Anthony Ibhafidon Vs Sunday Igbinosun (2001)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In the High Court holden at Benin City, the plaintiff’s claims as stated in paragraph 19 of his amended statement of claim read thus-

“19 (1) A declaration of customary right of occupancy to the area verged pink on plant CS. 10/2

(2) N500,000.00 general damages for trespass.

(3) Perpetual injunction to restrain the defendant, his agents and or assigns from further trespass on the said land.

After the filing and exchange of pleadings the case proceeded to trial. At the trial the plaintiff testified and called two witnesses. The defendant also gave evidence and called four witnesses. Various documents which the parties relied upon were also tendered as exhibits at the hearing.

At the end of the trial, counsel on both sides addressed the court. In a reserved judgment the learned trial Judge carefully considered the evidence before him and dismissed all the plaintiffs claims when he concluded his judgment on page 85 of the record thus –

“I find as a fact that the plaintiff has failed to prove that he is entitled to any of the reliefs sought in paragraph 19 of the amended statement of claim which is hereby dismissed in its entirety”

Dissatisfied with the judgment of the learned trial Judge the plaintiff appealed to the Court of Appeal holden at Benin City. The Court of Appeal in a unanimous judgment considered all the issues submitted to it for resolution and dismissed the appeal.

Aggrieved by the decision of the Court of Appeal, the plaintiff has now further appealed to this court.

The Plaintiff’s case was simply that he applied to the Plot Allocation Committee of ISIOHOR village on 10/3/73 for a grant of a parcel of land by the Oba of Benin in accordance with Bini custom. The application was approved by the Oba of Benin on 18/5/73. The parcel of land measured 400 feet by 400 feet (see Exhibit A). The grant was further confirmed by a deed of conveyance dated 19/9/97 conveying the same piece of land to the plaintiff as grantee and the Oba of Benin as the grantor/trustee. The conveyance is Exhibit B.

Its recitals read in part –

“2. By an application dated the 10th day of April 1973 the Grantee applied to the Grantor for a grant of the said piece or parcel of land.

3. The said application was approved by the Grantor on the 18th day of May, 1973.

The Grantor as the said Trustee hereby conveys unto the Grantee All that piece or parcel of land at Isiohor Village in Ward II/K. in Benin City, having an area of 4.599 acres demarcated by survey beacons BC.4839, BC.4880, BC4841 and BC.4842 which piece or parcel of land is particularly delineated in PINK on Plan No. B./GA/941/76 annexed to these presents”