Vincent U. Egharevba V. Dr Orobor Osagie (2009)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C

The deceased John A Osagie who has been replaced by his son Dr Orobor Osagie sued the appellant in Benin High Court over a piece of land which he had sold to him. His case was that he was allocated piece of land measuring one hundred feet by two hundred feet by the Oba of Benin in 1963.

In 1976 the appellant him for a transfer of a portion of the land measuring fifty by hundred feet. The appellant prepared a Deed of Conveyance for a portion of the land measuring a hundred by hundred feet which he mistakenly signed before noticing the discrepancy. He signed only a copy which he kept to himself and asked the appellant to go and correct the paper.

He claimed that the appellant never paid any money for the land. The appellant fraudulently prepared an agreement for the sale of the land exhibit ‘F’ and registered it.

The appellant’s case was that on the 24th of February 1976 the respondent transferred part of his land measuring a hundred fed by hundred feet to him. He negotiated the price and he was put in possession. They subsequently went to a lawyer’s office and an paid consideration for the land. The Court of Appeal dismissed the appellant’s cross-appeal without considering the issues raised therein.

The appellant was aggrieved by the decision of the Court of Appeal and appealed to this Court. The respondent was also aggrieved and cross-appealed to this Court.

Both sides exchanged briefs; The learned counsel for the appellant formulated 2 issues for determination as follows:

“(a) Whether the Court of Appeal was right when it held that there is no oral or documentary evidence from the Appellant to show that he offered a clear and conclusive consideration for the purported land he said he purchased from the Respondent

(b) Whether the Court of Appeal was right in not considering the substance of the Cross-Appeal

of the Appellant before dismissing same”

The learned counsel for the respondent formulated 2 issues for determination in the main appeal as follows:

“1. Whether the learned Justices of the Court of Appeal were right when they held that the Appellant failed to discharge the burden of proof placed on him to show that he paid consideration for the land he purportedly purchased from the Respondent

2. whether the non-consideration of the issues raised in the cross-appeal of the Appellant by the learned Justices of the Court of Appeal occasioned any miscarriage of Justice

For the Cross-Appeal he formulated one issue which reads as follows:

“Whether having allowed the Respondent’s appeal, the learned Justice of the Court of Appeal ought to have granted the relief sought by the Respondent/Cross-Appellant in paragraph 53 of the further amended statement of claim No.3 in exercise of their powers contained in Order 1 rule 19(3) and Order 3 Rule 23 of the Court of Appeal Rules, 2007