Mr. Folorunsho Eke v. Chief Eniola Osah (Alias Small Baba) (2025)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA (Delivering the leading judgment)

The appellant, as plaintiff, commenced an action against one Julius Okhuaresohan at the High Court of Edo State, Okada Judicial Division, vide suit No. HCOK/124/2006, claiming a declaration of title to a parcel of land measuring 600ft by 600ft situate at Ohunmwun Village in Ward 1 A, Benin – Lagos Road, via Benin City.

The appellant also claimed 500,000.00 damages and perpetual injunction against the said Julius Okhuaresohan.

In a judgment delivered on 26/11/2013, the High Court, presided over by Hon. Justice Oseyi Okojie-Oihbokie, granted all the reliefs claimed by the appellant, only downsizing the amount claimed as damages to 200,000.00. He was given Warrant of Possession over the land.

Subsequent to that judgment, the appellant, in another action at the same High Court of Edo State, Okada (the lower court), suit No. HCOK/5/2017, took out an originating summons for recovery of possession against the current respondent, as defendant, seeking to recover a part of the land measuring 50ft by 100ft, which was illegally occupied by the respondent without his consent.

The summons, filed on 23/01/2017, was supported by an affidavit of 9 paragraphs, annexed to which was the earlier judgment in suit No. HCOK/124/2006 wherein the larger piece of land measuring 600ft by 600ft was declared for the appellant as well as the writ of possession issued to him.

The action was not contested by the respondent, then as defendant. In a judgment delivered by the lower court, Coram: Hon. Justice A.T. Momodu, on 21/11/2018, the claim of the appellant was dismissed on the ground that the previous judgment relied upon by the appellant to ground his claim, which was annexed to the affidavit in support of the originating summons for possession as exhibit A, was an uncertified photocopy, contrary to the deposition in the affidavit that it was a certified true copy.

Peeved by the decision dismissing his claim for recovery of possession of 50ft by 100ft parcel of land illegally occupied by the respondent as a squatter, the appellant filed his notice of appeal on 04/12/2018, comprising of a sole ground of appeal.

An amended notice of appeal, also containing a sole ground, was subsequently filed on 16/05/2022 but deemed as properly filed and served by an order of this court made on 29/01/2025.

In due deference to the rules of this court, the appellants brief of argument, settled by U.O. Okungbowa, was filed on 21/01/2022.

The respondent, though duly served with all the processes filed in this appeal, did not file his brief of argument. The appeal was therefore argued solely on the appellant’s brief.

Appellant’s argument

In the appellant’s brief of argument, a sole issue was distilled for determination from the sole ground of appeal, as follows:

Whether the failure of the lower court to give probative value to the judgment of court attached as exhibit to an affidavit was not perverse as to have occasioned a miscarriage of justice.