Aloyius Akaa V. Joseph Ikyaator (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL C. OSEJI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of justice, Makurdi, Benue State, delivered by Hon. Justice I. Hwande C.J on the 28th day of May, 2009 in suit No. MHC/117/2002.

The Respondent in this appeal was the Plaintiff in the lower Court. His claim in this suit as per paragraph 16 of his further amended statement of claim dated and filed on 21-06-2006. Reads thus:-

16 (a) A declaration that the plaintiff is the bona-fide owner of plot No. BN 2076 as evidenced by both the Right of Occupancy and Certificate of Occupancy.

(b) AN ORDER of perpetual injunction restraining the Defendant by himself, his successors, servants, agents, privies or whomsoever claiming through him from trespassing into or interfering with the Plaintiffs peaceful enjoyment of his plot No. BN 2076.

The Appellant (then as Defendant) reacted by filing a statement of defence with a counter-claim where in paragraph the claim the following reliefs:-

9 “Whereof the Defendant has suffered loss and damage and counter-claim against the Plaintiff as follows:-

(A) A special damages of N100, 000.00 (one hundred thousand naira) for mischief to the Defendant’s economic trees and crops.

(B) General damages of N50, 000.00 (Fifty thousand) naira for unlawful arrest and false imprisonment at the instance of the Plaintiff

(C) An Order of perpetual injunction against the Plaintiff, his agents, servants and or privies over this issue”

In summary the Plaintiff (now Respondent’s) case is that sometimes in 1979, he applied for and was granted a Right of Occupancy over a parcel of land at the Industrial Layout by the Benue State Government. Persons affected by the said allocation were required to come and collect their compensation from the Ministry of land and survey. Several people collected their compensation and vacated the land. The Appellant was approached to collect his own but he requested for time to make available his passport photographs as required before any compensation will be paid; but he never did. In 2001, the Respondent went to the land only to discover that the Appellant has commenced building of a three room house, deposited some trips of sand and also planted some economic trees.

He warned the Appellant to keep off the land but to no avail so he reported the matter to the Bureau of lands and survey who after confirming the ownership of the land instructed the appellant to vacate but he still refused and the matter was reported to the police. The continued intransigence of the Appellant led him to bring this action.

The Appellant denied the claim and posited that he acquired the land in 1974 through purchase from one Aloysius Idye in the sum of N600.00 and that there is agreement to that effect. He added that in 1982, the Respondent broke into the land but he confronted him and showed him the agreement.

At the trial of the case at the lower Court which hearing commenced on 27 – 02 – 2006, the Respondent as Plaintiff therein testified and called 4 witnesses. The Defendant also testified and called three witnesses. The parties thereafter filed and exchanged their written addresses which they adopted on 23 – 04 – 2009, the lower Court granted the Respondent’s claim and dismissed the Appellant’s counter claim.