Mr. Paul Ekhaguere V. Mr. Ekhosuehi Igbinomwanhia (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Edo State, holden in Benin (hereinafter referred to as the lower Court), delivered on 16th April, 1999 per Hon. Justice C.O. Idahosa.

It is apposite to state that the original Appellant in this matter was Mrs. Izogie Ekhaguere. After her death, this Court made an order substituting her with her son, Paul Ekhaguere.

The Appellant was the plaintiff, while the Respondent was the 1st Defendant at the lower Court. The Appellant claimed against the Respondent and another, a declaration of title to a parcel of land situate at Ukpera village, damages for trespass and perpetual injunction. The Respondent counter-claimed for a declaration of title to the same land and injunction against the Appellant. The 2nd further amended statement of claim of the Appellant and the 1st further amended statement of defence incorporating the counter-claim of the Respondent are contained in pages 47 to 52 and 53 to 60 of the record of appeal respectively. The parties and their witnesses testified and tendered in evidence documents in support of their respective positions. At the end of trial, the learned trial Judge entered judgment in favour of the Respondent and held inter alia as follows:

“It is hereby declared that the Defendant is the owner and in possession of all those parcels of land bounded by a proposed road, Enoma Street, Erhunwunse Street and NEPA Power Transmission Line delineated and marked in the Plan filed along with the statement of defence.”

The Appellant was displeased with the decision and she appealed against it to this Court vide her notice and grounds of appeal dated 29th June, 1999 with an omnibus ground of appeal that:

“The judgment is against the weight of evidence.”

By the order of this Court on 14th February, 2006, the Appellant filed four additional grounds of appeal. The four additional grounds of appeal without their particulars verbatim read thus:

2. The learned trial Judge erred in law and on the facts when he held that it is to be noted that the defendant having relied on ward 20k Uzebu Plot Allotment Committee as well as the combined Evbuotubu Iguedaiyi Okhokhugbo Plot Allotment Committee … shall be considered as one for the purpose of this case,” which finding is perverse having regard to the record.
3. The learned trial Judge erred in law and on the facts when he held in spite of the findings above, it is clear that the area where the land in dispute is situate is generally known and called Evbuotubu Quarters which ruling is perverse having regard to his findings on the record.
4. The learned trial Judge erred in law and on the facts when he entered judgment in favour of the respondents as per his counter claim after holding that the parcels of land as per Exhibit A belongs to the defendant his younger brother D.W.S and sister.
5. The learned trial Judge erred in law when he adjudicated on the counter claim without jurisdiction since the condition precedent was not complied with before the filing of the counter claim.

In the Appellant’s brief of argument dated 1st March, 2006, four issues were formulated for determination. The four issues state as follows:

1. Having regard to the totality of the evidence, whether the appellant is not entitled to judgment.
2. Whether the Plots Allotment Committee of ward 20k Uzebu and ward 43/B Evbuotubu Iguedaiyi and Okohkhugbo had the jurisdiction to allocate the land in dispute to the respondent when the areas of jurisdiction of both wards were not sufficiently ascertained?
3. Whether the learned trial Judge had the jurisdiction to adjudicate on the respondent’s counter claim when the condition precedent was not complied with by the respondent and when defendant had no locus standi to file the counter claim?
4. Whether the learned trial Judge was right to import extraneous evidence to arrive at his judgment?

The Respondent identified two issues for determination in the Respondent’s brief of argument dated 26th April, 2006 and filed on 27th April, 2006. The two issues read thus:

1. Did the Appellant prove her case to be entitled to the judgment of the lower Court?
2. Was the counter claim of the Respondent properly before the lower court?

I am of the opinion that the two issues as formulated by the Respondent’s learned counsel are very succinct and sufficient for the proper determination of this appeal, I adopt same and will consider them along with issues one, two and three as formulated by the Appellant’s learned counsel.

This is more so that the Respondent’s issues one and two argued together are in tune with issue one of the Respondent. Issue three of the Appellant is in line with issue two of the Respondent.

It is important to state at this juncture as rightly observed by the Respondent’s learned counsel that, issue four of the Appellant would appear to have been abandoned because no argument was proffered in respect thereof in his brief of argument. What is more, issue four did not arise from the grounds of appeal, this is probably the reason no argument was canvassed in support of same in the Appellant’s brief of argument. In the circumstance, issue four is struck out.

ISSUE ONE