Stephen Ogbebor & Sons Sawmill Limited V. Chief John Osamede Adun (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

The present appeal is a fallout of the Judgment of the High Court of Edo State, Benin Judicial Division which was delivered on July 30, 2007 in Suit No. B/194/2003. By the Judgment in question, the court below, coram A.N. Erhabor, J; dismissed the Appellant’s suit for lack of competence.

BACKGROUND FACTS

It is evident from the record of appeal, that the said suit was instituted at the court below vide a writ of summons dated April 4, 2003 seeking some declaratory and injunctive reliefs. By the Amended Statement of Claim, dated April 19, 2005, the reliefs sought by the Appellant against the Respondent are as follows:

(a) A declaration that the Plaintiff is the beneficial owner of and in possession of a piece of land marked as “A”, “B” and “C”, each containing an area of about 3, 675 acres, 3115.84 square yards and 3318.84 Square Yards respectively, lying, being and situate at Evbuoriaria Village Benin/Sapele Road. Benin City and more particularly delineated in Survey Plan No. OM/839.

(b) A declaration that the Plaintiff is the person entitled to apply for and be granted a Certificate of Occupancy in respect of the land marked as “A”, “B” and “C” containing an area of about 3,675 acres, 3115.84 square yards and 3318.84 square yards, lying, being and situate at Evboriaria Village, Benin/Sapele Road Benin City and more particularly delineated in Survey Plan No. OM1839 bounded by Beacon Numbers MA671, MA672, MA4213, MA673, MA4214, MA4212, MA4211, MA4210, MA1087, MA1088 and MA4211.

(c) An order of perpetual injunction restraining the Defendant by himself, his servants, agents and or privies from further trespassing or doing anything/act which is adverse to the Plaintiffs right to the said piece or Parcel of land.

(d) N5,000,000.00 (Five Million Naira) being general damages against the Defendant for his unlawful claim and trespass on the said land.

Contrariwise, by the statement of defence thereof, dated May 27, 2004, the Respondent denied the Appellant’s claim. Pleadings having been exchanged by the respective parties, the Suit eventually proceeded to trial. Two witnesses testified for the Appellant. Various documents were tendered by the Appellant, which were accordingly admitted as Exhibits A, B, C, D & E, respectively. On the part thereof, the Respondent called two witnesses and tendered Exhibits F, G, H, J, K, L, M and N, respectively. At the end of the trial of the Suit, the lower court delivered the vexed Judgment on the said date, to the conclusive effect thus:

In conclusion, I hold that the plaintiff has not been able to establish its competence to institute this suit… Consequently, this suit is hereby dismissed for all the reasons afore-stated.

Not unnaturally, dissatisfied with the Judgment in question, the Appellant filed the instant appeal. The Appellant’s amended brief of argument was filed on 07/8/12, but deemed properly filed on 28/3/13. The Respondent’s amended brief was filed on 19/6/3. On the 06/02/14, when the appeal lastly came up for hearing, the learned counsel argued the appeal, thus resulting in reserving Judgment for delivery.

At page 2 of the said amended brief thereof, the Appellant’s learned counsel, Mrs. Stafan Ezomo, formulated three issues for determination, viz:

(i) Whether the plaintiff proffered sufficient evidence to show that in the land in dispute vested in it on the preponderance of evidence or the balance of probabilities.

(ii) Whether PW1 has authority to institute this action which is the bedrock of Defendant’s defence.