Legalpedia Citation: (2014) Legalpedia (SC) 16016
In the Supreme Court of Nigeria
Fri Mar 14, 2014
Suit Number: SC. 20/2004
CORAM
PARTIES
CHIEF WAHAB GBEMISOLA(For himself and on behalf of Alomo Chieftaincy family) APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Respondents sued the Defendant/Appellant at the trial court seeking a declaration that they were entitled to the land lying, being and situate at Oke Igboho stretching behind Oke Igboho Baptist Primary School down to Akuro and up to Sanya Dam, Igboho in Orelope Local Government area of Oyo State, damages for continuing trespass and perpetual injunction from committing further acts of trespass on the land. The trial court entered judgment for the Plaintiffs/Respondents. Dissatisfied with the trial Court’s judgment, the Defendant/Appellant appealed to the Court of Appeal where the appeal was dismissed. The Defendant/Appellant further appealed to the Supreme Court.
HELD
Appeal Dismissed
ISSUES
Whether the Lower Court was right in affirming the decision of the court of first instance based on respondents’ evidence that Igboho was founded and settled upon by their ancestor, one Tondi inspite of the settled and notorious historical facts that Igboho was founded and settled upon by the Alaafin Egungunoju and various judicial pronouncement that respondents said evidence is false.Whether the case of Kojo II V. Bonsie (1957) 1 WLR 1223 at 1226 is applicable to this case.Whether the lower court was right in affirming the award of damages by the court of first issue
RATIONES DECIDENDI
FINDINGS OF FACT BY TRIAL COURT-WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH
“Appellate court can also in perverse findings tamper with the evaluation of evidence or where on the face of the record it is clear that justice has not been done in the case. See Lawal v. Adekoya (1974) 6 SC 83 and Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301, See also Nsirim V. Nsirim (2001) FWLR (Pt 96) P.433 at 445. In other words, the appellate court will not interfere with the finding of fact made by the trial court unless it is shown that such finding does not derive from the evidence before that court or is not related thereto. PER OGUNBIYI, J.S.C
CAUSE OF ACTION AND ISSUE ESTOPPEL- WHEN CAN BE RAISED
“The law is trite and well settled that before “cause of action estoppel” and “issue estoppel” could be raised, they must be pleaded”. PER OGUNBIYI, J.S.C
DECISION OF A COURT-WHEN CAN BE PERVERSE-WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH
“A finding or decision of a court may be perverse for more reasons than one: where the court ignored facts or evidence; misconceived the main thrust of the case it adjudicated upon, or took irrelevant matters into account as the basis of its decision or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case or committed various errors which faulted the case before it beyond redemption and all of or either of which lapses occasioned miscarriage of justice. It is only then that the appellate court interferes by setting the finding or decision aside. PER MUHAMMAD JSC
ESTOPPEL-DEFENCE OF ESTOPPEL-HOW CAN BE RAISED
“It is indeed the law that where pleadings are necessary, estoppel should properly be set up as a plea in defence with sufficient particulars to apprise the plaintiff the basis on which he is estopped from relitigating the particular case or issue. Where there are no pleadings the defence should be raised by evidence at the earliest opportunity”. PER MUHAMMAD JSC
CONCURRENT FINDINGS OF FACTS- ATTITUDE OF APPELLATE COURT THERETO
“This Court is very slow in setting aside the concurrent findings of fact. The court allows appeals on the basis of these findings only where it is successfully established that the findings are perverse”. PER MUHAMMAD JSC
TRESPASS-MEANING OF
“Trespass is after all an invasion of another into the land in the possession of the plaintiff”. PER MUHAMMAD JSC
EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE-PRIMARY FUNCTION OF A TRIAL COURT-DUTY OF THE COURT OF APPEAL THERETO
“The law is further well pronounced that Evaluation of evidence and the ascription of probative value to evidence are the primary functions of a court of trial, which heard, saw and duly assessed the witnesses. The duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted”. PER OGUNBIYI, J.S.C
NOMINAL DAMAGES-WHEN A PLAINTIFF IS ENTITLED TO SAME
“The law is that a plaintiff is entitled to nominal damages for trespass even if no damage or loss is caused and if damage or loss is caused same is recovered according to general principle”. PER MUHAMMAD JSC
JUDGMENT IN REM-BINDINGNESS OF
“It does not matter that the judgment being relied upon as an estoppel, which appears to be what the appellant herein seeks to do, is a judgment in rem. Being contra mudum, a judgment in rem binds parties and their privies and non-parties as well. PER MUHAMMAD JSC
FINDINGS OF FACT-ATTITUDE OF AN APPELLATE COURT THERETO
“The law is well settled that the appeal court will not normally interfere where a court of trial unquestionably evaluates and justifiably appraises the facts; what the Court of Appeal ought to do in the circumstance is to find out whether there is evidence on record on which the trial court could have acted. Once there is such sufficient evidence warranting the trial court in arriving at its findings of fact, the appellate court cannot therefore interfere”. PER OGUNBIYI, J.S.C
ESTOPPEL BY RECORD-DEFENCE OF-CONDITIONS FOR ITS SUSTAINABILITY
“The defence avails the party who raises it whether the issue involved in the earlier decision is one of law or fact or one of mixed law and fact. The principle however enures if all the preconditions to a valid plea of the defence are met. These are: (i) the same question was decided the earlier proceeding the judicial decision which creates the estoppel is final and (iii) the parties to the judicial decision or their privies were the same as those the subsequent proceedings wherein the plea of estoppel is raised”. PER MUHAMMAD JSC
CASES CITED
Adebayo V. Alhaji Yakubu Babalola & 2 Ors (1995) 7 NWLR (Pt 408) 383Akpagbue V. Ogu (1976) 6 SC 63;Amadi V. Nwosu (1992) 5 NWLR (Pt.241) 273;Ayinde V. Salawu (1989) 3 NWLR (Pt.109) 297Clay Ind (Nig) Ltd V. Aina (1997) 8 NWLR (Pt.516) 208 at 229Clifford Osuji V. Nkemjika Ekeocha 6-7 SC (Pt.11) 91E.C. Udengwu V. S. Uzuegbu (2003) 11 SC 135Ezekwesile V. Agbapwonwu (2003) 9 NWLR (Pt.825) 337Fasora Vs Beyoku (1988) 2 NWLR, (Pt.76) p.263 at 271Hon Emmanuel Bwacha V. Hon Joel Danlami Ikenya & 2 Ors (2011) 1-2 SC (Pt.11) 186J. O. Awiawo & another V. Attorney General North Central State & 2 ors (1973) 6 SC 34 at 38 and 39,Lawal v. Adekoya (1974) 6 SC 83 and Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301Nsirim V. Nsirim (2001) FWLR (Pt 96) P.433 at 445Ogundule V. Chief Olabode (1973) 2 SC 71Okafor Adone & ors V. Ozo Gabriel Ikebudu & Ors (2001) 7 SC (Pt.111) 22Osuji V. Isiocha (1989) 3 NWLR (Pt.111) 623 at 634Shanu & Anor V. Afribank Nigeria Plc (2002) 17 NWLR (Pt.795) 185Sosan & Ors V. Odemuyiwa (1980) 1 NSCC 673Udo V. Obot (1989) 1 NWLR (Pt 95) 59Ummina V. Okwuraiye (1978) 6-7 SC 1 at 11-12Shanu & Anor V. Afribank Nigeria Plc (2002) 17 NWLR (Pt.795) 185Woluchem V. Gudi (1981) 5 SC 291;
STATUTES REFERRED TO
The Evidence Act