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  • Jiwul v. Dimlong
  • 114
  • 2002-08-05
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Jiwul v. Dimlong

CHIEF A. J. JIWUL

V

NDE JOSHUA DIMLONG

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

ISA ABUBAKAR MANGAJI, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/45/96

WEDNESDAY, 27TH MARCH, 2002

APPEAL - Evaluation of evidence by trial court - When appellate court can interfere therewith

COURT - Defendant raising equitable defences - Duty of court to consider

COURT - Issues canvassed by parties - Need for court to limit itself thereto -  Failure of - Effect

COURT - Reliefs not specifically claimed by a party - Whether Court can grant

COURT - Special defence - Whether court can raise suo motu

CRIMINAL LAW AND PROCEDURE - Charge of fraud, commission of crimes or illegality - Need to specifically plead and prove same beyond reasonable doubt - Section 138, Evidence Act

EQUITY - ‘Actual notice’ - When had

EQUITY - “Bona fide purchaser of the legal estate for value without notice” - Implication of

EQUITY - Acquiescence - Nature of that can deprive a man of his legal right

EQUITY - Caveat emptor - Purchaser of land - Duty of to make inquiry about equitable interests with no less diligence than legal interests

EQUITY - Constructive notice - Duty of purchaser to enquire about equitable interests

EQUITY - Equitable defences of estoppel, laches and acquiescence Whenever raised in pleadings - Duty of court to consider same

EQUITY -  Equitable defences of estoppel, laches and acquiescence, purchaser for value without notice - Need to specifically plead same with full particulars

EQUITY - Laches and acquiescence - Elements that must exist in order to avail a defendant who wishes to rely on them

EQUITY - Laches and acquiescence - Whenever raised - What the court considers - Whether available where there are no lapses at all

EQUITY - Laches and acquiescence - Whether the court can suo motu raise - Where reasonable for the court to so raise - Duty on court to give parties opportunity to address it on the issues before deciding on them

EQUITY - Purchaser of land - Duty of to make enquiry from adjoining land owners before his purchase - When constructive notice can be attributed to such a purchaser

EQUITY - Special defence - Where a defendant seeks to rely on - Need to specifically plead same - Failure to - Effect of

EVIDENCE - Burden of proving facts in pleadings - On whom lies

EVIDENCE - Charge of fraud, commission of crimes or illegality - Need to specifically plead and prove same beyond reasonable doubt - Section

138 , Evidence Act

EVIDENCE - Evidence being at variance with pleadings - Effect thereto

LAND LAW - ‘Purchaser’ - Meaning of

LAND LAW - Caveat emptor - Purchaser of land - Duty of to make inquiry about equitable interests with no less diligence than legal interests

LAND LAW - Certificate of occupancy - Contextual essence of - Onus on a party who asserts the contrary

LAND LAW - Constructive notice - Duty of purchaser to enquire about equitable interests

LAND LAW - Ownership of land - Respective ways to prove

LAND LAW - Possession - Disputing parties claiming to have been in possession of land - Issue to determine is who had a better title

LAND LAW - Possession per se - Whether proof of ownership

LAND LAW - Purchaser of land - Duty of to make enquiry from adjoining land owners before his purchase - When constructive notice can be attributed to such a purchaser

LAND LAW - Root of title - Proof of sale and acts of possession - Whether constitute proof of a party’s root of title - Whether mere incidences of ownership

LAND LAW - Survey plan - Purpose of - When required and when not

LAND LAW - Title to land - Party who relies on purchase of land in establishing his title to land - Onus on to prove the title of his vendor

PLEADINGS - Averments in pleadings - Evidence not led in proof thereof -  Effect

PLEADINGS - Bindingness of on parties - Proof of - On whom rest

PLEADINGS - Burden of proving facts in pleadings - On whom lies

PLEADINGS - Charge of fraud, commission of crimes or illegality - Need to specifically plead and prove same beyond reasonable doubt Section 138, Evidence Act

PLEADINGS - Equitable defences of estoppel, laches and acquiescence, purchaser for value without notice - Need to specifically plead same with full particulars

PLEADINGS - Evidence being at variance with pleadings - Effect

PLEADINGS - Special defence - Whether court can raise suo motu

PRACTICE AND PROCEDURE - Issues - Issues which the court has power to determine in a proceeding

PRACTICE AND PROCEDURE - Issues canvassed - Need for court to limit itself thereto - Failure to - Effect of

PRACTICE AND PROCEDURE - Reliefs not specifically claimed by a party - Whether court has power to grant

WORDS AND PHRASES  - ‘Actual notice’ - When had

WORDS AND PHRASES - ‘Bonafide’ - Meaning of

WORDS AND PHRASES - ‘Legal estate’ - Meaning of

WORDS AND PHRASES - ‘Purchaser’ - Meaning of

WORDS AND PHRASES - ‘Value’ - Meaning of WORDS AND PHRASES - ‘Without notice’ - Meaning of

Issues:

1.            Whether the defendant is entitled in law to those declarations, issues and defences raised and resolved in his favour by the court suo motu.

2.            Whether the defendant established his vendor’s title in the face of the plaintiff’s case and having regard to the evidence.

3.            Whether exhibits F, M and K were admissible to defeat the title of the plaintiff.

4.            Whether the plaintiff’s title is valid.

Facts:

The appellant, as plaintiff in the High Court of Plateau State, holden at Pankshin, filed a suit claiming against the respondent as defendant a declaration that he is the owner of that piece of land lying and situate in the area known as Old Market, Pankshin in Pankshin Town, and covering an area of over 0.60 Hectares, perpetual injunction and general damages for trespass.  Pleadings were filed and exchanged by parties.  The respondent denied the claim.  After the conclusion of hearing and address of counsel for the parties, the trial court delivered its judgment in favour of the respondent.  The appellant being dissatisfied with the judgment, appealed to the Court of Appeal.