John A. Osagie V. Alhaji S.o. Oyeyinka & Anor. (1987)

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OPUTA, J.S.C.

In the Court of first instance the Plaintiff who is now the Appellant sued the Defendants/Respondents claiming in his Amended Writ of Summons:-

“(i) Declaration of Statutory Right of Occupancy of the premises situate at and known as No.12, 3rd Cemetery Road Benin City.

(ii) An Order setting aside the Conveyance (of part of the said premises) registered as Instrument No. 14 at page 14 in Volume 379 of Land Registry in the office at Benin from the 2nd Defendant

Erasmus Ihama Ogbeide to the 1st Defendant Alhaji S.O. Oyeyinka.

(iii) N5,000 damages for trespass.

(iv) Perpetual Injunction restraining the Defendants, their agents and anyone claiming through them from further trespassing on the said premises.”

Pleadings and plans were ordered filed and duly delivered. An Amended Statement of Claim was filed by the Plaintiff. The 1st Defendant also filed an Amended Statement of Defence while the 2nd Defendant filed his own Original Statement of Defence. The case was fought on these new Statement of Claim and Defence.

After due hearing the trial Court dismissed all the Claims against the 1st Defendant. With regard to the 2nd Defendant the trial Court held:-

“I must confess that I do not know the precise relief sought against the 2nd Defendant. …. ”

The learned trial Judge however ended up thus:-

“In sum, the reliefs sought by the Plaintiff against the defendants are hereby dismissed”.

It must therefore be noted in passing that the learned trial Judge could not meaningfully make any particular order against the 2nd Defendant as 2nd Defendant since “he did not know the precise relief sought against him”.

The Plaintiff lost in the trial Court. Dissatisfied and aggrieved he then appealed to the Court of Appeal Benin Division. That Court again dismissed the Plaintiff’s appeal with “costs assessed at N350.00 to the Respondent”. Further dissatisfied, the Plaintiff has finally appealed to the Supreme Court, the country’s Court of last resort. If the issues were mainly and solely issues of fact then the Plaintiff would have had to face the uphill task of battling against the concurrent findings of fact of two Courts and this Court’s known reluctance to interfere with such findings. Fortunately for the Plaintiffs the main factual props of this case are not in dispute. What has been called into question are the legal consequences of and from those facts.