David Ehigie Osemwenkha V. Peter Osemwenkha (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of Edo State High Court holding in Benin, the judgment was delivered on 19th November, 2010. The claim of the Respondent leading to the judgment is as follows:

“The Plaintiffs claim against the Defendant is as formulated in Paragraph 22 of the Further Amended Statement of Claim filed on the 21st of October, 2005 which reads thus:-

a) A declaration that the Plaintiff stepped into his late father’s shoes in accordance with Bini Native Law and Custom is entitled to inherit his late father’s principal Mansion House otherwise known and called ‘Igiogbe’ lying and situate at No.24 (old No.5), Oregbeni Quarters, opposite former Nigerian Army Barracks, Oregbeni, Benin City (which Plaintiff’s father inherited from his father, LATE PA OBAZEE OSEMWENKHA) to the exclusion of any other person.

(b) An Order compelling the Defendant to give up immediate possession and occupation of the aforesaid Principal Mansion House (Igiogbe) and the entire premises.

(c) An Order compelling the Defendant to give up possession of the building comprising of four (4) stores and a three (3) bedroom flat erected by the Defendant on the rear right end of the Igiogbe during the pendency of this suit.

(d) An order of court compelling the Defendant to render an Account to the Plaintiff of all rents collected from the aforesaid house since 1st December, 1996 until the delivery of possession of same to the Plaintiff.

(e) Payment of all such sums collected by the Defendant and interest thereon to the Plaintiff.

(f) A Perpetual Injunction restraining the Defendant, his agents, servants and/or privies from interfering with the Plaintiffs proprietary rights over and in the said property (Igiogbe)”.

Pleadings were duly filed and exchanged between the parties. The Plaintiff, in proof of his case testified for himself and called (five) witnesses; and tendered Exhibits A-F2 respectively. The Defendant testified in his defence and called four (4) witnesses and tendered several Exhibits.

At the end of the whole trial the learned trial Judge as part of his judgment has this to say I quote-

“Having painstakingly considered the totality of both and documentary evidence of the Plaintiff and his witnesses and weigh same side by side with the evidence of the Defendant and his witnesses, in line with their pleadings I say without hesitation that I prefer the evidence of the Plaintiff and his witnesses to that of the Defendant and his witnesses”.

The Judge thereafter granted all the reliefs asked for by the Plaintiff.

The Appellant who was the Defendant in the trial court dissatisfied with the judgment filed a Notice of Appeal dated 24/12/10 which has 10 grounds of appeal I quote without particulars-