GUARANTY TRUST BANK PLC V. INNOSON NIGERIA LIMITED
August 21, 2025ALHAJI ABDUSALEM OMONITAN & ORS v. CHIEF M. A. DADA ARE & ORS
August 21, 2025Legalpedia Citation: (2025-06) Legalpedia 95735 (CA)
In the Court of Appeal
Holden at Benin
Thu Jun 19, 2025
Suit Number: CA/B/375/2013
CORAM
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Lateef Adebayo Ganiyu Justice of the Court of Appeal
PARTIES
1. VICTOR GARUBA
2. ERHABOR IGHODARO
3. PA BENJAMIN OSAWONYI
APPELLANTS
MR. PHILIP OMOREGIE
RESPONDENTS
AREA(S) OF LAW
PROPERTY LAW, LAND LAW, TRESPASS, PRACTICE AND PROCEDURE, PLEADINGS, EVIDENCE LAW, APPEAL, JURISDICTION, CUSTOMARY LAW, POSSESSION
SUMMARY OF FACTS
This appeal arose from a judgment of the Edo State High Court of Justice delivered on September 28, 2012, by Honourable Justice E.F. Ikponmwen. The Respondent (Mr. Philip Omoregie) was the plaintiff before the trial court who sought a declaration that he was entitled to apply for and be granted a statutory Right of Occupancy over a portion of the late Pa. Omoregie’s Estate measuring approximately 1282.244 hectares verged Green on survey Plan No. JAA/ED/D17/03 situate along Benin/Akure Road, between Igbekhue and Osasimwunoba Village, Ovia North-East Local Government Area, Edo State. He also sought perpetual injunction restraining the defendants from entering his farm plantation.
The Appellants, who were the defendants before the trial court, filed their respective statements of defence denying the Respondent’s claims and asserting that the land belonged to Eko-Ekpetin community. During trial, the Respondent called six witnesses including himself: Anthony Omoregie (PW1), Arthur Agbaku (PW2), John Aigbe (PW3), Monday Nosa Omoregie (PW4), Joseph Agbontean (PW5), and the Respondent himself. The 1st and 2nd Appellants called three witnesses: Michael Erhabor Ighodaro (DW4), Garuba Victor (1st Defendant), and Osaomwanbor Erhabor (2nd Defendant). The 3rd Appellant also called three witnesses: Henry Ediagbonya (DW5), Ifuekoro Osamwonyi (DW6), and David Osawonyi (DW7).
The central dispute concerned ownership and possession of land at Igbekhuen village. The Respondent claimed that the land was allocated to his late father by the Oba of Benin several decades ago in accordance with Bini Customary Law, and that he inherited it. The Appellants contended that the land belonged to Eko-Ekpetin community and that the Respondent’s father was only permitted to farm on it subject to good conduct.
During the proceedings, the Respondent filed a 5th Further Amended Statement of Claim dated April 21, 2007, which was served on the Appellants after they had closed their cases but before judgment was delivered. The trial court found in favor of the Respondent, declaring him entitled to the land, awarding damages of N50,000 against each defendant for trespass, and granting perpetual injunction.
Aggrieved by this decision, the Appellants lodged their appeal via Notice of Appeal filed on December 21, 2012, which was later amended on April 8, 2021, setting out eight grounds of appeal.
HELD
1. The appeal was dismissed and lacked merit.
2. The trial court had jurisdiction to entertain the suit based on the Respondent’s 5th Further Amended Statement of Claim, as the Appellants were duly served with the amended pleading and did not challenge this finding.
3. The trial court properly evaluated the evidence before it and correctly ascribed probative value to the evidence presented by the parties.
4. The refusal of the trial court to visit the locus in quo and take evidence from the Oba of Benin did not occasion any miscarriage of justice, as proper procedural steps were not taken by the Appellants to necessitate such visits.
5. The Respondent successfully proved his title to the land based on long possession and the admissions contained in the Appellants’ pleadings.
6. Costs in the sum of Five Hundred Thousand Naira (N500,000.00) was awarded against the Appellants in favor of the Respondent.
ISSUES
1. Whether arising from the non-service of the motion on notice on the Defendants/Appellants seeking extension of time to file and serve Plaintiff’s/Respondent’s 5th Further Amended Statement of Claim and the subsequent grant of same by the trial Court has not stripped the trial Court of the jurisdiction to entertain the suit.
2. Whether or not the Honourable trial Court carried out a proper evaluation of the evidence both oral and documentary, adduced by the parties to this appeal.
3. Whether or not the refusal of the trial Court to concede and grant the request of the Defendants for the trial Court to take the evidence of the Oba of Benin and visit the locus in quo, has occasioned a miscarriage of justice.
RATIONES DECIDENDI
CHALLENGING CONCURRENT FINDINGS – EFFECT OF FAILURE TO APPEAL SPECIFIC FINDINGS
The Court of Appeal had concurred with the trial Court’s conviction of the appellant and the several findings of facts on which the conviction was based. There is no ground of this appeal challenging any of the concurrent findings of facts as being perverse or being contrary to law. As it is those findings of facts remain unchallenged. By not challenging them, the appellant accepted them as correct, conclusive and binding and cannot therefore argue against the concurrent conviction based on those findings of facts.– Per LATEEF ADEBAYO GANIYU, J.C.A.
AMENDMENT OF PLEADINGS – TIMING AND VALIDITY
Pleadings can be amended at any stage of the proceedings even in the Court of appeal or the Supreme Court to bring them in line with evidence on record provided the amendment is not intended to over reach the other party. There is no kind of mistake or error which if not fraudulent or intended to overreach which the Court cannot correct if it can be done without injustice to the other party.” – Per LATEEF ADEBAYO GANIYU, J.C.A.
RETROSPECTIVE EFFECT OF AMENDED PLEADINGS
It is now well settled and trite law that any amendment of the pleadings in a case, made or ordered at any stage of the proceedings before judgment, or even made in an appeal, dates back to the date when the pleadings were originally filed. This means that ‘once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried’.– Per LATEEF ADEBAYO GANIYU, J.C.A.
DEEMED ADMISSION OF UNCONTROVERTED FACTS
It is a principle of pleading that that which is not denied is deemed to have been admitted and if a plaintiff filed a statement of claim and the defendant failed or refused to file a statement of defence in answer thereto he, clearly, will be deemed to have admitted the statement of claim, leaving the trial Court with the authority to peremptorily enter judgment for the plaintiff without hearing evidence. – Per LATEEF ADEBAYO GANIYU, J.C.A.
COMMUNAL LAND DISPUTES – REQUIREMENT FOR PROPER REPRESENTATION
The law is very certain that where a common factor unites some individuals or communities who have equal claim in a thing/subject matter, every member of that individuals’ community is entitled to join a litigation where it arises… Where such individuals, communities, groups are so many that all of them cannot conveniently sue in the suit involving that right, the Rules of Court permit one or more of them to sue or be sued as representatives of the others. – Per LATEEF ADEBAYO GANIYU, J.C.A.
POSSESSION AS BASIS FOR TRESPASS ACTION
Possession in land matters, even ordinarily is the backbone against all other claims to land if not accentuated by the owner of the land who has a better title. In ordinary civil trespass, this Court in the case of Ogunbiyi v. Adewunmi (1988) 3 NSCC 268, had cause to re-iterate that: ‘Conceptually, trespass to land consists in any unjustifiable intrusion by one person upon the land in possession of another. Also, trespass is actionable at the suit of the person in possession of the land who can claim damages or injunction or both.’ – Per LATEEF ADEBAYO GANIYU, J.C.A.
ELEMENTS OF TRESPASS TO LAND
There is said to be trespass when someone having no title to the land interferes with the possession of another person who has a good title to the land. Trespass is thus a breach of a right of possession. An action for trespass thus pre-supposes that the plaintiff is in possession. – Per LATEEF ADEBAYO GANIYU, J.C.A.
LITIGATION SURVEY PLANS – RELEVANCE WITHOUT COUNTER-CLAIM
The bone of contention therefore is whether it is the same parcel of land now in dispute… What is more, in the case of MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217, the Supreme Court relying on the earlier authorities of OKPALOKA VS. UMEH (1976) 9 – 10 SC 269 and OWOTAIRFE VS. ONOKPOSO (1984) 12 SC 19 held that it is the plaintiffs survey plan that determines the land in dispute and not the defendant’s survey plan where the defendant has not counter claimed. – Per LATEEF ADEBAYO GANIYU, J.C.A.
EVALUATION OF EVIDENCE – PRIMARY DUTY OF TRIAL COURT
It must be remembered that the evaluation of evidence and the ascription of probative value to same is primarily the duty of the trial Court. The appellate Court undertakes that exercise only where the trial Court fails to arrive at a decision by drawing wrong inferences from the evidence led by parties or the exercise does not depend on the credibility of witnesses which only the trial Court is best placed to determine by observing the demeanour of the witnesses in the course of their testimonies before it. – Per LATEEF ADEBAYO GANIYU, J.C.A.
APPELLATE INTERFERENCE WITH EVIDENCE EVALUATION
Where the trial Court fails to discharge that primary duty or does so unsatisfactorily by drawing the wrong inferences from the evidence led, the appellate Court has the duty of interfering with the view to doing the justice any of the parties richly and manifestly deserves… the appellate Court’s power is however still limited in the sense that it is not activated where the findings of facts appealed against do not turn on the credibility of oral evidence. – Per LATEEF ADEBAYO GANIYU, J.C.A.
BALANCE OF PROBABILITIES IN CIVIL CASES
Before a Court before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence it believes or accepts and which evidence it rejects, it should first of all put the totality of the testimony adduced by both parties on an imaginary scale, it will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. It will then see which is heavier, not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses.– Per LATEEF ADEBAYO GANIYU, J.C.A.
LOCUS IN QUO VISITS – COURT’S DISCRETION
The granting of the application to visit the locus in quo was at the discretion of the lower Court. Therefore, what was required to be inquired by this Court was whether that discretion was exercised judicially and judiciously… the purpose of the visit was to visualize and clarify some of the evidence that had already been put on record by the Claimants’ counsel – Per LATEEF ADEBAYO GANIYU, J.C.A.
PROHIBITION AGAINST EXTRA-JUDICIAL EVIDENCE
It is indeed undesirable and dangerous for a trial Judge to make use of any information obtained outside the Court as the basis for a decision in a case before him. – Per LATEEF ADEBAYO GANIYU, J.C.A.
CASES CITED
STATUTES REFERRED TO
2. Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. High Court of Edo State Civil Procedure Rules
4 Court of Appeal Rules
