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BARTHOLOMEW ONWUBUARIRI & ORS. V. ISAAC IGBOASOYI & ORS

Legalpedia Citation: (2011-02) Legalpedia (SC) 13115

In the Supreme Court of Nigeria

Fri Feb 4, 2011

Suit Number: SC. 212/2003

CORAM


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

O. OLATAWURA, – JUSTICE, SUPREME COURT


PARTIES


1. BARTHOLOMEU ONWUBUARIRI

2. RUFUS UZODIOKPU

3. LEVI AGUJIOKE

4. ROWLAND ONWUBUARIRI (Substituted by order of court of 8/11/2010

APPELLANTS 


 ISAAC IGBOASOYI & ORS

RESPONDENTS 


AREA(S) OF LAW



SUMMARY OF FACTS

This suit was filed by the Appellants at the High Court against the Respondents for a declaration of title over the piece of land called Ohia Owerre and Ala Ogwugwu Iyiala Amaechi which was in their favour but was upturned by the Court of Appeal hence this appeal to the Supreme Court.


HELD


Appeal allowed.


ISSUES


1. Whether the Court of Appeal rightly admitted Exhibit 1, and if it so rightly admitted it was the said exhibit necessary and/or important for the determination of the plaintiff/Appellants’ case.

2. Whether the Court of Appeal was right stating as it did in its judgment thereby relying on it that the High Court failed to consider sufficiently the recent acts of possession by the parties and the inconclusiveness of the evidence of tradition by the two parties.

3. Whether on the preponderance of evidence based on the balance of probabilities the Plaintiffs/Appellants would have failed in their case.


RATIONES DECIDENDI


ISSUES FOR DETERMINATION MUST FLOW FROM GROUNDS OF APPEAL


“it is trite that where there is no ground of appeal from which an issue is raised for determination, the issue in question is invalid as an issue must be based on a ground of appeal” per Onnoghen, J.S.C


ADMISSION OF ADDITIONAL EVIDENCE ON APPEAL


An admission of additional evidence on appeal in support of a pleaded fact which was deemed abandoned by the lower court is the only way by which the principle of abandoned pleading following the non tendering of a pleaded document can be circumvented by law. Per Onnoghen, J.S.C


GROUNDS FOR ADMISSION OF ADDITIONAL EVIDENCE ON APPEAL


The special grounds/circumstances under which the court of Appeal or appellate court can exercise its power to receive further/additional/fresh evidence on appeal include the following:-
(a) The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial;

(b) If the fresh evidence is admitted, it will have an impact but not necessarily crucial effect on the whole case;

(c) If the evidence sought to be adduced is such that it is apparently credible in the sense that, it is capable of being believed even if it may not be incontrovertible.

(d) If the evidence sought to be adduced could have influenced the judgment at the lower court in favour of the applicant if it had been available at the trial court

(e) The evidence must be material and weighty even if not conclusive, see Per Onnoghen, J.S.C


CASES CITED


1. Owata vs Anyigo (1993) 2 NWLR (pt.276) 380.
2. Onwugbufor vs Okoye (1996) 1 NWLR (pt. 424) 252 at 280; Eze vs Atasie (2000) 6 S.C (Pt. 1) 214 at 220
3. Olawolagba vs Bakare (1995) 4 NWLR (pt. 387) 116 at 124
4. Idundun vs Okumagba (1976) 9-10 S.C 227
5. Atanda vs Ajani (1989) 3 NWLR (pt. 111) 511 at 535
6. Balogun vs Akanji (1988) 1 NWLR (pt. 70) 301.


STATUTES REFERRED TO


Evidence Act, 1990


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