The Incorporated Trustees Of Ladies Of Saint Mulumba, Nigeria V. Ekhator (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Applicant as Claimant, filed a suit against the Respondent at the Edo State High Court, involving “a piece or parcel of land situate and known as Ward 40/B Aduwawa Area, Benin City”. At the trial Court, the Parties pleaded and tendered separate Certificates of Occupancy issued by the Edo State Government, and the Issue boiled down to whether the Claimant established the identity of the land in dispute. In its judgment delivered on 31/1/2017, the trial Court held that —

A Claimant who fails to prove the exact location or identity of the land it claims, cannot be said to have proved his title to land. After due consideration of the entire evidence adduced, I hold that Claimants have failed woefully to prove their case on the balance of probability as required by law. Accordingly, I hereby dismiss the Claimants’ Suit in its entirety as lacking in merit.

The Applicant appealed and, in its judgment delivered on 4/12/2019 the Court of Appeal compressed the Issues presented by both Parties as well as their arguments into one Issue for Determination; that is:

Whether the Appellant had by preponderance of evidence established the identity of the land, subject matter of the suit, and if not, whether the lower Court was right to dismiss the suit.

It resolved the Issue against the Applicant, and concluded as follows:

It is not necessary to call the Surveyor, who made the survey plan. In any case, the Claimant instead of pointing fingers at the speck of wood in the Defendant’s eyes, should have taken care of the log of wood in its own eyes by filing a composite plan to prove the identity of the land. The strong contention of the Defendant that there was a previous litigation on the said land further complicated issues for the Claimant. The Defendant also tendered litigation survey plan with No. 150/ED/151/2013 in respect of the earlier Suit No. B/6/07. The Defendant in his Statement on Oath deposed thus … In the face of all the above, the need to file a Composite Plan by the Appellant should have stared it in the face. It was a glaring need. Yet, it was not filed. I have no hesitation in resolving the sole issue in favour of the Respondent. This Appeal lacks merit. It is hereby dismissed. The judgment of Edo State High Court in Suit No. B/486/2012 delivered on 31/1/2017 is accordingly affirmed.

The Applicant failed to appeal against the said judgment within time, and it has now filed this Application on 6/5/2020, praying this Court for an extension of time to seek leave to appeal; leave to appeal; and an extension of time to file the Notice of Appeal against the judgment of the Court of Appeal. The Grounds for this Application are that –

i. The Grounds in the proposed Notice of Appeal contain substantial issues of fact and law that require the consideration of this Honourable Court.

ii. The Grounds in the proposed Notice of Appeal evoke serious issues as to the correctness of the judgment of the Court of Appeal.

iii. The failure of the Applicant to seek leave to appeal against the judgment of the Court of Appeal within the time stipulated in the Supreme Court Act Cap S. 15, LFN 2004 was due to inadvertence of Applicant’s Counsel; and that –

iv. The inadvertence of Counsel cannot be visited against the Applicant that is seeking to exercise its constitutional right to appeal against the judgment of the Court of Appeal.

The Application is supported by a 20-paragraph Affidavit with three annexures, and it also filed a Brief in Support of Motion on Notice For Leave to Appeal. The Respondent filed a 15-paragraph Counter-Affidavit to which he attached a judgment in another Suit No. B/6/2007 as Exhibit EK, and he also filed a Written Address in Support of Counter-Affidavit. In response, the Applicant filed a Reply Affidavit to the Respondent’s Counter-Affidavit and a Reply Brief.

In its Brief, the Applicant submitted that the sole issue, which arises for determination of this Application is, “whether the Applicant has satisfied the legal requirements to sustain the reliefs sought before this Honourable Court”.