ETIM JEREMIAH AKPAN V. THE REGISTERED TRUSTEES OF QUA IBOE CHURCH OF NIGERIA & ORS

CORAM

DENNIS ONYEJIFE EDOZIE

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT (Read the Leading Judgment)

OKWUCHUKWU OPENE

PARTIES

ETIM JEREMIAH AKPAN APPELLANTS

THE REGISTERED TRUSTEES OF QUA IBOE CHURCH OF NIGERIA & ORS RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant filed an action, as plaintiffs against the Respondents seeking a declaration of title to land while the Respondents also filed a cross-action, as Plaintiffs, against the Appellants. The two suits were consolidated and the Appellants became the Plaintiffs while the Respondents became the Defendants in the consolidated suit. The trial Court dismissed the Appellant’s action and entered judgment in favour of the Respondents in their cross-action. Dissatisfied with the trial Court’s judgment, the Appellants appealed to the Court of Appeal.

HELD

Appeal allowed

ISSUES

Whether the learned trial Judge was right in holding that the plan attached to the expired lease (exhibit D) was identical with the defendants/respondents’ plan exhibit F which was prepared specifically for the purpose of the suit in the court below.Whether the failure to the learned trial Judge to examine and consider the respective judgments of the West ltam District Court (exhibit B) and the Chief Magistrate’s Court Itu (exhibit C) led to a miscarriage of justice in this case.Whether having regard to the pleadings the evidence adduced before the trial court and the law the learned trial Judge was right to have dismissed the plaintiff/appellant claim and given “judgment for the defendants/respondents.”

RATIONES DECIDENDI

SURVEY PLAN-WHETHER NECESSARY TO CALL A SURVEYOR TO GIVE EVIDENCE WITH RESPECT TO A SURVEY PLAN

“It is also not necessary to call the surveyor for the purpose of super-imposing the survey plans tendered in evidence as the trial court is also in a good position to observe and compare the plans tendered in evidence so as to arrive at the right decision”.

PLEA OF RES JUDICATA- CONDITIONS FOR SUSTAINABILITY OF

“In considering whether a plea of res judicata can sustain or not, that a trial court will confine itself on whether the party raising the plea had shown:”(a) That the parties or their privies are the same on the present case as in the previous one. (b) That the issues or the subject matter are the same in the previous case as in the present case.(c) That the previous suit was decided by a court of competent jurisdiction”. PER OPENE, JCA
JUDGMENT OF A NATIVE COURT-WHAT A COURT SHOULD CONSIDER “It is trite that in considering a judgment of a native court where pleadings are not filed that the trial court ought to have regard to the substance rather than the form of the decision. In such a case, the court looks at the claim, the evidence and the judgment to decide the substance of the previous suit”.

STANDARD OF PROOF IN CIVIL CASE-DUTY OF A COURT THERETO

“The standard of proof in ‘a civil case is’ on the preponderance of evidence. The court must demonstrate a full and dispassionate appraisal of all the issues raised in the case and reflect the result of such exercise in its judgment, it is the duty of the trial court to evaluate the evidence and draw its inferences on them having regard to the issues that arose at the trial. It is required to place the credible evidence by the plaintiff on one side of the imaginary scale and that of the defendant on the other side and weigh them together and it is one that outweighs the other that should be accepted as duly proved”.

FAILURE OF A PARTY TO LEAD EVIDENCE IN SUPPORT OF AVERMENTS -EFFECT OF

Judge had rightly observed, these averments are deemed to have been abandoned.

CASES CITED

Agale v. Leventis Co. Ltd. (l961) 2 SCNLR386Agbasi v.Obi (1998) 1SCNJ 31Agwu v. Ibenye (1998) 4 NWLR (Pt. 574) 372 SCAjuwon and others v. Fadele Akanni and Ors. (1993) 12 SCNJ 32Akpan v. Otong (1996) 44 LRCN 2174 at 2191B.V. Magnusson v. K. Koiki and Ors. (1993) 12 SCNJ 114.Elias v. Timothy Omo-Bare (1982) 5 S.C. 25. Francis Nwanezie v. Nubu ldris and Anor. (1993) 2 S.C.N.J. 139.Hyacealh N. Nzeribe v. Dave Engineering Co. Ltd. (1994) 9 SCNJ 161Onwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16 or (1991) 3 LRCN 816. Innocent Ibero and Anr. v. Ume-Ohana (1993) 2 S.C.N. 5. 156; Madukolu v. Nkemdilim (1962) 2 SCNLR 341Mba v. Agu (1999) 12 NWLR (Pt. 629)