Madam Ebireri Tsemudiara & Ors. V. Messrs F. G. Spiropoulos & Company Ltd. (2007)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

This is an appeal against the judgment of Hon. Justice EA. Nwulu, of the Delta State High Court, sitting at Sapele in Suit No.S/18/86, delivered on the 28th day of June, 1996.

The respondent herein as the plaintiff commenced this action against the defendants now appellants claiming inter alia as per paragraph 30(a)-(d) of the respondent’s further amended statement of claim No.1 as follows:-

(a) A declaration of title to all that piece or parcel of land known as the property of Messrs EG. Spiropolous and Company Ltd, lying and situate at Ajamele, Ogodo Quarters within the jurisdiction of this Hon. court and verge Red on plan No. KP 3635 aforestated.

(b) The sum of N7, 000.00 being the cost of 70009″ Cement Blocks property of the plaintiff but used by the defendants during the construction of the wall fence on the plaintiff’s land verged yellow in plan No. KP 3635 aforestated. Each cement block is assessed at one naira (N1.00).

(c) The sum of N3, 000.00 being general damages for trespass into plaintiff’s land verged Red in plan No. KP 3635 aforestated.

(d) An order of perpetual injunction restraining the defendants, their servants and/or agents from entering into any part of the plaintiff’s said land for any purpose whatsoever. The value of the said parcel of land is about N40, 000.00.

Pleadings were duly filed and exchanged. The respondent called three witnesses. The 1st appellant testified and called three other witnesses. Various exhibits were also tendered by both parties. At the close of the case of the parties, their respective counsel addressed the court. In a considered judgment delivered on the 28th day of June, 1996, the learned trial Judge, gave judgment for the respondent in respect of all the claims save claim (b) which the learned trial Judge found not specifically proved. It is against the said judgment that the appellants filed an appeal to this court upon six grounds of appeal vide a notice and grounds of appeal dated 1st day of July, 1996 and filed on the 4th day of July, 1996.

With leave of this court granted on the 28th day of April, 2004, the appellants filed six additional grounds of appeal. The twelve (12) grounds of appeal are hereby reproduced without their particulars:-

“1. The learned trial Judge erred in law when he gave judgment in favour of the plaintiff/respondent when the said plaintiff/respondent failed woefully to lead evidence or credible evidence to establish with precision and exactitude the location and description of its land.

2. The learned trial Judge erred in law when it gave judgment in favour of the plaintiff/respondent when the plaintiff/respondent failed to prove that –

(i) it is a limited liability company as averred by it in its paragraph I of its further amended statement of claim No. I and denied by the 1st to 3rd defendants/appellants in their 3rd joint amended statement of defence for the 1st to 3rd defendants.

3. The learned trial Judge erred in law when he gave judgment to the plaintiff/respondent when the main relief sought by the plaintiff/respondent namely: “A declaration of title to all that piece or parcel of land known as the property of Messrs FG. Spiropoulos & Co., Limited lying and situate at Ajimele, Ogodo quarters, Sapele within the jurisdiction of court and verged RED in plan No. KP 3635 aforestated is an incompetent declaration not known to law.” 4. Learned trial Judge erred in law when he gave judgment for the plaintiff/respondent when its supposed root of title that is the Deed of Lease dated 28th day of April, 1967 is null and void and of no effect whatsoever and however by virtue of the provisions of the Sapele Okpe Communal Land Trust established in 1958 by the then Government of the Western Region of Nigeria and adopted by Laws of Bendel State, 1976 now applicable to the Delta State of Nigeria.
4. Learned trial Judge failed to evaluate or properly evaluate the evidence of the 1st defendant/appellant and the defence witnesses and ascribed the proper weight to the exhibits tendered by the 1st – 3rd defendants/appellants. Failure of the learned trial Judge so to do has occasioned miscarriage of justice.
5. The judgment is against the weight of evidence.
6. The learned trial Judge erred in law by trying to explain off the contradictions in the evidence of identity of the land in dispute given by the respondent’s witnesses.
7. The learned trial Judge erred in law by proffering reasons to support the juristic person of the respondent when the respondent failed to tender its certificate of incorporation to establish the fact that it is a legal entity.
8. The learned trial Judge wrongly held on pages 124-125.

“In my view it is now too late in the day to say that the plaintiff has not proved that it is a limited liability company or that it lacks locus standi to bring this action to court. By ocular demonstration in exhibits A, F and H. The plaintiff is limited liability companies which need no more proof.”

10. The learned trial Judge erred in law by not visiting the locus to ascertain the identity of the land when the two surveyors called by the parties gave divergent evidence as to the identity of the land in dispute.
11. The learned trial Judge erred in law by relying on exhibits A & F as evidence of the respondent’s title.
12. The learned trial Judge erred in law by finding that exhibit H was written on the instruction of the appellant.”

In compliance with the rules and practice of this court, the parties by their respective counsel filed and exchanged briefs of argument. In the appellant’s brief prepared by P. K. Ogbimi, Esq, two issues were formulated for the determination of the appeal, namely:-

“(1) Whether the learned trial Judge correctly applied the law to the set of facts presented before him by the parties in their evidence?