Vihishima Igbum V. Alhaji Baba Nyarinya & Anor (2000)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This is an appeal against the judgment of Emmanuel Ogbole J., sitting in the High Court of Benue State, in the Makurdi Judicial Division in suit No.MD/21/86, wherein he dismissed the appellants’ claim. The judgment was delivered on January 13, 1997. Before the court below, the original plaintiff (Nje Igbum) took out a writ of summons dated 10/3/86 against the respondent as defendants claiming the following reliefs:-

“The plaintiff therefore claims:

(a) his right of occupancy from the two defendants;

(b) the ejection of 2nd defendant from the said Plot No. 744 thereby giving possession back to the plaintiff.

(c) An injunction order restraining the defendants their servants and agents from further trespass on the said Plot No.744.”

It does appear that at a subsequent date (not shown in the record) pleadings were ordered. The same were filed and exchanged and later amended by each side with the defendants filing yet some five new paragraphs in addition to the amended statement of defence which learned Counsel tagged “Amended paragraphs 10, 11, 16 and 17 of reply to amended statement of claim by 1st and 2nd defendants.” From the amended statement of claim the plaintiff’s claim was slightly amended in his prayer (b) wherein he claimed as follows:-

“The plaintiff there claims jointly and severally:-

(a) His Certificate of Occupancy No.744 from the two defendants.

(b) The ejection of the 2nd defendant, namely Dan Azumi Yinusa from the said Plot No. 744 thereby giving possession back to the plaintiff.

(c) An injunction order restraining the defendants, their servants and agents from further acts of trespass the said. Plot No. 744, Wadata Ward, Makurdi.”

Before the suit was set for hearing, learned Counsel for the plaintiff, on 4/4/90 filed a motion on notice dated same date praying for the substitution of the appellant herein (Vishima Igbum) in place of the original plaintiff on the ground that the latter was killed by unknown assassins on 24/1/90. That motion was moved and granted on 28/5/90. The suit was accordingly heard at the end of which the learned trial Judge delivered a considered judgment dismissing the plaintiffs claim in its entirety. Not satisfied with the judgment, the plaintiff appealed to this court questioning the judgment on five grounds of appeal as contained in the notice of appeal. I shall where the con admits and for ease of understanding refer to the plaintiff as “appellant” and the defendants as “respondents” respectively.

Before this court, parties filed briefs of argument in due compliance with the rules of court. From the five grounds of appeal, learned Counsel for the appellant identified five issues as arising for determination therefrom. Learned Counsel for the respondents, on his part identified three issues for determination. In order to effectively determine the appeal, I shall consider the five issues framed by the appellant more so that the three issues culled out by the respondents will easily be considered within the framework of the appellant’s issues.

Although no attempt was made in the briefs of argument by either learned Counsel for the appellant or the respondent to consider the background facts giving rise to this appeal whether arising out of oversight or inexperience in the art of brief writing, I think it is important to give a resume of the facts of the case especially as the determination of the appeal will turn out principally on the consideration of evidence by the learned trial Judge and the findings of facts he arrived at.