REG. TRUST., APOST, FAITH MIS. & ANOR V. JAMES & ANOR.

• Pages: 1047-1062

REG. TRUST., APOST. FAITH MIS. & ANOR V. JAMES &

ANOR 1047

UWAIS, J.S.C.:

I have had the opportunity of reading in draft the judgment read

by my learned brother Oputa, J.S.C. For the reasons contained in the said

judgment, I too would allow this appeal and set aside the decision of the Court

of Appeal. I have nothing to add. I endorse the orders made

in

the judgment.

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

Appeal allowed.

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REG. TRUST., APOST. FAITH MIS. & ANOR V.

JAMES & ANOR

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THE REGISTERED TRUSTEES

OF THE APOSTOLIC

FAITH MISSION & ANOR

V

UMO BASSEY JAMES & ANOR

SUPREME COURT OF NIGERIA

APPELLANTS

RESPONDENTS

SUIT NO. SC 6/1985

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BELLO,

OBASEKI,

ESO,

NNAMANI,

UWAIS,

KAZEEM,

OPUTA,

10th July, 1987

C.J.N.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

Appeals - Finding of fact - Proper for appeal court to evaluate evidence which

trial court failed to evaluate - Appeal - Issue raised in brief but not covered

by any ground of appeal is misconceived.

ISSUE:

1. Whether an appeal court can evaluate evidence which trial court failed to

evaluate.

FACTS:

The two neighbouring towns of Efut Abua and Efut Okondo were administered

separately in all respect including land affairs until the formation of the combined

council of Efut Abua Ekondo. In 1938 the leader of Efut Abua and four others sold

a piece of land to one B. who in turn conveyed it in 1962 to the respondent's father.

In 1974 one M. who claimed to be acting on behalf of himself and the Council

leased the same land to the appellants for 99 years, who then proceeded to erect

a church on it despite warnings from the respondents. The respondents sued the

apellants in the Calabar High Court claiming damages for trespass and a perpe-

tual injunction. One of the witnesses for the appellants told the trial court that the

counsel was established in 1921, but during his cross-examination a report (Ex-

hibit 7) was tendered through him, which report showed that the council was es-

tablished in 1941. The trial judge dismissed the respondent's claim, whereupon

they appealed to the Court of Appeal where their appeal was allowed and the High

Court judgment was set aside and their reliefs were granted. The appellants ap-

pealed to the Supreme Court.

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1048

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NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

HELD:

1.

It is the duty of the trial court to evaluate evidence given before it, but where it

fails to do so, an appellate court should not hesitate to evaluate such evidence.

It was in accordance with this principle that the Court of Appeal rightly evaluated

the evidence supplied in Exhibit 7.

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2.

The trial judge failed completely to evaluate the important evidence of Exhibit

7, which was tendered to contradict M's evidence that the council was

established in 1921.

3.

The appellants failed to show that they had no actual or constructive notice of

the respondents' equitable interest when they took the leasehold in 1974. If they

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had made necessary searches in the Land Registry, they would have discovered

the interest of the respondents' father in the land.

CASES REFERRED TO IN JUDGMENT:

1.

Dr. Abiola Akerele v. A.J. Atunrase

(1969) 1 ALL N.L.R.

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2.

Ogunbambi v. Abowaba.

13 W.A.C.A. 222.

3.

Chief Frank Ebba v. Chief Ward Ogodo & Anor

(1984) 4 S.C..84.

4.

Watt or Thomas

(1947) A.C. 484.

5.

Benmax v. Austine Motor

Co.

Ltd.

(1955) 12 S.C. 370.

6.

Lion Buildings Ltd. v. M.M. Shadipe

(1976) 12 S.C. 135 at 153.

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7.

George Okafor & 3 Ors v. Eze ldigo 111 & 5 Ors

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

8.

Dr. Joseph

C.

Okoye v. Dumes (Nig) Ltd. & Or

(1985) 1 N.W.L.R. 783.

9.

Abatche Kponugbo v. Adja Kadaja

(1933) 2 W.A.C.A. 24.

10.Savage v. Sarrough

(1937) 13 N.L.R. 141.

11.Fakoya v. St. Paul's Church Shagamu

(1966) 1 ALL N.L.R. 74.

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12.Oni v. Arimoro

(1973) 3 S.C. 163.

13.

Bucknor-Maclean v. Inlaks.

(1980) 8 - 11 S.C.1.

14.

Obijuru v. Ozims

S.C. 48/1984 delivered on 4th April 1985.

Otunba J. Olu Awopeju

(with him

A.O.A. Awopeju)

for the Appellants.

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Mr. Orok Ironbar

(with him

John Bassey)

for the Respondents.

KAZEEM, J.S.C.

(Delivering the Lead Judgment): The Plaintiffs who are the

respondents in this appeal claimed from the defendants (now the appellants) a

sum of N10,000n as damages for trespass at the High Court of South Eastern

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State holden at Calabar. The trespass was said to have been committed on a

parcel of land at Ekpo Abasi Street, Calabar, as shown on the survey Plan No.

ESP/213/(LD) of 24th July, 1975. The respondents also asked for perpetual

injunction to restrain the appellants, their servants, agents and/or assigns, from

repeating or continuing the acts of trespass complained of.

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Pleadings were ordered and duly filed; and therein it was averred by the re-

spondents that the land in dispute was situated at Efut Abua in the Calabar Divi-

sion of the then South-Eastern State of Nigeria.

The respondents claimed that the said parcel of land was sold to one Bernard

Eyo Boko alias Okonko Edet Oboko in 1938 by Muri Ekpo Effiom Oboko of Efut

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Abua as per a Purchase Receipt dated 12th November, 1938 which was tendered

as Exch.2. Apart from the Muri, the Purchase Receipt was thumb printed or

signed by four other Chiefs from Efut Abua namely Effiong Edem Ambo Ene

Asuquo. In 1942, by a Deed of Conveyance dated 18th November, 1942, the

sale was confirmed by those other four Chiefs all of Efut Abua of Calabar, for

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themselves and as representing the whole family of Efut Abua or household as

per Exh 3. The land was subsequently sold by Okonko Edet Oboko to Bassey

Eyo James of Efut Abua of Calabar, for themselves and as representing the whole

family of Efut Abua or household as per Exh. 3. The land was subsequently sold