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CaseLaw

Obayuwana V. Adun (2020) CLR 1(g) (SC)

Judgement delivered on January 24th 2020

Brief

  • Grounds of Appeal – How Ground of law, facts or mixed law and facts is determined as such
  • Ground of appeal – Effect of failure to obtain requisite leave
  • Grounds of law and grounds of fact or mixed law and fact – How distinguished and principles guiding how to differentiate
  • Leave to appeal under Section 233(3) of the 1999 Constitution – Nature of
  • Section 233(3) of the 1999 Constitution

Facts

The Appellants, who were Plaintiffs, filed an action against the Respondent at the Edo State High Court, wherein they claimed:

  • a
    A DECLARATION that the 1st Plaintiff is the beneficial owner under Bini Native Law and Custom of all that property situate and lying at No. 16, Old Eguanogbe Street, Benin City having inherited same from his late father late Pa. Samson Ewansiha Obayuwana, who died testate vide his WILL dated 14/5/2002 and as such, 1st Plaintiff is the one entitled to Statutory Right of Occupancy in respect of that property.
  • b
    An Order that the Defendant shall pay the sum of N22,000,000.00 (Twenty-Two Million Naira) as special and general damages for the illegal destruction and occupation of the 1st Plaintiff's property as follows:

SPECIAL DAMAGES

  • i
    The open market property in dispute is N12,000,000.00 (Twelve Million Naira) as per the valuation Report.
  • ii
    Rent at the rate of N4,000.00 (Four Thousand Naira) per month from 10/4/2006, when the property of the 1st Plaintiff was destroyed by the Defendant until the determination of the case and until payment.

    • GENERAL DAMAGES

    • i
      The open market propi. N10,000.000.00 (Ten Million Naira) for shock, inconvenience, emotional stress, and sentimental attachment to ancestral home of the 1st Plaintiff and loss of use of the said ancestral home and shrine. erty in dispute is N12,000,000.00 (Twelve Million Naira) as per the valuation Report.
    • ii
      An order of possession of all that piece or parcel of land as shown in the litigation survey plan filed herewith.
    • iii
      iii. An order of perpetual injunction restraining the Defendant, whether by himself, his servants, agents, privies and or any person claiming through or under him or whosoever from entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use and occupation of the land or any part thereof in derogation of the 1st plaintiffs right or interest

      • At the trial Court, the Appellants called five witnesses while two witnesses testified for the Respondent. The learned trial Judge, Okungbowa, J., delivered his Judgment on 28/9/2019, wherein he found that the Respondent has "not proved a better title to the land in dispute". He concluded as follows in the Judgment:

      Since the value of the house is ascertainable and the loss of use is also ascertainable, it would not be appropriate to award general damages. On the whole, the plaintiffs are entitled to Judgment and Judgment is accordingly entered against the Defendants as follows;

      • 1
        The 1st plaintiff is the beneficial owner of the property in dispute by virtue of the WILL of late Samson Ewansiha Obayuwana of which the 2nd and 3rd Plaintiffs are the executrix and executor.
      • 2
        The Defendant shall pay to the Plaintiffs the sum of N12,000,000.00 (Twelve Million Naira) being the value of the property in dispute which was illegally destroyed by the Defendant.
      • 3
        The Defendant shall pay to the Plaintiffs the sum of N4,000.00 per month from April 2006, until the Judgment debt is liquidated.
      • 4
        4. The Defendant shall give up possession of the land in dispute more particularly shown in the Plaintiffs' Litigation Survey plan.
      • 5
        The Defendant, whether by himself, his agent privies, assigns, and any person claiming through him are hereby restrained perpetually from further trespassing on the land in dispute or any part thereof.
      • 6
        The Defendant shall pay cost of N10,000.00 the Plaintiffs

        • Dissatisfied, the Respondent appealed to the Court of Appeal, and in its Judgment delivered on 2/7/2015, that Court held that:The Records of the Court below show that on the penultimate date when PW5 gave evidence, his qualification was not elicited by the Plaintiff and thereby not challenged by the Respondent. The law is that in holding out a witness as an expert witness, he must first of all be led as to his qualification and experience in the field on which he is to give such expert opinion, and the technical or scientific tests undertaken in reaching the opinion offered. Upon giving his qualification and opinion, and the Respondent, failing to question the qualification being claimed and the Report rendered, the law then is to the effect that same cannot be raised on appeal. PW5 having failed to state his qualification and to further state the technical and or scientific tests undertaken by him in arriving at the Report, Exhibit E the trial Judge acted in error when it accepted and relied on same to ground his finding on the issue. I, therefore, resolve this issue in favor of the Appellant.



        After resolving the issues, the Court of Appeal concluded that:It is apparent that what was not conclusively determined is the value of the Respondent's property destroyed by the Appellant, which has not been proved. It is my view that the claim under this heading, being in the nature of special damages, for which it is trite that same must be strictly proved The failure to prove the head of claim, as required by law leads to the inevitable conclusion that same was not proved and the claim is dismissed. The other heads of claim have not been appealed against; therefore the Judgment of the lower Court on same is affirmed.

        An appeal was lodged at the Supreme Court.

Issues

Having regard to the oral and documentary evidence of the Appellants'...

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