Chief (Mrs) Ekanem Henry Bassey V. Aye James Robertson (1998)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an appeal against the decision of the Cross River State High Court of Justice, sitting at Calabar, granting in favour of the plaintiff a declaration of title to a parcel of land situate at Ikot Ansa. Calabar awarding damages of N100,000 for trespass and making an order of perpetual injunction restraining the defendant, her servants and agents from further acts of trespass.

The defendant was dissatisfied with the judgment and appealed to this court on six grounds of appeal. The grounds of appeal are set out immediately hereunder-

“(1) Error in law

The learned trial Judge erred in law when he completely failed to identify the real issue in controversy in this case, namely whether the defendant was a daughter of the original grantee, James Robertson, and therefore entitled by inheritance to the land in dispute as joint owner with the plaintiff.

Particulars of error

(a) It had been acknowledged in the pleadings and evidence that the land was acquired by James Robertson the father of the plaintiff and defendant.

(b) There was no evidence that James Robertson had completely divested himself of the land in favour of the plaintiff’s mother either by deed or as grant under native law and custom.

(c) The extent of the land purportedly given to the plaintiffs mother out of the larger portion acquired by James Robertson was not given in evidence.

(2) Misdirection

The learned trial Judge misdirected himself in law when he quoted and relied on the purported testimony of the plaintiff viz: ‘I know the land in dispute … I am the owner. It was acquired by my mother to farm on whereas it was never the case of the plaintiff that it was his mother who acquired the land and this misdirection has led to substantial miscarriage of justice.

Particulars of misdirection

(a) Both in his pleadings and evidence the plaintiff did not say that it was his mother who acquired the land.

(b) By relying on that quoted evidence the court was misled to believe that the land became vested in the plaintiff as an inheritance from his mother.