CORAM

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ALOMA MARIAM MUKHTAR, JSC,JUSTICE, SUPREME COURT

SYLVESTER UMARU ONU, JSC,JUSTICE, SUPREME COURT

ALOMA MARIAM MUKHTAR, JSC,JUSTICE, SUPREME COURT

FRANCIS FEDODE TABAI, JSC (Lead Judgment),JUSTICE, SUPREME COURT .

SYLVESTER UMARU ONU, JSC,JUSTICE, SUPREME COURT

ALOMA MARIAM MUKHTAR, JSC,JUSTICE, SUPREME COURT

SYLVESTER UMARU ONU, JSC,JUSTICE, SUPREME COURT

SYLVESTER UMARU ONU, JSC,JUSTICE, SUPREME COURT

SYLVESTER UMARU ONU, JSC,JUSTICE, SUPREME COURT

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PARTIES

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MR. PAULINUS CARRENAMRS. FLORENCE O. CARRENA APPELLANTS

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CHIEF AKINLASE & 11 ORS V  CHIEF GAFARU AROWOLO

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The reliefs claimed were for a declaration of title to the land in dispute, damages and injunction.

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HELD

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APPEAL ALLOWED

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ISSUES

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1. Whether the Court of Appeal was right in holding that the Appellants have no enforceable judgment against the Respondents.

2. Whether a trial Court can issue a writ of possession where same was not claimed nor granted by the court.

3. Whether the Court of Appeal was right in holding that the lower court in Suit No. LD/1093/80 should have stayed proceedings pending judgment in suit ID/3131/94.

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RATIONES DECIDENDI

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WHAT A PLAINTIFF WHO CLAIMS TO HAVE TITLE OVER A LAND MUST SHOW

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“A claim in an action for trespass to land presupposes that the Plaintiff is in possession, actual or constructive, of the land in dispute at the time of the trespass and that the trespasser defendant cannot by the mere fact of his entry unto the land secure lawful possession. On the other hand, a claim for recovery of possession postulates that the Plaintiff is not in possession at the time of the action and that he was once in possession but is at the time of the action seeking to be restored to possession of the land” PER TABAI, J.S.C

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APPLICATION TO JOIN AN INTERVENER OR THIRD PARTY

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“It is settled principle of law that an application by a third party or intervener for joinder can only be granted if the applicant satisfies the court
(i) that his presence is necessary for the effectual adjudication of the matter
(ii) that the Plaintiffs claim against the existing defendants also affects him and/or
(iii) that his interest is the same as or identical with that of the existing defendants” PER TABAI, J.S.C

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THE LAW ASCRIBES POSSESSION OF A PIECE OF LAND IN DISPUTE TO THE PERSON WHO HAS TITLE.

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“A person, who has title over a piece of land, though not in defacto physical possession, is deemed, in the eyes of the law, to be the person in possession” ” PER TABAI, J.S.C

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MEANING AND DISTINCTION BETWEEN EXECUTORY AND DECLARATORY JUDGMENTS

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“The end result of an action, whatever its nature and no matter how framed, is that the party who approaches the Court obtains the order he seeks; the order he seeks may be declaratory or executory. It is executory where the order declares the rights of the party before the court and then proceeds to enjoin the defendant to act in a certain way. It is declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by or enforced against the defendant…”PER TABAI, J.S.C

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CASES CITED

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Akunnia v. A.G. Anambra State
Okafor & ors v. Nnaife & ors
Oyedejiakanbi (Mogaji) & anor v. Okunlola Ishola Fabunmi & anor
Re: Yesufu Faleke.
Aromire v Awoyemi
Kareen v. Ogunde;
Akpan v. Chief Uyo & anor

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STATUTES REFERRED TO

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Section 14 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990

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