Evelyn Ehwrudje V Warri Local Government & Anor (2016)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Benin Division or Court Below or Lower Court for short wherein the learned Justices delivered a judgment in favour of the 2nd Respondent on the 11th day of February, 2005.
FACTS:
The facts as put forward by the Respondents are that the 1st Respondent was at all material times the owner of all the stalls at Igbudu Market, Warri and the 2nd Respondent its tenant of Shed No. 1052 (formerly known as Shed No. 1338). At sometime in 1987, the 2nd respondent allowed the Appellant the use of the stall when she had to leave Warri to tend her child who was ill at the time and on her return in 1988 in the month of December she went to the Appellant to demand for rent. This demand was rebuffed by the Appellant who in turn claimed ownership of the stall whereby the 2nd Respondent reported the development to the 1st Respondent who invited both parties to resolve who the rightful owner could be. At this meeting, the 2nd respondent had evidence to show possession and the appellant had nothing to show and so the 1st respondent issued a quit notice to
the Appellant to give up vacant possession which she refused to comply at which the Respondents instituted an action against the Appellant at the Magistrate Court claiming the following reliefs:-
- Perpetual injunction to restrain the Defendant by herself/her servants/agents and/or privies from further trespassing or otherwise howsoever from remaining on or continuing in occupation of the said shed No. 1052 at Igbudu Market, Warri.
- An Order for possession in favour of the 2nd Plaintiff of the said Shed No. 1052 at Igbudu Market Warri.
3.N2,500 damages in favour of the 2nd Plaintiff for trespass for the said Shed No. 1052 at Igbudu Market, Warri.
The version of the Appellant is that she is a yearly tenant because the tenancy purportedly conferred on the Appellant is yearly in nature attracting a notice of 6 months and since there was no evidence of such notice the case of the Respondents would not be sustained, since the notice was a mere 7 days one.
After taking evidence from both sides, the learned chief Magistrate on the 15th day of February, 1991 delivered the judgment and made an Order of non-suit on the ground that the 1st Respondent had agreed to
reallocate two new stalls to either party. The Respondents being dissatisfied appealed to the High Court. The High Court set aside the decision of the Chief Magistrate Court and found in favour of the 2nd Respondent and thereby aggrieved the Appellant appealed to the Court of Appeal which affirmed the judgment of the High Court and further aggrieved, the Appellant has approached this Court.
On the 30th day of November, 2015, learned counsel for the Appellant, Chief A. K. Osawota adopted the Brief of Argument filed on the 30th October, 2008 in which were identified three issues for determination which are as follows:-
(A) WHETHER THE CASE PUT FORTH AT THE TRIAL WAS NOT THAT OF RECOVERY OF PREMISES WITH REGARDS TO THE EVIDENCE ADDUCED
(B) WHETHER THE COURT OF APPEAL WAS RIGHT TO HAVE AFFIRMED THE HIGH COURT’S JUDGMENT GRANTING THE RESPONDENT, PARTICULARLY THE 2ND RESPONDENT, WHAT THEY NEVER CLAIMED
(C) WHETHER THE FAILURE OF THE COURT OF APPEAL TO HOLD THAT NON CONSIDERATION OF EXHIBIT “M”, TENDERED BY THE APPELLANT, WAS A FUNDAMENTAL OMISSION THAT HAS OCCASIONED MISCARRIAGE OF JUSTICE IN VIEW OF ITS PROBATIVE VALUE, IS NOT ITSELF COUPLED WITH THE FINDINGS OF THE
COURT OF APPEAL A MISCARRIAGE OF JUSTICE
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