Ojo Ogbemudia Eholor Vs. Felicia Osayande (1992)

LawGlobal-Hub Lead Judgment Report

I. L. KUTIGI, J.S.C 

The plaintiff in his amended Statement of Claim sought for the following reliefs against the defendant:

“(a) A declaration of title to all that piece or parcel of land situate lying and being in Ward 22/J, Oye Street, New Benin, Benin City and demarcated by Licensed Surveyor’s beacons Nos. MG 5172. MA 7935, MA 7934 and MG 5171 and which said land is clearly delineated in PINK on Plan No.4878 dated 29th December, 1975.

(b) Possession of the said piece or parcel of land.

(c) an injunction restraining the defendant, her agents and/or servants from further trespassing onto the said piece or parcel of land.

Pleadings were filed and exchanged. At the trial the plaintiff testified and called three witnesses. The defendant also testified and called two witnesses.

Briefly stated plaintiff’s case was that in 1975 he bought a piece of land measuring 200 ft by 125ft from one Okhonkpanwoyi Iguisi who testified as P. W.1 at the trial. He did nothing on the land. When he visited the land in 1974 he noticed that one of his beacons No.93/J had been removed and planted about 21 feet into his land. He said another pillar No, MA 7934 which was never on his land had been planted in place of beacon No. 93/J, He also found that the other side of his land had been reduced by ten feet. When he bought the land from Iguisi (P.W.1), he was given a Certificate of Transfer which was tendered as Exhibit 1 at the trial. Plaintiff then reported the matter to the vendor (P.W.1) who then contacted the defendant to whom he had sold the adjoining plot of land. When the defendant failed to adjust, he then instituted these proceedings.

The defendant on the other hand said she also bought from the same vendor, P.W.1., a plot measuring 100ft by 100ft in 1966. It was part of an area measuring 300ft by 125 ft belonging to P.W.l. She said she paid P.W.1 the sum of N320.00 and P.W.1 executed a conveyance (Exhibit 5) in her favour. She said it was P.W.1 who showed and measured the land for her. She denied moving any beacons and trespassing on plaintiffs land.

It must be stated here now that both sides engaged the services of surveyors, after the case had gone to court, to prepare survey plans for them. The survey plans Exhibits 4 & 7 for the plaintiff and the defendant respectively, were tendered at the trial. Also both Exhibits 1 and 5 for the plaintiff and defendant respectively, recited the beacon numbers or the areas of land sold to the respective parties, there was no plan attached to either of the exhibits showing the entire land of P.W.1 or the portions sold to either of the parties. I shall have more to say on this later.

At the conclusion of the trial the learned trial Chief Judge in a reserved judgment found against the plaintiff and dismissed his claims, the plaintiff, dissatisfied with the judgment then appealed to the Court of Appeal, Benin City where his appeal was dismissed. He has now further appealed to this Court.

Four grounds of appeal were originally filed. These were later amended and reduced to two – and read thus:-

“1. The learned Justices of the Court of Appeal erred in law when they based their decision solely on an objection ‘which was raised suo motu by the court and relied on by counsel for the respondent who did not file the proper notice or adopt the proper procedure of raising such objection.

2. The learned Justices of Appeal erred in law in their consideration of ground 7 of the appellant’s brief by failing to apply the principles of law as enunciated in Mogaii & Ors v. Odofin & Ors (1978) 4 SC. 91 at 93-95.

PARTICULARS OF ERROR

The learned Justices of Appeal merely endorsed what the trial Court did without showing or examining how or in what way the trial court correctly evaluated or appraised evidence.