Okiugbedi Edjekpo & 2 Ors V Iboyi Ithibri Osia & 3 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C

This is an appeal against the judgment of the Court of Appeal, Benin Division, delivered on 4 April, 2001 in which the Court of Appeal ordered that the suit be remitted to the Delta State High Court for retrial.

This is a land matter. The appellants as plaintiffs in suit No. UHC/12175 brought this action for themselves and on behalf of Uri the Quarters Enwhe Town, for declaration of title to Eto Land, N600.00 damages for trespass and an order of perpetual injunction.

The respondents herein filed a cross action as plaintiffs against the appellants in suit No. UHC/19175 for declaration of title to Uri land of Uluthe Quarters of Enwe, N 1,200.00 damages for trespass and perpetual injunction. The two suits were consolidated by an order of the trial court made on 12 November, 1976. By the said order of consolidation, the appellants became the plaintiffs while the respondents became defendants.At the hearing the appellants called five witnesses while the respondents also called five witnesses in SUPPORT of their respective claims. At the close of hearing, the learned trial Judge found for the appellants. The respondents appealed to the Court of Appeal upon the following two issues:

“(a) Whether the decision of the trial court can be supported in the face of the unresolved conflicts between the findings and the final decision of the court

(b) Whether the absence of the testimonies of defence witnesses 1, 2, 3 and 4 following the reported loss of court records book in which they were recorded will not deprive the Court of Appeal the privilege and or opportunity of viewing the entire proceedings of the trial court as to be in a position to agree and or disagree with the findings and or subsequent decision of the trial Court.”

The Court of Appeal upheld the appeal of the respondents and ordered a re-trial of the suit. This appeal is from the decision of the Court of Appeal.

Both parties filed their respective briefs of argument. The appellants raised five issues for determination. They read as follows:

1. Were the learned Justices right in law in dismissing the preliminary objection as to the validity and or competence of the second additional ground of appeal and the issue formulated therefrom
2. Were the learned Justices right in holding that the learned trial Judge made an inconsistent finding when he found that defendant did not prove extent and boundary of the land claimed by them.
3. Were the learned Justices right in holding that the principle that claimants to title to land are in duty bound to prove the extent and boundary of the land claimed by them for which three (3) cases were cited – was not an issue in the case

Were the learned Justices right in law in setting aside the judgment of the learned trial Judge and ordering a rehearing – put in another way, is a rehearing an appropriate order to make in this case

Were the learned Justices right in setting aside the judgment of the trial court on the ground that evidence

of DWI-4 were missing from the records when –

(a) Judgment was based on traditional evidence on record and on documentary evidence exhibit 0 I. Judgment was not based on evidence of’ DW 1-4.

There was no appeal against any finding made by the learned trial Judge.

The respondents have adopted the five issues submitted by the appellants. I think issue No. 5 is most crucial to the determination of this appeal. In my view, the failure or success of this appeal will depend on whether this issue succeeds or fails. Before considering issue No. 5, I would like to dispose of appellants’ issue No. 1. It has been pointed out by appellants’ senior counsel that in the Court of Appeal, he took objection to the second additional ground of appeal and the issue for determination formulated therefrom. It was contended that the objection was a material objection going to the root of the appeal. In considering the objection the court below erroneously based its decision on the first additional ground of appeal to which there was no objection. This is not in dispute.