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Nwabuoku v. Onwordi

JUSTUS NWABUOKU & 5 ORS

V

FRANCIS ONWORDI & 3 ORS

COURT OF APPEAL

( BENIN DIVISION )

RAPHAEL OLUFEMI ROWLAND, JCA ( Presided )

BABA ALKALI BA’ABA, JCA ( Read the Lead Judgment )

KUMAI BAYANG AKAAHS, JCA

CA/B/52/97

MONDAY, 5TH JUNE, 2001

APPEAL - Evaluation of evidence by trial court - Attitude of appellate court thereto

COURT - Duty on to act only upon evidence which is admissible in law

COURT - Mistake committed by a Judge - When can be fatal

COURT - Trial court - Need for to limit itself to issues raised by parties in their pleadings

EVIDENCE - Evidence of traditional history - When cannot form the basis of title to a piece of land in dispute

EVIDENCE - Evidence of traditional history - Whether can form the basis of title to a piece of land in dispute

EVIDENCE - Evidence which is admissible in law - Duty on court to act only thereupon

EVIDENCE - Inadmissible evidence - Admissibility of - Objection thereto

-  When can be raised

EVIDENCE - Traditional evidence - Plaintiff who successfully established his title thereon - Whether there is onus on same to prove further acts of ownership

LAND LAW - Precise identity and extent of land in dispute - Onus on plaintiff to establish same with definite certainty - How discharged

LAND LAW - Survey plan - Plaintiff’s survey plan in respect of land in dispute - Defendant who is desirous of joining issue with any aspect thereof - Duty on same

LAND LAW - Traditional evidence - Plaintiff who successfully established his title thereon - Whether there is onus  on same to prove further acts of ownership

LAND LAW - Traditional history - Evidence of - When cannot form the basis of title to a piece of land in dispute

LAND LAW - Traditional history - Evidence of - Whether can form the basis of title to a piece of land in dispute

PLEADINGS - Issues in a civil suit - How emerged

PLEADINGS - Issues raised by parties in their pleadings - Need for trial court to limit itself thereto

PRACTICE AND PROCEDURE - Survey plan - Plaintiff’s survey plan in respect of land in dispute - Defendant who is desirous of joining issue with any aspect thereof - Duty on same

Issues:

1.            Whether the learned trial Judge was right in law in not dismissing the respondents’ claims in their entirety in view of all the facts and circumstances of the case.

2.            Whether the respondents discharged the onus of proof which rested on them in respect of the land which they claim.

3.            Whether trial Judge was right in disregarding Exhibit ‘D’ plan No. LSF 4111 which was tendered for the purpose of discrediting the respondents’ case.

Facts:

The respondents herein, as plaintiffs in the Delta State High Court of Justice, sitting at Warri instituted for themselves and representing the people of Umuodafe Quarters, Ibusa an action against the appellants herein as defendants claiming:

“(a) Declaration that the plaintiffs are entitled to a Statutory right of occupancy over the plaintiffs’ Akwu Ogede, Akwu Imilikiti and Akwu Mkpili portions of land shown in the plan No. KPE 2910.

(b)         N5,000.00 general damages for trespass.

(c)          An Order of injunction restraining the defendants, their servants and agents from committing further acts of trespass on the plaintiffs’ Akwu Ogede, Akwu Imilikiti and Akwu Mkpili portions of land delineated in Plan No. KPE 2910.”

At the hearing of the case the parties called witnesses and relied on evidence of traditional history.

The learned trial Judge, after considering all the evidence adduced, accepted the traditional history proferred by the respondents and rejected that set up by the appellants and entered judgment in favour of the respondents.

Being dissatisfied with the decision of the trial court, the appellants appealed to the Court of Appeal.