Raphael Waka Ogbimi V Niger Construction Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin division in Appeal No. CA/B/28/97 delivered on 4/4/2001 in which it set aside the judgment of the trial court delivered on 22nd September, 1995 in suit No. S/102/91. When the appeal came up for hearing on 12/1/06 both counsel, though served were absent without explanation. The appeal was therefore taken as argued on the briefs already filed in accordance with the rules of this court.

By a writ of summons filed on 14/11/91 the appellant, as plaintiff claimed damages against the respondent for trespass in that the respondent, without appellant’s authority or consent broke and entered the appellant’s land along Benin/Warri Express Road, Amukpe town and excavated and carried away there from laterite. He claimed special damages amounting to N764,451.25 and N235,548.49 as general damages.

The case of the appellant is that in January 1978, the Amukpe Community who are the original owners of a large piece or parcel of land, gave a portion thereof to the appellant in return for which appellant gave customary items including drinks and some money following an application for the grant. Appellant said he was consequently put in possession of the said piece or parcel of land. He utilised the land for farming purposes. In Amukpe Town land is, by the customs and traditions of the people, communally owned. Appellant stated that sometime in November 1991, the defendant, without any lawful excuse broke and entered the appellant’s said piece or parcel of land and dug and removed laterite therefrom and refused to stop despite his protests. The respondent is said to have removed from that piece of land a total of over 79706.784 cubic meters of laterite for which appellant claimed the special damages.

On the other hand, the case of the respondent is that it dug two burrow pits on a piece of land which forms part of a large piece of land that was compulsorily acquired by the Bendel State Government, the portion of which the government released to it upon application for the purpose; that before the government approval was received the respondent entered into a lease agreement with Amukpe Community in respect of the land and paid the sum of N10,000.00 apart from compensation for crops on the said land. The agreement with the community was entered into in November, 1990. The respondent therefore denied the claim of the appellant.

At the trial, appellant called four witnesses and also testified on his own behalf while the respondent called one witness. Appellant in addition, tendered, inter alia, exhibit B being a letter written by one of the witnesses of the appellant as Secretary to the Amukpe Community conveying the community’s approval of appellant’s application for a customary grant of land and giving dimensions thereof. On the other hand, respondent tendered Bendel State Gazette No. 104 of 2nd November, 1988 which allegedly compulsory acquired the land as exhibit F; while the deed of lease it entered with the community was admitted as exhibit G. At the end, the trial court found that appellant had proved his case and entered judgment in his favour resulting in an appeal before the Benin division of the Court of Appeal.

The issues for determination before the Court of Appeal were as follows:

“1. Whether the learned trial Judge was right in holding that the document conveying land to the respondent need not be stamped or registered, since same was a customary grant.

2. Whether the learned trial Judge was right in holding that the purported grant of communal land to the respondent was valid, despite the absence of the consent of the head of the community.
3. Whether the learned trial Judge was right in holding that the land compulsory acquired by the Bendel State Government was not identified by the appellant when in fact he failed to attach proper and/or any weight to exhibit “E”, “F” and “G” which clearly identified same.”

In its judgment delivered on 4th April, 2001, the Court of Appeal dealt only with issue No.1 and held as follows:

“It is manifest from the records that the judgment of the lower court is based solely on exhibit “B”. The wrongful admission of exhibit “B” by the learned trial Judge, made the court to erroneously hold that the land in dispute belongs to the respondent. If exhibit “B” is expunged from the records there will be no contest between the parties. I therefore expunge exhibit “B” from the records as it was wrongly admitted by the trial court. In the light of the foregoing, I consider it a barren exercise to proceed to consider issues (2) and (3) in this appeal as they will not serve any useful purpose. I therefore have no hesitation in allowing this appeal…”

The present appellant, who was a respondent at the Court of Appeal is not satisfied with that judgment and has therefore appealed to this court. According to learned counsel for the appellant, the issue for determination, as stated in the appellant’s brief filed by A.B. Odiete Esq, on 26/10/2001 at page 2 thereof, is as follows:

“Were the learned Justices of the Court of Appeal, Benin, right in setting aside the judgment of the learned trial Judge on the ground that exhibit “B” should not have been admitted since the said exhibit “B” which was not registered pursuant to the Land Instrument Registration Law was the sole basis of vesting title in the land on the appellant.”

The present respondent has not cross appealed against the non consideration of issues (2) and (3) by the Court of Appeal. Before proceeding with the arguments on the sole issue for determination, there is on record what purports to be a preliminary objection contained in the respondent’s brief filed by Ralh Kosi Nwalia Esq., on 20/2/2003. The uniqueness of the preliminary objection makes it necessary for me to reproduce same in extenso. It reads: “Preliminary Objection.

The respondent will contend at the hearing of this appeal by way of a preliminary objection that this appeal is incompetent in that the following grounds contained in the notice of appeal dated 31/5/2001 wherein the appellant apparently framed its issues involve questions of fact, mixed law and fact, whereas no leave on them was obtained.