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  • 2002-09-23
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Alize vs. Umaru

ALHAJI MOHAMMED KOTSO ALIZE

V

ALHAJI IBRARHIM UMARU

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

IBRAHIM TANKO MUHAMMAD, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/153/97

THURSDAY, 16TH MAY, 2002

APPEAL - Decision of trial court on credibility of witness - Attitude of Court of Appeal thereto

APPEAL - Findings of court - Findings of trial court not effectively challenged on appeal - Whether the appellant is estopped from disputing same

APPEAL - Findings of trial court - When the Court of Appeal may disturb

APPEAL - Fresh issue on appeal - Raising of - Whether the Court of Appeal will allow party raise same

COURT - Court of Appeal - Decision of trial court on credibility of witness -  Attitude of Court of Appeal thereto

COURT - Findings of court - Findings of trial court not effectively challenged on appeal - Whether the appellant is estopped from disputing same

COURT - Findings of trial court - When the Court of Appeal may disturb

LAND LAW - Action for recovery of land - Peculiarity of plaintiff therein LAND LAW - Declaration of title - Suit therefor - Duty of plaintiff therein

LAND LAW - Declaration of title to land - Onus of proof in an action therefor - Need for plaintiff to rely on the strength of his case

LAND LAW - Identity of land - Prove of - Whether oral evidence sufficient

LEGAL PRACTITIONER -  Need for counsel to employ polite language in relation to a Judge

PRACTICE AND PROCEDURE - Visit to locus in quo - Purpose of -

Whether discretionary

Issues:

1.            Whether from the state of the pleadings and the evidence adduced, there was sufficient proof of a valid sale of the appellant’s land between the parties to justify the declaration of title thereto, and the order for delivery of same for the respondent “within 30 days” (sic).

2.            Whether the transaction between the appellant and respondent was conclusive and consequently the plaintiff was accordingly entitled to a declaration of title and possession of the property.

3.            Whether from the totality of the evidence adduced at the trial the identity of the land in dispute is clear and therefore a visit to the locus in quo was not necessary in the circumstances of the case.

Facts:

The plaintiff herein entered into an oral agreement with the defendant for the sale and purchase of defendant’s house situate at Tudun Angwashe, the compound with the adjoining land. The defendant however received the consideration of N85,000.00 with promise to vacate the premises and deliver up possession within one month after the agreement. Despite several demands by the plaintiff, the defendant refused to vacate the premises. The plaintiff therefore filed this suit against the defendant.

The defendant pleaded in his statement of defence that he only sold the undeveloped parcel adjoining his living home to the plaintiff and never at anytime promised to vacate the house and deliver up possession.

At the conclusion of trial the trial court found for the plaintiff and gave him judgment. Dissatisfied the defendant appealed to the Court of Appeal.