S.O. Igbinokpogie & Anor V. George Ogedegbe (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The respondent herein George Ogedegbe was the plaintiff at the Benin City High Court in Suit No. B/126/78. His claim against the defendants/appellants herein was for the following reliefs as contained in his further amended statement of claim.

“(a) A declaration that the plaintiff was seised of and in possession of the parcel of land in dispute under Bini Customary Law applicable to Land Acquisition in Benin City and Districts before the Land Use Act, 1978.

(b) A declaration that the plaintiff is entitled to a certificate of occupancy in respect of the said parcel of land.

(c) Perpetual injunction against the defendants, their servants or agents restraining them from further or continuing acts of trespass on the said land.

(d) General damages of N100.00 (one hundred naira) against the 2nd defendant’s trespass unto the said parcel of land.”

The parties exchanged pleadings. The defendants filed a joint statement of defence and the 1st defendant filed a counter-claim against the plaintiff. The plaintiff in turn filed a reply to the counter-claim.

The plaintiff testified and called four witnesses to prove his case. The defendants testified and called two witnesses.

At the trial the plaintiff relied on a customary grant by the Oba of Benin for his root of title to the land in dispute. This grant dated 8 January 1957 was tendered and received in evidence in the proceedings as exhibit A. The 2nd defendant from whom the 1st defendant had purchased the portion of land in question also relied on a customary grant by the Oba of Benin. This grant dated 2 November 1961 was received in evidence as exhibit ‘M’. Exhibit ‘M’ was preceded by exhibit L dated 2 May 1955. This is a receipt for the purchase by the 2nd defendant of the economic trees from the previous occupier of the land in dispute. The 2nd defendant went into possession in 1955.

Following the approval of the land for him by the Oba of Benin, the 2nd defendant built on a portion of the land in dispute. In September 1962, the plaintiff through his agent and attorney brought an action against the 2nd defendant for a declaration of title and trespass to the said land in the customary court. The parties however settled this matter out of court. The terms of settlement were tendered and received at the trial as Exhibit H. By the terms of settlement, the land in dispute was partitioned into two equal halves between the parties. Subsequently the 2nd defendant sold and transferred his share of the land to the 1st defendant.

The transfer by sale and purchase to the 1st defendant was in 1964. Thereafter the Oba’s approval for the change of ownership to the 1st defendant was obtained see exhibit ‘J’. In the meantime the 1st defendant built and occupied the said land by tenants. It is this land, the 2nd defendant’s share which is the subject matter of this action, which was brought in 1978.

The learned trial Judge, in a reserved judgment, dismissed the plaintiff’s claim and gave judgment for the 1st defendant as per his counter-claim. The plaintiff’s appeal to the Court of Appeal was allowed. The 1st defendant’s counter-claim was dismissed.

The defendants are dissatisfied and have now appealed to this court upon a number of grounds.

The appellants, at page 5 of their joint brief of argument raised three issues for determination in this appeal. These read:-