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Khalid & Dibbo Transport Ltd v. Odumade

KHALID & DIBBO TRANSPORT LTD.

V

S. T. ODUMADE

AKINGNEHIN TINUBU

CHRIST APOSTOLIC CHURCH

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE,  JSC ( Presided )

IDRIS LEGBO KUTIGI,  JSC

UTHMAN MOHAMMED,  JSC

SAMSON ODEMWINGIE UWAIFO,  JSC ( Read the Lead Judgment )

AKINTOLA OLUFEMI EJIWUNMI,  JSC

SC. 48/1992

FRIDAY, 14TH JULY, 2000

ACTION - Land - Claims for trespass and title - Basis of - When a claim for trespass can be sustained in the absence of title

COURT - Appellate court - Review of a trial - Principles governing

COURT - Trial - Conclusion of  - Duty of trial court to appraise evidence and give judgment therein failure to - Effect

COURT - Trial - Evaluation of evidence by trial court - Failure of - What appellate court may do

JUDGMENT AND ORDERS - Order of non-suit - Power of High Court to make -  Source of  - Whether statutory or inherent

JUDGMENT AND ORDERS - Striking out order - Where case has been heard by a trial court to conclusion - When proper and when improper to make

LAND LAW - Trespass - Basis of - How sustainable when claim for title fails

PRACTICE AND PROCEDURE - Judgment and orders - Order of non-suit - Power of Lagos High Court to make as being statutory and not inherent

PRACTICE AND PROCEDURE - Judgment and orders - Striking out - Where case has been heard by a trial court to conclusion -  Impropriety of order striking out

PRACTICE AND PROCEDURE - Judgment and orders - Striking out - Where case has been heard by a trial court to conclusion - When proper and when improper to make striking out order

PRACTICE AND PROCEDURE - Judgment and orders - Duty of trial judge to make following conclusion of evidence

PRACTICE AND PROCEDURE - Re-trial - When appellate court may order

PRACTICE AND PROCEDURE - Review of a trial by appellate court - Principles governing

PRACTICE AND PROCEDURE - Trial - Conclusion of - Duty of trial judge to appraise evidence and give judgment thereon - Failure to - Effect

PRACTICE AND PROCEDURE - Trial - Evaluation of evidence by trial court - Failure of - What appellate court may do

WORDS AND PHRASES - “Trial” - Connotation of

Issues:

  1. Whether the trial court’s judgment, affirmed by the Court of Appeal, adverted to all the evidence before it in arriving at its decision striking out the suit on the ground that the then Rules of the Lagos High Court has no provision for a verdict of non-suit.
  2. If the question (1) above is answered in the negative, whether this is a case to be remitted to the High Court of Lagos, before another judge other than the one that tried the matter, for a retrial.

Facts:

This suit was commerced at the High Court of Lagos State on 26th December, 1985 , by the plaintiff, now respondent, who claimed against the defendants for a declaration of title over a piece of land and building, damages for trespass and injunction.  At the conclusion of pleadings, issues were joined as to title to the land and who was first in possession.  Both parties called witnesses and led evidence in proof of their respective contentions.  The learned trial judge in his judgment given on 24th June, 1998, appeared to have considered only the issue of title of the plaintiff. He came to the conclusion that the plaintiff did not prove his root of title to the land.  He thought of making an order of non-suit which he found not applicable under the High Court Rules, 1972 of Lagos State and settled for an order striking out the suit.  Both Defendants and Plaintiffs appealed against the said judgment to the Court of Appeal while the Defendant contended that an order of dismissal ought to have been entered by the trial court since the plaintiff failed to prove title, the plaintiff on the other hand contended that it was entitled to injunction and damages for trespass even  through its claim for declaration of title may have failed.  The Court of Appeal affirmed the judgment of the trial court and dismissed both appeals. The defendants have further appealed to the Supreme Court.  The two issues upon which this appeal was determined were raised by the Supreme Court and both counsel were invited to address it on them.  Both counsel accordingly filed further briefs of argument and equally appeared before their Lordships to proffer oral argument along the lines of those two issues.