Bosinde Ayuya V Chief Naghan Yonrin (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the court of Appeal Holden at Benin City in appeal No. CA/B/66/96 delivered on the 19th day of July, 1998 in which the court allowed the appeal of the present respondents against the judgment of the Delta state High Court Holden at WARRI in suit No. W/135/71 delivered on the 25th day of August, 1995 in favour of the present appellants who were the plaintiffs before the court.

The appellants, then plaintiffs instituted the suit against the respondents, as defendants claiming the following reliefs in paragraph 24(2) of the still Further Amended statement of Claim:

‘(a) A declaration of title to all those pieces of land lying and situate at and known as Ayiboubou (Ayebo) land, Kriseibou (Krise) land, Oruamabou land on the right (north) bank of Buloutoru Creek and collectively known and called Ojobodo-Ogbo land in the neighbourhood of Ojobo Village in the then Western Ijaw Division within the Bomadi Judicial Division, the exact extent of which is as shown in the Survey Plan No. KP 631A and verged GREEN.

(b) The sum of N5,000.00 (Five Thousand Naira) being general damages for trespass committed by the 6th -9th defendants who sometime in 1967 without the consent of the plaintiffs first obtained, broke and entered the plaintiffs said parcels of land, fished the creeks therein, cleared parts thereof and planted cassava, yams, and other crops therein, as well as illegal construction of buildings on parts of the land.

(c) Perpetual injunction to restrain the 6th – 9th defendants, their agents and/or servants from further entering and trespassing on the plaintiffs said pieces or parcels of land ‘

The facts giving rise to the case include the following:

It is the case of the appellants that the Ojobo community located in Burutu Local Government Area of the present Delta state were the original owners in possession of the land verged green in exhibit J. and was founded by their ancestor known as Gbesa; that the respondents began to trespass on the pieces of land in or about the year 1912, which resulted in a series of court actions between the communities; that as a means of maintaining peace between the two communities, the then District Commissioner of Forcados District, Mr. J. Davidson suggested a boundary between the parties in 1912 by drawing a line from the junction of Krisei and Ayibou creeks to the water front of Buloutoru Creek which later became known as Davidson boundary; that following renewed acts of trespass by the respondents in 1967, the appellants instituted this action against the respondents.

On the other hand, it is the case of the respondents that the land in dispute shown in survey plan No. AA/Rv95/909 – LD which is exhibit ‘N’, is part of a continuous and unbroken mass of land belonging to and in the peaceful possession of their Torugbene community of Tuomo clan; that it is the respondents who have tenants on the land in dispute and that they also have farms, fishing ponds, economic trees, cash crops and burial ground on the said disputed land; that the only fishing rights exercised by the appellants was over a small portion of the Ayegbon and Krisei creeks which were all within Tonugbene territory; that Mr. J. Davidson never fixed a land boundary between the appellants Ojobo Community and the respondents Torugbene Community but that what Mr. Davidson did was to mark a boundary at the junction of Kresei and Ayebou creeks to demarcate the fishing rights of the two communities.

It should be noted that the appellants pleaded and tendered some proceedings and judgments in previous cases between the communities as constituting estoppel.

At the conclusion of the trial, the learned trial judge found for the plaintiffs/appellants and granted all the reliefs claimed. The learned trial Judge also added a relief not claimed by either party into the bargain resulting in an appeal and a cross appeal against the said judgment which appeals were allowed by the lower court in the judgment delivered on the 15th day of July, 1998 thereby giving rise to the instant appeal, the issues for the determination of which have been identified by learned Senior Counsel for the appellants, DAFE AKPEDEYE ESQ, SAN in the appellants brief of argument filed on 24/11/05 as follows:

“i. Whether the learned Justices of the Court of Appeal were right when they held that the learned trial judge was wrong to have found that Mr. Davidson fixed a recognizable and legally enforceable boundary between the Ojobo and Torugbene Community.

ii. Whether the learned Justices of the Court of Appeal were right when they held that the learned Trial Judge was wrong in holding that the previous judgments tendered by the Appellants operates as estoppel against the Respondents in favour of the Appellants.

iii. Whether the learned Justices of the Court of Appeal were right when they held that the learned trial Judge was definitely wrong to have held that the Appellants had proved the extent and identity of the land in dispute.