Latest Supreme Court Judgments – March 14th, 2014

THE FEDERAL REPUBLIC OF NIGERIA VS. YA’U MOHAMMED

LEGALPEDIA CITATION: LER[2014] SC. 128/2012

AREA OF LAW- LAND LAW- CRIMINAL LAW-PLEA OF AN ACCUSED PERSON, CAPITAL AND NON- CAPITAL OFFENCES, SENTENCE

SUMMARY OF FACTS

The Accused person was arraigned, on one count charge of being in unlawful possession of 8 kilograms of Indian Hemp known as (Cannabis Sativa) at the Federal High Court Port Harcourt Division. On the first day of arraignment his plea could not be taken as he did not understand the language of the court. On a further adjourned date the services of an interpreter was made available to him. His charge was interpreted to him from English to Hausa language were he perfectly understood the charge before pleading guilty to the charge. The Accused claimed that he was not the owner of the drugs that he was only in possession of the drugs. He was thereafter convicted and sentenced to 15years imprisonment. Dissatisfied with his conviction the Accused appealed to the Court of Appeal, wherein the lower Court unanimously allowed the appeal, discharged and acquitted him. Dissatisfied with the discharge and acquittal of the Accused, the Appellant has appealed to this Court.

HELD

Appeal Allowed

ISSUES FOR DETERMINATION

Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that, in recording the plea of the respondent in the trial court, the learned trial judge did not comply with provision of S.218 of the Criminal Procedure Act.

Whether the Court of Appeal was right to suo motu raise the issue of whether or not from the record, the respondent pleaded guilty to the charge against him and without requesting the parties to address it on this issue proceeded to determine same against the appellant.

Whether the Court of Appeal was right to suo motu raise the issue of whether or not, from the record, the respondent admitted ownership of Exhibits A – F and without requesting the parties to address it on this issue proceeded to determine same against the appellant

Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the proceedings at the trial court were not interpreted to the respondent contrary to S. 36 (6) (e) of the 1999 Constitution.

Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the respondent was not given a fair hearing at the trial court.

Whether consequent upon allowing the respondent’s appeal on account of the wrong or faulty procedure adopted by the learned trial judge, the Court of Appeal was right to have discharged and acquitted the respondent

RATIOS

PLEAD OF GUILT –REQUIREMENT OF SECTION 218 OF THE CRIMINAL PROCEDURE ACT

“Where the accused pleads guilty to the charge his plea shall be recorded “as nearly as possible in the words used by him”. The language of the court is English Language”. PER KEKERE- EKUN JSC

PLEA-WHERE AN ACCUSED PERSON MAKES HIS PLEA THROUGH AN INTERPRETER-HOW RECORDED

“Where the accused person does not understand the language of the court and he makes his plea through an interpreter, the court can only record what is interpreted to it and not the exact words used by the accused.” PER KEKERE- EKUN JSC

INTERPRETATION OF STATUTES-GUIDING PRINCIPLE OF

“The guiding principle in the interpretation of statutes is that where the words used are precise and unambiguous they must be given their ordinary and natural grammatical meaning.” PER KEKERE- EKUN JSC

FAILURE TO RECORD THE PRESENCE OF AN INTERPRETER- WHETHER AMOUNT TO A BREACH OF FAIR HEARING

“Failure to record the presence of an interpreter on subsequent trial dates, after making such record at the commencement of the trial, would not be sufficient to vitiate a trial unless there is evidence showing specifically that there was no interpreter present and that the accused person was unable to follow the proceedings. In other words, the mere absence of a record of the presence of an interpreter does not amount to proof that there was none or that the accused persons right to fair hearing was breached. The presumption of regularity as provided for in Section 150 (1) of the Evidence Act (now Section 168 (1) of the Evidence Act 2011, as amended) will apply in the absence of any evidence to the contrary.” PER KEKERE- EKUN JSC

OFFENCES-CAPITAL AND NON-CAPITAL OFFENCES- MODE OF TRIAL REQUIRED THERETO

“In a non-capital offence, where the accused person pleads guilty to the charge, the court is at liberty to adopt a summary trial procedure and convict and sentence the accused person based on the facts presented by the prosecution. The law does not require a full trial in the circumstance. On the other hand, in the case of a capital offence, even where the accused pleads guilty to the charge, by convention, the court would enter a plea of not guilty, whereupon a full trial would be conducted”. PER KEKERE- EKUN JSC

GROUNDS OF APPEAL-NEED TO ARISE FROM THE DECISION APPEALED AGAINST

“The law is quite settled that grounds of appeal must arise from the decision appealed against and the complaint must be against the ratio of the decision”.PER KEKERE- EKUN JSC

ISSUES FOR DETERMINATION- NEED TO ARISE FROM THE GROUNDS OF APPEAL

“Issues for determination must arise from and be limited to the grounds of appeal.” PER KEKERE- EKUN JSC

DUTY OF COURT- NEED TO CONFINE ITSELF WITH ISSUES RAISE BY PARTIES

“The court is bound to confine itself to the case presented and the issues raised by the parties. It has no business considering an issue not properly brought before it.”PER KEKERE- EKUN JSC

IMPOTENIA EXCUSAT LEAGEM- MEANING OF

“The law itself excuses “inabilities”. The Latin Jargon, IMPOTENTIA EXCUSAT LEAGEM, lays the principle of impossibility of performance. Thus, the mere fact that a thing cannot be done excuses the doing of it.” PER MUHAMMAD, JSC

SENTENCE-WHEN A COURT CAN PASS SAME

“Generally, the law is clear, that upon reading the charge to an accused person in court, if he says that he is guilty and the court trying him is satisfied that he intends to admit the offence charged and does not show cause or sufficient cause why sentence should not be passed on him, the court shall proceed to sentence.” PERARIWOOLA, JSC

CASES MENTIONED

A.D.H. Ltd. Vs Amalgamated Trustees Ltd. (2007) ALL FWLR (Pt.392) 1781 @ 1807

Ahmed v. Kassim (1958) SCNLR 58;

Agbaisi Vs Ebikorefe (1997) 4 NWLR (pt.502) 630

Akinfolarin Vs Akinnola (1994) 3 NWLR (Pt.335) 659 @ 680 – 681 H – A;

Akpan v. The State (2002) 12 NWLR (Pt.780) 189 @ 202 C; (2002) 5 SC (Pt.II) 110 @ 114.

Akujinwa Vs Nwaonuma (1998) 13 NWLR (Pt.583) 632 @ 646 B – C; (1998) 11 – 12 SC 112 @ 115;

Damina Vs The State (1995) 8 NWLR (Pt.415) 513

Egbe Vs Alhaji (1990) 1 NWLR (pr.128) 546 @ 590

Ibrahim Vs Barde (1996) 9 NWLR (Pt.474) 513 at 577

Leedo presidential Hotel Ltd. Vs B.O.N. Ltd, (1993) 1 NWLR (Pt.269) 334;

Madu Vs The State (1997) 1 NWLR (Pt.482) 386 @ 403 B;

Nwali Vs The State (1991) 5 SCNJ 14;

Ohuka & ors, vs. the state [1988] 19 nscc 288

Ojoh Vs Kamalu (2005) 18 NWLR (Pt.958) 523 @ 568 B – C.

Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377 at 402

Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt.1079) 172 @ 223 C – D;

Tobby Vs The State (2001) 4 SC (Pt.II) 160 @ 168.

Ikweki Vs Ebele (2005) 11 NWLR (Pt.936) 397 @ 424 – 425 A – G; 434 C – H;

STATUTES REFERRED TO

Administration of Criminal Justice Law No. 10 of 2007,

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Criminal Procedure Act Cap. C41 Laws of the Federation of Nigeria (LFN) 2004

Evidence Act Cap, E14 LFN 2004

Evidence Act, 2011 (as amended)

National Drug Law Enforcement Agency (NDLEA) Act, CAP N30 LFN 2004

THE PEOPLE OF LAGOS STATE VS. MOHAMMED UMARU

LEGALPEDIA CITATION: LER[2014] SC. 455/2012

AREA OF LAW: CRIMINAL LAW-ARMED ROBBERY, DOCTRINE OF RECENT POSSESSION; LAW OF EVIDENCE- BURDEN OF PROOF

SUMMARY OF FACTS

The Accused person Mr. Mohammed Umaru was charged before a High Court of Lagos State along with others at large for Armed Robbery contrary to section 402 [2] [a] of the Criminal Code Law, Cap 17, vol. 12, Laws of Lagos State, 2003 . In the course of the robbery, one Mr. Nnosiri was stabbed. The prosecution witness one (PW1) Mr. Nnosiri identified the Accused person from the sandals he wore. At the end of the trial, the learned trial judge convicted and sentenced the Accused to death by hanging. Dissatisfied with the trial Court’s judgment the Accused appealed to the Court of Appeal. The lower Court having reviewed the case, allowed the appeal, set aside the trial Court’s judgment, discharged and acquitted the Accused. The Prosecutor/Appellant has appealed to this Court.

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

Whether considering the circumstances of this case and the evidence presented at trial, the Court of Appeal was right in setting aside the judgment and sentence of the trial court.

Whether the refusal or failure of the appellant to tender the statement of PW1 and the dagger was fatal to the case of the prosecution

Whether the prosecution established the ingredients in section 149(a) of the Evidence Act to ground conviction under that provision

Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the appellant as the prosecution did not discharge the burden of proof placed on it by law with regard to the armed robbery charge brought against the appellant

RATIOS

GROUND OF APPEAL- WHETHER ONE GROUND OF APPEAL CAN RELATE TO MORE THAN ONE ISSUE

“In the history of brief writing in appellate Courts, it is incongruous for one ground of appeal to relate to or be split into more than one issue.” PER MUHAMMAD, J.S.C

CRIMINAL TRIAL-PROOF OF AN ALLEGED OFFENCE

“In Criminal trial, the alleged offence must be proved beyond reasonable doubt”. PERMUHAMMAD, J.S.C

CRIMINAL TRIAL-BURDEN OF PROOF-ON WHO LIES-EFFECT OF FAILURE TO PROVE THE GUILT OF AN ACCUSED BEYOND REASONABLE DOUBT

“In such trials, the law places the BURDEN OF PROOF on the prosecution to prove the guilt of the accused beyond reasonable doubt. Failure to do so will automatically read to the discharge of the accused person. The burden never shifts.” PER MUHAMMAD, J.S.C

OFFENCES– ARMED ROBBERY-INGREDIENTS OF

“The ingredients to be proved to sustain conviction of an accused who stands answerable to such a charge are well settled by legion of authorities. These ingredients are that:

(a) there was a robbery or series of robberies;

(b) the robbery or each robbery was an armed robbery and

Failure of the prosecution to prove any of these ingredients is fatal to its case.” PERMUHAMMAD, J.S.C

OFFENCES-ARMED ROBBERY-NATURE OF PROOF REQUIRED

“Proof of the above ingredients of the offence or even in civil actions, can be done either through documentary evidence, or by oral evidence or even through circumstantial evidence, as the case may be”. PER TMUHAMMAD, J.S.C

DOCTRINE OF RECENT POSSESSION-OPERATION OF

For this doctrine to operate there ought to be evidence.

[1] that the accused herein the appellant was found in possession of some goods.

[2] that those goods were recently stolen.

[3] that the appellant failed to account for his possession”. PER MUHAMMAD, J.S.C

DOCTRINE OF RECENT POSSESSION-PURPORT OF- SECTION 149(A) EVIDENCE ACT

“Section 149(a) Evidence Act is a codification of the Common Law doctrine of recent possession, it state (sic) that the possessor of stolen goods is deemed either to have stolen the goods himself or received it fraudulently from the thieve unless there is satisfactory and convincing explanation from him.” PER MUHAMMAD, J.S.C

WITHHOLDING OF EVIDENCE-PRESUMPTION THERETO–SECTION 149[D] OF THE EVIDENCE ACT

“Where a party claims to have evidence that goes to show the existence of a document in proof of his case, the document should be tendered. Where such evidence could be produced but it is not produced, it is presumed to be against the interest of the party withholding it.” PER MUHAMMAD, J.S.C

CRIMINAL CASES- BURDEN OF PROOF-ON WHO LIES-WHETHER SHIFTS

“In criminal cases the law places the burden of proof squarely on the prosecution which must establish its case beyond reasonable doubt. The burden does not shift as it rests on the prosecution throughout. The existence of a doubt as to the guilt of an accused automatically entitles the accused to a discharge.” PER MUHAMMED, J.S.C.

CASES MENTIONED

Alah v. C.O.P. 1968 NMLR, 121;

Alonge V. Inspector General of Police (1959) 5 SCNLR 516 (1959) 4 SC 203

Aminu V. The State (1990) 6 NWLR (part 155] 125 at page 135;

Bozin V. The State (1985) 7 NWLR [part 8] 465 at page 471;

Bode V. COP (1970) NNLR 35 at page 17

Doka V. Zaria Native Authority (1966) NNMLR 145 at page 150;

Eboh V. Progressive Insurance Company Limited [1987] 2 QLRN 167;

George V. The State [2009] 1 NWLR [part 1122]

Ikemson V. The State (1989) 3 NWLR (PART 110) 455 at 466

Kofi V. The Queen (1952-55) 14 WACA 648;

Martins V. The State (1997) 1 NWLR (part 481) 355

Nwachukwu V. The State (1985) 1 NWLR (Part 1) 218;

Okosi V. Attorney-General Bendel State [1989] 1 NWLR [part 100] 642;

Omiboju V. The State (1974) 9 SC 1,

R. V. Isa Braimah 1943, 9 WACA, 197

State V. Aiyeola & Ors 1969, 1 ALL NLR 303

Stephen V. The State (1986) 5 NWLR (Part 46) 978

STATUTES REFERRED TO

Criminal Code Law of Lagos State 2003

Evidence Act 2004

Evidence Act 2011

Robbery and Fire Arms (Special Provisions) Act 2004

DARE JIMOH VS. THE STATE

LEGALPEDIA CITATION: LER[2014] SC. 372/2011

AREA OF LAW- LAND LAW-

CRIMINAL LAW-MURDER, CONSPIRACY, TRIAL WITHIN A TRIAL, EVIDENCE, APPEAL

SUMMARY OF FACTS

The Accused/Appellant and one Akeem Fatai were charged before the trial court for the murder of one Kemi David. The Appellant and the co-accused were convicted and sentenced to death by hanging. Dissatisfied with the trial court’s judgment, the Accused/Appellant and the co-accused appealed to Court of Appeal where the appeal was dismissed. Still dissatisfied with the decision of the Court of Appeal, the Accused/Appellant appealed to Supreme Court.

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

Whether the admission of Exhibit 2 by the trial court without conducting a trial within trial in the face of the objection raised by the appellant did not occasion a miscarriage of justice to the utter detriment of the appellant

Whether the prosecution was able to prove the ingredients of the offences of conspiracy to commit murder and murder of the deceased Kemi David against the appellant based on the peculiar facts and circumstances of the entire case.

Whether the conviction and sentencing of the appellant for murder alone can be sustained, without a verdict on the offence of conspiracy to commit murder with which the appellant was also charged.

RATIOS

TRIAL WITHIN TRIAL-WHEN WILL NOT BE NEEDED

“Where an accused person objects to the tendering of his statement because it was not made by him and that the signature thereto is not his own, this denial being without an allegation that any of the vitiating factors of confession as contained in Section 28 of the Evidence Act was applied to him to extract the statement, there will be no need for a trial within trial”. PER ARIWOOLA, JSC

TRIAL WITHIN TRIAL–WHEN NECESSARY TO CONDUCT SAME

“A trial within trial is said to be necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person. In other words, where an accused person admits making the statement but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence or torture, then a trial within trial will be conducted in order to determine whether or not the statement was voluntary. However, when the trial court is satisfied that the statement was voluntary, the court is entitled to admit it as an Exhibit in the evidence before the court. PER ARIWOOLA, JSC

OFFENCES-MURDER-CIRCUMSTANCES WHERE IT CAN BE COMMITTED

“An offence of murder is committed when a person unlawfully terminates the life of or kills another under any of the following circumstances, that is to say;

– If the offender intends to cause the death of the person killed, or that of some other persons;

– If the offender intends to do the person killed or to some other persons some grievous harm;

– If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

– If the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;

– If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;

– If death is caused by willfully stopping the breath of any person for either of such purposes;

In the second case above, it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the third case, it is immaterial that the offender did not intend to hurt any person. In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result”. PER ARIWOOLA, JSC

MURDER-BURDEN OF PROOF-ON WHO LIES

“The law is trite that in a charge of murder, the burden of prove is squarely on the prosecution, to establish that the deceased died; that the death was caused by the accused; that the accused intended to either kill the victim or cause grievous harm on him”. PER ARIWOOLA, JSC

OFFENCES-MURDER- DUTY ON THE PROSECUTION

“In a charge of murder, it is a duty the prosecution is bound to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. It must be established by the prosecution that the said act or omission indeed caused death but not that it could have caused death”. PER ARIWOOLA, JSC

CONFESSION-MEANING OF

“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”. PER ARIWOOLA, JSC

CONFESSION-CONFESSIONAL STATEMENT OF AN ACCUSED-WHETHER CAN BE USED AGAINST A CO-ACCUSSED

“The law is that where more persons than one are charged jointly, with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct”. PER ARIWOOLA, JSC

MURDER-WHETHER EXISTENCE OF AN EYE WITNESS IS REQUIRED TO SUSTAIN A CHARGE OF MURDER

“Generally, and this is trite that it is not a condition or even a legal imperative that there must be an eye witness before a murder charge can be sustained and proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence. In other words, in homicide cases, the prosecution can discharge the onus of proof as to the cause of death by direct evidence or by circumstantial evidence that creates no room for doubt or speculation”. PER ARIWOOLA, JSC

CONFESSION-WHEN CAN WARRANT CONVICTION

“It is trite that before a confession could be used to convict an accused, it must be voluntary, positive, direct, pungent and consistent with other facts as proved. PER ARIWOOLA, JSC

CONFESSION-WHEN DOES A STATEMENT BY AN ACCUSED PERSON BECOMES CONFESSIONAL

“It is the law that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional”. PER ARIWOOLA, JSC

CONSPIRACY-WHETHER EVIDENCE ADMISSIBLE AGAINST ONE CONSPIRATOR IS ALSO ADMISSIBLE AGAINST A CO-CONSPIRATOR-HOW ESTABLISED

“Once conspiracy is proved to exist, evidence admissible against one conspirator is also admissible against the other or others. And it is not necessary in order to establish conspiracy that the conspirators should know each other or like those who murdered Julius Ceaser, of Shakespares play, that they should be seen together coming out of the same premises at the same time. Even, conspirators do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. PER ARIWOOLA, JSC

CONCURRENT FINDINGS OF LOWER COURTS-ATTITUDE OF APPELLATE COURT THERETO

“There is no doubt, the above show the concurrent findings of the two courts below on the confessional statement of the appellant and the role he played in the whole episode that led to the death of the deceased. As there is nothing to show any perversion or miscarriage of justice, this court will not disturb the said clear findings”. PER ARIWOOLA, JSC

OFFENCES-CONSPIRACY TO COMMIT MURDER AND MURDER-INGREDIENTS OF

“1. That the deceased died;

2. The act of the accused resulted in the death of the deceased, and

3. That the act of the accused person was intentional with the knowledge that death or bodily harm was its probable consequence.

In the light of those ingredients therefore, it need be noted that the evidence in proof of those offences especially murder would either be direct, confessional or circumstantial with the rider that the proof is beyond reasonable doubt no less”. PER PETER-ODILI, J.S.C

OFFENCES-CONSPIRACY-WHETHER THE BARE AGREEMENT BY PARTIES SUFFICES

“On the matter of conspiracy which is really a meeting of two or more minds to plan to carry out an unlawful act which is an offence, the bare agreement to commit the offence is sufficient”. PER PETER-ODILI, J.S.C

CASES MENTIONED

Ahmed vs. State (2001) 18 NWLR (pt 746) 622;

Alarape V. State (2001) 2 SC 114,

Akpan vs. State (2001) 7 SC (pt 1) 124;

Anta vs. State (1975) 4 SC 125;

Basil Akpa v. The State (2008) 8 SCM 68 at 78;

Daniels v. State (1991) 8 NWLR (pt 212) 715;

Effiong vs. State (1998) 8 NWLR (pt 562) 362.

Eyisi vs. State (2000) 15 NWLR (pt 691) 555;

Francis Durwode vs. The State (2000) 15 NWLR (pt 691) 467; (2001) FWLR (pt 36) 950;

Gbadamosi & Ors. v. State (1992) 9 NWLR (pt 266) 465;

Godwin Igabele vs. The State (2006) 3 SCM 142 at 151; (2006) 6 NWLR (pt 975) 100.

Igabele vs. State (2006) 3 SCM 143; (2006) 6 NWLR (pt 975) 100;

Igwe V. State (1982) 9 SC 174;

Lori vs. state (1980) 8 – 11 SC 81

Sabina C. Madu vs. The State (2012) 15 NWLR (pt 1324) 405) (2012) 6 SCNJ 129; (2012) 50 NSCQR 67; (2012) All FWLR (pt 641) 1416; (2012) 6 SC (pt 1) 80.

Musa v. State (2009) 9 SCM 63

Nathaniel Mbenu & Anor Vs. The State (1988) 3 NWLR (pt 84) 615; (1988) 7 SC (pt 111) 71

Ndike vs. State (1994) 8 NWLR (pt 360) 33;

Nwachukwu V. State (2002) 7 SC (pt 1) 124;

Ogunsanya vs. The State (2011) 9 SCM 5.

Onuoha vs. The State (1987) 4 NWLR (pt 65) 331.

Patrick Ikemson & Ors V. The State (1989) 1 CLRN 1; (1989) 3 NWLR (pt 110) 455

Sule v. State (2009) 8 SCM 177;

Titus Oyediran & Ors. V. The Republic (1966) NSCC 252 at 257.

Wakala v. The State (1991) 8 NWLR (pt 211) 552

State v. Sadu (201) 15 NWLR (pt 735) 102;

Sabina C. Madu vs. The State (2012) 15 NWLR (pt 1324) 405) (2012) 6 SCNJ 129; (2012) 50 NSCQR 67; (2012) All FWLR (pt 641) 1416; (2012) 6 SC (pt 1) 80.

Ubani & Ors. V. State (2004) FWLR (pt 191) 1533; (2003) 18 NWLR (pt 851) 224;

STATUTES REFERRED TO:

Evidence Act, 2011

Criminal Code Laws of Ogun State of Nigeria, Cap 29, 1978

CHIEF WAHAB GBEMISOLA VS. JOHN BOLARINWA

LEGALPEDIA CITATION: LER[2014] SC. 20/2004

AREA OF LAW-

LAND LAW-DECLARATION OF TITLE, TRESPASS; ESTOPPEL; CONCURRENT FINDINGS OF FACT

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 FOR DETERMINATION

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

RATIOS

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

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

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

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

TRESPASS-MEANING OF

“Trespass is after all an invasion of another into the land in the possession of the plaintiff”.PER MUHAMMAD JSC

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

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

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

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

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

CASES MENTIONED

Adebayo V. Alhaji Yakubu Babalola & 2 Ors (1995) 7 NWLR (Pt 408) 383

Akpagbue V. Ogu (1976) 6 SC 63;

Amadi V. Nwosu (1992) 5 NWLR (Pt.241) 273;

Ayinde V. Salawu (1989) 3 NWLR (Pt.109) 297

Clay Ind (Nig) Ltd V. Aina (1997) 8 NWLR (Pt.516) 208 at 229

Clifford Osuji V. Nkemjika Ekeocha 6-7 SC (Pt.11) 91

E.C. Udengwu V. S. Uzuegbu (2003) 11 SC 135

Ezekwesile V. Agbapwonwu (2003) 9 NWLR (Pt.825) 337

Fasora Vs Beyoku (1988) 2 NWLR, (Pt.76) p.263 at 271

Hon Emmanuel Bwacha V. Hon Joel Danlami Ikenya & 2 Ors (2011) 1-2 SC (Pt.11) 186

J. O. Awiawo & another V. Attorney General North Central State & 2 ors (1973) 6 SC 34 at 38 and 39,