” – Per Tsamiya, J.C.A., in Obumseli v. Uwakwe Suit No.

CA/E/36/2006; (2009) 8 N.W.L.R. (Pt. 1142) 55 at 75.

Bindingness of case on parties and Court. “It is trite that the parties are bound by the case they

present to the Court and the issues raised thereby for trial. Similarly, the Court is bound to limit

itself to the case presented to it for determination and the issues raised by the parties thereof. This

is the law as established by the apex Court in the case of Amalgamated Trustees Limited v.

Associated Discount House Limited(2007) 15 N.W.L.R. (Pt. 1056) pg 118; 147 - 148. In our case

the issue presented for consideration of the Court on 22nd May, 2009 which issue the Court was

expected to consider was for a restraint on the defendants from ejecting Rev. Abia F. Abia from

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the church manse at No. 2, Abak Road, Uyo and nothing more. The orders of the trial Court outside

that applied by the parties therefore were orders granted in excess of jurisdiction.” – Per Mika’ilu,

J.C.A., in Udoudom v. Regt. Trustees, Q.I.C. Suit No. CA/C/199/2009; (2012) 5 N.W.L.R. (Pt.

1294) 469 at 477.

Bindingness on parties and Court of case presented by parties. “It is settled law that parties

are bound by the case they presented to the Court and the issues raised thereby for trial. Similarly,

the Court is bound to limit itself to the case presented and the issues raised by the parties. And

none of the parties is allowed to make a new case either at the Court of trial or on appeal without

amending the originating process. See Akinfolarin v. Akinola (1994) 3 N.W.L.R. (Pt.335) 659;

National Investments and Properties Co. Ltd. v. Thompson Organisation Ltd.(1969) 1 All N.L.R.

138; Oniah v. Onyia(1989) 1 N.W.L.R. (Pt. 99) 514; Enang v. Adu (1981) 11 - 12 S.C. 25 at 36.”

– PerTabai, J.S.C., in A.T. Ltd. v. A.D.H. Ltd.Suit No. S.C. 289/2002; (2007) 15 N.W.L.R.

(Pt.1056) 118 at 147 - 148.

Burden on party who files an action in Court.“A party who files an action in Court should be

prepared to prove its allegation which is completely lacking in this case.” – PerAka’ahs, J.S.C.,

in P.D.P. v. I.N.E.C. Suit No. S.C. 480/2014; (2014) 17 N.W.L.R. (Pt. 1437) 525 at 574.

Can a trial Court depart from the case pleaded and proved by parties? “It is now well settled

that a trial Court will not depart from the case pleaded and proved by parties to give Judgment on

matters which are neither pleaded nor constitute issues as settled in the pleadings. See Lemomu v.

Ali Balogun(1975) 3 S.C. 87.” – PerOkoro, J.C.A., in Muniyas (Nig.) Ltd. v. Ashafa Suit No.

CA/L/650/09; (2011) 6 N.W.L.R. (Pt. 1242) 85 at 105.

Can party make different case on appeal. (1) “The appellants shall not be allowed to improvise

their case on appeal, and the issues to be resolved at any time even in the appellate Courts must at

times emanate squarely from the claims made in the Court of first instance, to wit, the issues in

controversy, whether of fact or of law and must be traced to the, request, prayer or claim of the

proponents of the case. It is long settled by this Court that arguments and addresses of counsel in

their briefs shouldbe on what is contained in the issues formulated and not on the grounds of

appeal. See Agih v. Ejinkeonye(1992) 3 N.W.L.R. (Pt. 228) 200 at 208; Adejumo v. Ayantegbe

(1989) 3 N.W.L.R. (Pt. 110) 417 at 430; Aja v. Okoro(1991) 7 N.W.L.R. (Pt. 203) 260 at 277 and

Agbai v. Okogbue(1991) 7 N.W.L.R. (Pt. 204) 391 at 421. In other words, the fons et origo of the

appeal from which the issues to be determined emanate, and from which the grounds of appeal is

formulated are directly as should be directly or circumstantially connected with what the Court of

first instance was being asked to do which was to make a declaration or give an answer. Issues

framed from the grounds of appeal are not meant to afford a party an opportunity of making an

entirely new case whichdid not feature at the trial Court, and is not one that goes to the jurisdiction

of the Court.” – PerPats-Acholonu, J.S.C., in Fatunbi v. OlanloyeSuit No. S.C. 24/2000; (2004)

12 N.W.L.R. (Pt. 887) 229 at 251 - 252. (2) “The appellants cannot now on appeal claim a relief,

which was never claimed before the trial Court.” – PerMusdapher, J.S.C., in Fatunbi v. Olanloye

Suit No. S.C. 24/2000; (2004) 12 N.W.L.R. (Pt. 887) 229 at 255. (3) “It is also now settled that a

party cannot maintain on appeal a case diametrically different from one maintained at the trial. An

appeal is normally a continuation of the trial.” – PerMusdapher, J.S.C., in Fatunbi v. Olanloye

Suit No. S.C. 24/2000; (2004) 12 N.W.L.R. (Pt. 887) 229 at 256.

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Can the Court make case for a party? (1) “Court will not make a case for a party which the

party did not make for himself.” – PerSankey, J.C.A., in Uhembe v. Parkes Suit No.

CA/J/232/2008; (2014) 3 N.W.L.R. (Pt. 1395) 475 at 509. (2) “See the case of Akinkumi v. Sadiq

(1997) 8 N.W.L.R. (Pt. 516) page 277 where it was held that a Court is not competent to make a

case for any of the parties; to do so will be against all known principles of fair hearing or fair trial.”

– Per Ogunbiyi, J.S.C., in Kayili v. Yilbuk Suit No. S.C. 92/2005; (2015) 7 N.W.L.R. (Pt. 1457)

26 at 68.

Duty of Court to limit itself to case of parties.(1) “I adopt what my learned brother, Okoro

J.C.A. (as he then was) did in Muniyas (Nig.) Ltd. v. Ashafa (2011) 6 N.W.L.R. (Pt. 1242) 85 at

105 paras. B-C when he said: “It is now well settled that a trial Court will not depart from the case

pleaded and proved by parties to give judgment on matters which are neither pleaded nor constitute

issues as settled inthe pleadings.” – Per Peter-Odili, J.S.C., in Akpamgbo-Okadigbo v. Chidi (No.

2) Suit No. S.C. 714/2013; (2015) 10 N.W.L.R. (Pt. 1466) 124 at 165. (2) “No Court is allowed to

create a new case for the parties or to go beyond the scope of what the parties came to Court for in

granting a relief unrelated to the dispute as initiated by a plaintiff and upon which the defendants

has set up a defence.” – PerPeter-Odili, J.S.C., in Society Bic S.A. v. Charzin Ind. Ltd. Suit No.

S.C. 79/2005; (2014) 4 N.W.L.R. (Pt. 1398) 497 at 545 - 546.

Duty on Court in consideration of case of parties in action for title to land. “In the instant case,

the defendant did not file a counter-claim. He had only come to defend the plaintiff’s suit. The

result is that a consideration of the weakness of the defence should not have been embarked upon

by the trial Judge until the plaintiff’sevidence had been found to establish a prima faciecase. In

Aromire and Ors. v. Awoyemi (1972) 1 All N.L.R. (Pt. 1) 101 at 112, this Court per Coker, J.S.C.

referred to its views in Godwin Egwuh v. Duro OgunkehinS.C.529/66 decided on the 28th

February, 1969 where it said: “we are in no doubt that on the pleadings the case of the plaintiff

postulates that she had a better title to the land than the defendant who admittedly was at the time

of the institution of theproceedings rightly or wrongly in possession of the land …The learned

trial Judge rejected the defendant’s case and passed severe strictures on the defendant’s witnesses

and their conduct; but with respect, a consideration of the defendant’s case did not arise until the

plaintiff had led evidence showing, prima facie, that she had a title to the land. She had failed to

do this and it is inconceivable that she should be allowed to succeed on her claims when, as indeed

it is, the defendant is in possession and maintains that he is entitled so to remain. If it be alleged

that someone in possession of land is a trespasser the person so alleging has the onus of showing

that he has a better right to the possession which was disturbed and unless that onus is discharged,

the person so alleging cannot defeat the rival party. Such is the case here and we are of the view

that the plaintiffs case had failed and it should be dismissed.” – PerOguntade, J.S.C., in Ugoji v.

Onukogu Suit No. S.C. 93/1999 (2005) 16 N.W.L.R. (Pt. 950) 97 at 113 - 114.

Duty on Court not to decide issue not raised by parties in their pleadings.(1) “From the record,

it is abundantly clear that both parties agreed that the consent to the legal mortgage was granted

by the Governor. And when the legal mortgage was tendered in evidence at the trial, there was no

objection whatsoever by the appellantand was admitted as exhibit 1. I therefore agree entirely

with the Court of Appeal that there was no controversy between the parties on the Governor’s

consent and that the trial Court was wrong to raise and determine that issue suo motuas it did. It