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  • Awara v. Alalibo
  • 144
  • 2003-03-03
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Awara v. Alalibo

1.      MR. MARVIN FAITHFUL AWARA

2.      CHIEF ANTHONY OPUARI

3.      CHIEF OSIMA GOGO PRETORU

( for themselves and as representing Kula Community )

V

1.      MR. ALAYE ALALIBO

2.      BROTHER WARIBOKO EKINE

4.   CLINTON IGBANIBO

4.   CHIEF TETEMA IMMOH

(for himself and as representing Soku Community)

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC ( Dissented )

UTHMAN MOHAMMED, JSC ( Read the Lead Judgment )

UMARU ATU KALGO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC ( Dissented )

SC.162/1997

FRIDAY, 13TH DECEMBER, 2002

APPEAL - Court of Appeal - When finds error in decision of trial High Court - Duty of

APPEAL - Findings of fact - Findings of fact of trial court - When appellate court will interfere

COURT - Appellate court - Findings of fact of trial court - When appellate court will interfere

COURT - Court of Appeal - Duty of when credibility of a witness is in issue -  When can ascribe credibility to evidence of a witness

COURT - Court of Appeal - When finds error in decision of trial High

Court - Duty of

EVIDENCE - Factual evidence - Whether factual evidence alone can support a claim to title

EVIDENCE - Pleadings - Evidence contrary to -Effect

EVIDENCE - Proof - Ownership of land - Five ways of proving

EVIDENCE - Proof - Ownership of land delineated on plaintiff’s plan Duty on plaintiff to prove - Plaintiff’s failure to prove - Effect

EVIDENCE - Traditional evidence - Establishing claim to ownership thereby without resorting to acts of ownership - Whether sufficient

EVIDENCE - Witness - Credibility of a witness - When in issue - Duty of Court of Appeal - When appellate court can ascribe credibility to evidence of a witness

EVIDENCE - Witness - Evidence of in another previous proceedings Whether can be used in a case on trial - When permissible - Section 33  and 34 of Evidence Act

LAND LAW - Claim to title - Whether factual evidence alone can support

LAND LAW - Declaration of title - Defendant in action for - Whether has a duty to prove

LAND LAW - Declaration of title - Plaintiff seeking same - Onus thereon to prove his case - Whether can depend on weakness of the defence

LAND LAW - Ownership  - Plaintiff claiming - Onus on - Need for the act of ownership to be positive enough to warrant the inference that plaintiff is the exclusive owner

LAND LAW - Ownership - Acts of ownership - Plaintiff relying on - Duty of

LAND LAW - Ownership - Claims to - Whether traditional evidence sufficient to establish same without the necessity of resorting to acts of ownership

LAND LAW - Ownership - Land delineated on plaintiff’s plan - Duty on plaintiff to prove  - Effect of plaintiff’s failure to prove

LAND LAW - Ownership - Ownership of disputed land - Whether may be determined in favour of plaintiff whose evidence of traditional history is inconclusive

LAND LAW - Ownership - Proof of - Five ways of proving ownership of land

LAND LAW - Possession - Long possession - Whether confers title on a party

LAND LAW - Sale or conveyance - Plaintiff who pleaded same as his root of title - Where failed to prove his title as pleaded - Whether can rely on acts of ownership or acts of possession derivable from the pleaded root of title

PLEADINGS - Bindingness of - Evidence at variance with averments in pleadings - How treated by the court

PLEADINGS - Bindingness of on parties and courts

PLEADINGS - Defendant’s pleadings - Averment in defendant’s pleadings

-  Where goes outside the relief claimed - Effect

PLEADINGS - Evidence at variance with pleadings  - Effect

PLEADINGS - Function of

PRACTICE AND PROCEDURE - Bindingness of pleadings - Evidence at variance with averments therein - How treated by the court

Issues:

1.            Whether the Court of Appeal properly considered all the issues raised in the appeal.

2.            Whether the Court of Appeal was right in shifting the onus of proof on the defendants/appellants.

3.            Whether Court of Appeal was right in making a case for the respondent which is contrary to the case put forward in the High Court.

4.            Whether the Court of Appeal was right in holding that the respondents have proved their radical title to the land in dispute.

Facts:

The dispute in this case originally arose between Idama/Ekulama people and respondents when Shell discovered oil at Aba Boko settlement and decided to pay compensation to the villagers or community on whose land the oil was found. Idama/Ekulama people filed a suit against the respondents at the High Court claiming declaration of title to the mangrove swamp, the site of the location and an injunction restraining the respondent from interfering with their title rights and interest in and over the location. Appellants’ application to be joined as 2nd set of defendants in that suit was granted. The suit of Idama/Ekulama people was subsequently dismissed.

The appellants and respondents now locked horns on which of the two communities is entitled to the compensation money, meanwhile Shell BP paid the compensation money into the  treasury of the Rivers State government pending the determination of the dispute over the party rightly entitled to be paid the compensation money.

The respondents therefore filed the suit leading to this appeal as plaintiffs at the High Court of Rivers State. At the conclusion of trial, the trial court, found the case of respondents not proved and dismissed the suit accordingly.

Dissatisfied, respondents appealed to the Court of Appeal. The Court of Appeal found that the respondents had established their claim to Aba Boko fishing port and therefore allowed the appeal. Aggrieved, appellants therefore appealed to the Supreme Court.