Victor Emuivie I. Obaseki & Ors V. Prince Terry Ukhuegbe (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GEORGE OLADEINDE SHOREMI J.C.A (Delivering the Leading Judgment)

By its Statement of Claim in Suit No. B/133/2000 the Respondent in this case claimed against the Appellants (then defendants) as follows:

WHEREOF the Plaintiff claims against the Defendant jointly and severally as follows:-

(a) A declaration for possessory title in favour of the Plaintiff to ALL that property known as No. 83 (now 89) Akpakpava Street, Benin City, more particularly delineated in survey plan No. ISO/BD/1451/89 and redefined in plan No. ISO/ED/1050/93 by reason of the existing sale Agreement between the parties and that the plaintiff is the person entitled to the grant of statutory Rights of Occupancy thereto.

(b) An order that any purported sale, Transfer, or alienation of any title or interest in the property to any person other than the Plaintiff is null and void and of no effect and purpose.

(c) An order for specific performance of the Agreement to sell or formally convey the property known as No. 83

(now 89) Akpakpava Street Benin City more particularly delineated in survey plan No.ISO/BD/1451/89 and redefined in survey plan No. ISO/ED/1050/93 in favour of the Plaintiff pursuant to the Agreement dated 11th November 1993.

(d) An order of perpetual injunction restraining the Defendant their Agent &, privies and servant from trespassing on the property in dispute or howsoever doing anything that is inconsistent with the right of interest of the Plaintiff on the said property.

Pleadings were exchanged. Both parties prosecuted their cases with their amended statements. The 1st Appellant was the only complaint defendant but by order of court 2nd- 4th Appellants were joined as defendants as necessary parties to the suit.

Parties called witnesses and their counsel addressed the court. The lower court in a judgment delivered on 20/06/02 gave judgment in favour of the Respondents in the following terms:-

On the whole, weighing the evidence in support of the case for the Plaintiff side by side the evidence in support of the case for the defence, I prefer the case for the Plaintiff to that of the defence. I am of the view that the plaintiff has established his case and claims against the defendants on the preponderance of evidence. I have no doubt in my mind that the defendant has failed to establish that the 2nd defendant was not a part to the agreement of sale, exhibit C and have also failed to show that the agreement exhibit C was forged or that 2nd defendant did not sign exhibit C.

Consequently, it is herein declared that the Plaintiff is entitled to possessory title to All that property known as No.83 (now No.89) Akpakpava Street, Benin City, more particularly delineated in survey plan No. ISOLBD/1451/89 and redefined in plan No. ISO/ED/1050/93 by reason of the existing sale Agreement between the parties and that the Plaintiff is the person entitled to the grant of statutory Rights of Occupancy thereto. It is herein declared that any purported sale, transfer, or alienation of any titled or interest in the property to any person other than the Plaintiff is null and void and of no effect and/or purpose whatever. The defendants are herein jointly severally ordered to specifically perform the Agreement to sell or formally convey the property known as No. 83, (now No.89) Akpakpava Street, Benin City. None particularly delineated in survey plan No. ISO.ED/1451/89 and refined in plan No. ISO/ED/1050/93 in favour of the Plaintiff pursuant to the Agreement dated 11th November, 1993. The Defendants, their Agents, Privies, Assigns and trespassing on the property in dispute or however doing anything that is inconsistent with the right or interest of the Plaintiff on the said property”.

The Appellants as defendants dissatisfied with the judgment appealed to this court and filed two original grounds of appeal and by leave of court filed two additional grounds.

The grounds of appeal are hereunder set out without particulars –