Mr. Osakpamwan Enobore Eriyo & Ors V. Mrs. Sekira Akpata & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The property in dispute at the lower court from which the present appeal arose was No. 4 Lagos Street, Benin City. That property was said to have been owned by one Latunji Balogun who died in 1958 and who was the father of the Respondents and the 2nd Appellant in this appeal.

Following the sale of the property to the 3rd Appellant by the 2nd Appellant and subsequent destruction of same by 1st Appellant and some unnamed and unknown persons, the Respondents (as Plaintiffs) commenced an action at the High Court of Benin Judicial Division against the Appellants (as Defendants) and in their amended statement of claim formulated their claims in the following terms:

“(1) A DECLARATION that the parcel of land measuring 50 feet by 100 feet where house No. 4, Lagos Street, Benin City was built is the bonafide property of the Plaintiffs, having validly inherited same from their late mother who died intestate in 1993.

(2) A DECLARATION that the action of the Defendants by demolishing the house of the Plaintiffs while still in occupation with bulldozer and with hired thugs is illegal, unconstitutional and void.

(3) A DECLARATION that the purported sale of house No. 4, Lagos Street, Benin City to the 3rd Defendant by the 2nd Defendant is illegal, unlawful and void and of no effect.

(4) AN ORDER of perpetual injunction restraining the Defendants, their agents, servants, privies and assigns from further carrying out any construction work or carrying out any further building operation/development on the land of the Plaintiffs at No. 4, Lagos Street, Benin City.”

The 3rd Appellant (as 3rd Defendant) counter-claimed as follows:

“(a) A declaration that she is the one entitled to statutory right of occupancy in respect of all that property known as and situate at No. 4, Lagos Street, Benin City which property is verged red in litigation survey plan No. [SO/ED/D44/2005 dated 25th October, 2005 drawn by Surv. F.U. Iyawe, Registered Surveyor and filed in this action.

(b) An order that the 3rd Defendant is the one that is entitled to possession of the said property.”

Pleadings were duly filed and exchanged and the matter went for trial at the end of which, in a considered judgment, the trial court allowed the claims of the Respondents and dismissed the counter-claims of the Appellants. The present appeal is against that judgment.

Six (6) Grounds of Appeal were filed which are herein set out without their particulars. They read:

“(1) The learned trial Judge erred in law when he admitted inadmissible evidence exhibit L.

(2) The learned trial Judge erred in law when he failed and or refused to pronounce on the issues canvassed before him.