USENFOWOKAN V. IDOWU & ANOR.

• Pages: 108-113

108

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

Appeal allowed: Conviction

quashed.

USENFOWOKAN V. IDOWU & ANOR.

OYEBISI AFOLABI USENFOWOKAN



APPELLANT

V

1.

SULE SALAMI IDOWU

2.

ASANI SALAMI



RESPONDENTS

(Trading under the name and

Style of Sule Asani Brothers)

SUIT NO. SC 158/1967

SUPREME COURT

OF NIGERIA

COKER,



J.S.C.

MADARIKAN,



J.S.C.

FATAI-WILLIAMS, J.S.C.

28th March, 1969.

Land Law - Declaration of Title - Fraud must be pleaded and Cross-examination

to establish fraud should not have been allowed and evidence of it should

have been excluded when not pleaded.

ISSUES:

1.

Whether it is necessary to specifically plead fraud in an action for declaration

of title.

2.

Whether a witness can be cross-examined on facts which were not set out in

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the pleadings.

3.

Whether a court can base its decision on facts which were wrongly admitted.

FACTS:

The plaintiff claimed to have bought land in 1962 and showed receipts as evi-

dence of this. He also claimed to have been in possession since then. He thus

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claimed in Court that he was the owner in equity, alternatively that the purported

sale of interest to the defendants is null and void. The defendants denied all this

and claimed to have bought the property

in

1959, but as it was a subject of litiga-

tion, the court ordered it to be sold again in 1965, at which they then bought it

again. The defendants also claimed that they had registered the property in the

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Land Registry with no objections from anybody. They argued that the equitable

interest of the plaintiff had been extinguished as they (the defendants) bought the

property without any notice of it. The defendants also counter-claimed against the

plaintiff for a declaration of being lawful owners and thus entitled to all rents and

profits as of 1965. The High Court gave judgment to the defendants as the plain-

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tiff had not proved the sale to himself. The plaintiff appealed.

HELD:

1.

It is settled law that any charge of fraud must be pleaded with the utmost

particularity.

2.

In this case the trial Judge should not have allowed the cross-examination of

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the appellant to establish fraud which was not pleaded. Moreover having let in

the answers he should have ignored or disregarded them as they went to no

issue as settled by the pleadings.

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