Masade Esene V. Cecilia Isikhuemen (1978)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, J.S.C. 

In this matter, the appellant Masade Esene having died before the hearing of this appeal, was substituted by his son, Andrew Masade. The claim before the Ubiaja Judicial Division of the High Court of Bendel State reads:-

“(A) A declaration of title to the land and house situate at or being between the house of the plaintiff, that is, 21, Unity Road, Uromi and that of one Ogeaga Oko-Oniha, known or generally referred to as 25, Unity Road, Uromi, a place within the jurisdiction of this court, which property shall be more properly described and delineated on a survey plan to be filed later in these proceedings.

(B) Possession of the said land and house.

(C) Perpetual Injunction restraining the defendant, his servants or agents from further interference with the plaintiff’s rights and quiet enjoyment over the said property.”

Put briefly, the appellant’s case was that he had invited the respondent, his lover, to live rent-free in a house he had built on the disputed land. Before this, he had been paying the respondent’s rent where she had hitherto lived in the house of the Ejele Udo. The appellant’s house on the disputed land had become vacant when one Owobu, servant of the appellant died. The dispute culminating in this action came about when the respondent, soon after taking up residence in the house, decided to transfer her affection to another man. When the appellant became aware of this development, he thought it was about time the respondent paid some rent and made demand for same. The respondent refused to pay rent and began to lay claim to both the land and house as owner thereof. For her part, the respondent based her claim to the land on purchase after which she built the house thereon in which she now resides. She denies ever having been in love with the appellant.

The parties themselves gave evidence on oath in support of the averments made in their pleadings and called witnesses.The learned trial Judge after hearing all the evidence, dismissed the appellant’s claims.

This appeal is against the said judgment.

Although several grounds of appeal were filed, learned counsel appearing for the appellant rested his case on grounds 1a, 1b and 1c which he argued together. These grounds read thus:-

1 “The Honourable learned trial Judge was wrong in law:

(a) When having found that the defendant/respondent had not established before him the “fact of purchase” of the land in dispute from the plaintiff/appellant, a defence which she heavily relied upon, proceeded to hold, that “he accepted the evidence that the defendant/respondent bought the land in dispute.”

(b) When he imported the evidence of the price paid on the land in dispute from Exhibit “B” to establish the fact of purchase in the case before him.

(c) When in fact, at best, the evidence of purchase led by the defendant/respondent, if accepted, could only create equitable interest and therefore not capable of overriding or competing with the plaintiff/appellant’s evidence of legal title to the land in dispute.”

Learned counsel argued that it was an error for the trial court to have used evidence given in an earlier proceeding between the parties over the disputed land to establish the fact of purchase, this being an issue in the matter before it.