Emmanuel Irhabor & Anor. V. E. U. Ogaiamien (1999)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

This is an appeal against the judgment or the Court of Appeal, Benin Division allowing the appeal of the defendant against the judgment of Akpovi. J. (as he then was) sitting in the Benin Judicial Division of the High Court of the then Bendel State. The trial court granted the plaintiffs’ claims for a. declaration of entitlement to a Certificate of Occupancy and an injunction restraining the defendant, his servants and/or agents from further acts of trespass on the land in dispute. The court of Appeal reserved the decision of the learned trial judge.

The plaintiffs who were the respondents in the court below have now appealed to this court

Counsel on both sides filed briefs to this court.

“1. Whether the lower court was right in setting aside the findings of fact of the trial court considering the totality of the evidence and thus dismissing the appellants’ claim

2. Whether Exhibit “F’ is relevant as an act of possession/ownership on the respondent
3. Whether the lower court was right when it held that Exhibit “C” could not create a legal title in the 2nd appellant whereas what the 2nd appellant claimed was a declaration for possession or possessory title”

The defendant identified the following issues in his own brief:

(a) Whether this appeal is properly before this Honourable Court having regard to the condition precedent to the filing of this appeal – vide section 213(3) of the 1979 Nigerian Constitution as Amended by Constitution (Suspension and Modification) Decree No. 1 of 1984.

(b) Whether from the evidence on the record, the learned justices of the Court of Appeal were right in holding that Respondent’s(defendant) Oba’s approval, Exh. ‘D’ relates to the land in dispute as against the trial judge’s perverse finding that it relates to another land

(c) Whether Exh. ‘C’ (Purchase Receipt) is capable of transferring any legal interest from the first Appellant to the 2nd Appellant.”

I will in this judgment refer to the plaintiffs as appellants and the defendant as the respondent. When the appeal was called for hearing on 8-3-99, the parties were absent and not represented by counsel. Briefs of argument were filed by both parties and the court was informed that hearing notices were sent to them as far back as 7-7-97. Having regard to Order 6 rule 8(6) of the rules of this court, the appeal was treated as argued and 1 will consider the briefs in this judgment.

The appellants’ claims in the High Court are:

“(a) Declaration for possession or possessory title and that the 2nd plaintiff is the person entitled to a Certificate of Occupancy to the parcel of land situate ward 18/H Benin City, the said parcel of land measuring 100 ft by 200 ft. and to be delineated in a plan to be filed in Court. Annual value of land is N1,000.00

(b) Possession of the said parcel of land.

(c) An order for perpetual injunction against the Defendant and his servants or agents from further acts of trespass on plaintiff’s (sic) land:’