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  • 2003-01-13
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Polo v. Ojor

SAMSON POLO

V

EKUEGBEOVWIAN OJOR

COURT OF APPEAL

( BENIN DIVISION )

( HOLDEN AT WARRI )

RAPHAEL O. ROWLAND, JCA ( Presided and Read the Lead Judgment )

SAKA ADEYEMI IBIYEYE, JCA

KUMAI BAYANG AKAAHS, JCA

CA/B/290/98

TUESDAY 22ND JANUARY, 2002

APPEAL - Evidence adduced at the trial court - When appellate court is justified  to re-evaluate and take a diferent view

APPEAL  - Issues for determination - Failure of party to advance separate argument in support of different issues formulated  - Impropriety of

COURT - Trial court - Evidence adduced at the trial court - When appellate court is justified  to re-evaluate and take a diferent view

CUSTOMARY LAW  - Customary pledge - Invariable rule of - Whether pledgee can put the land to productive use untill redemption

CUSTOMARY LAW - Customary pledge - Purport of - Remedy available to pledgor where redemption is resisted

EVIDENCE - Declaration of title - Onus of proof  - On whom lies - Whether burden shifts to the defendant

EVIDENCE - Evaluation of evidence - Evidence adduced at the trial court -  When appellate court is justified to re-evaluate and take a different view

EVIDENCE - Witness - Testimony of a witness - When regarded as hearsay - Whether any reliance can be placed on such testimony

LAND LAW - Declaration of title - Onus of proof  - On whom lies - Whether burden shifts to the defendant

LAND LAW - Nemo dat quod non habet - Purported sale of encumbered land - Applicability of the principle of nemo dat quod non habet thereto

LAND LAW - Possession - Person in possession of land - Burden of proof that he is not the owner - On whom lies - Section 146 Evidence Act.

MAXIM  - Nemo dat quod non habet - Purported sale of encumbered land

-  Applicability of the principle of nemo dat quod non habet thereto

Issues

1.            Whether the land in dispute was actually a pledge which could still be redeemed and if so, whether it was indeed redeemed by PW1 Johnson Eyan before the sale to the appellant.

2.            Can appellate court make a finding that the lower court failed to make when there is evidence on record to support such finding?

Facts:

This case was commenced by the plaintiff/appellant at the District Customary Court, Otor-Udu, Delta State, for a declaration of title to land and perpetual injunction restraining the defendant from further going to the land in dispute. Plaintiff led evidence at trial that he bought the land in dispute from PW1 in 1995 for a consideration of N30,000 but was prevented from taking possession by the respondent as defendant. While PW1 also testified on behalf of the plaintiff at the customary court that the land in dispute has been pledged by his father to one late Mewhi for the sum of N2.00 which was later pledged to one Madam Djaife (respondent mother) for the sum of N5.00 who has all along been in possession. He further stated that several efforts  made by him to redeem the pledge was resisted.

At the conclusion of trial the District Customary Court  entered judgment for the plaintiff. Defendant’s appeal to the Area Customary Court was successful while the High Court in its appellate jurisdiction upheld the judgment of the Area Customary Court on a further appeal by the plaintiff thereto.

Dissatisfied, plaintiff further appealed to the Court of Appeal.