Mr. Imohimi Iriajen V. Florence Osunbor & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment)

The Appellant in these proceedings had, by his next friend, Mrs Mary Iriajen, brought an action against the Respondents at the Benin Judicial Division of the Edo State High Court wherein he claimed a declaration of entitlement to the Statutory Right of Occupancy over a parcel of land situate at Iyamu Street, Benin and shown in plan No. DISC/ED2007/D03.

Special and general damages for trespass; and perpetual injunction, pleadings were filed and exchanged. At the conclusion of hearing, the learned trial Chief Judge, dismissed the claims of the Appellant holding as he did that “the plaintiff has failed to prove her claims”.

Dissatisfied with the Judgment of the said learned Chief Judge, the Appellant lodged the present appeal on 12 (twelve) grounds. The Grounds of Appeal with their particulars are set out at pages 136 – 144 of the Record of Appeal and I do not find any need to set them out in this Judgment. However, learned counsel for the Appellant, Mr. Osarenkhoe, in his brief of argument at pages 1 – 2 formulated 4 issues for determination as arising from the Grounds of Appeal. Those Issues read:

1) Whether having regard to the pleadings and evidence of the parties, and the law applicable thereto, the learned trial Judge was right in placing on the Appellant the burden of proving that the land in dispute is the same as the land granted to J.E.W. Iriajen (Appellant’s predecessor-in-title) by Uwelu Plot Allotment Committee?

Grounds 1, 3, 5 and 10.

2) Whether by their pleadings and evidence, the burden to prove that the land in dispute is NOT the land allocated by Uwelu Plot Allotment Committee, ward 42B, Benin City to late Mr. J.E.W. Iriajen was not on the Respondents and whether the Respondents discharged the said burden?

Grounds 7 and 8.

3) Assuming the learned trial Chief Judge rightly placed the burden of proof on the Appellant as he did to show that the land in dispute is the same as the land granted to his predecessor in title, whether Appellant did not discharge the said burden?

Grounds 4 and 6

4) Whether the learned trial Chief Judge was right in dismissing the Appellant’s claims?

Grounds 11 and 12

On his part, learned counsel for the Respondents raised two issues as arising for determination which two issues tally with the two issues considered by the learned trial Chief Judge in his Judgment at page 128 of the Records, the carnel of which are rephrased thus;

“(1) Whether the Plaintiff was able to show that the land in dispute is the same land granted to his predecessor in-title.