CASE SUMMARY OF:
Osahon Nathaniel Obayuwana & Ors v. Chief John Osamede Adun (2020) - SC
1. Osahon Nathaniel Obayuwana (Beneficiary under the Will of Late Pa. Samson Ewansiha Obayuwana);
2. Madam Omoyemwense Suberu;
3. Felix lgbinoghene (Executrix and Executor Respectively of the Estate of Late Pa. Samson Obayuwana)
1. Chief John Osamede Adun;
LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie, J.S.C.
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
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:
i. The open market property in dispute is N12,000,000.00 (Twelve-Two 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.
i. 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.
ii. An order of possession of all that piece or parcel of land as shown in the litigation survey plan filed herewith.
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.
The High Court gave judgement in favour of the Plaintiff. The Defendant appealed to the Court of Appeal which reversed the decision as regards damages.
The Plaintiff, herein Appellant, has appealed to the Supreme Court on the following grounds:
GROUND 1: The learned Justices of the Court of Appeal erred in law in holding that PW5, the expert witness, failed to give his qualification and the basis for his valuation when PW5, the expert witness, tendered Exhibit E, which contains his qualifications, the value of the property and the basis for the valuation and which Exhibit was not considered or appreciated by the Court of Appeal in arriving at its decision thereby occasioning a very serious miscarriage of justice.
GROUND 2: The learned justice of the Court of Appeal erred in law when they held thus: "...it is apparent that what was not conclusively determined is the value of the Respondents property destroyed by the Appellant, which has not been proved. It is my humble but firm view that the claim under that head being in the nature of special damages for which it is trite law that same must be strictly proved". When the uncontroverted evidence of PW5, the expert witness, was not considered by the Court thereby occasioning a very serous miscarriage of justice.
1. The Respondent raised a preliminary objection in his own Brief, challenging the competency of the said two Grounds of Appeal, on the ground that they are either on facts and or mixed law and fact, which by decided authorities, require leave of the lower Court.
HOLDING & RATIO DECIDENDI
[PRELIMINARY OBJECTION: SUSTAINED]
1. THE PRELIMINARY OBJECTIONS OF THE RESPONDENT WERE UPHELD.
i. Applying the principles to this case, I will not hesitate to say that Ground 1 of the Grounds of Appeal is a ground of fact or of mixed law and fact. The Appellants' complaint in that Ground of Appeal (reproduced above) is that the Court of Appeal did not consider or appreciate the evidence of PW5, who was called as an expert, and his valuation report [Exhibit E], before it concluded that the PW5 did not give his qualification, and the basis for his valuation. Obviously, this complaint requires this Court to investigate or look into the evidence of PW5, and what he said in Exhibit E. It is a matter to be decided on evidence and inference therefrom, thus, the said Ground 2 is a ground of fact or mixed law and fact. Both Grounds of Appeal in the Appellants' Notice of Appeal, do not have any Particulars of Error, however the Respondent only objected to the lack of any Particulars of Error in Ground 2. But the Appellants are right that the position of the law is that once the error complained of, is identified and properly oriented in the Ground of Appeal, the fact that it has no Particulars is not enough for an appellate Court to sidestep from doing justice.
ii. To determine the issue, this Court will have to re-examine facts that formed the basis of their complaints, and of the facts found at the trial, which formed the basis of the said Judgment. The two grounds of Appeal are not grounds of law simpliciter, they are, in my view, grounds of mixed law and fact. As it is, the two Grounds of Appeal raise questions of fact, which have been brought to this Court without leave, and the end result is that the Court lacks the jurisdiction to look into any of the questions raised.
[APPEAL: NOT HEARD]
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So, where the Ground of Appeal involves questions of fact or of mixed law and fact, leave to Appeal must be obtained from the Court of Appeal or this Court. Failure to obtain the requisite leave renders the Appeal filed incompetent. - Augie, JSC. OBAYUWANA v. ADUN (2020)
But the Appellants are right that the position of the law is that once the error complained of, is identified and properly oriented in the Ground of Appeal, the fact that it has no Particulars is not enough for an appellate Court to sidestep from doing justice. - Augie, JSC. OBAYUWANA v. ADUN (2020)
As it is, the two Grounds of Appeal raise questions of fact, which have been brought to this Court without leave, and the end result is that the Court lacks the jurisdiction to look into any of the questions raised. - Augie, JSC. OBAYUWANA v. ADUN (2020)
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