INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

Thereby rendering the proceedings null and void. TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 KLR (PT 52) 1238; (1997) 6 NWLR (PT. 510) 549

ACTIONS Commencement of actions Where appellant's main complaint relate to his deposition as Emir It was wrong to come by way of fundamental Rights (Enforcement Procedure) Rules. TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 KLR (PT 52) 1238; (1997) 6 NWLR (PT. 510) 549

ACTIONS Competence Commencement of action Claims partly for breach of fundamental right and partly for wrongful dismissal Which should have been commenced by writ of summons but was not Will be struck out as incompetent. EGBUONU V. BORNU RADIO TV. CORP (1997) 12 KLR (PT 55) 2063; (1997) 12 NWLR (PT. 531) 29

ACTIONS Competence Arbitration Whether failure to refer dispute to an arbitrator Before filing this action Affects competence of the action. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

ACTIONS Competence of action Failure to give the mandatory statutory notice Will defeat the plaintiffs' action. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

ACTIONS Courts Fresh case Where the local area court is presumed to know the applicable law Formulation of a fresh case by the appellate high court Is wrong. HAAV V. KUNDU (1997) 5 KLR (PT 52) 1079; (1997) 5 NWLR (PT. 505) 313

ACTIONS Detinue action Is based upon wrongful detention of plaintiff's chattel It was when appellant's ruled that the vehicle would no longer be returned That its possession turned adverse. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

ACTIONS Discontinuance of action Plaintiff has the right to discontinue his action Without leave of court. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

ACTIONS Discontinuance notice Whether the plaintiff has used the notice to enrich himself unjustly Thereby abusing court's process. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

KINGS LAW REPORTS COMPREHENSIVE INDEX

ACTIONS Discontinuance notice Though found to be an abuse of process Is upheld with an order that the amount unjustly recovered Be returned to the defendant by plaintiff's counsel. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

ACTIONS Discontinuance notice Where found to be an abuse of process Court can sustain the notice But on justiciable terms. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

ACTIONS Discontinuance of action O. 47 r. 1 Fed. High Court Rules Right to discontinue without leave Can be exercised before the hearing date. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

ACTIONS Dismissal Where jurisdiction is in issue The lower courts were wrong To determine that issue Without resolving the conflicts in the affidavit. EBOHON V. AG EDO STATE (1997) 5 KLR (PT 51) 1023; (1997) 5 NWLR (PT. 505) 298

ACTIONS Family Representative action on behalf of the family What an individual did will not be binding on the family. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

ACTIONS Fees Chieftaincy matters The fact that the fee enabling one to file action Is increased in this category of cases Does not render the fee unconstitutional. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

ACTIONS Filing of a claim Where statutory provisions are made for filing of a claim The procedure laid down ought to be followed in making such a claim. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

ACTIONS Joinder of parties Where plaintiffs are not persons having same interest in one suit They are not entitled to bring the action. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

ACTIONS Judicial division That was newly created without posting any judge Trial of the matter within another judicial division of the same state high

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

court Is not a nullity. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

ACTIONS Judicial division for trial High Court Rules of Bendel State 0.6 rr. 2 & 6 Case commenced in a wrong judicial division Legal implications. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

ACTIONS Limitation of actions Statute bar Whether appellant's action is caught by the two year limitation period. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

ACTIONS Limitation Fraud Where right of action is concealed by fraud Period of time commences only when the fraud is discovered. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

ACTIONS Limitation Twelve months limitation specified under s. 97 (1) of the Ports Act Action that was filed after about 3 years Is Statute barred. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

ACTIONS Limitation period Appellant's contention that the action is statute barred Whether admitted or opposed by the respondent. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

ACTIONS Limitation period Infancy or unsoundness of mind of plaintiff May extend the limitation period. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

ACTIONS Locus standi Chieftaincy matters Whether plaintiff has the locus to institute the action. ADESOKAN V. ADEGOROLU (1997) 3 KLR (PT 49) 505; (1997) 3 NWLR (PT. 493) 261

ACTIONS Locus standi Company directors Motion brought on behalf of board of directors Is incompetent Seeing that a provisional Liquidator has been appointed And no leave was obtained. NDIC V. FMB LTD (1997) 5 KLR (PT 51) 924; (1997) 4 NWLR (PT. 501) 519

ACTIONS Master and servant Relief for general damages Was wrongfully abandoned. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

KINGS LAW REPORTS COMPREHENSIVE INDEX

ACTIONS Preaction notice Chieftaincy matters Notice of intention to sue the Governor Whether plaintiff having been dethroned Is required to give preaction notice. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

ACTIONS Preliminary objection Limitation and issue of ownership of the property Are matters to be determined on the evidence. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

ACTIONS Relief Granted to the respondent Is inconsistent with his case. EDEBIRI V. EDEBIRI (1997) 4 KLR (PT 50) 672; (1997) 4 NWLR (PT. 498) 165

ACTIONS Reliefs not claimed Where no appropriate relief was claimed The trial court cannot make any award. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

ACTIONS Representative action Objection to being sued in representative capacity Should be raised at the preliminary stage. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

ACTIONS Representative action Where competent No leave of court is required. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

ACTIONS Representative action on behalf of the family What an individual did will not be binding on the family. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

ACTIONS Security for costs Application therefor Is manifestly oppressive in this case. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR (PT. 508) 185

ACTIONS Security for costs Foreign plaintiff resident abroad Discretion to order him to provide security for costs How to be exercised properly. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR (PT. 508) 185

ACTIONS Security for costs Where the application for it Is a scheme to stifle and frustrate the claim The Court of Appeal properly dismissed the application. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

(PT. 508) 185

ACTIONS Specific claim Setoff claim by the defendant For a specific period Court is without jurisdiction to award what is not claimed. UDOM V. MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516) 187

ACTIONS Statute bar Action that was instituted within the limitation period Is not statute bar And the Court of Appeal is in error As to the date cause of action arose. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

ACTIONS Statute bar Whether the respondent's claim Is statute barred. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

ACTIONS Transfer of cases Irregularity In the transfer of a case Will not nullify the entire proceedings In all cases. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

ACTIONS Transfer of a case By one high court judge to another judge Whether erroneous use of the word "referred" Can make the transfer invalid. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

ACTIONS Venue for trial Objection by the defendant Must be raised timeously. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

ADMINISTRATIVE LAW Acquisition of land by government Provision that it must be for public purpose Does not exclude government from involving the private sector Towards the

attainment of such purposes. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

ADMINISTRATION OF ESTATE Administration of Estate Law 1973 Ambiguity In view of the definition part Whether there is any ambiguity in ss. 2,3 and 4 of that statute. UGU V. TABI (1997) 7 KLR (PT 53) 1547; (1997) 7 NWLR (PT. 513) 368

ADMINISTRATION OF ESTATE Letters of Administration Obtained in respect of personal estate Will not cover real property of the intestate. UGU

KINGS LAW REPORTS COMPREHENSIVE INDEX

V. TABI (1997) 7 KLR (PT 53) 1547; (1997) 7 NWLR (PT. 513) 368

AFFIDAVITS Conflicts On the fundamental issue of jurisdiction Court is to hear evidence on the conflicts. EBOHON V. AG EDO STATE (1997) 5 KLR (PT 51) 1023; (1997) 5 NWLR (PT. 505) 298

AFFIDAVITS Conflict on crucial aspect thereof Cannot be cured by the addresses of counsel. EBOHON V. AG EDO STATE (1997) 5 KLR (PT 51) 1023; (1997) 5 NWLR (PT. 505) 298

AFFIDAVITS Jurisdiction Dismissal Where jurisdiction is in issue The lower courts were wrong To determine that issue Without resolving the conflicts in the affidavit. EBOHON V. AG EDO STATE (1997) 5 KLR (PT 51) 1023; (1997) 5 NWLR (PT. 505) 298

AGENCY Companies Agents of a disclosed principal promoters can enter into a preincorporation contract As agents of the disclosed company that is not yet in existence. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

AGENCY Creation of agency Cannot be by a private letter to respondent referring to the appellant as his agent. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

AGENCY Execution of contract Where the content and form of execution is not qualified Appellant executed the contract as principal And not as agent of any 3rd party. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

AGREEMENTS Review Agreement between the parties Where found to be Exhibit 2 And there was no evidence of agreement to review It is wrong for court to base computation of damages On a different exhibit. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

APPEALS Aggrieved party Where respondent had no more legal function to perform It cannot be a party aggrieved So as to be entitled to appeal. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

APPEALS Appeal if successful Courts have the duty to ensure it is not rendered nugatory But the appeal in this case is abnormal. LEKWOT V. JUDICIAL TRIBUNAL (1997) 7 KLR (PT 54) 1904; (1997) 8 NWLR (PT. 515) 22

APPEALS Brief Argument based on grounds of appeal rather than issues formulated Is non compliance with the rules But condonation thereof by the Court of Appeal does not amount to miscarriage of justice. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

APPEALS Briefs Defective brief Where the ground of appeal in a defective brief cannot be said to have been abandoned Reformulation of the issues by the Court below Is proper. TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 KLR (PT 52) 1238; (1997) 6 NWLR (PT. 510) 549

APPEALS Briefs Use of the words "two briefs" by the Court of Appeal Did not occasion a miscarriage of justice. UDOM V. MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516) 187

APPEALS Chieftaincy matters Concurrent findings that plaintiff's family does not belong to the ruling house Will not be disturbed. AMUDA V. ADELODUN (1997) 5 KLR (PT 52) 1071; (1997) 5 NWLR (PT. 506) 480

APPEALS Claim that was rejected by trial court Where not crossappealed against Respondent cannot raise issues that have no relevance to the ground of appeal. UDOM V. MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516) 187

APPEALS Competence of grounds of appeal Grounds that are incompetent Should be struck out. COKER V. UBA PLC (1997) 2 KLR (PT 48) 413; (1997) 2 NWLR (PT. 490) 641

APPEALS Conclusion of trial court Where supported by evidence Appellate court will not disturb it. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

APPEALS Concurrent findings of fact Supported by sufficient evidence Will not be disturbed. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

APPEALS Concurrent findings About nature of contract Whether justified

KINGS LAW REPORTS COMPREHENSIVE INDEX

by the evidence considered. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

APPEALS Concurrent findings Preliminary investigation Where not carried out before taking a child's evidence under oath And no error was occasioned thereby Concurrent findings of guilt

will not be interfered with. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999; (1997) 12 NWLR (PT. 531) 1

APPEALS Concurrent findings Rejection of plaintiffs' traditional evidence by the lower courts Are perverse concurrent findings. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

APPEALS Concurrent findings That are perverse and erroneous Will be set aside. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

APPEALS Concurrent findings Traditional histories Conflict therein Court is to test the two stories by reference to acts in recent times. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

APPEALS Crossappeal for special damages Was wrongfully not considered by the Court of Appeal Though the crossappeal is allowed Crossappellant can only recover part of the damages. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

APPEALS Damages Remitting case to trial court For the award of damages Is unnecessary in this case. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

APPEALS Delay in proceedings Before the trial court Will not per se warrant appellate court's interference. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

APPEALS Dismissal of appeal By the Court of Appeal Without looking at the counteraffidavit filed that morning Is in breach of audi alteram partem rule. BOMOR V. EKIYOR (1997) 7 KLR (PT 54) 1571; (1997) 9 NWLR (PT. 519) 1

APPEALS Decision of Court of Appeal Where misconceived but not challenged Remains the settlement of the issue between the parties. KOYA

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

APPEALS Enlargement of time To file the record of appeal Court will not entertain questions That will determine the substantive appeal. IKENNA V. BOSAH (1997) 3 KLR (PT 49) 589; (1997) 3 NWLR (PT. 495) 503

APPEALS Enlargement of time to appeal Failure to show there is a substantial case to be determined The application will be refused. IKENNA V. BOSAH (1997) 3 KLR (PT 49) 589; (1997) 3 NWLR (PT. 495) 503

APPEALS Enlargement of time to prepare the records Where appellant has delayed in filing the record of appeal Enlargement of time will be granted Upon presentation of good reason. COKER V. UBA PLC (1997) 2 KLR (PT 48) 413; (1997) 2 NWLR (PT. 490) 641

APPEALS Error in judgment It is not every error in judgment that will result in the appeal being allowed It is only when the error is substantial and has occasioned a miscarriage of justice That an appeal court is bound to interfere. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

APPEALS Error in judgment Must be substantial To warrant appellate court's interference. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

APPEALS Error in trial court's judgment Not every slip will result in the judgment being upset on appeal. PAN ATLANTIC LTD V. RHEIN MASS GMBH (1997) 3 KLR (PT 49) 577; (1997) 3 NWLR (PT. 493) 248

APPEALS Estoppel Where a party has adopted a procedure by consent He will not be heard to say that the procedure was prejudicial to him. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

APPEALS Evaluation of evidence Where trial court fails to evaluate evidence adduced before it in the determination of disputes Appellate Court will do so. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

APPEALS Extension of time to appeal Raising of arguable issue of jurisdiction Will make the court take lenient view of the delay in appealing. UKWU V.

KINGS LAW REPORTS COMPREHENSIVE INDEX

BUNGE (1997) 7 KLR (PT 53) 1512; (1997) 8 NWLR (PT. 518) 527

APPEALS Extension of time to appeal Three essential prayers that go to the issue of jurisdiction Must include prayer for enlargement of time within which to file notice of appeal. BOLEX ENT. LTD V. INCAR NIG. PLC (1997) 7 KLR (PT 53) 1563; (1997) 10 NWLR (PT. 526) 530

APPEALS Extension of time to appeal Where reasons for the delay are not disclosed Or are not substantial The application will not be granted. IKENNA V. BOSAH (1997) 3 KLR (PT 49) 589; (1997) 3 NWLR (PT. 495) 503

APPEALS Extension of time Cannot be granted by the court To a party that has not prayed for it. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

APPEALS Extension of time For the giving of notice of appeal Even where most of the prayers are not being opposed Court has the duty to ensure compliance with the Rules. BOLEX ENT. LTD V. INCAR NIG. PLC (1997) 7 KLR (PT 53) 1563; (1997) 10 NWLR (PT. 526) 530

APPEALS Extension of time To apply for leave to appeal Conditions under which time will be extended under the Rules Inquiring into the reasons for the delay may be unnecessary Where prima facie issue of jurisdiction is raised. UKWU V. BUNGE (1997) 7 KLR (PT 53) 1512; (1997) 8 NWLR (PT. 518) 527

APPEALS Findings of fact In vicarious liability claim Was wrongfully set aside by Court of Appeal. ODEBUNMI V. ABDULLAHI (1997) 2 KLR (PT 48) 357; (1997) 2 NWLR (PT. 489) 526

APPEALS Findings of fact Of a trial judge Should not easily be disturbed by appeal court Save where the findings are perverse. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

APPEALS Findings of fact That are based on demeanour or credibility of witnesses Where not perverse Appellate court should not come to a different conclusion. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

APPEALS Finding of fact Where not based on demeanour or credibility of witnesses Appellate Court is entitled to more readily form an independent

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

opinion. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

APPEALS Findings of trial area court Appellate high court's interference therewith Is erroneous. HAAV V. KUNDU (1997) 5 KLR (PT 52) 1079; (1997) 5 NWLR (PT. 505) 313

APPEALS Findings of trial Court On the credibility of witnesses Where not tainted with bias It should be upheld. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

APPEALS Findings of trial court That is not based on the pleadings Will be discountenanced. OVIAWE V. INTEGRATED RUBBER PRODUCTS LTD (1997) 3 KLR (PT 49) 469; (1997) 3 NWLR (PT. 492) 126

APPEALS Findings of trial court on facts Should not be interfered with Unless in certain circumstances. HAAV V. KUNDU (1997) 5 KLR (PT 52) 1079; (1997) 5 NWLR (PT. 505) 313

APPEALS Findings of trial judge Where found to be perverse Court of Appeal rightly interfered. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

APPEALS Ground of appeal That was not raised at trial May be allowed on appeal Where it raised substantial issue of law. KOYA V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

APPEALS Ground of Appeal That complains about admission of inadmissible evidence Is a ground of law And therefore competent. OLANREWAJU V. OGUNLEYE (1997) 1 KLR (PT 47) 225; (1997) 2 NWLR (PT. 485) 12

APPEALS Ground of appeal That was not amended to take care of the issue being raised Any argument thereon will be discountenanced. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

APPEALS Grounds of appeal Complaint against lower courts exercise of discretion Is not a ground of law. COMEX LTD V. NIGERIA ARAB BANK LTD (1997) 4 KLR (PT 50) 653; (1997) 3 NWLR (PT. 496) 643

APPEALS Grounds of appeal Discretion of trial court Where reviewed by

KINGS LAW REPORTS COMPREHENSIVE INDEX

the Court of Appeal Ground questioning that exercise of discretion Is at best one of mixed law and fact. COKER V. UBA PLC (1997) 2 KLR (PT 48) 413; (1997) 2 NWLR (PT. 490) 641

APPEALS Grounds of appeal Founded on a point not raised at the Court of Appeal And without having sought the leave of the Supreme Court Ought to be struck out. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

APPEALS Grounds of appeal Ground complaining against exercise of lower court's discretion Is not of necessity one of fact simpliciter. COMEX LTD V. NIGERIA ARAB BANK LTD (1997) 4 KLR (PT 50) 653; (1997) 3 NWLR (PT. 496) 643

APPEALS Grounds of appeal Leave to appeal Not obtained in respect of grounds 1&2 that are not of law simpliciter Those grounds will be struck out. COMEX LTD V. NIGERIA ARAB BANK LTD (1997) 4 KLR (PT 50) 653; (1997) 3 NWLR (PT. 496) 643

APPEALS Grounds of appeal Need to attach proposed grounds of appeal In an application for leave to appeal on questions other than those of law alone. BOLEX ENT. LTD V. INCAR NIG. PLC (1997) 7 KLR (PT 53) 1563; (1997) 10 NWLR (PT. 526) 530

APPEALS Grounds of appeal Omnibus ground that judgment is against weight of evidence Is a proper and valid ground of appeal. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

APPEALS Grounds of appeal Proposed new grounds Where they are of mixed law and fact Leave of court must be obtained before filing the grounds. COKER V. UBA PLC (1997) 2 KLR (PT 48) 413; (1997) 2 NWLR (PT. 490) 641

APPEALS Grounds of appeal That are of mixed law and facts Are incompetent where no leave was obtained. OLANREWAJU V. OGUNLEYE (1997) 1 KLR (PT 47) 225; (1997) 2 NWLR (PT. 485) 12

APPEALS Grounds of appeal Where each ground allege error in law and misdirection They would be struck out for being incompetent. OLANREWAJU V. OGUNLEYE (1997) 1 KLR (PT 47) 225; (1997) 2 NWLR (PT. 485) 12

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

APPEALS Grounds of appeal Where they are of mixed law and fact And no leave was obtained Those grounds and issues predicated on them Will be struck out for being incompetent. NYAMBI V. OSADIM (1997) 1 KLR (PT 47) 281; (1997) 2 NWLR (PT. 485) 1

APPEALS Grounds of appeal Where found to be grounds of law No leave of court is required. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

APPEALS Grounds of facts or mixed law and facts Where the appeal is interlocutory Failure to obtain leave Renders all the three grounds incompetent. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

APPEALS Grounds of law Appeal filed pursuant to s. 213(2) of the Constitution The grounds can only be amended By substituting grounds of law only. COKER V. UBA PLC (1997) 2 KLR (PT 48) 413; (1997) 2 NWLR (PT. 490) 641

APPEALS Inference Drawing inference from facts Where proper The appellate court is free to do so. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

APPEALS Interference Evaluation of evidence by trial Court Findings not borne out of the Evidence Court of Appeal's intervention is proper. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

APPEALS Interference Findings of fact should not easily be interfered with by appellate Court Save there is an obvious error. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

APPEALS Interference Since the Appellants failed to prove that 1st Appellant was selected in accordance with the prevailing native law The court below was right to interfere with the finding of fact of trial court. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

APPEALS Interlocutory appeal No evidence to support appellants' assertion Concerning a particular chieftaincy custom. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

KINGS LAW REPORTS COMPREHENSIVE INDEX

APPEALS Interlocutory appeal Where included within the main appeal Leave to appeal out of time must be obtained. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

APPEALS Issue Defence of insanity Where the defence was not raised by the appellant The issue cannot now be raised on appeal. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999; (1997) 12 NWLR (PT. 531) 1

APPEALS Issue That deals on semantics And does not derogate from the concurrent findings of fact Will not ground interference. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

APPEALS Issue That does not arise out of the ground of appeal Is incompetent. NYAMBI V. OSADIM (1997) 1 KLR (PT 47) 281; (1997) 2 NWLR (PT. 485) 1

APPEALS Issue That was erroneously not determined by the Court of Appeal Will be considered by the Supreme Court Since it is based on point of law only. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

APPEALS Issue That was properly raised Court of Appeal misdirected itself In holding that the issue was not subject of any ground of appeal. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

APPEALS Issue That is against trial court's judgment Cannot be entertained by the Supreme Court. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

APPEALS Issues An issue that was not canvassed before the Court of Appeal Cannot be raised without leave before the Supreme Court. TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 KLR (PT 52) 1238; (1997) 6 NWLR (PT. 510) 549

APPEALS Issues Not formulated in the parties' pleadings And not forming any ground of appeal Cannot be dealt with by the Court of Appeal. EJINDU V. OBI (1997) 1 KLR (PT 47) 113; (1997) 1 NWLR (PT. 484) 505

APPEALS Issues Raising of a new issue before the Supreme Court The general rule that it will not be allowed Is not rigid. ADEYERI V. OKOBI (1997)

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

APPEALS Issues That relate to compulsory acquisition of land And contract to pay compensation Where not proved Are incompetent. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

APPEALS Issues That are not predicated on the grounds of appeal Would be struck out. KARI V. GANARAM (1997) 2 KLR (PT 48) 391; (1997) 2 NWLR (PT. 488) 380

APPEALS Issues That were not canvassed before the lower courts Cannot be raised Without leave of the Supreme Court. OGUNDARE V. OGUNLOWO (1997) 5 KLR (PT 52) 1110; (1997) 6 NWLR (PT. 509) 360

APPEALS Issues for determination Appeal Court not to raise issues suo motu Where raised Parties should be heard. LADEPO V. AJANI (1997) 7 KLR (PT 54) 1709; (1997) 8 NWLR (PT. 517) 356

APPEALS Issues for determination Issues Not raised nor argued by parties Decision of courts cannot be founded on them. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

APPEALS Judgment Pronounced opinion of a member of the panel Who has ceased to be a Justice of the Court of Appeal on the date of judgment Is not a nullity. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

APPEALS Judgment Whether all the three Justices of the Court of Appeal That heard an appeal Must be present at the delivery of the judgment. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

APPEALS Judgments Misdirection That did not occasion miscarriage of justice Is immaterial. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

APPEALS Judgments Pronounced opinion of a retired Court of Appeal justice Is proper and valid. ADESOKAN V. ADEGOROLU (1997) 3 KLR (PT 49) 505; (1997) 3 NWLR (PT. 493) 261

KINGS LAW REPORTS COMPREHENSIVE INDEX

APPEALS Judgments Written judgment of retired justice of Court of Appeal Delivered after such retirement Is a nullity. ADESOKAN V. ADEGOROLU (1997) 3 KLR (PT 49) 505; (1997) 3 NWLR (PT. 493) 261

APPEALS Jurisdiction Where the High Court's jurisdiction in an ex parte application is in issue The issues related to the proceedings or judgment of a Tribunal should not arise. LEKWOT V. JUDICIAL TRIBUNAL (1997) 7 KLR (PT 54) 1904; (1997) 8 NWLR (PT. 515) 22

APPEALS Jurisdiction of the Supreme Court To determine appeals Cannot allow it hear appeals straight from the high court. J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) 4 KLR (PT 51) 823; (1997) 5 NWLR (PT. 503) 1

APPEALS Murder Whether the Court of Appeal Properly dismissed the appellant's appeal. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

APPEALS Merit Where the only competent ground Has no issue raised in respect thereof That ground of appeal is deemed abandoned And the appeal will be dismissed. COMEX LTD V. NIGERIA ARAB BANK LTD (1997) 4 KLR (PT 50) 653; (1997) 3 NWLR (PT. 496) 643

APPEALS New points That were not pleaded nor canvassed before the trial court Cannot be raised by the appellants. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

APPEALS New point of law That was not in issue in the pleadings Cannot be raised Where further evidence would be required. IKEANYI V. ACB LTD (1997) 2 KLR (PT 48) 373; (1997) 2 NWLR (PT. 489) 509 APPEALS Nullification of proceedings Failure to exhibit the proceedings and judgment sought to be nullified Makes the application improper. LEKWOT V. JUDICIAL TRIBUNAL (1997) 7 KLR (PT 54) 1904; (1997) 8 NWLR (PT. 515) 22

APPEALS Objection Where sought to be newly raised before the Supreme Court Leave must be obtained. GOVERNOR IMO STATE V. NWAUWA (1997) 2 KLR (PT 48) 327; (1997) 2 NWLR (PT. 490) 675

APPEALS Opposition against a prayer Where a particular prayer was not opposed Whether appellants can now oppose it on appeal. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

APPEALS Retrial Land matter Failure of plaintiffs' claim retrial that will amount to giving plaintiffs a second chance Will be refused. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

APPEALS Retrial Where a court of trial fails to advert its mind to and treat all issues in controversy And there is insufficient material before the Appeal Court The proper order to make is one of retrial. OKONKWO V. UDOH (1997) 7 KLR (PT 54) 1722; (1997) 9 NWLR (PT. 519) 16

APPEALS Retrial Where appellants' case was wrongfully upset by Court of Appeal Retrial will not be upheld. EJINDU V. OBI (1997) 1 KLR (PT 47) 113; (1997) 1 NWLR (PT. 484) 505

APPEALS Retrial Wrongful rejection of admissible evidence Where miscarriage of justice is occasioned Retrial will be ordered Even if it was not prayed for. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

APPEALS Reversal Error of lower court Will not ground a reversal Unless the error affected the decision crucially. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

APPEALS Reversal Rejection of evidence Will only be a ground for reversing a decision If it occasioned a miscarriage of justice. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

APPEALS Time to appeal If the statutory time within which an interested party can file his appeal has expired There are three prayers that will make his application competent. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

APPEALS Title to land Acts of possession by plaintiffs Lower courts' findings thereon being perverse Plaintiffs' claims will succeed. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

APPEALS Words & Phrases "Hearing" As envisaged under s. 258(2) of the 1979 Constitution Is as at the closure of the parties' addresses And the appeal is adjourned for judgment. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

KINGS LAW REPORTS COMPREHENSIVE INDEX

ARBITRATION Companies Arbitration clause Contained in a preincorporation contract that was subsequently ratified Is binding on the respondent. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

ARBITRATION Competence of action Whether failure to refer dispute to an arbitrator Before filing this action Affects competence of the action. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

ARBITRATION Limitation period Effect of Scott v. Avery clause on limitation period The clause is no more applicable in Lagos. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

ARBITRATION Limitation period In respect of action for damages for breach of implied promise to perform an award Runs from the date of refusal to obey award. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

ARBITRATION Statutory period of limitation In respect of enforcement of arbitration award Runs from the date the cause of action arose. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

AUCTIONEERS LAW Compliance Consistency Case fought on whether there was an auction sale Plaintiff having failed to establish there was no sale Cannot turn round to contend that sections of the Auctioneer's Law Were not complied with. IKEANYI V. ACB LTD (1997) 2 KLR (PT 48) 373; (1997) 2 NWLR (PT. 489) 509

AUCTIONEERS LAW Provisions thereof Cannot be considered in isolation from the parties case. IKEANYI V. ACB LTD (1997) 2 KLR (PT 48) 373; (1997) 2 NWLR (PT. 489) 509

AUCTIONEERS LAW Sale by auction Exercise of power to sale mortgaged landed property Whether valid. IKEANYI V. ACB LTD (1997) 2 KLR (PT 48) 373; (1997) 2 NWLR (PT. 489) 509

BANKING Account position Letter drawing appellant's attention to the position of his account Cannot amount to a letter of demand. ISHOLA V.

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

BANKING Bank draft Where negligently delivered by the appellant Respondent cannot be held liable. KOYA V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

BANKING Cheques Cheque drawn by a customer If there is enough funds in that account The bank will be liable in damages Where it failed to honour the cheque. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

BANKING Cheques Wrongful dishonour of a customer's cheque Amounts to a breach of contract Which entitles a trading customer to substantial damages Though actual damage was neither pleaded nor proved. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

BANKING Current accounts combination Right of bank to combine them Is limited to where the accounts are held in the same right That is same name, character or capacity. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

BANKING Current accounts combination Separate current accounts kept by a customer The bank is entitled to combine them Unless precluded by express or implied agreement. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

BANKING Current accounts combination Without obtaining respondent's prior consent And the failure to honour his cheque Are wrongful. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

BANKING Current accounts combination Where the accounts in issue are not in the same right And transactions in the accounts were never mixed up Implied agreement to keep the

accounts separate exist. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

BANKING Drawing in excess of one's credit Is a request for loan Where the cheque is honoured The customer has borrowed money by way of overdraft Irrespective of no existence of

KINGS LAW REPORTS COMPREHENSIVE INDEX

formal agreement. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

BANKING Interest on overdraft Where there is no express agreement Bank may only recover interest If the borrower does not object. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

BANKING Overdraft Cause of action Where no specific date was agreed upon for repayment There must be demand Before cause of action will arise. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

BANKING Payment of money into an account Failure to tender the bank teller Whether the alleged payment is proved. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

CARRIAGE OF GOODS Contract Conditions of contract printed on the face of the way bill Is binding on the plaintiff Who failed to show that the conditions were concealed. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

CARRIAGE OF GOODS Contract Way bill Exh. "A" issued by Railway Corporation Forms part of the contract between the parties. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

CARRIAGE OF GOODS International Law Carriage by air Order 1953 Made while Nigeria was a British Colony Whether the Order is an existing and applicable law in Nigeria. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

CARRIAGE OF GOODS Value of the goods Where not declared as required by law and the conditions of contract Appellant is bound to fail Whether he be an old customer or not. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

CHIEFTAINCY MATTERS Appointment of Chief The appointment of 1st defendant as chief By the military governor Is null and void. AMUDA V. ADELODUN (1997) 5 KLR (PT 52) 1071; (1997) 5 NWLR (PT. 506) 480

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

CHIEFTAINCY MATTERS Appointment of Chief Where the law did not empower the traditional council to make an appointment It has no jurisdiction to recommend 1st defendant to the governor. AMUDA V. ADELODUN (1997) 5 KLR (PT 52) 1071; (1997) 5 NWLR (PT. 506) 480

CHIEFTAINCY MATTERS Commencement of action Provision under the Edict That a nonrefundable fee of N10,000.00 must be paid before commencing a chieftaincy action Is constitutional. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

CHIEFTAINCY MATTERS Commencement of actions Where appellant's main complaint relate to his deposition as Emir It was wrong to come by way of fundamental Rights (Enforcement Procedure) Rules. TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 KLR (PT 52) 1238; (1997) 6 NWLR (PT. 510) 549

CHIEFTAINCY MATTERS Declarations on chieftaincy Are useful guides as to the order of succession Even where the chieftaincy is derecognized by government. OGUNDARE V. OGUNLOWO (1997) 5 KLR (PT 52) 1110; (1997) 6 NWLR (PT. 509) 360

CHIEFTAINCY MATTERS Evidence Interlocutory appeal No evidence to support appellants' assertion Concerning a particular chieftaincy custom. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

CHIEFTAINCY MATTERS Fair hearing Withdrawal of the chief's recognition Whether implemented without fair hearing. GOVERNOR IMO STATE V. NWAUWA (1997) 2 KLR (PT 48) 327; (1997) 2 NWLR (PT. 490) 675

CHIEFTAINCY MATTERS Locus standi Whether plaintiff has the locus to institute the action. ADESOKAN V. ADEGOROLU (1997) 3 KLR (PT 49) 505; (1997) 3 NWLR (PT. 493) 261

CHIEFTAINCY MATTERS Notice of intention to sue the Governor Whether plaintiff having been dethroned Is required to give preaction notice. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

CHIEFTAINCY MATTERS Recognition of a chief Withdrawal of the

KINGS LAW REPORTS COMPREHENSIVE INDEX

recognition Whether proper. GOVERNOR IMO STATE V. NWAUWA (1997) 2 KLR (PT 48) 327; (1997) 2 NWLR (PT. 490) 675

CHIEFTAINCY MATTERS Recognition of a chief Withdrawal of the recognition Makes the dethroned chief an ordinary citizen. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

CHIEFTAINCY MATTERS Ruling house Where one ruling house surrendered its turn to another It will be the turn of the next ruling house To present a candidate. OGUNDARE V. OGUNLOWO (1997) 5 KLR (PT 52) 1110; (1997) 6 NWLR (PT. 509) 360

CHIEFTAINCY MATTERS Ruling house Concurrent findings that plaintiff's family does not belong to the ruling house Will not be disturbed. AMUDA V. ADELODUN (1997) 5 KLR (PT 52) 1071; (1997) 5 NWLR (PT. 506) 480

CHIEFTAINCY MATTERS Support of the community for the chief Loss of the support Can be measured not only by referendum. GOVERNOR IMO STATE V. NWAUWA (1997) 2 KLR (PT 48) 327; (1997) 2 NWLR (PT. 490) 675

CHIEFTAINCY MATTERS Traditional rulers Whether there could be more than one ruler For a community at the same time. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

CLAIMS Causes of action Lumping of several causes of action Makes the defendants counterclaim incompetent. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

CLAIMS Claims partly for breach of fundamental right and partly for wrongful dismissal Which should have been commenced by writ of summons but was not Will be struck out as incompetent. EGBUONU V. BORNU RADIO TV. CORP (1997) 12 KLR (PT 55) 2063; (1997) 12 NWLR (PT. 531) 29

CLAIMS Declaratory reliefs Where the hard facts are uncontradicted and appellant behaved without equity Court will be on the side of truth and law in support of the case. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

CLAIMS Detinue Return of the chattel or its value is the primary claim

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

Damages if proved will also be awarded. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

CLAIMS Filing of a claim Where statutory provisions are made for filing of a claim The procedure laid down ought to be followed in making such a claim. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

CLAIMS Failure of plaintiffs' claim retrial that will amount to giving plaintiffs a second chance Will be refused. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

CLAIMS Interest on contract sum That was not established And was not included in the parties' contract Will not be granted. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

CLAIMS Nonsuit order Where a party has failed to claim a relief relevant to his case Court of Appeal will not substitute an order of nonsuit for that of dismissal. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

CLAIMS Reliance on two methods in seeking to prove title Failure to prove any of the methods Will lead to dismissal of the claim. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

CLAIMS Reliefs not claimed Where no appropriate relief was claimed The trial court cannot make any award. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

CLAIMS Reliefs Declaration of title Being a discretionary remedy cannot be granted Where plaintiffs fail to establish their entitlement to that relief. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

CLAIMS Special damages Must be proved by credible evidence Claim for loss of use of a vehicle over a long period time Onus of proof is not discharged Where commercial life span of the vehicle may be very short. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

CLAIMS Specific claim Setoff claim by the defendant For a specific period

KINGS LAW REPORTS COMPREHENSIVE INDEX

Court is without jurisdiction to award what is not claimed. UDOM V. . MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516) 187

CLAIMS Trespass and injunction claims Can only be maintained by person in possession Act sufficient to ground possession Is a question of fact. LADEPO V. AJANI (1997) 7 KLR (PT 54) 1709; (1997) 8 NWLR (PT. 517) 356

COMPANY LAW Agents of a disclosed principal promoters can enter into a preincorporation contract As agents of the disclosed company that is not yet in existence. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

COMPANY LAW Arbitration clause Contained in a preincorporation contract that was subsequently ratified Is binding on the respondent. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

COMPANY LAW Directors Locus standi Motion brought on behalf of board of directors Is incompetent Seeing that a provisional Liquidator has been appointed And no leave was obtained. NDIC V. FMB LTD (1997) 5 KLR (PT 51) 924; (1997) 4 NWLR (PT. 501) 519

COMPANY LAW Directors Though empowered to act on behalf of the company There are occasions when the company can act for itself. NDIC V. FMB LTD (1997) 5 KLR (PT 51) 924; (1997) 4 NWLR (PT. 501) 519

COMPANY LAW Evidence Hearsay Company being a juristic person Can give evidence of a transaction vide its servant That did not take part in the transaction And the evidence will not be hearsay. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

COMPANY LAW Liquidators Appointment of a provisional Liquidator Removes the powers of directors Save leave of court is obtained. NDIC V. FMB LTD (1997) 5 KLR (PT 51) 924; (1997) 4 NWLR (PT. 501) 519

COMPANY LAW Liquidators Whether There is no difference between a liquidator and a provisional liquidator Under ss. 422 and 423 of NDIC V. FMB LTD (1997) 5 KLR (PT 51) 924; (1997) 4 NWLR (PT. 501) 519

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

COMPANY LAW Preincorporation agreement Where plaintiff has already built its case on this premise Whether it can now contest that the agreement in issue Is no longer a preincorporation contract. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

COMPANY LAW Preincorporation contract Common law position is different from our statutory position Under s. 72(1) of CAMA ratification is allowed. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

COMPANY LAW Statutes Companies & Allied Matters Act s. 72(1) Ratification of preincorporation contract under the Act Applies to contracts already ratified by existing companies And those yet to be ratified. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

CONFLICT OF LAWS Inconsistency Provisions of State Law which are inconsistent with sections of the 1979 Constitution That confer unlimited jurisdiction on the high court Shall to the extent of such inconsistency be void. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

CONFLICT OF LAWS Land Use Act Applicability Where the Land Use Act is applicable Any other inconsistent law or Act relating to land is void. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

CONSTITUTIONAL LAW Charge S. 33(6) of the Constitution Requirement that accused be informed of the charge in a language he understands Was complied with. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CONSTITUTIONAL LAW Commencement of action Provision under the Edict That a nonrefundable fee of N10,000.00 must be paid before commencing a chieftaincy action Is constitutional. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

CONSTITUTIONAL LAW Existing law s. 274(1) of the 1979 Constitution 1953 Order that made the Warsaw Convention part of our existing law Still subsists. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

KINGS LAW REPORTS COMPREHENSIVE INDEX

CONSTITUTIONAL LAW Fees Chieftaincy matters The fact that the fee enabling one to file action Is increased in this category of cases Does not render the fee unconstitutional. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

CONSTITUTIONAL LAW Inconsistency Provisions of State Law which are inconsistent with sections of the 1979 Constitution That confer unlimited jurisdiction on the high court Shall to the extent of such inconsistency be void. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

CONSTITUTIONAL LAW Interpretation of criminal proceedings Guaranteed under s. 33(6)(e) of 1979 Constitution Whether breached in this case. MADU V. THE STATE (1997) 1 KLR (PT 47) 26; (1997) 1 NWLR (PT. 482) 386

CONSTITUTIONAL LAW Promulgation of law S. 239 of the 1979 Constitution Was validly relied upon by Governor In prescribing fees to be paid before one can institute a chieftaincy action. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

CONTRACTS Accord and satisfaction Where established by unchallenged evidence Appellant's claim will succeed. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

CONTRACTS Accord and satisfaction principle Agreement of plaintiff to pay some amount towards the discharge of a contract Where not complied with It is tantamount to an accord without satisfaction. CHIEKE V. OLUSOGA (1997) 3 KLR (PT 49) 547; (1997) 3 NWLR (PT. 494) 390

CONTRACTS Agency Creation of agency Cannot be by a private letter to respondent referring to the appellant as his agent. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

CONTRACTS Agreement between the parties Where found to be Exhibit 2 And there was no evidence of agreement to review It is wrong for court to base computation of damages On a different exhibit. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

CONTRACTS Breach of contract Where there was no breach of contract Whether appellant's claim to payment on quantum meruit Has any basis J.A.S.

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

& CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1.

CONTRACTS Breach Banking Cheques Wrongful dishonour of a customer's cheque Amounts to a breach of contract Which entitles a trading customer to substantial damages Though actual damage was neither pleaded nor proved. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

CONTRACTS Carriage of goods Conditions of contract printed on the face of the way bill Is binding on the plaintiff Who failed to show that the conditions were concealed. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

CONTRACTS Carriage of goods Value of the goods Where not declared as required by law and the conditions of contract Appellant is bound to fail Whether he be an old customer or not. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

CONTRACTS Carriage of goods Way bill Exh. "A" issued by Railway Corporation Forms part of the contract between the parties. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

CONTRACTS Companies Preincorporation agreement Where plaintiff has already built its case on this premise Whether it can now contest that the agreement in issue Is no longer a preincorporation contract. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

CONTRACTS Companies Preincorporation contract Common law position is different from our statutory position Under s. 72(1) of CAMA ratification is allowed. SOCIETE GENERALE FRANCE V. SOCIETE GENERALE BANK (NIG) LTD (1997) 4 KLR (PT 50) 631; (1997) 4 NWLR (PT. 497) 8

CONTRACTS Damages for breach of contract Where the amount was neither pleaded no proved No damages will be awarded Though the breach is established. J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) 4 KLR (PT 51) 823; (1997) 5 NWLR (PT. 503) 1

KINGS LAW REPORTS COMPREHENSIVE INDEX

CONTRACTS Discharge of a contract Where unilateral It has to be under seal Or some valuable consideration has to be given. CHIEKE V. OLUSOGA (1997) 3 KLR (PT 49) 547; (1997) 3 NWLR (PT. 494) 390

CONTRACTS Dismissal At common law Where dismissal is in breach of the terms of the contract The servant may consider the contract determined and sue for redress. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

CONTRACTS Execution Where the content and form of execution is not qualified Appellant executed the contract as principal And not as agent of any 3rd party. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

CONTRACTS Exemplary damages Whether recoverable in an action in contract As in this case of a bank wrongfully dishonouring a customer's cheque. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

CONTRACTS Exemption clauses Way Bill that forms the basis of contracts Parties are bound by the exclusions contained therein. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

CONTRACTS Express or implied agreement Banking Current accounts combination Separate current accounts kept by a customer The bank is entitled to combine them Unless precluded by express or implied agreement. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

CONTRACTS Formation Definite offer capable of being accepted must exist Where no such definite offer is made Formal contract cannot be inferred. OLAOPA V. OBAFEMI AWOLOWO UNIVERSITY (1997) 6 KLR (PT 52) 1167; (1997) 7 NWLR (PT. 512) 204

CONTRACTS Implied agreement Banking Current accounts combination Where the accounts in issue are not in the same right And transactions in the accounts were never mixed up Implied agreement to keep the accounts separate exist. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

CONTRACTS Insurance Claim as per contract of Insurance Whether proved by the appellant. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

CONTRACTS Interest on contract sum That was not established And was not included in the parties' contract Will not be granted. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

CONTRACTS Invitation to treat A discussion preparatory to formation of a formal contract Amounts to invitation to treat. OLAOPA V. OBAFEMI AWOLOWO UNIVERSITY (1997) 6 KLR (PT 52) 1167; (1997) 7 NWLR (PT. 512) 204

CONTRACTS Nature Appeals Concurrent findings About nature of contract Whether justified by the evidence considered. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

CONTRACTS Offer and acceptance Definite offer capable of being accepted must exist Where no such definite offer is made Formal contract cannot be inferred. OLAOPA V. OBAFEMI AWOLOWO UNIVERSITY (1997) 6 KLR (PT 52) 1167; (1997) 7 NWLR (PT. 512) 204

CONTRACTS Parol contract Breach thereof Though the parties' contract was oral It was binding And therefore breached by the defendant. J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) 4 KLR (PT 51) 823; (1997) 5 NWLR (PT. 503) 1

CONTRACTS Part payment Where purchaser made part payment but defaults in payment of the balance The vendor has right to rescind the contract and resell. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

CONTRACTS Privity of contract Insurance Where the insurance company will pay for repair of damaged vehicle Whether there is privity of contract Between the owner of the car and the repairer. J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) 4 KLR (PT 51) 823; (1997) 5 NWLR (PT. 503) 1

KINGS LAW REPORTS COMPREHENSIVE INDEX

CONTRACTS Quantum meruit claim Cannot arise Where there is an existing contract For the payment of an agreed sum. OLAOPA V. OBAFEMI AWOLOWO UNIVERSITY (1997) 6 KLR (PT 52) 1167; (1997) 7 NWLR (PT. 512) 204

CONTRACTS Quantum meruit Basis for the claim is a contract Where there is no contract between the parties as in this case Quantum meruit claim cannot succeed. OLAOPA V. OBAFEMI AWOLOWO UNIVERSITY (1997) 6 KLR (PT 52) 1167; (1997) 7 NWLR (PT. 512) 204

CONTRACTS Quantum meruit Failure to plead The issue of quantum meruit Trial court was in error To have awarded what was not claimed by way of pleadings. OLAOPA V. OBAFEMI AWOLOWO UNIVERSITY (1997) 6 KLR (PT 52) 1167; (1997) 7 NWLR (PT. 512) 204

CONTRACTS Quantum meruit Where there was no evidence on which to conduct the exercise Trial court should not give an order That the parties should determine quantum meruit out of court. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

CONTRACTS Revocation Contract that was kept alive by defendant for plaintiff's benefit Should not be revoked without notice to the plaintiff. UDOM V. MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516) 187

CONTRACTS Specific performance Purchase price Where purchase price is not fully paid and purchaser sues for specific performance Right to specific performance cannot be enforced. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

CONTRACTS Time That was originally of the essence of the contract Where waived subsequently Fresh notice to complete work within a stipulated time Would become necessary. UDOM V. MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516) 187

CONVEYANCING Attestation to instrument executed by illiterates By virtue of s. 8 of the Land Instrument Registration Law Exh D3 was properly executed In view of the nature of attestation therein. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

CONVEYANCING Fake document Deed of Lease With attached plan that was drawn 7 years latter Whether a fake document. ISERU V. CATHOLIC BISHOP OF WARRI DIOCESE (1997) 4 KLR (PT 50) 618; (1997) 3 NWLR (PT. 495) 517

CONVEYANCING Family land Conveyance by some individual members of a family When does it become void or voidable. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

CONVEYANCING Fee simple conveyance Cannot be granted Under the State Lands Law or Land Use Act. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

CONVEYANCING Registrable documents Whether a farm cultivation agreement Is subject to registration. OLANREWAJU V. OGUNLEYE (1997) 1 KLR (PT 47) 225; (1997) 2 NWLR (PT. 485) 12

CONVEYANCING Traditional sale of land Under native law and custom Is valid without conveyance or written contracts. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

CONVEYANCING Validity Deed of conveyance Exh. D2 That was made at a time Vendors' title was extinguished by operation of Limitation Law Is void as it conveyed nothing. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

CONVEYANCING Validity Licence Is revocable by the licensor at any time Failure to give notice Would not affect the validity of a proper grant to a 3rd party. KARI V. GANARAM (1997) 2 KLR (PT 48) 391; (1997) 2 NWLR (PT. 488) 380

CONVEYANCING Validity Where a vendor has executed a prior valid conveyance There remains no more right to be transferred to another party. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

CORROBORATION Evidence Where declared unreliable There is nothing to be corroborated in it As to enable it ground appellant's conviction. OBRI V. THE STATE (1997) 7 KLR (PT 53) 1440; (1997) 7 NWLR (PT. 513) 352

KINGS LAW REPORTS COMPREHENSIVE INDEX

COURT PROCESSES Abuse of court's process Notice of discontinuance that is an abuse of process Can be set aside by the Court. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

COURT PROCESSES Fees Chieftaincy matters The fact that the fee enabling one to file action Is increased in this category of cases Does not render the fee unconstitutional. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

COURT PROCESSES Filing of a claim Where statutory provisions are made for filing of a claim The procedure laid down ought to be followed in making such a claim. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

COURT PROCESSES Immunity for persons executing court order Whether appellants who engaged in illegal recovery of possession Can be protected. IHENACHO V. UZOCHUKWU (1997) 1 KLR (PT 47) 241; (1997) 2 NWLR (PT. 487) 257

COURT PROCESSES Oppressive use Inference That a process is being used oppressively May be an issue of fact Or derived from the circumstances of the case. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR (PT. 508) 185

COURT PROCESSES Writ of summons Where served in violation of ss. 97 and 99 of the Sheriffs Act By entering unconditional appearance and filing pleadings Defendant has waived his right to object. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

COURTS Abuse of court's process Plaintiff's action is not an abuse of court's process. ADESOKAN V. ADEGOROLU (1997) 3 KLR (PT 49) 505; (1997) 3 NWLR (PT. 493) 261

COURTS Abuse of court's process Notice of discontinuance that is an abuse of process Can be set aside by the Court. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

COURTS Appeal if successful Courts have the duty to ensure it is not rendered nugatory But the appeal in this case is abnormal. LEKWOT V. JUDICIAL TRIBUNAL (1997) 7 KLR (PT 54) 1904; (1997) 8 NWLR (PT. 515) 22

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

COURTS Bias Findings of trial Court On the credibility of witnesses Where not tainted with bias It should be upheld. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

COURTS Competence of a child to testify SS. 155(1) & 183(1) of the Evidence Act Where trial court causes the child to be sworn On the opinion that the child understands the nature of an oath Preliminary investigation will not be necessary. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

COURTS Computation of damages Agreement between the parties Where found to be Exhibit 2 And there was no evidence of agreement to review It is wrong for court to base computation of damages On a different exhibit. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

COURTS Conclusion of trial court Where supported by evidence Appellate court will not disturb it. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

COURTS Concurrent findings That appellants failed to prove title to land by non of the methods Will not be disturbed by the Supreme Court. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

COURTS Concurrent findings of fact Supported by sufficient evidence Will not be disturbed. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

COURTS Criticism of a higher court's decision By a lower court Though excusable in law The lower court is bound to apply the higher court's decision. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

COURTS Customary courts Where there is abundant evidence in support of area court's findings The judgment would be upheld Upon the principle of placing broad interpretation On customary court's proceedings. ILEDARE V. AJAGBONNA (1997) 6 KLR (PT 52) 1122; (1997) 6 NWLR (PT. 507) 1

COURTS Decision of Court of Appeal Where misconceived but not challenged Remains the settlement of the issue between the parties. KOYA V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

KINGS LAW REPORTS COMPREHENSIVE INDEX

COURTS Delay in proceedings Before the trial court Will not per se warrant appellate court's interference. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

COURTS Denial of fair hearing Where a court decides a case on the evidence of one party alone Ignoring the evidence for the other side There is a denial of fair hearing. BOMOR V. EKIYOR (1997) 7 KLR (PT 54) 1571; (1997) 9 NWLR (PT. 519) 1

COURTS Disbelieving of a party and his witnesses Is proper Where substantiated with reasons. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

COURTS Discontinuance notice Where found to be an abuse of process Court can sustain the notice But on justiciable terms. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

COURTS Enlargement of time To file the record of appeal Court will not entertain questions That will determine the substantive appeal. IKENNA V. BOSAH (1997) 3 KLR (PT 49) 589; (1997) 3 NWLR (PT. 495) 503

COURTS Error in trial court's judgment Not every slip will result in the judgment being upset on appeal. PAN ATLANTIC LTD V. RHEIN MASS GMBH (1997) 3 KLR (PT 49) 577; (1997) 3 NWLR (PT. 493) 248

COURTS Evaluation of evidence Where correctly done by the trial court Whether the case was proved beyond reasonable doubt. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

COURTS Evaluation of evidence Where trial court fails to evaluate evidence adduced before it in the determination of disputes Appellate Court will do so. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

COURTS Evidence - Where trial court fails to evaluate evidence adduced at the trial Appellate court will over rule the decision of the trial court. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

COURTS Exhibit Findings Of trial judge in respect of an exhibit Should not be disregarded by that judge Unto making a wrongful award. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

COURTS Extension of time Cannot be granted by the court To a party that has not prayed for it. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

COURTS Extension of time to appeal Raising of arguable issue of jurisdiction Will make the court take lenient view of the delay in appealing. UKWU V. BUNGE (1997) 7 KLR (PT 53) 1512; (1997) 8 NWLR (PT. 518) 527

COURTS Extraneous matters Trial judge was wrong to consider extraneous matters In arriving to his conclusion. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

COURTS Finding By trial court That respondents admitted possession of the disputed land by the appellants Is perverse. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

COURTS Findings Based on demeanour or credibility of witnesses And those based on evaluation of evidence Attitude of Court of Appeal thereto. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

COURTS Findings of fact Of a trial judge Should not easily be disturbed by appeal court Save where the findings are perverse. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

COURTS Findings of fact Where not supported by the evidence The findings are perverse. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

COURTS Findings of trial area court Appellate high court's interference therewith Is erroneous. HAAV V. KUNDU (1997) 5 KLR (PT 52) 1079; (1997) 5 NWLR (PT. 505) 313

COURTS Findings of trial court on facts Should not be interfered with Unless in certain circumstances. HAAV V. KUNDU (1997) 5 KLR (PT 52) 1079; (1997)

KINGS LAW REPORTS COMPREHENSIVE INDEX

5 NWLR (PT. 505) 313

COURTS Findings of trial court That is not based on the pleadings Will be discountenanced. OVIAWE V. INTEGRATED RUBBER PRODUCTS LTD (1997) 3 KLR (PT 49) 469; (1997) 3 NWLR (PT. 492) 126

COURTS Fresh case Where the local area court is presumed to know the applicable law Formulation of a fresh case by the appellate high court Is wrong. HAAV V. KUNDU (1997) 5 KLR (PT 52) 1079; (1997) 5 NWLR (PT. 505) 313

COURTS Inference That a process is being used oppressively May be an issue of fact Or derived from the circumstances of the case. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR (PT. 508) 185

COURTS Interference Findings of fact should not easily be interfered with by appellate Court Save there is an obvious error. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

COURTS Interference Since the Appellants failed to prove that 1st Appellant was selected in accordance with the prevailing native law The court below was right to interfere with the finding of fact of trial court. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

COURTS Issue That was erroneously not determined by the Court of Appeal Will be considered by the Supreme Court Since it is based on point of law only. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

COURTS Issue Identity of the land in dispute Whether raised as an issue By the parties As found by the trial court SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

COURTS Issues Where the trial court adverted its attention to all properly raised issues Its decision cannot be upset. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

COURTS Issues for determination Appeal Court not to raise issues suo motu Where raised Parties should be heard. LADEPO V. AJANI (1997) 7 KLR (PT

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

54) 1709; (1997) 8 NWLR (PT. 517) 356

COURTS Issues for determination Issues Not raised nor argued by parties Decision of courts cannot be founded on them. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

COURTS Judgments Exhibits Trial court's reason for rejecting Exhibit O Is erroneous Though the error is immaterial As no injustice was occasioned. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

COURTS Judgments Statutory period of 3 months Within which to deliver judgment Was complied with by the trial court In spite of contention that it was delivered 91 days after final address. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

COURTS Judicial division That was newly created without posting any judge Trial of the matter within another judicial division of the same state high court Is not a nullity. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

COURTS Jurisdiction Challenge Where there is challenge to the court's jurisdiction Need to settle the issue Before hearing of the suit. UKWU V. BUNGE (1997) 7 KLR (PT 53) 1512; (1997) 8 NWLR (PT. 518) 527

COURTS Jurisdiction of a high court judge There being only one state high court for Rivers State Whether a judge lacks jurisdiction To continue hearing of same case in another judicial division. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

COURTS Non compliance or defect That goes to the jurisdiction of the Court is a fatal nullity But if it is a mere irregularity The court may ex debito justitiae set it aside. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

COURTS Orders of court Must be confined to the terms of the application As court must maintain a balance And not make a case for either party. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

KINGS LAW REPORTS COMPREHENSIVE INDEX

COURTS Pleadings Fact that was pleaded Whether Court can suo motu Raise implication of that fact Not raised by the parties. EJINDU V. OBI (1997) 1 KLR (PT 47) 113; (1997) 1 NWLR (PT. 484) 505

COURTS Pleadings Failure to plead a particular defence Court must confine itself to pleaded issues Save where there is need to raise a fundamental issue suo motu. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

COURTS Pleadings Relief that was not pleaded Should not be granted to a party Since the court is not a charitable institution. EDEBIRI V. EDEBIRI (1997) 4 KLR (PT 50) 672; (1997) 4 NWLR (PT. 498) 165

COURTS Preliminary investigation Where not carried out before taking a child's evidence under oath And no error was occasioned thereby Concurrent findings of guilt will not be interfered with. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

COURTS Specific claim Setoff claim by the defendant For a specific period Court is without jurisdiction to award what is not claimed. UDOM V. . MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516) 187

COURTS Suo motu issue raised by judge Purpose of pleadings Is not to take the other party by surprise Whether trial judge properly raised an issue That was not pleaded. OVIAWE V. INTEGRATED RUBBER PRODUCTS LTD (1997) 3 KLR (PT 49) 469; (1997) 3 NWLR (PT. 492) 126

COURTS Technicalities Courts would no more allow them make an ass of it and dent the image of justice Appellant that has taking some steps Cannot later complain of defect in the service of the writ. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

COURTS Transfer of a case By one high court judge to another judge Whether erroneous use of the word "referred" Can make the transfer invalid. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

COURTS Witnesses It is trial court's duty to asses witnesses And form impression about their truthfulness. DAKAT V. DASHE (1997) 12 KLR (PT 55) 2053; (1997) 12 NWLR (PT. 531) 46

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

COURTS Witnesses Misconstruing the evidence of a prosecution witness Trial judge misconstrued the evidence of PW5. BRAIDE V. THE STATE (1997) 5 KLR (PT 51) 1059; (1997) 5 NWLR (PT. 504) 141

COURTS Wrongful declaration Land tenure custom of the parties Was wrongfully declared repugnant By the trial judge suo motu. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

CRIMINAL LAW Conviction Evidence Where declared unreliable There is nothing to be corroborated in it As to enable it ground appellant's conviction. OBRI V. THE STATE (1997) 7 KLR (PT 53) 1440; (1997) 7 NWLR (PT. 513) 352

CRIMINAL LAW Ingredients of the offence Burden of proof In criminal matters Is on the prosecution To prove all the essential ingredients of the offence. ALOR V. THE STATE (1997) 4 KLR (PT 51) 790; (1997) 4 NWLR (PT. 501) 511

CRIMINAL LAW Insanity Competence of a witness Where the issue of one's insanity is under consideration He cannot be a competent witness. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

CRIMINAL LAW Insanity Murder Lack of motive Whether on the balance of probabilities Appellant discharged the onus of proving insanity. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

CRIMINAL LAW Insanity Where the pieces of evidence do not amount to a rebuttal of the presumption of sanity Defence of insanity was rightly rejected. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL LAW Insanity Where the defence was not raised by the appellant The issue cannot now be raised on appeal. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL LAW Insanity Whether there was sufficient evidence To prove that appellant was insane At time of the alleged offence. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

KINGS LAW REPORTS COMPREHENSIVE INDEX

CRIMINAL LAW Self defence Force used by the appellant in self defence Whether appellant believed on reasonable grounds That use of that force was the only way to remain alive. BRAIDE V. THE STATE (1997) 5 KLR (PT 51) 1059; (1997) 5 NWLR (PT. 504) 141

CRIMINAL LAW Self defence Murder Where the deceased was the aggressor Who used dangerous weapon in fighting the appellant Appellant's act of stabbing the deceased Is in self defence. BRAIDE V. THE STATE (1997) 5 KLR (PT 51) 1059; (1997) 5 NWLR (PT. 504) 141

CRIMINAL LAW Self defence and provocation Were adequately considered by the lower courts In rightly holding that the defences do not avail the accused. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

CRIMINAL PROCEDURE Accident Whether the defence avails the appellant Unto acquittal in a murder charge. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

CRIMINAL PROCEDURE Acquittal Proof beyond reasonable doubt Where the prosecution fails to discharge this burden Accused is entitled to an acquittal. THE STATE V. DANJUMA (1997) 5 KLR (PT 51) 968; (1997) 5 NWLR (PT. 506) 512

CRIMINAL PROCEDURE Alibi Where raised by the accused Onus of proof is on him. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

CRIMINAL PROCEDURE Charge S. 33(6) of the Constitution Requirement that accused be informed of the charge in a language he understands Was complied with. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL PROCEDURE Circumstantial evidence Though there be no direct evidence against appellant Some aspects of the evidence Sufficiently justified the finding of guilt. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL PROCEDURE Competence of a child to testify SS. 155(1) & 183(1) of the Evidence Act Where trial court causes the child to be sworn On the opinion that the child understands the nature of an oath Preliminary investigation will not be necessary. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

CRIMINAL PROCEDURE Confessional statement Admissibility It does not become inadmissible Merely because the accused denies having made it. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL PROCEDURE Confessional statement That is positive and direct That is not made as a result of any threat or inducement Is relevant and admissible. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL PROCEDURE Contradictions In the evidence for the prosecution Whether properly resolved by the trial court. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

CRIMINAL PROCEDURE Conviction Will only be based on proof beyond reasonable doubt Not on suspicion. ALOR V. THE STATE (1997) 4 KLR (PT 51) 790; (1997) 4 NWLR (PT. 501) 511

CRIMINAL PROCEDURE Conviction Wrongful assessment of

evidence Whether in the face of it Concurrent conviction of

appellant can stand. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

CRIMINAL PROCEDURE Conviction for a lesser offence Where

accused was charged with culpable homicide punishable with death

Whether the lower court properly convicted for a lesser

offence. THE STATE V. DANJUMA (1997) 5 KLR (PT 51) 968; (1997) 5 NWLR (PT. 506) 512

CRIMINAL PROCEDURE Evaluation of evidence Where correctly done by the trial court Whether the case was proved beyond reasonable doubt. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

CRIMINAL PROCEDURE Evidence Accused person's failure to give evidence Whether Court of Appeal's inference therefrom Violated appellant's right under s. 33(11) of the 1979 constitution. GARBA V. THE STATE (1997) 3 KLR (PT 49) 529; (1997) 3 NWLR (PT. 492) 144

CRIMINAL PROCEDURE Evidence Of a prosecution witness Where expunged from the record Whether conviction of appellant can still be sustained. ALOR V. THE STATE (1997) 4 KLR (PT 51) 790; (1997) 4 NWLR (PT.

KINGS LAW REPORTS COMPREHENSIVE INDEX

501) 511

CRIMINAL PROCEDURE Evidence of the accused The inconsistency rule Cannot be extended to the evidence and extra judicial statement of an accused. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

CRIMINAL PROCEDURE Insanity Presumption of sanity Though prosecution made no attempt to contradict the evidence of insanity adduced Appellant succeeded in displacing the presumption of sanity. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

EZEMUOKWE

CRIMINAL PROCEDURE Interpreter Absence of an interpreter May not be determined from the face of the record of proceedings. MADU V. THE STATE (1997) 1 KLR (PT 47) 26; (1997) 1 NWLR (PT. 482) 386

CRIMINAL PROCEDURE Interpreter Denial of right to an interpreter If proved by credible evidence May be tantamount to denial of fair trial. MADU V. THE STATE (1997) 1 KLR (PT 47) 26; (1997) 1 NWLR (PT. 482) 386

CRIMINAL PROCEDURE Interpreter Once the court records the swearing of an interpreter Failure to show the interpreter's presence on subsequent dates Is not fatal. MADU V. THE STATE (1997) 1 KLR (PT 47) 26; (1997) 1 NWLR (PT. 482) 386

CRIMINAL PROCEDURE Language used at the trial Where not understood by accused It is his duty to notify the court. MADU V. THE STATE (1997) 1 KLR (PT 47) 26; (1997) 1 NWLR (PT. 482) 386

CRIMINAL PROCEDURE Murder Insanity Lack of motive Whether on the balance of probabilities Appellant discharged the onus of proving insanity. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

CRIMINAL PROCEDURE Plea Section 215 of the CPL Where there is nothing on the record To indicate that appellant did not know the nature of the offence he was called to defend Whether s. 215 was complied with. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL PROCEDURE Preliminary investigation Where not carried out

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

before taking a child's evidence under oath And no error was occasioned thereby Concurrent findings of guilt will not be interfered with. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

CRIMINAL PROCEDURE Proof Contradictions in prosecution's evidence That raise reasonable doubt Should not ground conviction. THE STATE V. DANJUMA (1997) 5 KLR (PT 51) 968; (1997) 5 NWLR (PT. 506) 512

CRIMINAL PROCEDURE Proof of prosecution's case Whether inferred from the weakness of the defence. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

CRIMINAL PROCEDURE Proof beyond reasonable doubt Whether attained by the prosecution in this case. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

CRIMINAL PROCEDURE Prosecution witnesses Assessment of their evidence Whether it is proper To divide them into official and nonofficial witnesses. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

CRIMINAL PROCEDURE Prosecution witnesses Certainty and unanimity Must be maintained to in order to eliminate contradictions. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

CRIMINAL PROCEDURE Provocation and private defence Where considered and concurrently rejected Supreme Court will not interfere. GARBA V. THE STATE (1997) 3 KLR (PT 49) 529; (1997) 3 NWLR (PT. 492) 144

CRIMINAL PROCEDURE Record of the proceedings Whether s. 33(7) of the 1979 Constitution Was violated. MADU V. THE STATE (1997) 1 KLR (PT 47) 26; (1997) 1 NWLR (PT. 482) 386

CRIMINAL PROCEDURE Robbery Witnesses Evidence of PW 1 about robbery in his house Cannot establish robbery in PW2's house. ALOR V. THE STATE (1997) 4 KLR (PT 51) 790; (1997) 4 NWLR (PT. 501) 511

CRIMINAL PROCEDURE Statement to the Police Exh. 8 Where appellant did not give evidence Trial court may attach greater weight To the incriminating aspect of the confessional statement. GARBA V. THE STATE (1997) 3 KLR (PT

KINGS LAW REPORTS COMPREHENSIVE INDEX

49) 529; (1997) 3 NWLR (PT. 492) 144

CRIMINAL PROCEDURE Statement to the Police Contradiction between it and the testimony in Court Raises a doubt The benefit of which goes to the accused. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

CRIMINAL PROCEDURE Statement of the accused That is extra

judicial Should be considered as a whole by the court With liberty to reject any explanation in the statement. GARBA V. THE STATE (1997) 3 KLR (PT 49) 529; (1997) 3 NWLR (PT. 492) 144

CRIMINAL PROCEDURE Witnesses Contradictions between the sworn

evidence of a witness and his extra judicial statement The court should regard both versions of evidence as unreliable. OBRI V. THE STATE (1997) 7 KLR (PT 53) 1440; (1997) 7 NWLR (PT. 513) 352

CROSS EXAMINATION Absence of Where appellant was not crossexamined on two documents he was not a party to Such document cannot ground the finding of agency. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 193; (1997) 11 NWLR (PT. 529) 467

CROSS EXAMINATION Credibility Where a witness was cross examined But an issue of credibility was not put to him His evidence will remain unshaken. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

CROSS EXAMINATION Credibility of witnesses Proper procedure in drawing court's attention thereto Is vide cross examination. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

CROSS EXAMINATION Purpose thereof Matters in respect of which the witness may be questioned. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

CULPABLE HOMICIDE Conviction for a lesser offence Where accused was charged with culpable homicide punishable with death Whether the lower court properly convicted for a lesser offence. THE STATE V. DANJUMA (1997) 5 KLR (PT 51) 968; (1997) 5 NWLR (PT. 506) 512

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

CUSTOMARY LAW Evidence Interlocutory appeal No evidence to support appellants' assertion Concerning a particular chieftaincy custom. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

CUSTOMARY LAW Repugnancy test Land tenure custom of the parties Was wrongfully declared repugnant By the trial judge suo motu. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

CUSTOMARY LAW Sale of land Essential requirements of a valid sale of land under customary law. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

CUSTOMARY LAW Traditional sale of land Under native law and custom Is valid without conveyance or written contracts. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

CUSTOMARY LAW Yoruba customary marriage 1st respondent stood in loco parentis To the children of her marriage. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

DAMAGES Banking Cheque drawn by a customer If there is enough funds in that account The bank will be liable in damages Where it failed to honour the cheque. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

DAMAGES Contracts Damages for breach of contract Where the amount was neither pleaded no proved No damages will be awarded Though the breach is established. J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) 4 KLR (PT 51) 823; (1997) 5 NWLR (PT. 503) 1

DAMAGES Excessive award Substantial damages Where respondent is entitled to substantial damages For wrongful dishonour of his cheque Excessive award will be reduced by the Supreme Court. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

DAMAGES Exemplary damages Purpose thereof Is to punish defendant and vindicate the strength of the law Three categories under which it may be awarded in actions in tort. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

KINGS LAW REPORTS COMPREHENSIVE INDEX

DAMAGES Exemplary damages Whether recoverable in an action in contract As in this case of a bank wrongfully dishonouring a customer's cheque. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

DAMAGES Mitigation Detention of plaintiff's lorry Where plaintiff is supposed to mitigate his damages on loss of use Period of 3 months is enough within which to replace the lorry He can only recover damages for 3 months and not the 5 years in issue. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

DAMAGES Mitigation Plaintiff is expected to take all reasonable steps Towards mitigating damages accruing from a wrong He cannot recover any damage that could have been avoided. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

DAMAGES Remitting case to trial court For the award of damages Is unnecessary in this case. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

DAMAGES Reversing the awarded damages Whether circumstances exist To warrant Supreme Court's interference. IHENACHO V. UZOCHUKWU (1997) 1 KLR (PT 47) 241; (1997) 2 NWLR (PT. 487) 257

DAMAGES Setting aside of Detinue Where the action in detinue cannot be maintained N10,000.00 damages awarded will be set aside. J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) 4 KLR (PT 51) 823; (1997) 5 NWLR (PT. 503) 1

DAMAGES Special damages Cross Appeal for special damages Was wrongfully not considered by the Court of Appeal Though the crossappeal is allowed Crossappellant can only recover part of the damages. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

DAMAGES Special damages Must be proved by credible evidence Claim for loss of use of a vehicle over a long period time Onus of proof is not discharged Where commercial life span of the vehicle may be very short. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

DAMAGES Special damages Plaintiff's failure to prove trespass against

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

defendant Makes it unnecessary for trial court to consider plaintiff's evidence on special damages. DAKAT V. DASHE (1997) 12 KLR (PT 55) 2053; (1997) 12 NWLR (PT. 531) 46

DAMAGES Special damages Where not established The award will be set aside. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

DAMAGES Substantial damages Banking Cheques Wrongful dishonour of a customer's cheque Amounts to a breach of contract Which entitles a trading customer to substantial damages Though actual damage was neither pleaded nor proved. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

DECLARATIONS Declaratory judgment Much discretion is required And must be granted judiciously having regards to the facts and equity of the case. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

DECLARATIONS Declaratory reliefs Where the hard facts are uncontradicted and appellant behaved without equity Court will be on the side of truth and law in support of the case. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

DOCUMENTS Admissibility Documents that go to support relevant averments in the pleadings Are relevant and admissible. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

DOCUMENTS Averment in pleading Where there is no averment connecting Exhibit A with H Exhibit H has no significance. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

DOCUMENTS Cross examination Where appellant was not crossexamined on two documents he was not a party to Such document cannot ground the finding of agency. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

DOCUMENTS Exhibit Admissibility of previous judgment Exh. D Where the Exhibit was not tendered for purpose of estoppel It need not be pleaded If it is sought to be used in proving any other pleaded fact. EGBARAN V. AKPOTOR

KINGS LAW REPORTS COMPREHENSIVE INDEX

(1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

DOCUMENTS Incorporation by reference principle Will be applied Where the document clearly shows That some other evidence must have been contemplated. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

DOCUMENTS Land law Registrable documents Whether a farm cultivation agreement Is subject to registration. OLANREWAJU V. OGUNLEYE (1997) 1 KLR (PT 47) 225; (1997) 2 NWLR (PT. 485) 12

DOCUMENTS Pleadings Documentary evidence Where the document or fact pertaining thereto was not pleaded The exhibit will not be acted upon. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

DOCUMENTS Pleadings Execution of some documents Issue of whether done by family head or all sections of the family Cannot be raised as it was not pleaded. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

DOCUMENTS Relevant documents pleaded in paragraphs other than the one that was struck out Should attract court's consideration For a fair determination of the main issues. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

DOCUMENTS Reliance thereon Document not tendered as exhibit Being a plan that was amended Contained in the case file Whether the court can make use of it. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

DOCUMENTS Survey plan Identity of land in dispute Plaintiff may rely on survey plan made by PW2 To prove the identity. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

DOCUMENTS Title documents Voidable sale of family land When the sale is declared void The transaction becomes void And purchaser's documents of title will lack legal effect. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

DOCUMENTS Void document Partition of family land vide Exh. p4 Without the consent of the head and principal family members Is void together with any document emanating therefrom. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

EQUITY Declaratory judgment Much discretion is required And must be granted judiciously having regards to the facts and equity of the case. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

EQUITY Declaratory reliefs Where the hard facts are uncontradicted and appellant behaved without equity Court will be on the side of truth and law in support of the case. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

EQUITY Estoppel Can only be raised on appeal If it was pleaded before trial court. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

EQUITY Estoppel Illegality No estoppel can be allowed To stop a party from bringing statutory illegality to court's notice. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

EQUITY Estoppel Where respondent made no representation It cannot be accused of going back on any conduct. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

EQUITY Estoppel Whether there is any conduct from the respondent That has misdirected the appellants unto detriment To justify the plea of equitable estoppel. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

EQUITY Laches and acquiescence And statute of Limitation defences Cannot avail the respondent In view of the appellants' pleading and evidence. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

EQUITY Lis pendens doctrine Will only affect a purchaser who buys subject matter during pendency of litigation The doctrine is not applicable in this case. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

KINGS LAW REPORTS COMPREHENSIVE INDEX

EQUITY Prior right on land Party who was fixed with notice of another's prior right but chose to ignore it Cannot be availed by equity. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

ESTOPPEL Adopting a procedure Appeals Where a party has adopted a procedure by consent He will not be heard to say that the procedure was prejudicial to him. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

ESTOPPEL Equitable estoppel Whether there is any conduct from the respondent That has misdirected the appellants unto detriment To justify the plea of equitable estoppel. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

ESTOPPEL Issue estoppel Whether exhibits C and E Were properly treated as raising issue estoppel By the court below. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

ESTOPPEL Illegality No estoppel can be allowed To stop a party from bringing statutory illegality to court's notice. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

ESTOPPEL Pleadings - Can only be raised on appeal If it was pleaded before trial court. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

ESTOPPEL Res judicata Land dispute Whether the previous judgment by a native court Exhibit 4 Created an estoppel per rem judicatam. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

ESTOPPEL Res judicata Will not apply to affect a person not a party to an action Unless he is a privy. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

EVIDENCE Admission Identity of the land Mere admission by defendant that he knows the land Cannot cure plaintiff's failure to prove the identity. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

EVIDENCE Admission Land matter Whether there are conclusive admissions Against the trial Court's findings That the parties belong to separate families. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

EVIDENCE Admission Unchallenged and uncontradicted evidence Should be admitted. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

EVIDENCE Affidavits Conflict on crucial aspect thereof Cannot be cured by the addresses of counsel. EBOHON V. AG EDO STATE (1997) 5 KLR (PT 51) 1023; (1997) 5 NWLR (PT. 505) 298

EVIDENCE Affidavits Conflicts On the fundamental issue of jurisdiction Court is to hear evidence on the conflicts. EBOHON V. AG EDO STATE (1997) 5 KLR (PT 51) 1023; (1997) 5 NWLR (PT. 505) 298

EVIDENCE Assessment of Conviction Wrongful assessment of evidence Whether in the face of it Concurrent conviction of appellant can stand. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

EVIDENCE Burden of proof Boundary Finding of lower courts thereon Raises presumption of ownership in plaintiffs' favour And the burden shifts to defendants to show how they came to own the land. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

EVIDENCE Burden of proof Burden of proving a particular fact\ Is on the party who asserts. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

EVIDENCE Burden of proof In a case for declaration of title Was discharged by the plaintiffs. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

EVIDENCE Burden of proof In civil cases The onus of proving particular facts is fixed by the pleadings Onus of adducing further evidence Is on the person who will fail. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

KINGS LAW REPORTS COMPREHENSIVE INDEX

EVIDENCE Burden of proof In criminal matters Is on the prosecution To prove all the essential ingredients of the offence. ALOR V. THE STATE (1997) 4 KLR (PT 51) 790; (1997) 4 NWLR (PT. 501) 511

EVIDENCE Burden of proof Title to land Plaintiff must succeed on the strength of his own case Where defendant's case supports plaintiff's case Court cannot ignore it in deciding which side to believe. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

EVIDENCE Burden of proof Title to land Where a party has established title through an agreed original owner Substantial burden placed on the other party Can only be discharged by establishing a better possession To oust that of the original owner. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

EVIDENCE Burden of proof Trespass The onus is on plaintiff to prove exclusive possession of the farm land. DAKAT V. DASHE (1997) 12 KLR (PT 55) 2053; (1997) 12 NWLR (PT. 531) 46

EVIDENCE Chieftaincy custom Interlocutory appeal No evidence to support appellants' assertion Concerning a particular chieftaincy custom. GOV. ANAMBRA STATE V. EZEMUOKWE (1997) 3 KLR (PT 49) 561; (1997) 3 NWLR (PT. 494) 374

EVIDENCE Circumstantial evidence That is overwhelming and leads to no other conclusion Leaves no room for acquittal. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

EVIDENCE Circumstantial evidence Though there be no direct evidence against appellant Some aspects of the evidence Sufficiently justified the finding of guilt. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

EVIDENCE Competence of a witness Insanity Where the issue of one's insanity is under consideration He cannot be a competent witness. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

EVIDENCE Competence Of a child to testify, ss. 155(1) & 183(1) of the Evidence Act Where trial court causes the child to be sworn On the opinion that the child understands the nature of an oath Preliminary investigation will

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

not be necessary. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

EVIDENCE Conclusiveness Title Traditional evidence Whether respondents evidence of tradition Was rightly accepted as conclusive. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

EVIDENCE Confessional statement Admissibility It does not become inadmissible Merely because the accused denies having made it. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

EVIDENCE Confessional statement That is positive and direct That is not made as a result of any threat or inducement Is relevant and admissible. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

EVIDENCE Conflicting traditional history Where the traditional history of one of the parties is ex facie discredited The principle in Kojo II v. Bonsie need not be applied. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

EVIDENCE Contradiction Where no doubt or contradiction was created Nothing will be resolved in the appellant's favour. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

EVIDENCE Contradiction Identity of land Ascribing different names to same land May not be fatal But contradictory evidence by plaintiffs' witnesses on the location Will defeat the claim. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

EVIDENCE Contradictions In the evidence for the prosecution Whether properly resolved by the trial court. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

EVIDENCE Contradictions Prosecution evidence Believed by the trial Judge Whether full of material contradictions. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

EVIDENCE Contradictions In evidence of the prosecution Whether material. THE STATE V. DANJUMA (1997) 5 KLR (PT 51) 968; (1997) 5 NWLR (PT. 506) 512

KINGS LAW REPORTS COMPREHENSIVE INDEX

EVIDENCE Corroboration Where declared unreliable There is nothing to be corroborated in it As to enable it ground appellant's conviction. OBRI V. THE STATE (1997) 7 KLR (PT 53) 1440; (1997) 7 NWLR (PT. 513) 352

EVIDENCE Credibility of witnesses Proper procedure in drawing court's attention thereto Is vide cross examination. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

EVIDENCE Criminal procedure Proof beyond reasonable doubt Whether attained by the prosecution in this case. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

EVIDENCE Cross examination Purpose thereof Matters in respect of which the witness may be questioned. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

EVIDENCE Crossexamination Where appellant was not crossexamined on two documents he was not a party to Such document cannot ground the finding of agency. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

EVIDENCE Cross examination Where a witness was cross examined But an issue of credibility was not put to him His evidence will remain unshaken. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

EVIDENCE Document Where there is no averment connecting Exhibit A with H Exhibit H has no significance. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

EVIDENCE Document Not tendered as exhibit Being a plan that was amended Contained in the case file Whether the court can make use of it. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

EVIDENCE Documents Incorporation by reference principle Will be applied Where the document clearly shows That some other evidence must have been contemplated. IWUOHA V. NIGERIA RAILWAY CORPORATION (1997) 4 KLR (PT 50) 601; (1997) 4 NWLR (PT. 500) 419

EVIDENCE Evaluation Identity of land in dispute Evaluation of evidence thereto Must be thorough. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

54) 1584; (1997) 10 NWLR (PT. 525) 358

EVIDENCE Evaluation Where trial court fails to evaluate evidence adduced at the trial Appellate court will over rule the decision of the trial court. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

EVIDENCE Evaluation of evidence Where correctly done by the trial court Whether the case was proved beyond reasonable doubt. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

EVIDENCE Evaluation of evidence Where trial court fails to evaluate evidence adduced before it in the determination of disputes Appellate Court will do so. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

EVIDENCE Exhibit Admissibility of previous judgment Exh. D Where the Exhibit was not tendered for purpose of estoppel It need not be pleaded If it is sought to be used in proving any other pleaded fact. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

EVIDENCE Exhibit Findings Of trial judge in respect of an exhibit Should not be disregarded by that judge Unto making a wrongful award. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

EVIDENCE Exhibit That was properly admitted It is not open to appellants to impeach the exhibit. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

EVIDENCE Expunged evidence Evidence of a prosecution witness Where expunged from the record Whether conviction of appellant can still be sustained. ALOR V. THE STATE (1997) 4 KLR (PT 51) 790; (1997) 4 NWLR (PT. 501) 511

EVIDENCE Failure to give evidence By the accused person Whether Court of Appeal's inference therefrom Violated appellant's right under s. 33(11) of the 1979 constitution. GARBA V. THE STATE (1997) 3 KLR (PT 49) 529; (1997) 3 NWLR (PT. 492) 144

EVIDENCE Statement to the Police Exh. 8 Where appellant did not give

KINGS LAW REPORTS COMPREHENSIVE INDEX

evidence Trial court may attach greater weight To the incriminating aspect of the confessional statement. GARBA V. THE STATE (1997) 3 KLR (PT 49) 529; (1997) 3 NWLR (PT. 492) 144

EVIDENCE Findings Based on demeanour or credibility of witnesses And those based on evaluation of evidence Attitude of Court of Appeal thereto. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

EVIDENCE Findings of fact Where not supported by the evidence The findings are perverse. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

EVIDENCE Hearsay Company being a juristic person Can give evidence of a transaction vide its servant That did not take part in the transaction And the evidence will not be hearsay. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

EVIDENCE Inconsistency rule Evidence of the accused The inconsistency rule Cannot be extended to the evidence and extra judicial statement of an accused. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

EVIDENCE Insanity Competence of a witness Where the issue of one's insanity is under consideration He cannot be a competent witness. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

EVIDENCE Insanity Presumption of sanity Though prosecution made no attempt to contradict the evidence of insanity adduced Appellant succeeded in displacing the presumption of sanity. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

EVIDENCE Interference Evaluation of evidence by trial Court Findings not borne out of the Evidence Court of Appeal's intervention is proper. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

EVIDENCE Islamic law Pious and trustworthy evidence Was rightly relied upon By trial court In entering judgment for the respondent USMAN V. KUSFA (1997) 1 KLR (PT 47) 179; (1997) 1 NWLR (PT. 483) 525

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

EVIDENCE Issue Where defendants have not joined issue with plaintiffs Minimum evidence on that issue would suffice. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

EVIDENCE Issue estoppel Whether exhibits C and E Were properly treated as raising issue estoppel By the court below. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

EVIDENCE Land law Presumption under S. 146 of the Evidence Act As to person in possession being presumed owner Cannot arise where plaintiff proved his title to the land in dispute. ILEDARE V. AJAGBONNA (1997) 6 KLR (PT 52) 1122; (1997) 6 NWLR (PT. 507) 1

EVIDENCE Land law Traditional evidence Conflict therein Cannot be resolved by trial judge believing the evidence of one party or the other. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

EVIDENCE Locus in quo Necessity of Where the identity of the land in dispute is not in controversy Visit to locus is not necessary. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

EVIDENCE Onus of proof Declaration of title Plaintiff is to establish the title he is claiming He cannot rely on the weakness of defendant's case. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

EVIDENCE Onus of proof Marine Insurance Policy Onus of proving that the vessel sailed from the stipulated port Rests upon the party making a claim. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

EVIDENCE Particulars Where a party refuses to give particulars of evidence Which he proposes to call at the trial Trial court cannot force him. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

EVIDENCE Pleadings Evidence that is at variance with the averments in the pleadings Goes to no issue and should be disregarded by the court. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

EVIDENCE Pleadings Evidence on an issue that was not pleaded Goes to

KINGS LAW REPORTS COMPREHENSIVE INDEX

no issue. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

EVIDENCE Pleadings Evidence that is at variance with the pleadings Must be disregarded As it goes to no issue. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

EVIDENCE Pleadings Evidence that is inconsistent with pleadings Though already admitted inadvertently Will be disregarded. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

EVIDENCE Pleadings Documentary evidence Where the document or fact pertaining thereto was not pleaded The exhibit will not be acted upon. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

EVIDENCE Pleadings Failure to plead a fact Evidence in support of plaintiff's claim Where not pleaded Goes to no issue. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

EVIDENCE Presumption of ownership under s. 146 Evidence Act Whether it arose in this case As to shift onus of proof away from the appellant. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

EVIDENCE Proof beyond reasonable doubt Conviction will only be based on proof beyond reasonable doubt Not on suspicion. ALOR V. THE STATE (1997) 4 KLR (PT 51) 790; (1997) 4 NWLR (PT. 501) 511

EVIDENCE Proof beyond reasonable doubt Where the prosecution fails to discharge this burden Accused is entitled to an acquittal. THE STATE V. DANJUMA (1997) 5 KLR (PT 51) 968; (1997) 5 NWLR (PT. 506) 512

EVIDENCE Proof Averments Where not proved by evidence Are useless And may be deemed abandoned. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

EVIDENCE Proof Communal claim to land Onus lies on each side To prove their assertion concerning the land in dispute. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

EVIDENCE Proof Criminal procedure Contradictions in prosecution's evidence That raise reasonable doubt Should not ground conviction. THE STATE V. DANJUMA (1997) 5 KLR (PT 51) 968; (1997) 5 NWLR (PT. 506) 512

EVIDENCE Proof Identity of land in dispute Plaintiff may rely on survey plan made by PW2 To prove the identity. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

EVIDENCE Proof Insanity Murder Lack of motive Whether on the balance of probabilities Appellant discharged the onus of proving insanity. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

EVIDENCE Proof Insanity Whether there was sufficient evidence To prove that appellant was insane At time of the alleged offence. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

EVIDENCE Proof Marine Insurance Policy Alteration of port of departure Burden of proof is on the respondent Who can rely on the appellant's evidence to that effect. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

EVIDENCE Proof Ownership of land Assertion of exclusive ownership by an individual As against the community's claim to communal ownership Onus of proof is on that individual. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

EVIDENCE Proof Possession Previous proceedings Exhibit "D" Was rightly treated by the lower courts As evidence of acts of possession. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

EVIDENCE Proof Since the Appellants failed to prove that 1st Appellant was selected in accordance with the prevailing native law The court below was right to interfere with the finding of fact of trial court. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

EVIDENCE Proof Special damages Must be proved by credible evidence Claim for loss of use of a vehicle over a long period time Onus of proof is not discharged Where commercial life span of the vehicle may be very short.

KINGS LAW REPORTS COMPREHENSIVE INDEX

OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

EVIDENCE Proof Title Burden on appellants Cannot be discharged By alleging that their ancestors' graves and shrines were on the land Without proving the averment by evidence. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

EVIDENCE Proof Title Failure to prove title and possession Appellants will not be entitled to damages for trespass or injunction. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

EVIDENCE Proof Title Once radical title has been proved Acts of possession and ownership need not be considered. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

EVIDENCE Proof Title Reliance on two methods in seeking to prove title Failure to prove any of the methods Will lead to dismissal of the claim. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

EVIDENCE Proof Title to land Concurrent findings that appellants failed to prove title by non of the methods Will not be disturbed by the Supreme Court. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

EVIDENCE Proof Title to land Five ways of proving title Declaration can be founded upon proof of one of the ways. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

EVIDENCE Proof Title to land Reliance on Native Court Suit Failed to establish appellants' claim of ownership. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

EVIDENCE Proof of plaintiff's title Cannot be attained by virtue of a mistake Nor even by an admission in defendants' pleadings Since plaintiff must rely on the strength of his case. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

EVIDENCE Proof of title Sufficiency Failure to plead root of title Is fatal As production of title documents per se Is not sufficient proof of title. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

EVIDENCE Proof of prosecution's case Whether inferred from the weakness of the defence. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

EVIDENCE Rebuttal Insanity Where the pieces of evidence do not amount to a rebuttal of the presumption of sanity Defence of insanity was rightly rejected. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

EVIDENCE Rebuttal Where Plaintiff adduces evidence which establishes his case and the defendant fails to rebut it The plaintiff will be entitled to judgment. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

EVIDENCE Rejection of evidence Will only be a ground for reversing a decision If it occasioned a miscarriage of justice. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

EVIDENCE Relevant facts Documents that go to support relevant averments in the pleadings Are relevant and admissible. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

EVIDENCE Retrial Improper consideration of evidence by trial court And where plaintiffs' case has not failed in toto Retrial will be ordered. OKONKWO V. UDOH (1997) 7 KLR (PT 54) 1722; (1997) 9 NWLR (PT. 519) 16

EVIDENCE Root of title Where plaintiff proved his root of title And appellant was not shown to be in possession S. 146 of the Evidence Act will not be applied in appellant's favour. ILEDARE V. AJAGBONNA (1997) 6 KLR (PT 52) 1122; (1997) 6 NWLR (PT. 507) 1

EVIDENCE Sections 46&146 Evidence Act Finding that all the land in boundary to the one in dispute Belong to the respondents SS. 46 & 146 Evidence Act were rightly applied. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

EVIDENCE Statement of the accused That is extra judicial Should be considered as a whole by the court With liberty to reject any explanation in the statement. GARBA V. THE STATE (1997) 3 KLR (PT 49) 529; (1997) 3 NWLR (PT. 492) 144

EVIDENCE Statement to the Police Contradiction between it and the testimony

KINGS LAW REPORTS COMPREHENSIVE INDEX

in Court Raises a doubt The benefit of which goes to the accused. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

EVIDENCE Title Burden of proof Both lower court's having erroneously placed burden of proof on the defendants Their concurrent findings will be set aside as being perverse. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

EVIDENCE Title Ownership of connected land s. 46 Evidence Act Was rightly relied upon by the lower courts In finding for the respondents. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

EVIDENCE Traditional histories Conflict therein Court is to test the two stories by reference to acts in recent times. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

EVIDENCE Traditional evidence Rejection of plaintiffs' traditional evidence by the lower courts Are perverse concurrent findings. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

EVIDENCE Unchallenged evidence Should be accepted by the court As proof of the fact or issue in question. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

EVIDENCE Unchallenged evidence Where appellants' evidence was not challenged Judgment should have been entered for him. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

EVIDENCE Witnesses Contradictions between the sworn evidence of a witness and his extra judicial statement The court should regard both versions of evidence as unreliable. OBRI V. THE STATE (1997) 7 KLR (PT 53) 1440; (1997) 7 NWLR (PT. 513) 352

EVIDENCE Witnesses Disbelieving of a party and his witnesses Is proper Where substantiated with reasons. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

EVIDENCE Witnesses Evidence of PW 1 about robbery in his house Cannot establish robbery in PW2's house. ALOR V. THE STATE (1997) 4 KLR (PT 51)

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

790; (1997) 4 NWLR (PT. 501) 511

EVIDENCE Witnesses It is trial court's duty to asses witnesses And form impression about their truthfulness. DAKAT V. DASHE (1997) 12 KLR (PT 55) 2053; (1997) 12 NWLR (PT. 531) 46

EVIDENCE Witnesses Misconstruing the evidence of a prosecution witness Trial judge misconstrued the evidence of PW5. BRAIDE V. THE STATE (1997) 5 KLR (PT 51) 1059; (1997) 5 NWLR (PT. 504) 141

EVIDENCE Witnesses for prosecution Assessment of their evidence Whether it is proper To divide them into official and nonofficial witnesses. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

EVIDENCE Witnesses for prosecution Certainty and unanimity Must be maintained to in order to eliminate contradictions. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

EVIDENCE Wrongful rejection of Exhibit Trial court's reason for rejecting Exhibit O Is erroneous Though the error is immaterial As no injustice was occasioned. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

FAIR HEARING Chieftaincy matters Withdrawal of the chief's recognition Whether implemented without fair hearing. GOVERNOR IMO STATE V. NWAUWA (1997) 2 KLR (PT 48) 327; (1997) 2 NWLR (PT. 490) 675

FAIR HEARING Denial of Survey plan That was not tendered as exhibit Referred to by the lower court Fair hearing was not denied thereby. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

FAIR HEARING Denial Where a court decides a case on the evidence of one party alone Ignoring the evidence for the other side There is a denial of fair hearing. BOMOR V. EKIYOR (1997) 7 KLR (PT 54) 1571; (1997) 9 NWLR (PT. 519) 1

INJUNCTIONS Trespass and injunction claims Can only be maintained by person in possession Act sufficient to ground possession Is a question of fact. LADEPO V. AJANI (1997) 7 KLR (PT 54) 1709; (1997) 8 NWLR (PT. 517) 356

KINGS LAW REPORTS COMPREHENSIVE INDEX

INJUNCTIONS Trespass & injunction Documents of both parties Where found to be defective The appellant that has been in exclusive possession Is entitled to judgment in trespass and injunction. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

INSURANCE Claim as per contract of Insurance Whether proved by the appellant. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

INSURANCE Marine Insurance Policy Alteration of port of departure Burden of proof is on the respondent Who can rely on the appellant's evidence to that effect. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

INSURANCE Marine Insurance Policy Stipulated port of loading Where the vessel sailed from a different port Whether appellant can recover the sum insured. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

INSURANCE Onus of proof Marine Insurance Policy Onus of proving that the vessel sailed from the stipulated port Rests upon the party making a claim. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

INSURANCE Pleadings Marine Insurance Policy Allegation that the vessel did not sail from the stipulated port Whether pleaded. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

INSURANCE Privity of contract Where the insurance company will pay for repair of damaged vehicle Whether there is privity of contract Between the owner of the car and the repairer. J.E. OSHEVIRE LTD V. TRIPOLI MOTORS (1997) 4 KLR (PT 51) 823; (1997) 5 NWLR (PT. 503) 1

INTERNATIONAL LAW Adherence International agreements That are not in conflict with our fundamental law Shall continue to be enforced in Nigeria. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

INTERNATIONAL LAW Carriage by air Order 1953 Made while Nigeria was a British Colony Whether the Order is an existing and applicable law in Nigeria. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

INTERNATIONAL LAW Foreign currency Whether a Nigerian court can give judgment in foreign currency Is an issue of discretion That need not be determined being merely academic in this case. KOYA V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

INTERNATIONAL LAW Implied repeal An important international Warsaw Convention That Nigeria is still taking advantage of Cannot be said to be impliedly repealed. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

INTERNATIONAL LAW Warsaw Convention Whether Nigeria is a party to the Convention. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

INTERPRETATION OF STATUTES Ambiguity Administration of Estate Law 1973 In view of the definition part Whether there is any ambiguity in ss. 2,3 and 4 of that statute. UGU V. TABI (1997) 7 KLR (PT 53) 1547; (1997) 7 NWLR (PT. 513) 368

INTERPRETATION OF STATUTES `Condition precedent' Employed in the interpretation of a chieftaincy law Is different in meaning from the word `condition'. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

INTERPRETATION OF STATUTES Construction The rule of construction of statutes Is that they should be construed according to the intent of the legislature that promulgated them. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

ISLAMIC LAW Evidence found to be more pious and trustworthy Was rightly relied upon By trial court In entering judgment for the respondent USMAN V. KUSFA (1997) 1 KLR (PT 47) 179; (1997) 1 NWLR (PT. 483) 525

JUDGMENTS Academic issue Foreign currency Whether a Nigerian court can give judgment in foreign currency Is an issue of discretion That need not

KINGS LAW REPORTS COMPREHENSIVE INDEX

be determined being merely academic in this case. KOYA V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

JUDGMENTS Appeals Conclusion of trial court Where supported by evidence Appellate court will not disturb it. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

JUDGMENTS Appeals Concurrent findings That are perverse and erroneous Will be set aside. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

JUDGMENTS Appeals Delivery of judgment Whether all the three Justices of the Court of Appeal That heard an appeal Must be present at the delivery of the judgment. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

JUDGMENTS Appeals Error in judgment It is not every error in judgment that will result in the appeal being allowed It is only when the error is substantial and has occasioned a miscarriage of justice That an appeal court is bound to interfere. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

JUDGMENTS Appeals Error in judgment Must be substantial To warrant appellate court's interference. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

JUDGMENTS Appeals Finding of fact Where not based on demeanour or credibility of witnesses Appellate Court is entitled to more readily form an independent opinion. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

JUDGMENTS Appeals Findings of fact That are based on demeanour or credibility of witnesses Where not perverse Appellate court should not come to a different conclusion. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

JUDGMENTS Appeals Inference Drawing inference from facts Where proper The appellate court is free to do so. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

JUDGMENTS Appeals Issue that was properly raised Court of Appeal misdirected itself In holding that the issue was not subject of any ground of appeal. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

JUDGMENTS Appeals Pronounced opinion of a member of the panel Who has ceased to be a Justice of the Court of Appeal on the date of judgment Is not a nullity. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

JUDGMENTS Bias Findings of trial Court On the credibility of witnesses Where not tainted with bias It should be upheld. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

JUDGMENTS Boundary Plaintiffs having established the area of the peninsula in dispute Court of Appeal erroneously dismissed their claims. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

JUDGMENTS Circumstantial evidence That is overwhelming and leads to no other conclusion Leaves no room for acquittal. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

JUDGMENTS Circumstantial evidence Though there be no direct evidence against appellant Some aspects of the evidence Sufficiently justified the finding of guilt. PETER V. THE STATE (1997) 12 KLR (PT 55) 1999

JUDGMENTS Concurrent findings of fact Supported by sufficient evidence Will not be disturbed. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

JUDGMENTS Crossappeal for special damages Was wrongfully not considered by the Court of Appeal Though the crossappeal is allowed Crossappellant can only recover part of the damages. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

JUDGMENTS Customary courts Where there is abundant evidence in support of area court's findings The judgment would be upheld Upon the principle of placing broad interpretation On customary court's proceedings.

KINGS LAW REPORTS COMPREHENSIVE INDEX

ILEDARE V. AJAGBONNA (1997) 6 KLR (PT 52) 1122; (1997) 6 NWLR (PT. 507) 1

JUDGMENTS Declaratory reliefs Where the hard facts are uncontradicted and appellant behaved without equity Court will be on the side of truth and law in support of the case. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

JUDGMENTS Declaratory judgment Much discretion is required And must be granted judiciously having regards to the facts and equity of the case. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

JUDGMENTS Default judgment Averred defence to the claim Which has been preliminarily determined Cannot be a reason for not being indebted. PAN ATLANTIC LTD V. RHEIN MASS GMBH (1997) 3 KLR (PT 49) 577; (1997) 3 NWLR (PT. 493) 248

JUDGMENTS Default judgment Statement of defence that disclosed no defence Can entitle plaintiff to summary judgment. PAN ATLANTIC LTD V. RHEIN MASS GMBH (1997) 3 KLR (PT 49) 577; (1997) 3 NWLR (PT. 493) 248

JUDGMENTS Dismissal of appeal By the Court of Appeal Without looking at the counteraffidavit filed that morning Is in breach of audi alteram partem rule. BOMOR V. EKIYOR (1997) 7 KLR (PT 54) 1571; (1997) 9 NWLR (PT. 519) 1

JUDGMENTS Error in trial court's judgment Not every slip will result in the judgment being upset on appeal. PAN ATLANTIC LTD V. RHEIN MASS GMBH (1997) 3 KLR (PT 49) 577; (1997) 3 NWLR (PT. 493) 248

JUDGMENTS Evaluation of evidence Where trial court fails to evaluate evidence adduced before it in the determination of disputes Appellate Court will do so. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

JUDGMENTS Evaluation of evidence Where trial court fails to evaluate evidence adduced at the trial Appellate court will over rule the decision of the trial court. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

JUDGMENTS Exhibits Trial court's reason for rejecting Exhibit O Is erroneous Though the error is immaterial As no injustice was occasioned. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

JUDGMENTS Extraneous matters Trial judge was wrong to consider extraneous matters In arriving to his conclusion. MOHAMMED V. THE STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

JUDGMENTS Findings Of trial judge in respect of an exhibit Should not be disregarded by that judge Unto making a wrongful award. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

JUDGMENTS Findings of fact Where not supported by the evidence The findings are perverse. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

JUDGMENTS Foreign currency Whether a Nigerian court can give judgment in foreign currency Is an issue of discretion That need not be determined being merely academic in this case. KOYA V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

JUDGMENTS Functus officio Ones an issue has been determined The judge becomes functus officio after the judgment And cannot reopen the matter. J.A.S. & CO. LTD V. NAT. CEREALS RES. INST. (1997) 2 KLR (PT 48) 441; (1997) 3 NWLR (PT. 491) 1

JUDGMENTS Interference Findings of fact should not easily be interfered with by appellate Court Save there is an obvious error. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

JUDGMENTS Issues Where the trial court adverted its attention to all properly raised issues Its decision cannot be upset. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

JUDGMENTS Issues for determination Issues Not raised nor argued by parties Decision of courts cannot be founded on them. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

KINGS LAW REPORTS COMPREHENSIVE INDEX

JUDGMENTS Miscarriage of justice To reach a conclusion that a miscarriage of justice has taken place It does not require a finding that a different result would have been reached. OKONKWO V. UDOH (1997) 7 KLR (PT 54) 1722; (1997) 9 NWLR (PT. 519) 16

JUDGMENTS Misdirection That did not occasion miscarriage of justice Is immaterial. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

JUDGMENTS Nullity of Written judgment of retired justice of Court of Appeal Delivered after such retirement Is a nullity. ADESOKAN V. ADEGOROLU (1997) 3 KLR (PT 49) 505; (1997) 3 NWLR (PT. 493) 261

JUDGMENTS Possession Abandonment of possession of ownership by plaintiffs on hearing that government had acquired the land Cannot be the case in this matter As wrongly held by the Court of Appeal. LADEPO V. AJANI (1997) 7 KLR (PT 54) 1709; (1997) 8 NWLR (PT. 517) 356

JUDGMENTS Possession Survey pillars alteration by the defendants Where some plaintiffs' pillars are still buried on the land Trial court was right in finding possession in favour of plaintiffs. LADEPO V. AJANI (1997) 7 KLR (PT 54) 1709; (1997) 8 NWLR (PT. 517) 356

JUDGMENTS Rebuttal Where Plaintiff adduces evidence which establishes his case and the defendant fails to rebut it The plaintiff will be entitled to judgment. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

JUDGMENTS Reliefs not claimed Where no appropriate relief was claimed The trial court cannot make any award. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

JUDGMENTS Retired Justice's opinion Pronounced opinion of a retired Court of Appeal justice Is proper and valid. ADESOKAN V. ADEGOROLU (1997) 3 KLR (PT 49) 505; (1997) 3 NWLR (PT. 493) 261

JUDGMENTS Reversal Error of lower court Will not ground a reversal Unless the error affected the decision crucially. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

JUDGMENTS Self defence and provocation Were adequately considered by the lower courts In rightly holding that the defences do not avail the accused. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

JUDGMENTS Statutory period of 3 months Within which to deliver judgment Was complied with by the trial court In spite of contention that it was delivered 91 days after final address. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

JUDGMENTS Supreme Court Previous decision of the Supreme Court In Murmansk's case On the issue of limitation period Is binding on the Supreme Court. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

JUDGMENTS Supreme Court Previous decisions That are not in conflict with later decisions Will not be overruled. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

JUDGMENTS Trespass & injunction Documents of both parties Where found to be defective The appellant that has been in exclusive possession Is entitled to judgment in trespass and injunction. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

JUDGMENTS Unchallenged Decision of Court of Appeal Where misconceived but not challenged Remains the settlement of the issue between the parties. KOYA V. UBA LTD (1997) 1 KLR (PT 47) 73; (1997) 1 NWLR (PT. 481) 251

JUDGMENTS Unchallenged evidence Where appellants' evidence was not challenged Judgment should have been entered for him. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

JUDGMENTS Vagueness Land description Where a detailed description of the land in dispute was given in the judgment Whether that judgment is bad for vagueness. NYAMBI V. OSADIM (1997) 1 KLR (PT 47) 281; (1997) 2 NWLR (PT. 485) 1

JUDGMENTS Witnesses It is trial court's duty to asses witnesses And form impression about their truthfulness. DAKAT V. DASHE (1997) 12 KLR (PT 55)

KINGS LAW REPORTS COMPREHENSIVE INDEX

2053; (1997) 12 NWLR (PT. 531) 46

JUDICIAL PRECEDENTS Arbitration Previous decision of the Supreme Court In Murmansk's case On the issue of limitation period Is binding on the Supreme Court. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

JUDICIAL PRECEDENTS Compensation Apportionment of compensation Cannot be granted to a party in possession But who has no proprietary interest. EDEBIRI V. EDEBIRI (1997) 4 KLR (PT 50) 672; (1997) 4 NWLR (PT. 498) 165

JUDICIAL PRECEDENTS Criticism of a higher court's decision By a lower court Though excusable in law The lower court is bound to apply the higher court's decision. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

JUDICIAL PRECEDENTS Principle of apportionment of compensation In the case of Agheoghen v. Chief Waghoreghor Ought to be distinguished from the instant case. EDEBIRI V. EDEBIRI (1997) 4 KLR (PT 50) 672; (1997) 4 NWLR (PT. 498) 165

JUDICIAL PRECEDENTS Ratio decidendi It is only the major principles That bind courts of concurrent or lower jurisdiction. NEPA V. ONAH (1997) 1 KLR (PT 47) 201; (1997) 1 NWLR (PT. 484) 680

JUDICIAL PRECEDENTS Stare decisis What the cardinal principles thereof entails. NEPA V. ONAH (1997) 1 KLR (PT 47) 201; (1997) 1 NWLR (PT. 484) 680

JUDICIAL PRECEDENTS Stare decisis Tukur v. Gongola State Though the facts are not the same with this case The principle is the same. EGBUONU V. BORNU RADIO TV. CORP (1997) 12 KLR (PT 55) 2063; (1997) 12 NWLR (PT. 531) 29

JURISDICTION Affidavits Dismissal Where jurisdiction is in issue The lower courts were wrong To determine that issue Without resolving the conflicts in the affidavit. EBOHON V. AG EDO STATE (1997) 5 KLR (PT 51) 1023; (1997) 5 NWLR (PT. 505) 298

JURISDICTION Challenge Where there is challenge to the court's jurisdiction

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

Need to settle the issue Before hearing of the suit. UKWU V. BUNGE (1997) 7 KLR (PT 53) 1512; (1997) 8 NWLR (PT. 518) 527

JURISDICTION Chieftaincy matters Appointment of Chief Where the law did not empower the traditional council to make an appointment It has no jurisdiction to recommend 1st defendant to the governor. AMUDA V. ADELODUN (1997) 5 KLR (PT 52) 1071; (1997) 5 NWLR (PT. 506) 480

JURISDICTION Commencement of actions Employing the wrong procedure in commencing an action Withdraws competence from the trial high court Thereby rendering the proceedings null and void. TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 KLR (PT 52) 1238; (1997) 6 NWLR (PT. 510) 549

JURISDICTION High Court judge There being only one state high court for Rivers State Whether a judge lacks jurisdiction To continue hearing of same case in another judicial division. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

JURISDICTION High Court Where the High Court's jurisdiction in an ex parte application is in issue The issues related to the proceedings or judgment of a Tribunal should not arise. LEKWOT V. JUDICIAL TRIBUNAL (1997) 7 KLR (PT 54) 1904; (1997) 8 NWLR (PT. 515) 22

JURISDICTION Judicial division for trial High Court Rules of Bendel State 0.6 rr. 2 & 6 Case commenced in a wrong judicial division Legal implications. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

JURISDICTION Land Use Act Ejusdem generis rule Customary right of occupancy Only area court, customary Court or courts of equivalent jurisdiction Can determine land matters related to customary right of occupancy. OYENIRAN V. EGBETOLA (1997) 5 KLR (PT 51) 936; (1997) 5 NWLR (PT. 504) 122

JURISDICTION Land law Land subject to customary right of occupancy grant Under the Land Use Act High court has no original jurisdiction vide s. 41 of the Act. OYENIRAN V. EGBETOLA (1997) 5 KLR (PT 51) 936; (1997) 5 NWLR (PT. 504) 122

JURISDICTION Specific claim Setoff claim by the defendant For a specific period Court is without jurisdiction to award what is not claimed. UDOM V. MICHELETTI & SONS LTD (1997) 7 KLR (PT 54) 1690; (1997) 8 NWLR (PT. 516)

KINGS LAW REPORTS COMPREHENSIVE INDEX

187

JURISDICTION Title Where the trial senior District Judge did not make any declaration as to title Issue of jurisdiction will not arise. DAKAT V. DASHE (1997) 12 KLR (PT 55) 2053; (1997) 12 NWLR (PT. 531) 46

LAND LAW Acquisition of land by government Provision that it must be for public purpose Does not exclude government from involving the private sector Towards the attainment of such purposes. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

LAND LAW Acquisition of land by government Respondents that had no interest when the land was acquired Are not entitled to either notice or compensation. NATIONAL HORT. RESEARCH INST. V. AYOADE (1997) 12 KLR (PT 55) 1976; (1997) 11 NWLR (PT. 530) 541

LAND LAW Acquisition of land by government Where there is evidence that compensation was paid to persons who applied Respondents having no interest in the land at the relevant time Are not entitled to statutory notices. NATIONAL HORT. RESEARCH INST. V. AYOADE (1997) 12 KLR (PT 55) 1976; (1997) 11 NWLR (PT. 530) 541

LAND LAW Acts of possession or ownership Cannot be established by plaintiffs Who failed to establish That they settled on any particular piece of land. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

LAND LAW Admissions Whether there are conclusive admissions Against the trial Court's findings That the parties belong to separate families. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

LAND LAW Boundary Finding of lower courts thereon Raises presumption of ownership in plaintiffs' favour And the burden shifts to defendants to show how they came to own the land. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

LAND LAW Boundary Plaintiffs having established the area of the peninsula in dispute Court of Appeal erroneously dismissed their claims. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

LAND LAW Burden of proof In a case for declaration of title Was discharged by the plaintiffs. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

LAND LAW Communal claim to land Onus lies on each side To prove their assertion concerning the land in dispute. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

LAND LAW Compensation Judicial precedent Apportionment of compensation Cannot be granted to a party in possession But who has no proprietary interest. EDEBIRI V. EDEBIRI (1997) 4 KLR (PT 50) 672; (1997) 4 NWLR (PT. 498) 165

LAND LAW Compensation Paid by Government in respect of acquired land Was wrongfully apportioned To a party with mere possessory right. EDEBIRI V. EDEBIRI (1997) 4 KLR (PT 50) 672; (1997) 4 NWLR (PT. 498) 165

LAND LAW Compulsory acquisition Issues That relate to compulsory acquisition of land And contract to pay compensation Where not proved Are incompetent. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

LAND LAW Compulsory acquisition Issuance of notice and not service thereof Vests the land in the government. OVIAWE V. INTEGRATED RUBBER PRODUCTS LTD (1997) 3 KLR (PT 49) 469; (1997) 3 NWLR (PT. 492) 126

LAND LAW Compulsory acquisition of land by government Effect of Limitation clause on compensation Applies to extinguish any valid right. NATIONAL HORT. RESEARCH INST. V. AYOADE (1997) 12 KLR (PT 55) 1976; (1997) 11 NWLR (PT. 530) 541

LAND LAW Compulsory acquisition of land by government Whether it is for public purpose. OVIAWE V. INTEGRATED RUBBER PRODUCTS LTD (1997) 3 KLR (PT 49) 469; (1997) 3 NWLR (PT. 492) 126

LAND LAW Contract for sale of land Specific performance Purchase price Where purchase price is not fully paid and purchaser sues for specific performance Right to specific performance cannot be enforced. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

KINGS LAW REPORTS COMPREHENSIVE INDEX

LAND LAW Conveyancing Fake document Deed of Lease With attached plan that was drawn 7 years latter Whether a fake document. ISERU V. CATHOLIC BISHOP OF WARRI DIOCESE (1997) 4 KLR (PT 50) 618; (1997) 3 NWLR (PT. 495) 517

LAND LAW Conveyancing Where a vendor has executed a prior valid conveyance There remains no more right to be transferred to another party. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

LAND LAW Declaration of title Being a discretionary remedy cannot be granted Where plaintiffs fail to establish their entitlement to that relief. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

LAND LAW Declaration of title Conflicting traditional history Where the traditional history of one of the parties is ex facie discredited The principle in Kojo II v. Bonsie need not be applied. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

LAND LAW Declaration of title Onus of proof Plaintiff is to establish the title he is claiming He cannot rely on the weakness of defendant's case. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

LAND LAW Description Where a detailed description of the land in dispute was given in the judgment Whether that judgment is bad for vagueness. NYAMBI V. OSADIM (1997) 1 KLR (PT 47) 281; (1997) 2 NWLR (PT. 485) 1

LAND LAW Evidence Presumption under S. 146 of the Evidence Act As to person in possession being presumed owner Cannot arise where plaintiff proved his title to the land in dispute. ILEDARE V. AJAGBONNA (1997) 6 KLR (PT 52) 1122; (1997) 6 NWLR (PT. 507) 1

LAND LAW Family land Conveyance by some individual members of a family When does it become void or voidable. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LAND LAW Family land Execution of some documents Issue of whether

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

done by family head or all sections of the family Cannot be raised as it was not pleaded. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LAND LAW Family land Partition of family land vide Exh. p4 Without the consent of the head and principal family members Is void together with any document emanating therefrom. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LAND LAW Family land Sale by the family head Without consent of accredited members of the different family units Is voidable. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

LAND LAW Family land Sale thereof Consent of the entire family branches must be secured To make the sale valid. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

LAND LAW Family property Whether the parties belong to the same family As to make the land in dispute family property. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

LAND LAW Fee simple conveyance Cannot be granted Under the State Lands Law or Land Use Act. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LAND LAW Identity of the land Ascribing different names to same land May not be fatal But contradictory evidence by plaintiffs' witnesses on the location Will defeat the claim. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

LAND LAW Identity of the land Mere admission by defendant that he knows the land Cannot cure plaintiff's failure to prove the identity. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

LAND LAW Identity of the Land Right of occupancy claim Plaintiff in discharging his burden Must prove the identity of the land. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

LAND LAW Identity of the land in dispute Whether raised as an issue By

KINGS LAW REPORTS COMPREHENSIVE INDEX

the parties. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

LAND LAW Identity of land in dispute Evaluation of evidence thereto Must be thorough. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

LAND LAW Jurisdiction Land subject to customary right of occupancy grant Under the Land Use Act High court has no original jurisdiction vide s. 41 of the Act. OYENIRAN V. EGBETOLA (1997) 5 KLR (PT 51) 936; (1997) 5 NWLR (PT. 504) 122

LAND LAW Kojo v. Bonsie rule Where one side failed to put forward a traditional history capable of being tested The rule will not apply. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

LAND LAW Lease Consent of the family Whether required in this case For a valid assignment of the lease. CHIEKE V. OLUSOGA (1997) 3 KLR (PT 49) 547; (1997) 3 NWLR (PT. 494) 390

LAND LAW Lease Determination of state lease by expiration of time Right to removal of any building on the land Where not exercised within the statutory 3 months Whether to be deemed waived. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LAND LAW Leasehold Land that has been established to be a Crown or State land Cannot be leased by private individuals. ISERU V. CATHOLIC BISHOP OF WARRI DIOCESE (1997) 4 KLR (PT 50) 618; (1997) 3 NWLR (PT. 495) 517

LAND LAW Leases Recovery of possession By the State at the expiration of a lease Must be done in the manner prescribed by the law. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LAND LAW Leases Sale to a 3rd party upon the expiration of the lease Is invalid Since appellant was still in possession And holding over though his lease had expired. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LAND LAW Leases Tenant at sufferance Appellant that came into possession lawfully Becomes a tenant at sufferance after expiration of the lease

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

Until lessor recovers possession in the manner authorized by law. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LAND LAW Licence Is revocable by the licensor at any time Failure to give notice Would not affect the validity of a proper grant to a 3rd party. KARI V. GANARAM (1997) 2 KLR (PT 48) 391; (1997) 2 NWLR (PT. 488) 380

LAND LAW Limitation Law ss. 6(2) & 16 Apply only to title under statutory law and not customary law And that law applies to extinguish respondents' title. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LAND LAW Lis pendens doctrine Will only affect a purchaser who buys subject matter during pendency of litigation The doctrine is not applicable in this case. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

LAND LAW Locus in quo Where the identity of the land in dispute is not in controversy Visit to locus is not necessary. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

LAND LAW Locus standi Acquisition of land by government Where plaintiff failed to prove his title He has no locus standi to challenge the validity of the acquisition. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

LAND LAW Ownership Presumption of ownership under s. 146 Evidence Act Whether it arose in this case As to shift onus of proof away from the appellant. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

LAND LAW Ownership Assertion of exclusive ownership by an individual As against the community's claim to communal ownership Onus of proof is on that individual. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

LAND LAW Parties Family land Contention that the plaintiffs were not members of the Atomesin family Cannot now be raised by the defendants. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

KINGS LAW REPORTS COMPREHENSIVE INDEX

LAND LAW Pleadings Necessary material facts Where pleaded and established by evidence Respondent can succeed on his traditional history evidence. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

LAND LAW Possession Abandonment of possession of ownership by plaintiffs on hearing that government had acquired the land Cannot be the case in this matter As wrongly held by the Court of Appeal. LADEPO V. AJANI (1997) 7 KLR (PT 54) 1709; (1997) 8 NWLR (PT. 517) 356

LAND LAW Possession Finding By trial court That respondents admitted possession of the disputed land by the appellants Is perverse. EKENNIA V. NKPAKARA (1997) 5 KLR (PT 51) 869; (1997) 5 NWLR (PT. 504) 152

LAND LAW Possession Finding that all the land in boundary to the one in dispute Belong to the respondents SS. 46 & 146 Evidence Act were rightly applied. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

LAND LAW Possession Survey pillars alteration by the defendants Where some plaintiffs' pillars are still buried on the land Trial court was right in finding possession in favour of plaintiffs. LADEPO V. AJANI (1997) 7 KLR (PT 54) 1709; (1997) 8 NWLR (PT. 517) 356

LAND LAW Possession Previous proceedings Exhibit "D" Was rightly treated by the lower courts As evidence of acts of possession. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

LAND LAW Prior right on land Party who was fixed with notice of another's prior right but chose to ignore it Cannot be availed by equity. FASESIN V. OYERINDE (1997) 12 KLR (PT 55) 1987; (1997) 11 NWLR (PT. 530) 552

LAND LAW Registrable documents Whether a farm cultivation agreement Is subject to registration. OLANREWAJU V. OGUNLEYE (1997) 1 KLR (PT 47) 225; (1997) 2 NWLR (PT. 485) 12

LAND LAW Sale By an agent wife of the owner Whether there was express authority To sell the land in dispute. CHIEKE V. OLUSOGA (1997) 3 KLR (PT 49) 547; (1997) 3 NWLR (PT. 494) 390

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

LAND LAW Sale Essential requirements of a valid sale of land under customary law. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

LAND LAW Sale Part payment Where purchaser made part payment but defaults in payment of the balance The vendor has right to rescind the contract and resell. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

LAND LAW Sale Validity Where purchase price is not fully paid and purchaser goes into possession The sale is not valid and therefore cannot defeat the title of the vendor. ODUSOGA V. RICKETTS (1997) 7 KLR (PT 53) 1271; (1997) 7 NWLR (PT. 511) 1

LAND LAW Statutes of fraud And similar legislations Court will not allow a plaintiff Make fraudulent use of the statute. CHIEKE V. OLUSOGA (1997) 3 KLR (PT 49) 547; (1997) 3 NWLR (PT. 494) 390

LAND LAW Survey plan Allegation that the Court of Appeal relied on the wrong survey plan Is not correct. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

LAND LAW Survey plan Identity of land in dispute Plaintiff may rely on survey plan made by PW2 To prove the identity. IDEHEN V. OSEMWENKHAE (1997) 7 KLR (PT 54) 1584; (1997) 10 NWLR (PT. 525) 358

LAND LAW Survey plan That was not tendered as exhibit Referred to by the lower court Fair hearing was not denied thereby. AGBAISI V. EBIKOREFE (1997) 4 KLR (PT 51) 767; (1997) 4 NWLR (PT. 502) 630

LAND LAW "Time immemorial" Proper meaning thereof Respondents' case cannot fail Because they did not call evidence beyond human memory. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

LAND LAW Title Acts of possession by plaintiffs Lower courts' findings thereon being perverse Plaintiffs' claims will succeed. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

KINGS LAW REPORTS COMPREHENSIVE INDEX

LAND LAW Title Burden on appellants Cannot be discharged By alleging that their ancestors' graves and shrines were on the land Without proving the averment by evidence. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

LAND LAW Title Burden of proof Plaintiff must succeed on the strength of his own case Where defendant's case supports plaintiff's case Court cannot ignore it in deciding which side to believe. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

LAND LAW Title Burden of proof Both lower court's having erroneously placed burden of proof on the defendants Their concurrent findings will be set aside as being perverse. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

LAND LAW Title Burden of proof Where a party has established title through an agreed original owner Substantial burden placed on the other party Can only be discharged by establishing a better possession To oust that of the original owner. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

LAND LAW Title Case that rests on 4 ways of establishing title Was properly upheld by the lower Court. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

LAND LAW Title Concurrent findings that appellants failed to prove title by non of the methods Will not be disturbed by the Supreme Court. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

LAND LAW Title Failure to prove title and possession Appellants will not be entitled to damages for trespass or injunction. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

LAND LAW Title Five ways of proving title Declaration can be founded upon proof of one of the ways. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

LAND LAW Title Once radical title has been proved Acts of possession and ownership need not be considered. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

LAND LAW Title Ownership of connected land s. 46 Evidence Act Was rightly relied upon by the lower courts In finding for the respondents. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

LAND LAW Title Pleadings Failure to plead root of title Is fatal As production of title documents per se Is not sufficient proof of title. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

LAND LAW Title Proof of plaintiff's title Cannot be attained by virtue of a mistake Nor even by an admission in defendants' pleadings Since plaintiff must rely on the strength of his case. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

LAND LAW Title Reliance on two methods in seeking to prove title Failure to prove any of the methods Will lead to dismissal of the claim. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

LAND LAW Title Reliance on Native Court Suit Failed to establish appellants' claim of ownership. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

LAND LAW Title Traditional evidence Whether respondents evidence of tradition Was rightly accepted as conclusive. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

LAND LAW Title Traditional history Apart from placing reliance thereon Respondents relied on other 3 methods of proving title. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

LAND LAW Title Where the trial senior District Judge did not make any declaration as to title Issue of jurisdiction will not arise. DAKAT V. DASHE (1997) 12 KLR (PT 55) 2053; (1997) 12 NWLR (PT. 531) 46

LAND LAW Title Where plaintiff proved his root of title And appellant was not shown to be in possession S. 146 of the Evidence Act will not be applied in appellant's favour. ILEDARE V. AJAGBONNA (1997) 6 KLR (PT 52) 1122; (1997) 6 NWLR (PT. 507) 1

LAND LAW Traditional sale of land Under native law and custom Is valid

KINGS LAW REPORTS COMPREHENSIVE INDEX

without conveyance or written contracts. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

LAND LAW Traditional history Passing of land to the respondents It is not correct to say That respondents failed to show How their ancestors passed the land to them. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

LAND LAW Traditional evidence Conflict therein Cannot be resolved by trial judge believing the evidence of one party or the other. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

LAND LAW Traditional evidence Rejection of plaintiffs' traditional evidence by the lower courts Are perverse concurrent findings. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

LAND LAW Traditional evidence Whether trial court's findings Were rightly affirmed by the lower court. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

LAND LAW Traditional history Conflict therein Court is to test the two stories by reference to acts in recent times. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

LAND LAW Traditional history Plaintiff who relies thereon Must lead evidence to show the root of his title. NKADO V. OBIANO (1997) 5 KLR (PT 51) 891; (1997) 5 NWLR (PT. 503) 31

LAND LAW Traditional history Where not properly pleaded nor proved Concurrent finding in respondents' favour Will not be disturbed. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

LAND LAW Traditional history evidence Where competing and conflicting The test in Kojo II v. Bonsie should be adopted. KAMALU V. UMUNNA (1997) 5 KLR (PT 51) 1001; (1997) 5 NWLR (PT. 505) 321

LAND LAW Traditional history evidence Led by each party Where made the basis for the judgment Issue of effect of oath taken by the parties Is immaterial. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

LAND LAW Trespass Appellant that failed to establish lawful possession Cannot maintain an action in trespass. ISERU V. CATHOLIC BISHOP OF WARRI DIOCESE (1997) 4 KLR (PT 50) 618; (1997) 3 NWLR (PT. 495) 517

LAND LAW Trespass Exclusive possessor of land Can sue any one who trespasses even if he is neither the owner nor privy to the owner Save a person who can establish a better title. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LAND LAW Trespass Exclusive long adverse possessor of land Can maintain trespass action against original owner Whose title has been extinguished by operation of the Limitation Law. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LAND LAW Trespass Voidable transaction Entering the land before the transaction was avoided Is no trespass. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

LAND LAW Trespass Where plaintiffs' counsel admitted that their claim is for compensation Issue of trespass is irrelevant. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

LAND LAW Trespass Where appellants were already in possession The plaintiff who entered the land on the ground of sale to him Is the trespasser. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

LAND LAW Trespass Where appellant's entrance on the land was an act of trespass Certificate of occupancy procured by him cannot ground possession. DAKAT V. DASHE (1997) 12 KLR (PT 55) 2053; (1997) 12 NWLR (PT. 531) 46

LAND LAW Trespass Where appellants relied on trespass committed by members of their family They cannot complain that they were sued wrongfully. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

LAND LAW Trespass and injunction Claim of ownership by the defendant Plaintiff has to prove not only possession but better title. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

KINGS LAW REPORTS COMPREHENSIVE INDEX

LAND LAW Trespass and injunction Documents of both parties Where found to be defective The appellant that has been in exclusive possession Is entitled to judgment in trespass and injunction. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LAND LAW Trespass and injunction Where plaintiff's claim for damages for trespass and title fail His claim for injunction will also be dismissed. LAWSON V. AJIBULU (1997) 6 KLR (PT 52)

1135

LAND LAW Trespass and injunction claims Can only be maintained by person in possession Act sufficient to ground possession Is a question of fact. LADEPO V. AJANI (1997) 7 KLR

(PT 54) 1709

LAND LAW Voidable sale of family land When the sale is declared void The transaction becomes void And purchaser's documents of title will lack legal effect. SALAKO V. DOSUNMU

(1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

LAND USE ACT Applicability Where the Land Use Act is applicable Any other inconsistent law or Act relating to land is void. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

LAND USE ACT Certificate of occupancy s. 8 of the Act The document in issue Exh. Z Is not a certificate of occupancy. KARI V. GANARAM (1997) 2 KLR (PT 48) 391; (1997) 2 NWLR (PT. 488) 380

LAND USE ACT Jurisdiction Ejusdem generis rule Customary right of occupancy Only area court, customary Court or courts of equivalent jurisdiction Can determine land matters related to customary right of occupancy. OYENIRAN V. EGBETOLA (1997) 5 KLR (PT 51) 936; (1997) 5 NWLR (PT. 504) 122

LAND USE ACT Right of occupancy Revocation of plaintiff's right Is invalid not being made within s. 28 of the Act. KARI V. GANARAM (1997) 2 KLR (PT 48) 391; (1997) 2 NWLR (PT. 488) 380

LAND USE ACT Temporary right of occupancy s. 46(1) (d) Whether Exhibit Z qualifies as a temporary right of occupancy under this section. KARI V.

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

GANARAM (1997) 2 KLR (PT 48) 391; (1997) 2 NWLR (PT. 488) 380

LAND USE ACT Validation of Certain Laws Act Cap. 203 s. 1(2)(b) Is not applicable to Exhibit Z. KARI V. GANARAM (1997) 2 KLR (PT 48) 391; (1997) 2 NWLR (PT. 488) 380

LAND USE ACT Words & phrases "Exclusive" By its proper definition Cannot fit into s. 41 of the Land Use Act. OYENIRAN V. EGBETOLA (1997) 5 KLR (PT 51) 936; (1997) 5 NWLR (PT. 504) 122

LANDLORD & TENANT Possession Occupation of a house by tenants Is in law regarded as occupation by the landlord who puts the tenants there. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LANDLORD & TENANT Recovery of possession Affidavit endorsed by a Chief Magistrate Cannot be tantamount to court order For purposes of recovery of premises. IHENACHO V. UZOCHUKWU (1997) 1 KLR (PT 47) 241; (1997) 2 NWLR (PT. 487) 257

LANDLORD & TENANT Recovery of premises Self help Landlord that fails to obtain appropriate court order for possession Before taking over possession Is liable in trespass. IHENACHO V. UZOCHUKWU (1997) 1 KLR (PT 47) 241; (1997) 2 NWLR (PT. 487) 257

LANDLORD & TENANT Recovery of premises Need to serve the appropriate notices And thereafter proceed to recover possession according to law. IHENACHO V. UZOCHUKWU (1997) 1 KLR (PT 47) 241; (1997) 2 NWLR (PT. 487) 257

LANDLORD & TENANT Torts Detinue Or wrongful ejectment Landlord and tenant relationship Need not exist before any of these actions can be maintained. IHENACHO V. UZOCHUKWU (1997) 1 KLR (PT 47) 241; (1997) 2 NWLR (PT. 487) 257

LEASES Determination of state lease by expiration of time Right to removal of any building on the land Where not exercised within the statutory 3 months Whether to be deemed waived. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

KINGS LAW REPORTS COMPREHENSIVE INDEX

LEASES Recovery of possession By the State at the expiration of a lease Must be done in the manner prescribed by the law. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LEASES Sale to a 3rd party upon the expiration of the lease Is invalid Since appellant was still in possession And holding over though his lease had expired. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LEASES State Land Land that has been established to be a Crown or State land Cannot be leased by private individuals. ISERU V. CATHOLIC BISHOP OF WARRI DIOCESE (1997) 4 KLR (PT 50) 618; (1997) 3 NWLR (PT. 495) 517

LEASES Tenant at sufferance Appellant that came into possession lawfully Becomes a tenant at sufferance after expiration of the lease Until lessor recovers possession in the manner authorized by law. OGUALAJI V. AG RIVERS STATE (1997) 5 KLR (PT 52) 1085; (1997) 6 NWLR (PT. 508) 209

LEASES Validity Consent of the family Whether required in this case For a valid assignment of the lease. CHIEKE V. OLUSOGA (1997) 3 KLR (PT 49) 547; (1997) 3 NWLR (PT. 494) 390

LEGAL PRACTITIONERS Admission Trespass Where plaintiffs' counsel admitted that their claim is for compensation Issue of trespass is irrelevant. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

LEGAL PRACTITIONERS Arrangement between both parties' counsel Were taken cognizance of by the Court in making an order Cannot be said to be a mere private arrangement. THE VESSEL "ST ROLAND" V. OSINLOYE (1997) 4 KLR (PT 51) 797; (1997) 4 NWLR (PT. 500) 387

LEGISLATION Power to enact The Military Governor had the power To enact the law in question. ATOLAGBE V. AWUNI (1997) 7 KLR (PT 53) 1348; (1997) 9 NWLR (PT. 522) 536

LIMITATION OF ACTIONS Admission Appellant's contention that the action is statute barred Whether admitted or opposed by the respondent. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

LIMITATION OF ACTIONS Arbitration award Statutory period of limitation In respect of enforcement of arbitration award Runs from the date the cause of action arose. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

LIMITATION OF ACTIONS Compulsory acquisition of land by government Effect of Limitation clause on compensation Applies to extinguish any valid right. NATIONAL HORT. RESEARCH INST. V. AYOADE (1997) 12 KLR (PT 55) 1976; (1997) 11 NWLR (PT. 530) 541

LIMITATION OF ACTIONS Extension of limitation period Infancy or unsoundness of mind of plaintiff May extend the limitation period. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

LIMITATION OF ACTIONS Fraud Where right of action is concealed by fraud Period of time commences only when the fraud is discovered. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

LIMITATION OF ACTIONS Laches and acquiescence And statute of Limitation defences Cannot avail the respondent In view of the appellants' pleading and evidence. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

LIMITATION OF ACTIONS Limitation Law ss. 6(2) & 16 Apply only to title under statutory law and not customary law And that law applies to extinguish respondents' title. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

LIMITATION OF ACTIONS Limitation period Arbitration award Effect of Scott v. Avery clause on limitation period The clause is no more applicable in Lagos. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

LIMITATION OF ACTIONS Limitation period In respect of action for damages for breach of implied promise to perform an award Runs from the date of refusal to obey award. CITY ENGINEERING LTD V. F.H.A (1997) 7 KLR (PT 54) 1874; (1997) 9 NWLR (PT. 520) 224

LIMITATION OF ACTIONS Statute bar Action that was instituted within

KINGS LAW REPORTS COMPREHENSIVE INDEX

the limitation period Is not statute bar And the Court of Appeal is in error As to the date cause of action arose. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

LIMITATION OF ACTIONS Statute bar Twelve months limitation specified under s. 97 (1) of the Ports Act Action that was filed after about 3 years Is Statute barred. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

LIMITATION OF ACTIONS Statute bar Whether appellant's action is caught by the two year limitation period. IBIDAPO V. LUFTHANSA AIRLINES (1997) 4 KLR (PT 50) 734; (1997) 4 NWLR (PT. 498) 124

LIMITATION OF ACTIONS Statute bar Whether the respondent's claim Is statute barred. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

LOCUS IN QUO Necessity of Where the identity of the land in dispute is not in controversy Visit to locus is not necessary. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

LOCUS STANDI Acquisition of land by government Where plaintiff failed to prove his title He has no locus standi to challenge the validity of the acquisition. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

MASTER & SERVANT Dismissal At common law Where dismissal is in breach of the terms of the contract The servant may consider the contract determined and sue for redress. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

MASTER & SERVANT Dismissal Relief for general damages Was wrongfully abandoned. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

MASTER & SERVANT Dismissal Wrongful dismissal Where a master dismisses his servant contrary to laid down procedure in the contract The servants remedy is an action in damages. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

MATRIMONIAL CAUSES Yoruba customary marriage 1st respondent stood in loco parentis To the children of her marriage. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

MORTGAGES Governor's consent Where not secured before transferring rights in an existing mortgage The instrument of transfer is null and void. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

MORTGAGES Sale by auction Exercise of power to sale mortgaged landed property Whether valid. IKEANYI V. ACB LTD (1997) 2 KLR (PT 48) 373; (1997) 2 NWLR (PT. 489) 509

MOTION ON NOTICE Discretion Security for costs Foreign plaintiff resident abroad Discretion to order him to provide security for costs How to be exercised properly. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR (PT. 508) 185

MOTION ON NOTICE Oppressive application Security for costs Application therefor Is manifestly oppressive in this case. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR (PT. 508) 185

MOTION ON NOTICE Security for costs Where the application for it Is a scheme to stifle and frustrate the claim The Court of Appeal properly dismissed the application. HOUTMANGRACHT V. ODUBA (1997) 5 KLR (PT 51) 1037; (1997) 6 NWLR (PT. 508) 185

MURDER Accident Whether the defence avails the appellant Unto acquittal in a murder charge. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

MURDER Appeals Dismissal Whether the Court of Appeal Properly dismissed the appellant's appeal. PETER V. THE STATE (1997) 3 KLR (PT 49) 487; (1997) 3 NWLR (PT. 496) 625

MURDER Conviction Wrongful assessment of evidence Whether in the face of it Concurrent conviction of appellant can stand. IBEH V. THE STATE (1997) 1 KLR (PT 47) 134; (1997) 1 NWLR (PT. 484) 632

MURDER Insanity Lack of motive Whether on the balance of probabilities Appellant discharged the onus of proving insanity. MOHAMMED V. THE

KINGS LAW REPORTS COMPREHENSIVE INDEX

STATE (1997) 7 KLR (PT 54) 1766; (1997) 9 NWLR (PT. 520) 169

MURDER Self defence Where the deceased was the aggressor Who used dangerous weapon in fighting the appellant Appellant's act of stabbing the deceased Is in self defence. BRAIDE V. THE STATE (1997) 5 KLR (PT 51) 1059; (1997) 5 NWLR (PT. 504) 141

NATURAL JUSTICE Audi alteram partem rule Dismissal of appeal By the Court of Appeal Without looking at the counteraffidavit filed that morning Is in breach of audi alteram partem rule. BOMOR V. EKIYOR (1997) 7 KLR (PT 54) 1571; (1997) 9 NWLR (PT. 519) 1

NEGLIGENCE Res ipsa loquitur Absence of defence to the principle Means that plaintiffs' case was not controverted. ODEBUNMI V. ABDULLAHI (1997) 2 KLR (PT 48) 357; (1997) 2 NWLR (PT. 489) 526

OBJECTIONS Appeals Opposition against a prayer Where a particular prayer was not opposed Whether appellants can now oppose it on appeal. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

OBJECTIONS Preliminary objection Limitation and issue of ownership of the property Are matters to be determined on the evidence. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

OBJECTIONS Representative action Objection to being sued in representative capacity Should be raised at the preliminary stage. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

ORDERS Extension of time Cannot be granted by the court To a party that has not prayed for it. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

ORDERS Extension of time Where the Order is made by a non judicial Officer pursuant to the Rules of Court It is valid. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

ORDERS Nonsuit order Where a party has failed to claim a relief relevant to his case Court of Appeal will not substitute an order of nonsuit for that of dismissal. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

(PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

ORDERS Retrial Improper consideration of evidence by trial court And where plaintiffs' case has not failed in toto Retrial will be ordered. OKONKWO V. UDOH (1997) 7 KLR (PT 54) 1722; (1997) 9 NWLR (PT. 519) 16

ORDERS Retrial Land matter Failure of plaintiffs' claim retrial that will amount to giving plaintiffs a second chance Will be refused. SALAMI V. GBODOOLU (1997) 4 KLR (PT 50) 689; (1997) 4 NWLR (PT. 499) 277

ORDERS Retrial Where a court of trial fails to advert its mind to and treat all issues in controversy And there is insufficient material before the Appeal Court The proper order to make is one of retrial. OKONKWO V. UDOH (1997) 7 KLR (PT 54) 1722; (1997) 9 NWLR (PT. 519) 16

ORDERS Retrial Where appellants' case was wrongfully upset by Court of Appeal Retrial will not be upheld. EJINDU V. OBI (1997) 1 KLR (PT 47) 113; (1997) 1 NWLR (PT. 484) 505

ORDERS Retrial Wrongful rejection of admissible evidence Where miscarriage of justice is occasioned Retrial will be ordered Even if it was not prayed for. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

PARTIES Appeals Aggrieved party Where respondent had no more legal function to perform It cannot be a party aggrieved So as to be entitled to appeal. OWENA BANK V. NIGERIAN STOCK EXCH. LTD (1997) 7 KLR (PT 53) 1421; (1997) 8 NWLR (PT. 515) 1

PARTIES Family land Contention that the plaintiffs were not members of the Atomesin family Cannot now be raised by the defendants. EBOADE V. ATOMESIN (1997) 5 KLR (PT 51) 849; (1997) 5 NWLR (PT. 506) 590

PARTIES Joinder of parties Where plaintiffs are not persons having same interest in one suit They are not entitled to bring the action. UKATTA V. NDINAEZE (1997) 4 KLR (PT 50) 708; (1997) 4 NWLR (PT. 499) 251

PARTIES Juristic person Issue of party not being a juristic person Whether abandoned As no submission was presented on that issue. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

KINGS LAW REPORTS COMPREHENSIVE INDEX

PARTIES Necessary parties Whether two members of appellants' family Were necessary parties to this suit. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

PLEADINGS Appeals Issues Not formulated in the parties' pleadings And not forming any ground of appeal Cannot be dealt with by the Court of Appeal. EJINDU V. OBI (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 29313

PLEADINGS Appeals New point of law That was not in issue in the pleadings Cannot be raised Where further evidence would be required. IKEANYI V. ACB LTD (1997) 2 KLR (PT 48) 373; (1997) 2 NWLR (PT. 489) 509

PLEADINGS Averments Where not proved by evidence Are useless And may be deemed abandoned. IDESOH V. ORDIA (1997) 2 KLR (PT 48) 459; (1997) 3 NWLR (PT. 491) 17

PLEADINGS Burden of proof In civil cases The onus of proving particular facts is fixed by the pleadings Onus of adducing further evidence Is on the person who will fail. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

PLEADINGS Consistency Case fought on whether there was an auction sale Plaintiff having failed to establish there was no sale Cannot turn round to contend that sections of the Auctioneer's Law Were not complied with. IKEANYI V. ACB LTD (1997) 2 KLR (PT 48) 373; (1997) 2 NWLR (PT. 489) 509

PLEADINGS Counterclaim amendment Need to set it out in the statement of defence Where an amendment of pleading is ordered And defendant fails to include counterclaim in the amended statement of defence The counterclaim shall be deemed abandoned. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

PLEADINGS Defence of agency Sought to be relied upon by the respondent Was not pleaded and cannot be relied upon. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

PLEADINGS Departure a party cannot depart from his pleadings Just as the court cannot depart from the pleaded case. UMUKORO V. NPA (1997) 5 KLR (PT 51) 954; (1997) 4 NWLR (PT. 502) 656

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

PLEADINGS Documentary evidence Where the document or fact pertaining thereto was not pleaded The exhibit will not be acted upon. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

PLEADINGS Documentary evidence Where there is no averment connecting Exhibit A with H Exhibit H has no significance. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

PLEADINGS Evidence On an issue that was not pleaded Goes to no issue. ADEYERI V. OKOBI (1997) 6 KLR (PT 52) 1188; (1997) 6 NWLR (PT. 510) 534

PLEADINGS Evidence That is at variance with pleaded facts Goes to no issue. ISERU V. CATHOLIC BISHOP OF WARRI DIOCESE (1997) 4 KLR (PT 50) 618; (1997) 3 NWLR (PT. 495) 517

PLEADINGS Evidence That is at variance with the pleadings Must be disregarded As it goes to no issue. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

PLEADINGS Evidence That is at variance with the averments in the pleadings Goes to no issue and should be disregarded by the court. UZOCHUKWU V. ERI (1997) 7 KLR (PT 53) 1453; (1997) 7 NWLR (PT. 514) 535

PLEADINGS Evidence which is at variance with pleadings Goes to no issue As parties are bound by their pleadings. PASCUTTO V. ADECENTRO NIG. LTD (1997) 12 KLR (PT 55) 1932; (1997) 11 NWLR (PT. 529) 467

PLEADINGS Exhibit that was not pleaded Admissibility of previous judgment Exh. D Where the Exhibit was not tendered for purpose of estoppel It need not be pleaded If it is sought to be used in proving any other pleaded fact. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

PLEADINGS Fact that was pleaded Whether Court can suo motu Raise implication of that fact Not raised by the parties. EJINDU V. OBI (1997) 1 KLR (PT 47) 113; (1997) 1 NWLR (PT. 484) 505

PLEADINGS Failure to plead The issue of quantum meruit Trial court was in error To have awarded what was not claimed by way of pleadings. OLAOPA V. OBAFEMI AWOLOWO UNIVERSITY (1997) 6 KLR (PT 52) 1167; (1997) 7

KINGS LAW REPORTS COMPREHENSIVE INDEX

NWLR (PT. 512) 204

PLEADINGS Failure to plead a particular defence Court must confine itself to pleaded issues Save where there is need to raise a fundamental issue suo motu. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

PLEADINGS Failure to plead a fact Evidence in support of plaintiff's claim Where not pleaded Goes to no issue. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

PLEADINGS Fraud Allegation of fraud in a civil matter That was neither pleaded nor proved Goes to no issue. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

PLEADINGS Inconsistency Evidence that is inconsistent with pleadings Though already admitted inadvertently Will be disregarded. ALLIED BANK V. AKUBUEZE (1997) 6 KLR (PT 52) 1202; (1997) 6 NWLR (PT. 509) 374

PLEADINGS Issue that was not pleaded Execution of some documents Issue of whether done by family head or all sections of the family Cannot be raised as it was not pleaded. ODEKILEKUN V. HASSAN (1997) 12 KLR (PT 55) 2026; (1997) 12 NWLR (PT. 531) 56

PLEADINGS Land matter Necessary material facts Where pleaded and established by evidence Respondent can succeed on his traditional history evidence. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

PLEADINGS Marine Insurance Policy Allegation that the vessel did not sail from the stipulated port Whether pleaded. EDOKPOLOR & CO. LTD V. BENDEL INSUR. CO. LTD (1997) 1 KLR (PT 47) 214; (1997) 2 NWLR (PT. 486) 131

PLEADINGS New points That were not pleaded nor canvassed before the trial court Cannot be raised by the appellants. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

PLEADINGS Purpose of pleadings Is not to take the other party by surprise

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

Whether trial judge properly raised an issue That was not pleaded. OVIAWE V. INTEGRATED RUBBER PRODUCTS LTD (1997) 3 KLR (PT 49) 469; (1997) 3 NWLR (PT. 492) 126

PLEADINGS Purpose of Where parties have joined issues on a matter They cannot go outside that matter. EJINDU V. OBI (1997) 1 KLR (PT 47) 113; (1997) 1 NWLR (PT. 484) 505

PLEADINGS Relevant documents Pleaded in paragraphs other than the one that was struck out Should attract court's consideration For a fair determination of the main issues. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

PLEADINGS Relief that was not pleaded Should not be granted to a party Since the court is not a charitable institution. EDEBIRI V. EDEBIRI (1997) 4 KLR (PT 50) 672; (1997) 4 NWLR (PT. 498) 165

PLEADINGS Reliefs not claimed Where no appropriate relief was claimed The trial court cannot make any award. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

PLEADINGS Reply Its proper function in the settlement of pleadings Reply will be unnecessary For the sole purpose of denying averment contained in the statement of defence. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

PLEADINGS Title Failure to plead root of title Is fatal As production of title documents per se Is not sufficient proof of title. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

PLEADINGS Title Proof of plaintiff's title Cannot be attained by virtue of a mistake Nor even by an admission in defendants' pleadings Since plaintiff must rely on the strength of his case. LAWSON V. AJIBULU (1997) 6 KLR (PT 52) 1135; (1997) 6 NWLR (PT. 507) 14

PRACTICE & PROCEDURE Appeals Estoppel Where a party has adopted a procedure by consent He will not be heard to say that the procedure was prejudicial to him. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

KINGS LAW REPORTS COMPREHENSIVE INDEX

PRACTICE & PROCEDURE Appeals Nullification of proceedings Failure to exhibit the proceedings and judgment sought to be nullified Makes the application improper. LEKWOT V. JUDICIAL TRIBUNAL (1997) 7 KLR (PT 54) 1904; (1997) 8 NWLR (PT. 515) 22

PRACTICE & PROCEDURE Capacity to sue Where appellant sued as guardian ad litem Whether court can amend the writ & pleadings To show she was suing as next friend. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

PRACTICE AND PROCEDURE Commencement of action Claims partly for breach of fundamental right and partly for wrongful dismissal Which should have been commenced by writ of summons but was not Will be struck out as incompetent. EGBUONU V. BORNU RADIO TV. CORP (1997) 12 KLR (PT 55) 2063; (1997) 12 NWLR (PT. 531) 29

PRACTICE & PROCEDURE Credibility of witnesses Proper procedure in drawing court's attention thereto Is vide cross examination. ENOGA V. THE STATE (1997) 7 KLR (PT 54) 1812; (1997) 9 NWLR (PT. 519) 25

PRACTICE & PROCEDURE Delay Though found to be inordinate Did not lead to any miscarriage of justice As issue of credibility and demeanour of witnesses did not arise. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

PRACTICE & PROCEDURE Delay in hearing Whether seven years gap between hearing and judgment Is a condemnable inordinate delay. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

PRACTICE & PROCEDURE Dismissal of appeal By the Court of Appeal Without looking at the counteraffidavit filed that morning Is in breach of audi alteram partem rule. BOMOR V. EKIYOR (1997) 7 KLR (PT 54) 1571; (1997) 9 NWLR (PT. 519) 1

PRACTICE & PROCEDURE Exhibit Admissibility of previous judgment Exh. D Where the Exhibit was not tendered for purpose of estoppel It need not be pleaded If it is sought to be used in proving any other pleaded fact. EGBARAN V. AKPOTOR (1997) 7 KLR (PT 54) 1856; (1997) 7 NWLR (PT. 514) 559

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

PRACTICE & PROCEDURE Extension of time Where the Order is made by a non judicial Officer pursuant to the Rules of Court It is valid. SANUSI V. ADEBIYI (1997) 12 KLR (PT 55) 1959; (1997) 11 NWLR (PT. 530) 565

PRACTICE & PROCEDURE Fraud Allegation of fraud in a civil matter That was neither pleaded nor proved Goes to no issue. ONAMADE V. ACB LTD (1997) 1 KLR (PT 47) 48; (1997) 1 NWLR (PT. 480) 123

PRACTICE & PROCEDURE Filing of a claim Where statutory provisions are made for filing of a claim The procedure laid down ought to be followed in making such a claim. OSEYOMON V. OJO (1997) 7 KLR (PT 54) 1827

PRACTICE & PROCEDURE Irregularity In the transfer of a case Will not nullify the entire proceedings In all cases. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

PRACTICE & PROCEDURE Joining of issue Where defendants have not joined issue with plaintiffs Minimum evidence on that issue would suffice. OTUEDON V. OLUGHOR (1997) 7 KLR (PT 54) 1731; (1997) 9 NWLR (PT. 521) 355

PRACTICE & PROCEDURE Juristic person Issue of party not being a juristic person Whether abandoned As no submission was presented on that issue. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

PRACTICE & PROCEDURE Nonsuit order Where a party has failed to claim a relief relevant to his case Court of Appeal will not substitute an order of nonsuit for that of dismissal. ILODIBIA V. NIGERIAN CEMENT COMPANY LTD (1997) 7 KLR (PT 53) 1318; (1997) 7 NWLR (PT. 512) 174

PRACTICE & PROCEDURE Non compliance With ss. 97 and 99 of Sheriffs Act And rule of court requiring leave for service of writ out of jurisdiction Renders the writ and or service of it voidable. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

PRACTICE & PROCEDURE Non compliance With ss. 97 and 99 of the Sheriffs and Civil Process Act Cannot be cured by the application of local rules. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

KINGS LAW REPORTS COMPREHENSIVE INDEX

PRACTICE & PROCEDURE Non compliance or defect That goes to the jurisdiction of the Court is a fatal nullity But if it is a mere irregularity The court may ex debito justitiae set it aside. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

PRACTICE & PROCEDURE Opposition Where a particular prayer was not opposed Whether appellants can now oppose it on appeal. AKINNUBI V. AKINNUBI (1997) 1 KLR (PT 47) 257; (1997) 2 NWLR (PT. 486) 144

PRACTICE & PROCEDURE Orders of court Must be confined to the terms of the application As court must maintain a balance And not make a case for either party. FADLALLAH V. AREWA TEXTILES LTD (1997) 7 KLR (PT 53) 1527; (1997) 8 NWLR (PT. 518) 546

PRACTICE & PROCEDURE Parties Necessary parties Whether two members of appellants' family Were necessary parties to this suit. ANABARONYE V. NWAKAIHE (1997) 1 KLR (PT 47) 190; (1997) 1 NWLR (PT. 482) 374

PRACTICE & PROCEDURE Preliminary objection Limitation and issue of ownership of the property Are matters to be determined on the evidence. NWOSU V. OFFOR (1997) 1 KLR (PT 47) 272; (1997) 2 NWLR (PT. 487) 274

PRACTICE & PROCEDURE Reply Its proper function in the settlement of pleadings Reply will be unnecessary For the sole purpose of denying averment contained in the statement of defence. ISHOLA V. SOCIETE GENERALE BANK (1997) 2 KLR (PT 48) 293; (1997) 2 NWLR (PT. 488) 405

PRACTICE & PROCEDURE Representative Action Where competent No leave of court is required. SALAKO V. DOSUNMU (1997) 7 KLR (PT 53) 1476; (1997) 8 NWLR (PT. 517) 371

PRACTICE & PROCEDURE Rules of Court Departure from the Rules That provide for exhibition of copies of judgments Should not be encouraged Though the departure is reluctantly granted in this case. BOLEX ENT. LTD V. INCAR NIG. PLC (1997) 7 KLR (PT 53) 1563; (1997) 10 NWLR (PT. 526) 530

PRACTICE & PROCEDURE Summary judgment Averred defence to the claim Which has been preliminarily determined Cannot be a reason for not being

INDEX OF SUBJECT MATTER ALL SC 1997 DECISIONS

indebted. PAN ATLANTIC LTD V. RHEIN MASS GMBH (1997) 3 KLR (PT 49) 577; (1997) 3 NWLR (PT. 493) 248

PRACTICE & PROCEDURE Summary judgment Statement of defence that disclosed no defence Can entitle plaintiff to summary judgment. PAN ATLANTIC LTD V. RHEIN MASS GMBH (1997) 3 KLR (PT 49) 577; (1997) 3 NWLR (PT. 493) 248

PRACTICE & PROCEDURE Technicalities Courts would no more allow them make an ass of it and dent the image of justice Appellant that has taking some steps Cannot later complain of defect in the service of the writ. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

PRACTICE & PROCEDURE Transfer of a case By one high court judge to another judge Whether erroneous use of the word "referred" Can make the transfer invalid. EGBO V. AGBARA (1997) 1 KLR (PT 47) 1; (1997) 1 NWLR (PT. 481) 293

PRACTICE & PROCEDURE Trial Particulars Where a party refuses to give particulars of evidence Which he proposes to call at the trial Trial court cannot force him. MUSA V. YERIMA (1997) 7 KLR (PT 53) 1295; (1997) 7 NWLR (PT. 511) 27

PRACTICE & PROCEDURE Venue for trial Objection by the defendant Must be raised timeously. OGIGIE V. OBIYAN (1997) 10 KLR (PT 55) 1915; (1997) 10 NWLR (PT. 524) 179

PRACTICE & PROCEDURE Writ of summons Service thereof outside the court's jurisdiction Without complying with ss. 97 & 99 of the Sheriffs & Civil process Act Renders both the writ and service thereof null and void. NEPA V. ONAH (1997) 1 KLR (PT 47) 201; (1997) 1 NWLR (PT. 484) 680

PRACTICE & PROCEDURE Writ of summons Where served in violation of ss. 97 and 99 of the Sheriffs Act By entering unconditional appearance and filing pleadings Defendant has waived his right to object. ODU'A INVESTMENT CO. LTD V. TALABI (1997) 7 KLR (PT 54) 1628; (1997) 10 NWLR (PT. 523) 1

RES JUDICATA Estoppel Will not apply to affect a person not a party to an action Unless he is a privy. CLAY INDUSTRIES LTD V. AINA (1997) 7 KLR (PT 54) 1603; (1997) 8 NWLR (PT. 516) 208

RES JUDICATA Final judgments In three past cases Whether they constitute a bar to the present action. USMAN V. KUSFA (1997) 1 KLR (PT 47)