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  • Stephen Idugboe & Sons Ltd v. Anenih
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  • 2003-04-07
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Stephen Idugboe & Sons Ltd v. Anenih

1.      STEPHEN IDUGBOE & SONS LTD.

2.      ANDREW IDUGBOE

3.      BENSON IDUGBOE

4.      SAM IDUGBOE

[ Substituted in place of Chief Stephen Idugboe ( Deceased) and suing for themselves and on behalf of

all the beneficiaries of the estate of Chief Stephen Idugboe]

V

1.      MRS.  PATRICIA ANENIH

2.      ELF (NIGERIA) LIMITED

3.      COMISSIONER FOR LANDS DELTA STATE

4.      ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, DELTA STATE

5.      MILITARY ADMINISTRATOR OF DELTA

STATE

COURT OF APPEAL

( BENIN DIVISION )

RAPHAEL OLUFEMI ROWLAND, JCA ( Presided )

SAKA ADEYEMI IBIYEYE, JCA ( Read the Lead Judgment )

KUMAI BAYANG AKAAHS, JCA

CA/B/149/98

MONDAY, 25TH FEBRUARY, 2002

APPEAL - Evaluation of evidence - Evidence appraised by trial court When appellate court will refuse to interfere

COURT - Determination of action - Need for court to base its consideration on evidence and avoid speculation

COURT - Evaluation of evidence - Evidence appraised by trial court When appellate court will refuse to interfere

DOCUMENT - Instrument - ‘Habendum Clause’ - Meaning of

EVIDENCE - Evidence Act, section 146 - Burden of proof referred thereunder - On whom lies

EVIDENCE - Standard of proof or quantum of evidence required in civil cases - Consideration of

LAND LAW - ‘Habendum Clause’ in a deed of conveyance - Meaning of

LAND LAW - Assignment - Assignment of right of action - Whether assignor still retains right to initiate action

LAND LAW - Lease - Perpetually renewable leasehold - Connotation of

LAND LAW - Sublessee - Where grants an interest through a contract of sub-lease grants an interest as great as his own - Whether will be deemed to have divested himself of everything he has got in the lease

LAND USE ACT - Effect of - Land Use Act, section 5(1) & (2) - Right of occupancy referred thereunder - Purport of

PLEADINGS - Issue raised on unpleaded facts WORDS AND PHRASES - ‘Habendum Clause’ - Meaning of

Issues:

1.            Whether the learned trial Judge was correct in law when he held that the Deed of Sub-lease, i.e. exhibit “B” was a perpetually renewable lease and thus constituted an assignment of the whole of the sublessor’s interest over the land in dispute.

2.            Whether the certificate of occupancy, exhibit ‘L’ was regularly and validly granted by the 5th respondent to the 1st respondent in accordance with the provisions of the Land Use Act.

3.            Whether having regard to the pleadings filed by the appellants, the learned trial Court (sic) was right to hold that they did not plead the particulars of illegality and irregularity in support of the relief claimed in paragraph 44(a) of the further amended statement of claim.

4.            Did the 1st appellant have locus to maintain the suit against the respondents.

5.            Whether the learned trial Judge was right in dismissing the appellants’ claim for forfeiture, possession, accrued rents and interest

6.            From the totality of the appellants’ pleadings and evidence, was the learned trial Judge correct in dismissing the appellants’ claims in its entirety?

Facts:

The plaintiffs/appellants, late Chief Stephen Idugboe, who was the appellants’ predecessor-in-title filed an action against the defendant/ respondent seeking among other reliefs, nullity of certificate of occupancy No. BDSR 368 of 21st September, 1979; order compelling the 5th defendant to revoke the said certificate of occupancy and order forfeiting rights and interests of the 1st respondent.

The plaintiffs/appellants asserted that the land in dispute was acquired in 1969 and ten acres thereof was sublet to the 1st defendant in 1971. The 1 st respondent in turn, with the consent of Chief Stephen Idugboe sublet the entire ten acres to the 2nd respondent in 1973. Unknown to Chief Idugboe, the 1st respondent sought and obtained a certificate of occupancy with the 5th respondent’s consent. The 1st respondent stopped paying rents to Chief Idugboe who reacted by instituting this action.

The 1st respondent however, stated that the sub-lease agreement between her and Chief Idugboe was a perpetually renewable lease and akin to an assignment. She allegedly obtained the certificate of occupancy with the consent of Chief Idugboe.

After the conclusion of hearing and addresses of the counsel for the parties, the learned trial Judge dismissed all the reliefs sought by the plaintiffs against all the defendants.

Dissatisfied with the said judgment, the plaintiff/appellant brought this appeal.