SORUNGBE & ANOR. V. OMOTUNWASE

• Pages: 252-268

252



NIGERIAN SUPREME COURT CASES

[19881 3 N.S.C.C.

where the circumstances of the commission of an offence are positive, direct and

unequivocal and irresistibly lead to the inference that it is the accused, that inference

ought to be drawn - See

Ukorah v. The State

(1977) 4 S.C. 167. In the instant case

all the evidence including the statements of the appellant leads positively to the par-

ticipation of the appellant in the commission of the offence of setting fire to the house

in which the deceased was sleeping, the appellant made it impossible for the de-

ceased to come out of the house by locking the door and failed to render assistance

at a time she could have helped. What we have in this case is that there are a num-

ber of circumstances which if accepted, and have been accepted in this case, which

make a complete and unbroken chain of evidence as to the commission of the of-

fence by the appellant. Direct eye witness of setting of fire to the house in this case

consists in the statements of the appellant and the evidence of P.W.3 and P.W.4.

The circumstantial evidence of the death of the deceased with which appellant was

charged can be inferred from the surrounding circumstances - See

R. v. Sala Sati

(1938) 3 W.A C.A. 10.

For the reasons I have given above, and adopting the other reasons given by my

learned brother Agbaje, J.S.C., which are not inconsistent with my reasoning in this

judgment I hereby affirm the judgment of the Court of Appeal which dismissed the

appeal against conviction of the appellant for the offence of culpable homicide pun-

ishable with death and sentenced her to death. The conviction and sentence are

hereby fully affirmed.

CRAIG, J.S.C.: I

have had the pleasure of reading in draft the judgment just

delivered by my learned brother, Agbaje, J.S.C., and I agree entirely with his

statement of the facts, his analysis of the issues involved and his conclusions.

For the reasons given in the said judgment and which reasons I adopt as mine, I

too would dismiss the appeal and it is hereby dismissed.

Accordingly, the judgment of Fernandez, J as affirmed by the lower court is here-

by confirmed.

Appeal dismissed.

SORUNGBE & ANOR. V. OMOTUNWASE

1.

ISAIAH SORUNGBE

2.

LAMIDI ADEBO



PLAINTIFFS/RESPONDENTS.

V

ALHAJI MUFUTAU OMOTUNWASE



DEFENDANT/APPELLANTS.

SUIT NO. SC 212/1985

SUPREME COURT OF NIGERIA

NNAMANI,



J.S.C.

UWAIS.



J.S.C.

KARIBI-WHYTE.



J.S.C.

AGBAJE,



J.S.C.

WALT,



J.S.C.

9th December, 1988

Evidence - Burden of Proof - Declaration of title to land.

Lund Law - Declaration of title - Trespass Proof - Traditional Evidence - Acts of

possession - Ownership.

SORUNGBE & ANOR. V. OMOTUNWASE



253

Civil Procedure - Representative action - Damages - Personal Award - Propriety- Pleadings

- Untraversed Averments - Effects - Pleadings - Parties bound by - Exceptions.

Remedies - Injunction - Court's discretion - Terms.

ISSUES:

1.

On whom does the onus lie in proof of an actions for declaration of title to land.

2.

Whether a court having decreed that an action is a personal action can then

proceed to declare and award damages in a representative manner.

3.

Where by the pleadings of a party, possession was not found in the party can

that party still succeed in a claim for trespass.

4.

Whether a court can grant a relief that was not claimed by a party in an action.

5.

What will be the effect where an averment made by a party to an action is not

traversed by the other party.

5





6. Under what circumstances will an appellate court interfere with the concurrent

findings of fact as made by lower courts.

7.

Whether an Appellate Court can interfere with findings of facts in matters of

credibility based on demeanour of witnesses.

8.

Whether the Appellate Court has power to make its own findings based on

inferences which a trial judge has drawn from the evidence.

9.

Whether a court has discretion to grant an injunction

suo mote

once it has

granted a declaration of title to a party before it, where the successful party did

not ask for such a relief.

FACTS:

5



The appellant was the defendant while the respondents were the plaintiffs at the

trial court. The plaintiffs instituted the action for themselves and the Akinwobi fam-

ily of Totoro, Owu, Abeokuta claiming against the defendants declaration of title,

damages for trespass and an injunction over a piece of land situated at Alaluku Com-

pound African Church Street, Totoro, Ago- Owu in Abeokuta, Ogun State.

0



It was the plaintiffs case that the original owner, of the land in dispute was their

ancestor who acquired the land in accordance with Yoruba Native Law and Custom.

That successive generations of the plaintiff's family had built and lived on the land in

dispute. That sometime in 1955 the Egba Native Authority sought the Olowu's per-

mission to build a public lavatory on it. The Olowu in turn sought the plaintiff's fam-

5



ily's consent which they gave to the project and the public lavatory was built on the

land in dispute. Some years later, about early in 1971, the defendants pulled down

the public lavatory and started to dig the land in dispute for the purpose of building

on it. The plaintiffs also relied on acts of possession and ownership. The defendant

denied the plaintiff's claim and relied also on traditional evidence claiming that the

[0



land originally belonged to his ancestor and that successive generations of the de-

fendant's family had built and lived on the land, and that it was the defendant's fam-

ily who gave permission to the Egba Native Authority through the Olowu for the

purposes of building a public lavatory. The defendant in his pleadings however ad-

mitted pulling down the public lavatory

IS





The learned trial judge found the traditional evidence as adduced by both sides

unsatisfactory and inconclusive and he rejected them accordingly. He however ac-

cepted the evidence of the plaintiffs act of possession both ancient and recent, and

awarded damages for trespass to the plaintiff. He also held that the defendant's act

of pulling down the public lavatory and digging the land belonging to the plaintiff's

50



family for the purposes of building on it amounts to an act of trespass.

On the issue of the representative nature of the plaintiffs actions, he held that the

plaintiffs suit as filed by them did not reflect any such status on the face of it and de-

creed that the plaintiff's action was a personal one and that the ultimate verdict was

to accrue to the plaintiff's in their individual capacities.