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  • 2002-08-12
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Ajukwara v. Izuoji

CHIEF ALIMONU AJUKWARA

MANASA ODIKA

MICHAEL AJUKWARA

V

SEBASTINE IZUOJI

SYLVANUS OPARA

OFFURUM OMURUKA

DAMIAN OGARABE

THEOPHILUS IFURUEZE

BARTHRAM NDUKA

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

IDRIS LEGBO KUTIGI, JSC ( Read the Lead Judgment )

MICHAEL EKUNDAYO OGUNDARE, JSC

ANTHONY IKECHUKWU IGUH, JSC

EMMANUEL OLAYINKA AYOOLA, JSC

SC.15/1998

FRIDAY, 14TH JUNE, 2002 

EVIDENCE - Evidence on facts not pleaded - Effect of

LAND LAW - Declaration of title - The rule in Kojo vs. Bonsie - When applicable - Whether properly applied to the instant case

LAND LAW - Injunction - Claim for - Whether will fail after failure of claim for declaration of title

PLEADINGS - Evidence on facts not pleaded - Effect of

PRACTICE AND PROCEDURE - Evidence on facts not pleaded - Effect of

Issues:

1.            Whether the court below was right when it held that the trial court misapplied the Rule in Kojo vs. Bonsie (1957) 1  WLR1223.

2.            Whether the court below could rely on the alleged misapplication of the Rule in Kojo vs. Bonsie ( supra), to deny the appellants (plaintiffs) success even on their claim for trespass.

3.            Whether the court below was right when it dismissed the

entirety of the claims of the plaintiffs simply because it rejected the traditional history put forward by the plaintiffs.

4.            Whether the court below was right when it dismissed the crossappeal.

Facts:

The plaintiffs herein commenced this suit  at the High Court Oguta claiming against the defendant, declaration of customary right of occupancy to the land in dispute, perpetual injunction and general damages for trespass. Pleadings were filed and exchanged.  Both parties pleaded boundary neighbours, acts of possession and traditional history.  At the conclusion of trial, the trial court found for the plaintiffs and entered judgment on their behalf.  Dissatisfied, the defendant appealed to the Court of Appeal, the plaintiff also cross-appealed in respect of the finding by the trial court that the founder of the land in dispute was Anyaoha instead of Owerre.

Allowing the appeal, the Court of Appeal set aside the judgment of the trial court.  Aggrieved by the Court of Appeal’s decision, the plaintiff appealed to the Supreme Court.  The Supreme Court considered applicability of the case of Kofo vs. Bonsie to this case.