Edwin Ikhinmwin & Anor V. Prince Friday Elema & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

In the High Court of Edo State, holden at Benin City, in Suit No. B/242/96, the plaintiff, who is the Respondent herein, commenced an action against the Appellants, then the 1st and 2nd Defendants, claiming the following reliefs:

1. A declaration that the Plaintiff is the owner and in lawful physical possession of all that parcel of land comprising of approximately 2.2176 hectares within Elema Estate delineated in Survey Plan No. MWC/840/85 of 27th December, 1985 attached to a land instrument dated 16th September, 1988 and registered as No. 25 at page 25 in Volume 754 of the Lands Registry in the office at Benin City.
2. A declaration that the entry and commencement of building operations on my land by the 1st and 2nd defendants is without lawful authority and therefore illegal.
3. A declaration that the certificate of occupancy No. EDSR 12056 dated 5th May, 1995 granted by the 3rd defendant to the 1st & 2nd defendants was obtained by fraud and therefore liable to be cancelled.
4. An order of this Honourable court cancelling the said Certificate of Occupancy No. EDSR 12056 issued to the 1st and 2nd Defendants.
5. The sum of N50, 000.00 being damages for trespass.
6. An order of perpetual injunction restraining the defendants by themselves, their servants, agents and/or privies from further trespassing on the said parcel of land.

(see pages 39-40 of the Records)

Pleadings were filed and exchanged by the parties and the Appellants herein counterclaimed against the Plaintiff/Respondent for the following reliefs:

1. In the premises the 1st and 2nd Defendants have suffered losses and general damages as follows:

PARTICULARS OF LOSSES AND GENERAL DAMAGES

SPECIAL DAMAGES

(i) Estimated cost of the wall fence damaged – 110,000.00

(ii) Cost of the mortar destroyed – 13,300.00

(iii) 4 shovels at N1,500.00 each – 6,000.00

(iv) 4 headpans at N600.00 each – 2,400.00

(v) 2 metal buckets at N200 each – 400.00

(vi) Total payment already made to the contractor – 450,000.00

(vii) 2 trips of granite at N15, 000.00 per trip – 30,000.00

(viii) 2 trips of sand at N5,000.00 per trip – 10,000.00