George Onobruchere & Anor V. Ivwromoebo Esegine & Anor (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C

The Appellants who were Plaintiffs in the court of first instance sued the Respondents who were the defendants claiming as follows:

“1. Declaration of title to all that piece or parcel of land known as and called ‘Ogorode’ situate at Afiesere Bush, Ughelli within the jurisdiction of this Honourable Court.

2. An Order of the Honourable Court that an alleged pledge of part of the said Ogorode by one Emunotor (now late of the Plaintiffs family to one Idiarhoewvwe (now late) the ancestor of the Defendants family is null and void and of no legal consequence OR in the alternative an Order of this Honourable Court that the said portion of land allegedly pledged to Idiarhevwe by Emunotor aforesaid be redeemed.
3. An Order of perpetual injunction to restrain the defendants, their agents and/or servants from further entering upon the said land.
4. 100 (One hundred pounds) damages for trespass committed by the defendants, their agents and/or servants etc.

Pleadings were ordered, filed and duly exchanged.

After due trial on supposedly relevant evidence, like Exhibits E E1 E2 E3 and F the trial court dismissed the Plaintiffs claims in their entirety. The learned trial judge Amissah, J. in his judgment at p. 107 observed as follows

“It is trite law that it is for the plaintiff who asserts to lead evidence in support of his assertion and not rest on the weakness of the defendant’s case. It is to be noted here that at no time did the plaintiffs lead evidence as to their customary law of pledge, the respective rights of the parties and the question of the right of redemption.’

After weighing the evidence adduced by the parties, the learned trial judge then at p. 108 of the record of proceedings made inter alia the following findings of fact

I find as fact at all times material to this case that the defendants have been in possession of the whole Ogorode land and that acts of ownership on the said Ogorode land by the defendants are numerous and positive enough to warrant the inference of exclusive possession.’

I will merely say that the finding as to acts of ownership numerous and positive is only relevant where traditional history is inconclusive and the case has to be decided on question of fact of possession. That is what Ekpo v. Ita 11 N.L.R. pg 68 decided. Here the Defendants pleaded purchase as their root of title. They will succeed or fail on that plea.

The Plaintiffs dissatisfied with the judgment of Amissah, J appealed to the Court of Appeal, Benin Division. That Court also dismissed the Plaintiffs appeal, observing at p. 227 of the record of proceedings as follows:

“The learned judge’s remarks about the Plaintiffs’ failure to prove pledge is ancillary to his finding that the plaintiffs story of a pledge was a fabrication.”

The Court below then summed up what it thought the law is at p. 229 thus:

“To sum up I uphold Mr Okpoko’s submission that on the state of the pleadings, the onus was on the plaintiffs to prove sale and not on the defendants to prove purchase.”

Obviously, again dissatisfied, the Plaintiffs have now appealed to the court of last resort having lost in two courts. The policy of this Court enunciated in a long line of its decided cases is that it will not disturb concurrent findings of fact of two courts unless there is some miscarriage of justice or a violation of some principle of law or procedure. Enang v. Adu (1981) 11 12 S.C. 25 at p. 42, Okagbue v. Romaine (1982) 5 SC. 133 at pp. 170-171, Lokoyi v. Olojo (1983) 8 SC 61 at pp. 68, 73 and Ojomu v. Ajao (1983) 9 S.C. 22 at 53 all refer. Is there any miscarriage of justice which should be inferred if there is a serious violation of an important principle of law or procedure It is in this respect and to find an answer to the above question that it now becomes necessary to consider the grounds of Appeal.