David Ebose Akpasubi V. Madam Iyagbaye Umweni (1982)

LawGlobal-Hub Lead Judgment Report

KAYODE ESO, J.S.C.

The claim of the plaintiff who is the respondent in the appeal in this Court, and who, to avoid confusion, would be referred to as the plaintiff/respondent hereinafter in this judgment, in the High Court of the Mid-Western State, as the present Bendel State was known at the time of the issuance of the writ of summons, was for

“(A) A DECLARATION OF POSSESSORY TITLE to that piece or parcel of land lying and being situate in Ward 18/H Benin City measuring 100 feet by 100 feet, which piece of land shall be more properly described and delineated in “Pink” on a survey plan to be filed later in these proceedings.

(B) N500 (Five Hundred Naira) damages for trespass.

(C) Perpetual Injunction to restrain the defendant, his servants or agents from further acts of trespass thereon” .

The learned Chief Judge of the State, Ovie- Whiskey C.J. (as he then was), who tried the case, ordered pleadings which were duly delivered. He took evidence led in the case and then came to the conclusion that the plaintiff/respondent failed to discharge the onus on her in the case. He accordingly dismissed the claim.

The plaintiff/respondent appealed to the Federal Court of Appeal against that judgment. The court in an elaborate assessment of the facts allowed the appeal and set aside the judgment of the High Court. The Federal Court of Appeal then made an order in favour of the plaintiff/ respondent in terms of her claim which has already been set out supra in this judgment.

The defendant has appealed against that judgment relying on four grounds of appeal. However as it is just one ground of appeal that was argued before us, I will only set out that ground. Indeed learned counsel for the appellant indicated to us that the ground was his strongest ground of appeal. He abandoned the other grounds of appeal and they were struck out. The only ground of appeal which was argued before us reads:

GROUNDS OF APPEAL

“(1) The learned Justices on appeal misdirected themselves in law in that they failed to give proper consideration to the conflict of the evidence in the plaintiff’s case.

PARTICULARS OF MISDIRECTION

The material conflict in the evidence of the plaintiff with respect to the location and identity of the land in dispute and that of her 4th witness and the Exhibits tendered especially as Exhibits C and D were not given the proper Legal effect.”

In his brief, filed under Order 9 of the Supreme Court Rules 1977, learned counsel, Mr. Eghobamien, argued that the plaintiff/respondent failed to prove the identity of the land in dispute with the certainty which is required by law. Learned counsel referred to what he termed conflict in the evidence of the plaintiff/Respondent and drew our attention to the evidence of the 1st, 2nd and 4th plaintiff’s witnesses. Learned counsel, also referred us to exhibits C and D that is the survey plan of the property of the predecessor in title of the plaintiff/ respondent Osayande Irabor made on 23rd December, 1960 and the Deed of conveyance transferring the land “in dispute” from Osayande Irabor to the plaintiff/respondent respectively.

I would like to say here before anything further that reference by the appellant’s counsel both in his brief and his oral submission to 4th p. w. is inept. The learned trial Chief Judge had, in his judgment described him as a suborned witness who knew little or nothing about the land. After the learned trial Chief Judge had discredited the witness he gave judgment for the Defendant/Appellant. In other words the Defendant/ Appellant was the beneficiary of the judgment in the court of trial. The finding of that Court against the 4th p. w. has never been challenged. It was neither challenged in the Federal Court of Appeal nor in this Court.