GANIYU BADMUS V A.O. ABEGUNDE
June 27, 2025FABIAN ONYEJEKWE & ORS VS OBIORA ONYEJEKWE & ORS
June 27, 2025Legalpedia Citation: (1999-07) Legalpedia 30957 (SC)
In the Supreme Court of Nigeria
Holden at Lagos
Fri Jul 9, 1999
Suit Number: SC 65/1993
CORAM
S.M.A. BELGORE, JUSTICE SUPREME COURT
E.O. OGWUEGBU, JUSTICE SUPREME COURT
U. MOHAMMED, JUSTICE SUPREME COURT
A.I. IGUH, JUSTICE SUPREME COURT
A.I. KATSINA-ALU, JUSTICE SUPREME COURT
PARTIES
1. EJEMRUVWO OYOVBIARE
2. SANIYO EKUGBE
APPELLANTS
JOHN AKPOME (For themselves and on behalf of Okoro Family of Adeje in Okpe Local Government Area) AND
TED OMAMURHOMU
RESPONDENTS
AREA(S) OF LAW
LAND LAW – DAMAGES FOR TRESPASS – PERPETUAL INJUNCTION
EVIDENCE – BURDEN OF PROOF IN CIVIL CASES
SUMMARY OF FACTS
The appellants who were plaintiffs in the trial court instituted the action leading to this appeal against the respondent who was the defendant claiming as follows:
“(a) A declaration that as owners in possession of the land verged pink within the land verged green in Survey Plan No. KP704 at Adeje Village, outside an urban area and in whom the land was vested prior to 1978, the plaintiffs continue to be holders in possession of the said land and are the person (sic) entitled to the Customary Right of Occupancy over the land.
(b) The sum of N10,000.00 (ten thousand Naira) being damages for trespass and nuisance committed on the land.
(c) An order of perpetual injunction restraining the defendant from committing any further acts of trespass and nuisance on the said land”
HELD
The Court held that the Court below was in error when it ordered a retrial.
ISSUES
Whether the learned Justices of the Court of Appeal were right to have ordered a retrial in this case. In other words, is this a case where a retrial ought to have been ordered?
RATIONES DECIDENDI
PROOF OF DIVESTITURE OF OWNERSHIP
It is also an established rule that once it is proved that the original ownership of property is in a party the burden of proving that party has been divested of the ownership rests on the other party.- Per Emmanuel Obioma Ogwuegbu
WHEN AN ORDER OF RETRIAL WILL BE MADE
Where it is clear from the evidence that the learned trial judge was quite justified in coming to the conclusion which he did that the plaintiff had failed to establish the claim he presented before the court and there was no irregularity on the record compelling a remission of the case for retrial it will be an error of the Court of Appeal to order for a retrial. See the -per Uthman Mohammed, JSC
CASES CITED
Are v Adisa & Ors. (1967) NMLR 304
Avnola v Adebavo & Ors. (1969) I All NLR 154 at 157
Bakare v Apena and others (1986) 4 N.W.L.R (Pt33) I AT 16-17
Chief Abah Ogboda v Daniel Adulugba (1971) N.S.C.C 66 at 70
STATUTES REFERRED TO
Evidence Act, Cap.112, Laws of the Federation of Nigeria,1990
