Alfred Usiobaifo V. Christopher Usiobaifo (2005)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

Chief Usiobaifo Ekpuda an Ishan, was the father of the 1st and 2nd plaintiffs/respondents. He was also the father of the 1st defendant/appellant. He died in the year 1954. His eldest son, Oboite Usiobaifo died in 1973. Chief Usiobaifo died intestate. He was owner of the property at No. 107 Forestry Road, Benin City. The 1st defendant/appellant, the son of Chief Usiobaifo Ekpuda, claimed to have performed the burial ceremony of the late father, as a result of which he became the exclusive owner of the property in accordance with Esan native law and custom. 1st defendant/appellant sold the property to the 2nd defendant/appellant in 1992.

The plaintiffs/respondents filed an action. They asked for two reliefs:

“(i) A declaration that the first defendant has no right to sell the family properties known and situate at No. 107 Forestry Road, Benin City, without the consent and approval of other principal members of the family.

(ii) A declaration that the purported sale of the properties known and situate at No. 107 Forestry Road, Benin City, on the 11th day of September, 1992 by the first defendant to the second

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defendant within the jurisdiction of this honourable court is illegal, null and void and of no effect whatsoever.”

After taking evidence and address of counsel, the learned trial Judge gave judgment against the defendants/appellants. The sale of the property was declared void. Omage, J. (as he the was) declared at page 70 of the Record:

“I declare that the said sale is void and that the said property remains the properties of Usiobaifo family because the 1st Defendant has no power or authority to sell family property as his own property. The sale is declared null and void.”

Dissatisfied, the appellants appealed to the Court of Appeal. That court affirmed the decision of the learned trial Judge. The appeal was dismissed.

Still dissatisfied, they have come to the Supreme Court. Briefs were filed and exchanged. The appellants formulated the following issues for determination:

“(i)Whether the Plaintiffs (Respondents) discharged the onus or proof required of them as claimants for a declaratory judgment granted to them by the court of first instance and confirmed by the Court of Appeal?

(ii) Whether the Learned Justices of the Court of Appeal were right in not considering the various issues raised and argued before them by the appellants and making pronouncements on them?

(iii) Whether the Learned Justice of the Court of Appeal were right in holding that there were no contradictions in the evidence of the Plaintiffs’ witnesses and at the same time providing an explanation for the contradictions?