Mrs. Mary Wilkey V. Mrs. Ogbohu Ogiegbaen & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

T

is appeal is from a judgment of Akhigbe, J. of the Edo State High Court in Suit No. B/66/90 given on 25/10/95.

The Plaintiffs in the court below claimed against the defendant in their Amended Statement of Claim as follows:-

“(a) A declaration that title under Bini Customary land Law to a parcel of land lying and situate at Ward 40/A Ogbeson, Benin City in Oredo Local Government Area within the Benin Judicial Division measuring 100 feet by 200 feet and bounded by Ward Beacon Nos 282,379, 377. 400 which parcel of land is more particularly described in a litigation Survey Plan No. 150/BD/577/90 dated 12/4/90 filed in this action was immediately before the commencement of the Land Use Decree (now Act) vested in the 1st plaintiff and also the 2nd plaintiff to whom the 1st plaintiff transferred part thereof by reason whereof they are entitled to a Statutory Right of Occupancy in respect of the said piece or parcel of land.

(b) General Damages for trespass to the said piece or parcel of land.

(c) Perpetual injunction restraining the Defendant, her servants and/or agents from further trespass and/or interference with plaintiffs’ possession, use and enjoyment of the land in dispute”.

Pleadings were ordered, filed and exchanged. The case then proceeded to trial. The plaintiffs testified on their behalf and called five witnesses while the defendant testified on her behalf and called a witness. After reviewing the evidence adduced by both parties, the learned trial Judge in a reserved judgment found for the plaintiffs. The defendant was dissatisfied with the decision of the court below and consequently appealed to this court on a number of grounds.

The case of the plaintiffs was that the 1st plaintiff obtained title to the land in dispute by processing application for same through the Ward 40/A Ogbeson plot Allotment Committee to the Oba of Benin for approval and the approval by the Dba is Exhibit ‘B’ in the proceedings at the court below. The dimension of the land was said to be 100feet by 200ft as in Exhibit ‘B’ which was approved by the Oba on the 1st of April, 1976.

Exhibit ‘A’ is said to be the receipt for the purchase of rubber trees on the land in dispute by the 1st plaintiff.

The Defendant on the other hand traced her root of title from one Melodia Omoregie (Mrs) who in turn was alleged to have acquired possession and or title by virtue of a Will – Exhibit ‘E’ which gave a piece or parcel of land to Mrs. Melodia Omoregie’s son Daniel Imuetinyan and other children to share. The defendant stated that it was Mrs Melodia Omoregie who sold the land in dispute – 100 ft by 100ft to her pursuant to Exhibit G which is an Indenture made on 1/12/77 between Mrs. Melodia A. Omoregie and Madam Maria O. Wilkey. Exhibit ‘F’ is said to be the certified true copy of the Deed of Conveyance between the Oba of Benin and the late Donald Idiaghe Omoregie which said conveyance the defendant alleged covered the land willed to Mrs. Melodia Omoregie’s son.

As already indicated above the learned trial Judge granted the plaintiffs’ claims as follows:-

” (a) That the plaintiffs are entitled to that piece or parcel of land measuring 100ft by 200ft situate at Ward 40A at Ogbeson bounded by Beacon Nos. 282. 379 -377, 400 in Oredo Local Government Area, within Benin Judicial Division and Statutory Right of Occupancy thereof.

(b) General damages assessed at N5,000.00 only.