Friday Elema & Anor V. Princess Christy A. Akenzua (2000)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

The Appellants Prince Friday Elema and Prince Sunday Elema were the Defendants in this action filed at the High Court of Justice, Benin City Edo State. In the action, the Respondent who was the Plaintiff, claimed against the Defendants jointly and severally as follows:-

“(a) A declaration that the Plaintiff is entitled to the grant of Statutory right of occupancy in respect of a piece of land with an area of 12.183 acres situate and lying at Ward ‘A’ Elema Quarters, Benin City within the jurisdiction of this Honourable Court which said piece of land is demarcated with beacons No. LM. 2559, LM.2558, MA 1975, MA. 1976 and marked ‘A’ and LM.2561, LM. 2562 and LM.2549 and marked ‘B’ in Plan No. ER. 511 of 10/10/73 prepared by Chief G. C. O. Eriyamremu, Licensed Surveyor and filed in these proceedings.

(b) N1,000.00 (One thousand naira) damages for trespass on the said land.

(c) Perpetual Injunction restraining the Defendants, Privies, their servants and Agents from further trespassing on the said land.”

The Plaintiff gave evidence on her own behalf and called 6 witnesses to show that the parcel of land in question originally belonged to the late father of the Defendants Chief Felix Owen Elema. At the death of Chief Felix Owen Elema the two appellants and their elder brother Jonathan Elema were given letters of administration to administer the estate of their deceased father it was in this capacity that they transferred the land in dispute to the Plaintiff as shown in the receipt Exhibit ‘D’ which was issued as far back as 2 November 1972.

It was not until 1981 that the Plaintiff discovered that some people were trespassing on the land. She complained to Chief Jonathan Elema who gave her a hand-written note Exhibit ‘F’ confirming her ownership of the land in question and directing that nobody should stop her from working on the land.

For their part, the Defendants denied having any land transaction with the Plaintiff. They called three (3) witnesses but did not themselves give evidence on their own behalf. As will be shown later in this judgment, the evidence of these witnesses did nothing to enhance the defence of the Defendants.

The learned trial judge, in a reserved judgment, delivered on 11 April 1990 entered judgment in favour of the Plaintiff for all the reliefs sought. The Defendants’ appeal to the Court of Appeal was dismissed. They have now further appealed to this Court.

The Defendants, at page 2 of their brief of argument, submitted three issues for determination in this appeal. They read:

“(i) Were the learned Justices right in holding that Exhibits D & F constitute proof that Defendants lord put plaintiff in possession of the land claimed by her

(ii) Were the learned Justices right in holding that the onus of proof in this case was not wrongly put on the Defendants

(iii) Were the learned Justices right in affirming the judgment granting declaration of title to the Plaintiff in this action

For her part, the Plaintiff in her brief of argument formulated two issues for determination which read as follows: