CORAM

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S.M.A. BELGORE, JUSTICE, SUPREME COURT

I.L. KUTIGI, JUSTICE, SUPREME COURT

E.O. OGWUEGBU , JUSTICE, SUPREME COURT

U. MOHAMMED, JUSTICE, SUPREME COURT

S.U. ONU JUSTICE, SUPREME COURT

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PARTIES

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CHRISTOPHER EMODI & ORS APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The plaintiffs/appellants pleaded and relied on traditional history that their ancestor called Oreze was one of the emigrants from Benin who in addition got the portions called Okpoko and Woliwo, their leader was Ezechima and that it was Uyamasi, a descendant of Oreze who harboured the defendants/respondents ancestor Idoko and his entourage. There was a dispute however as to whom the rents had been paid ever since the acquisition

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HELD

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The court held that the appeal failed and it was dismissed. The decisions of the two lower courts were affirmed. I assess costs in this appeal in favour of the defendants in the sum of N1,000.00

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ISSUES

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(1) Were the learned Justices of the Court of Appeal not in error when they failed to evaluate properly the evidence of recent acts of possession adduced by the parties after it had found that the learned trial Judge had omitted to perform the exercise in accordance with the test or Kojo v. Bonsie (1957) 1 WLR 1223.(2) Whether the learned Justices of the Court of Appeal were not in error to have suo motu introduced an issue which was never part of the issues contested by the parties before them or at the trial when they held that the appellants had not established with certainty the identity of the land in dispute, when in fact both parties had by their pleadings and their evidence identified the bone of contention and the learned trial Judge made a definite finding on it in any way shown to be perverse.(3)Whether the failure of the Court of Appeal to give due and proper consideration to the entire evidence mustered by the appellants in proof of their claim led to a miscarriage of justice.(4) Whether the Supreme Court’s decision in Sunday Piaro v. Chief Wopnu Tenalo (1976) 12 SC 31, as regards acts which could qualify as acts of ownership by persons claiming title or ownership to land are exhaustive as to exclude the evidence of receipt of rent exclusively by the plaintiffs/appellants in this case

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RATIONES DECIDENDI

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WHEN WILL A JUDGE BECOME FUNCTUS OFFICIO

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Indeed, a Judge, until he delivers his final judgment in a case is still seised of the matter and in the interest of justice, can rightly correct any mistakes he might have erroneously made during the trial. The law, of course, is clear that where a Judge has delivered his final judgment in a suit he becomes functus officio with respect to that suit. Except for the making of ancillary orders such as orders for stay of execution of judgment or for payment of a judgment debt by instalments for which there are statutory provisions, once a Judge has delivered a final judgment in a matter pending before him, he ceases to be seised of that matter and he cannot alter or reopen it in an application made under a statute by one of the parties. This is what in legal parlance is called the “slip rule.” A trial Judge therefore need not wait for the case to go through the expensive process of an appeal before correcting his mistakes. Thus, once the Judge had drawn the attention of counsel on both sides to the error, omission or clerical mistake, it would be quite competent for him to correct such error, omission or mistake in the interest of justice. A Judge ought not to go on with the case when an accidental slip, a mistake or error is apparent to him. Per ONU, JSC

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WHAT CONSTITUTES POSSESSION

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In law, it is therefore argued, a person who is in receipt of rents and profits from tenants is also regarded as being in possession, albeit in a constructive manner.

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CASES CITED

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Buraimoh v. Bamgbose (1989) 2 NWLR (Pt. 109) 352 at 336,Michael Adebayo Agbaje v. Alhaji Lasisi Adigun & 2 ors. (1993) 1 NWLR (Pt. 269) 261 at 272, Asiyanbi v. Adeniji (1967) 1 All NLR. 82.See also Minister of Lagos Affairs Mines and Power v. Akin-Olugbade (1974) 1 All NLR (Pt. 11) 226;Commissioner of Lands, Mid-Western State of Nigeria v. Edo-Osagie (1973) 6 SC. 155;Bakare v. Apena (1986) 4 NWLR (Pt. 33) 1 andBerliet (Nig.) Ltd. v. Kachalia (1995) 9 NWLR (Pt.420) 478 at 493.

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STATUTES REFERRED TO

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NONE

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