Sunday Idemudia Ebamawo v. Madam Rose Fadiyo (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

In an action commenced in the Benin Customary Court No.3, the particulars of the plaintiffs claim read

“The plaintiffs claim against the defendant is for a declaration of title of ownership to a piece of land measuring 100 feet by 98 feet lying between beacon Nos. 605 and 604, and situated at Ugbekun area in Ward 18H Benin City, now encroached upon by the Defendant since three months.

The piece of land values about 100pounds (one hundred pounds).”

The defendant denied the plaintiffs claim. At the hearing which followed, the plaintiff and the defendant testified and called witnesses. After the evidence-in-chief of Jonathan Owie Aiyebahan (1st P/W) has been recorded by the learned President of the Customary Court, the following note was made by him in the record of proceedings:

“Question by plaintiff to the witness: No.” The second witness for the plaintiff then testified and after he had been duly cross-examined, the plaintiff closed his case. The defendant then testified and called his own witness. Thereafter, the court inspected the land in dispute.

In a reserved judgment, the court, after reviewing the evidence adduced before him and making some observations on the evidence found as follows:

“In view of the foregoing facts, the court is convinced beyond every reasonable doubt that the plaintiff had made her case against the defendant. Therefore judgment is for the plaintiff for her claim, that is, the defendant should surrender possession of the building plot in dispute within a month.”

Being dissatisfied with the judgment, the defendant appealed to the Magistrate’s Court, Benin City, on the ground that the judgment was against the weight of evidence. Additional grounds of appeal which were later filed and argued on behalf of the defendant read:

“1. That the court below erred in law by giving judgment in favour of the plaintiff where there was no evidence of the mode by which the property devolved on her i.e. either by will or custom.

2. That the court below erred in law by giving judgment in favour of the plaintiff when there was no evidence of appropriate customary law applicable in the case.
3. That the proceedings are irregular in that defendant was afforded no opportunity of cross-examining the plaintiff principal witness Mr. J. O. Aiyebahan.
4. That the Court below misdirected itself in law in holding as follows:

‘With regard to the copy of judgment in a case between Chief Ohenso and Ward 18H, there was no where to be found in the judgment which stipulated that all applications recommended by Ward 18H Allotment Committee and approved by the Oba at Agbokun should be nullified’ having regard to the legal importance of Exhibit C and its judicial consequence.

5. That the court below erred in law by giving judgment in favour of the plaintiff when she failed to prove her claim.
6. The court below failed in law to consider or give sufficient consideration to the defence of the defendant.”

The learned counsel for the defendant, at the hearing of the appeal, argued all his grounds of appeal. The learned counsel for the plaintiff, on the other hand, appeared to have replied only to the first three grounds of appeal because part of the notes of the learned Senior Magistrate which deal with his submissions read

“Mr. Uwaifo replies to grounds 1, 2. He cites section 23 (1) of the Customary Courts Edict, and says there is no need to prove the law or custom. He submits that it was a slip of pen that the defendant was not allowed to cross-examine the plaintiff. He says it is a procedural defect which is cured by section 57 of the Customary Courts Edict. At this stage Mr. Uwaifo says that at this stage he intends to discontinue the appeal because it would appear he is not going to be accommodated. ”

Whereupon the learned Senior Magistrate allowed the appeal and set aside the judgment of the Customary Court after observing as follows: