Samuel Agbonifo V. Madama Irorore Aiwereoba & Anor (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

Before a Benin High Court the plaintiff in a claim amended in paragraph 14 of the Amended statement of claim, claimed against the two defendants as follows:-

“(i) Declaration that the Plaintiff is entitled to possessory title under Bini Customary Law of the parcel of land lying situate along Eboigbe Street, Upper Sakpoba Road, Ward 18th Benin City and verged red on Plan No. ER. 2251 filed with this statement of claim and therefore entitled to a certificate of occupancy in respect of same under the Land Use Act.

(ii) N1,000.00 (One thousand Naira) general damages for trespass committed by the Defendants their servants or agents unto the said land.

(iii) Perpetual injunction restraining the Defendants their servants or agents from entering the said land or in any way interferring with the Plaintiffs rights in or over the said land.”

At the hearing, after the exchange of pleadings, each party called evidence and their counsel addressed the Court. The learned trial Judge, Idahosa, J, in a well-considered judgment preferred the case by and on behalf of the plaintiff and entered judgment for him. On appeal, the Court of Appeal, Benin Division, proceeded to make many findings of fact contrary to those of the trial Judge and, at the end of the day, allowed the appeal, set aside the judgment of the learned trial Judge and entered judgment for the defendants. The plaintiff has appealed to this Court, with leave of the Court of Appeal. Four grounds of appeal were filed. With their particulars, they run into four-and-a half pages of type-script and each of them lacks that general formulation which should be the hall-mark of a good ground of appeal. However, as no objection was taken about them, I say no more of their form. I consider it sufficient, however, to summarize their main contentions, thus:

(i) The 1st ground of appeal contends that the Court of Appeal misdirected itself in law and on the facts when it held that the plaintiff did not discharge the onus of proof incumbent on him of averring and proving that the defendants’ documents of title were forged.

(ii) The 2nd ground contends that the Court of Appeal erred in law when it found for the defendants on the ground that the plaintiff did not discharge the onus placed on him by law in that P.W.4. and P.W.5. were not surveyors and that the trial Judge should have taken their evidence with a pinch of salt, as the defendants were illiterates.

(iii) The 3rd ground complains of the Court of Appeal applying the principle of priority to the facts of the case as proved by evidence; particularly as required by customary law and the defendants’ failure to prove a good title in view of the evidence of P. W.4 and P.W.5.

(iv) The 4th ground complains of the Court of Appeal’s belief of witnesses (D.W.1, John Orebor, and D.W.2, Iduma Omorogbe) whose evidence the trial Judge had disbelieved in view of the accepted evidence of P.W.4 and P.W.5.

The plaintiff shall hereinafter be called the appellant and the defendants, the respondents. Each party duly filed their brief of argument which they adopted at the hearing and addressed the Court orally.

Based on the above grounds of appeal, the learned counsel for the appellant formulated the issues for determination in this appeal thus:

“1. Whether the Court was right to substitute its views for the views of the learned trial judge when the findings are not perverse or against the trend of the evidence, particularly when their Lordships held that on the facts of the case the issues were at large or it was one of oath against oath.

2. Whether the plaintiff did not prove a good title to the land in dispute in accordance with Benin Native Law and custom.
3. Whether on the facts of the case the issue was one of priority of approval.
4. Whether by well established custom in Benin and on decided cases a plot pointer or inspector is required to be a surveyor.
5. Whether the illiteracy of the defendants is relevant on the facts of this case.

The learned counsel for the respondents adopted the issues as framed and tried to reply to them seriatim.