Fred Ahemba & Ors v. Grace Mbakasev Akosu (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the High Court of Benue State Makurdi Division, Coram: A. O. Onum, J, in suit No. MHC/52/2013: Grace Mbakasev Akosu v. Fred Ahemba & Ors., delivered on 29/4/2014, in which the claim of the respondent as claimant for declaration of title to the land in dispute was granted against the appellants as defendants.

The appellants were peeved with the said judgment and had promptly appealed against it vide their notice of appeal filed on 30/5/2014 on Three grounds of appeal at pages 187 – 190 of the record of appeal.

The record of appeal was compiled and transmitted to this court on 8/6/2016 and was deemed as properly transmitted on 29/3/2023. The parties filed and exchanged their briefs, which were adopted as their arguments at the hearing of this appeal on 29/3/2023.

The appellants were represented by S. O. Okpale, Esq., appearing with J. U. Ezeokafor, Esq. The respondent was represented by Vershima A. Akaangee, Esq. holding the brief of S. D. Swem, Esq.

By a writ of summons filed on 8/2/2013 before the lower court, the respondent as claimant had claimed against the appellants as defendants the following reliefs, namely:

1. A declaration that the plaintiff is the owner of the plot of land lying and situate behind BNARDA Quarters on TPS 161 and succinctly described in the site plan in plaintiff’s File No. BNA 10538.
2. An order awarding title to the said plot of land to the plaintiff.
3. An order of perpetual injunction restraining the defendant by himself or through his agents, servants and privies from further acts of trespass on the plaintiff’s plot.
4. An order that the principle of quic quid plantatur solo solo cedit applies in this case against the defendant in respect of the house being constructed on the plaintiff’s plot.
5. The sum of N2,000,000.00 as general damages. See pages 1 – 5 of the record of appeal

Succinct statement of facts

The gist of the case of the respondent as claimant before the lower court, as can be seen from the averments in his pleadings and the evidence, both oral and documentary as in the record of appeal, inter alia was that the land in dispute was given to her as an item of absolute gift by one Mr. Natar Ade in the presence of the her husband Barrister Samuel Terhemen Akosu, his mother, Mama Esther Ikyartser Akosu and his younger brother, Terfa Akosu, and she was thus, entitled to the ownership of the land in dispute.

However, the 2nd appellant purported to sell the land in dispute to the 3rd appellant and the 1st and 3rd appellants had entered into the said land without her consent and she therefore, sought a declaration of title to the land in dispute and an order ejecting the 1st and 3rd appellants from the land in dispute as well as an order of injunction retraining all the appellants from committing any further acts of trespass on it and damages for trespass.

The gist of the case of the appellants as defendants before the lower court, as can be seen from the averments in their pleadings and the evidence, both oral and documentary as in the record of appeal, inter alia was that there was no time when the land in dispute was given to the respondent by one Natar Ade as alleged by the respondent.

They maintained that the land in dispute forms part of a larger land that had been given as an outright gift by the said Baba Natar Ade to one Barrister Akosu lordye through his mother one Mama Esther Ikyartser.

However, the 3rd appellant had validly acquired the land in dispute from the 2nd appellant with the consent of one Alumun Akosu lordye, the younger brother of Barrister Akosu lordye. On his part, the 3rd appellant filed a counter – claim against the respondent claiming a declaration of title to the land in dispute as well as an order of injunction against the respondent and for damages for trespass.

At the close of pleadings and upon joinder of issues between the parties, the matter proceeded to trial. At the hearing, the respondent called three witnesses, who testified as PW1, PW2 and PW3 and tendered several documents which were admitted in evidence as exhibits and closed her case.

On their part, the appellants testified for themselves as DW1, DW2 and DW3 and closed their defense. Subsequently, the parties filed and exchanged their final written addresses, which were duly adopted and on 29/4/2014, the lower court proceeded to deliver its judgment, in which it granted the claims of the respondent as claimant against the appellants as defendants, hence this appeal. See pages 181 – 186 and 187 – 190 of the record of appeal.