Emmanuel Osaheni Egharevba V. Mrs. Comfort Oruonghae (2001)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A. 

This appeal is sequel to the judgment of Nwulu, J. of the Ogwashi-Uku Judicial Division of the Delta State High Court of Justice delivered on 27th March, 1998 in Suit No. S89/93.

The respondent, as plaintiff, sued the appellant, as defendant, for trespass and damages for such trespass. The issues involved in this case will be better appreciated coupled with case of reference if some averments in the parties’ pleadings are reproduced. I shall before doing so make a pertinent remark on the title of the respondent’s pleadings. It is titled 2nd “AMENDED STATEMENT OF CLAIM”. I critically examined the record of proceedings in the trial Court and I failed to see either the original statement of claim or the 1st statement of claim. The title given to the only statement of claim as reproduced above is a misnomer that should not be allowed to stand. The title of respondent’s pleading shall therefore be statement of claim simpliciter. This inadvertence notwithstanding both the respondent and the appellant exchanged pleadings in strict compliance with the rules of the trial Court. Paragraphs of the statement of claim that are of moment are 1, 2, 5, 6, 7, 8, 11, 12, 14, 15, 16, 17 and 18 while those of the statement of defence are 1, 2, 6, 7, 8, 10, 11, 13, 15, and 20.

The said relevant averments in the statement of claim read:

“1. The plaintiff avers that she is a trader, a Nigerian citizen from Edo State of Nigeria and resides at both No.1, Urhobo Road, Sapele and No. 51 Aruosaghe Street off 2nd West Circular Road, Benin City

2. The plaintiff avers that she is the fifth child of her deceased father Erhabor Gabriel Egharevba who lived at No.3, Idahosa Lane Benin City during his life time.
3. The plaintiff avers that their deceased father, late Erhabar Gabriel Egharevba, made a will and testament validly attested to deposited (sic) with Probate Registry, High Court of the then Mid Western State Benin City.
4. The plaintiff avers that on the death of their deceased father the said will was proved. The plaintiff shall rely on the certified true copy of the said will.
5. The plaintiff avers that she became vested with the title of the said property after the death of their deceased father’s wife, late Eseigbe Erhwumwunse who died childless on the 29th day of September, 1990
6. The plaintiff avers that she became absolutely vested with the building and land situate at No.1, Urhobo Road, Sapele by virtue of Clause 9 of the aforesaid Will which was never challenged either by the defendant or any other person.
7. The plaintiff avers that the Late Eseigbe Erhumwunse lived and died at No. 1, Urhobo Road, Sapele exercising all rights of ownership in accordance with the testator of the said Will and was never challenged throughout her life time.
8. That during the life time of Late Eseigbe Erhumwunse one Augustine Okoedion, who was also a tenant at No. 1, Urhobo Road, Sapele was made a caretaker by her.
9. The plaintiff avers that upon the death of Eseigbe Erhumwunse took possession and ownership of the building, collecting rents from the tenants therein and also occupying a room in the said No. 1, Urhobo Road, Sapele. The plaintiff shall at the trial rely on stumps of her receipts booklet and other document showing that she collected rents from the tenants without any challenge or hindrance.
10. The plaintiff avers that on or about 4th day of July, 1993 the defendant without the consent or authority of the plaintiff forceably (sic) entered the premises known as No. 1, Urhobo Road, Sapele and made attempts to forceably (sic) eject the plaintiff and the tenants from the said premises.
11. The plaintiff avers that the defendant has repeatedly evaded (sic) the said premises with threats to burn the said building.
12. The plaintiff avers that as a result of the persistent acts of trespass by the defendant and his privies namely her younger uterine sister, the plaintiff has suffered damages.

WHEREFORE the Plaintiff claim (sic) as follows

(1) That she is the person vested with the title or that she is entitled to the Statutory Right of Occupancy of the building and premises known as No. 1, Urhobo Road, Sapele.

(2) N100,000.00 (One hundred thousand naira) as general damages for repeated acts of trespass on the said building and premises known as No.1, Urhobo Road, Sapele.”

(Italics Mine for emphasis)

The pertinent averments of the defendant read:

“1. SAVE AND EXCEPT as hereinafter expressly admitted, the defendant denied each and every allegation of fact contained in the STATEMENT OF CLAIM as if each and every such allegation of fact were specifically set out and traversed seriatim.

2. The defendant is the eldest son of Late Mr. Gabriel Erhabor Egharevba who lived and died at No.3 Idahosa Street, Benin City.
3. The defendant avers that in answer to paragraph 9 of the statement of claim, the late Mrs. Eseigbe Egharevba (our father’s senior wife) who was supposed to live at No.1 Urhobo Road, Sapele till she died some time in September; 1990, never in fact lived there. The house was to the knowledge of the plaintiff a subject of litigation between her and the defendant until her death. That since her death all pending litigation in respect of that house were struck out from court. Evidence will be led at the trial and found upon.
4. The defendant avers that his father lived, died and was buried under the BINI NATIVE LAW AND CUSTOM and that the disposition of his property remained at all material times subject to BINI CUSTOMARY LAW Evidence Will be led at the trial to that effect.
5. The defendant will contend at the trial that the validity of the purported Will of his Late Father has been the subject of controversy among the family since the death of their father. It had remained in doubt, whether the deceased had the capacity to make a Will when he allegedly made one by reason of his infirmity at the relevant time.
6. The defendant avers that under the said BINI NATIVE LAW AND CUSTOM possessory title to his deceased father’s estate vests on him as the eldest son until the same is shared according to BINI NATIVE LAW AND CUSTOM. Evidence to that effect will be given at the trial.
7. The defendant avers that the family members of his late father have been meeting and still meeting to conclude the sharing of the estate of their late father.
8. The defendant avers that the family members on or about the 26th day of June, 1993 met and shared the property or estate of his late father. The family Meeting Minutes Book and document signed to that effect will be relied and founded upon at the trial.
9. The defendant avers in further answer to paragraph 11 that the house along No. 1, Urhobo Road, Sapele is one of the properties of his Late Father which he had possessory title over as the eldest son until (sic) shared by the family according to BINI NATIVE LAW AND CUSTOM.

20 The defendant will in the circumstances contend that the plaintiff is not entitled to the relief sought or any relief and the claims be dismissed as being misconceived, vexatious and frivolous.”

(Italics mine for emphasis)

At the hearing, the respondent testified and called two witnesses while the appellant also testified and called the same number of witnesses.