Mrs. Mary Wilkey V. Mrs. Ogbohu Ogiegbaen & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU J.C.A.: (Delivering the Leading Judgment)

The respondents as the Plaintiffs at the Benin City High Court of Justice, in the Suit No. B/66/90, had claimed against the appellant/defendant, that they were entitled to that piece or parcel of land measuring 100′ X 200′ situate at Ward 40A at Ogbeson in Oredo Local Government Area, Benin City.

They prayed for a declaration to that effect and also for a perpetual injunctive relief, restraining the defendant, her agents, servants and/or privies from further acts of trespass and/or interference with the Plaintiffs’ possession, use and enjoyment of the said land. There was an added claim of general damages of N5, 000.00 against the defendant.

The parties filed and exchanged their respective pleadings. The Suit proceeded to hearing. The Plaintiffs gave evidence for themselves and four other witnesses testified for them. The defendant also gave evidence and called one witness who testified for her. Each side tendered in evidence some documentary exhibits and at the end of oral evidence, counsel on each side addressed the trial Court. In a considered judgment, the learned trial Judge, found for the Plaintiffs. This appeal is against the said judgment of 25th October, 1995. It is noteworthy that this court on the 7th February, 2001 and at the instance of the respondent’s preliminary objection to the competence of the appellant’s three original grounds of appeal, struck out the appeal. However, on the application of the appellant, leave was granted her by this court on 5th May, 2003, to appeal against the aforesaid judgment of 25th October, 1995.

Consequently, the appellant filed a Notice of Appeal dated 12th, May, 2003 on same date. It contains six grounds of appeal, which say:

“1. The learned trial Judge erred in law on the issue of competing titles of parties to the land in dispute as shown in Exhibits ‘B’ & ‘F’ when he held in that part of his judgment as follows: –

“It is clear from the above that the defendant’s root of title is not in accordance with Bini Customary Law at all. It is also clear that Mrs. Melodia Omoregie from whom she alleged to have acquired the piece of land in dispute is not a beneficiary of the Will – Exhibit ‘E’ and no credible evidence is available to link her up with Exhibit ‘F’ the Deed of Conveyance.” And thereby came to a wrong decision in the case.

PARTICULARS OF ERROR

i. Whereas the determining issue of competing titles as pleaded and adduced are that of Late Donald Idiaghe Omoregie, Exhibit ‘F’ and that of the 1st Plaintiff, Ogbohu Ogiegba (Mrs.) – Exhibit ‘B’;

ii. Whereas Exhibit ‘F’ encompasses the larger parcel of land of Late Donal I. Omoregie, including the smaller parcel of land in dispute, – Exhibit ‘C’ claimed by the 1st Plaintiff.

iii. Whereas the evidence of D.W.1 – Survey Expert, Mr. Osaikhuiwu put the identity or identities of the parcels of land claimed by the parties beyond doubt;

iv. Whereas the D.W’s i.e. D.W.1 evidence on exhibits ‘C’, ‘D’ and ‘F’ were not discredited nor challenged by the Plaintiff nor rejected by the Court in the judgment;

v. Whereas the issue or consideration of good title to land in this case as contended by the learned trial Judge was part from priority in favour of the original owner of land, now put in dispute, was in accordance with Bini Customary Law one in favour of Late Donald I. Omoregie and not the 1st Plaintiff;

vi. When it is clear from the statements of defence and exhibits ‘E’ & ‘F’ that the defendant traced her title, possession and interest to the land in dispute to the original owner and predecessor-in-title – Late Donald Omoregie.