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Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991) - SC


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CASE SUMMARY OF:
Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991) - SC
by PaulPipAr

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PARTIES
APPELLANT

- Michael Ifeanyi Ojibah

v.

RESPONDENT

- Ubaka Ojibah

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CITATION
(1991) 5 NWLR (Pt.191) 296;
(1991)6 S.C 182;
(1991) 6 SCNJ 156;

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COURT
Supreme Court

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LEAD JUDGEMENT DELIVERED BY:
Phillip Nnaemeka-Agu, JSC

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LAWYERS WHO ADVOCATED
FOR THE APPELLANT
- Senator Anah, S.A.N

FOR THE RESPONDENT
- Anyamene, S.A.N

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FACT
The plaintiff had claimed for a declaration that he was entitled to a statutory right of occupancy over the piece or parcel of land situated at Ogbeodogwu village, Onitsha (hereinafter called the land in dispute), N1,000.00 damages for trespass and perpetual injunction restraining the defendant, his servants and agents from any further trespass to the land. Plaintiff's cases was that the land in dispute was given to him by his late father, Mr. Francis U. Ojibah, in his life time, in appreciation of his brilliant academic performance. He himself also pleaded that the dispute over the land between him and the defendant - his brother of full blood and the first son of their father, was arbitrated upon by the Obi of Onitsha in Council and that the arbitrators decided that he should allow the defendant to build on the land in dispute. He however averred that he had told them that the land which was given to him by his father was not a subject for compromise.
The Defendant's cases was that: The plaintiff was given a piece or parcel of land measuring 100' X 50' along Tasia Road but the area does not extend to Awka Road. The alleged Deed of Conveyance which the plaintiff claims to derive title from is not and cannot be a true and correct document. The legality of the document will be contested at the trial. The late F. U. Ojibah died intestate [and] there is no evidence that long before Mr. Ojibah's death he allocated in his time No. 40 Awka Road, Onitsha to the plaintiff. Paragraphs 9 and 10 of the statement of claim are therefore denied.

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ISSUE
1. Was the description of the said gift in Exhibit A such that any surveyor could mark on the ground the precise area of the gift, so that the mere tendering of Exhibit A was enough proof of the precise boundaries of the gift?

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HOLDING
1. As for issue 1, verdict was given in the respondent's favour.
The Court held, per Phillip Nnaemeka-Agu, "It appears to me however that the document which was ex facie made in 1966 and tendered in evidence in 1980 did not qualify for any presumption of due execution under section 122 of the Evidence Act, as it was not yet twenty years old. Clearly it was his duty to prove due execution which was in issue, but he failed to do so. On the other hand, there was positive evidence from the respondent, which was not challenged under cross-examination, that the signature on the document, Exh. 'A', was not that of their father. I therefore agree with the courts below that the appellant failed to establish the genuineness and validity of Exh. 'A', the deed of gift which is the foundation of his claim to title to the land in dispute."; "In conclusion on this issue, I am of the view that in so far as the parties did not agree on the location and quantity of the land given to the appellant, particularly the quantity of land surrounding No. 40, Awka Road which formed part of the land given to him, a plan was necessary. Exhibit "A" which had been successfully impugned could not be resorted to in order to clear the uncertainty. I therefore hold that the appellant did not establish the area over which he is in exclusive possession by reason of his father's gift. The cross-appeal succeeds.";
The Court dismissed the appeal.

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REFERENCED

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NOTABLE DICTA
In my view, fraud carries far much wider implications than impugning the truth or correctness of a document. At common law, its foundation is deceit of which the intention to mislead and a false representation are material. In equity it is, in sum, infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance. Although the word "fraud" need not be used, one of the most fundamental rules about the pleading of fraud is that the pleading must contain precise but full allegations of facts and circumstances, with all necessary particulars, leading to the reasonable inference that the fraud was the cause of the loss complained. - Phillip Nnaemeka-Agu, JSC. Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

The law requires that fraud must be distinctly alleged, with all necessary particulars, and distinctly proved. - Phillip Nnaemeka-Agu, JSC. Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

A document which is not shown to be genuine and legal is of no forensic value. No right can be hoisted upon it. - Phillip Nnaemeka-Agu, JSC. Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

Also this Court has held times without number that it is for a donor or grantor to show the dimensions and extent of a piece of land which is the subject of a grant. Where he fails or neglects to do so and the donee or grantee purports to do so, particularly after the death of the grantor or donor, that would be an exercise in futility. - Phillip Nnaemeka-Agu, JSC. Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision; it is no longer open to either party to subsequently back out of such a decision. - Phillip Nnaemeka-Agu, JSC. Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

For, if the highest courts in a judicial hierarchy have to meddle with primary findings of facts and reverse them at will when they have not the advantage of hearing the witnesses or watching them testify, the whole system of appeals will collapse. - Phillip Nnaemeka-Agu, JSC. Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

The appellant in a gift inter vivos by his father had a house built on the land at Tasia Road. It seems he intended, by virtue of this gift, to encroach on the remaining family land adjoining this house. The evidence is very clear as to this. - Belgore, JSC. Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

The end of this brief.


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