Anthony O. Iyamu Edebiri V. Doleyi Osawe Edebiri & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C.

The plaintiff/appellant and 3rd defendant/respondent (herein after referred to simply as appellant and respondent respectively) were parties to Suit No.B/68/72 in which appellant claimed against the defendants jointly and severally:

“1. For a declaration that the plaintiff is entitled to the sum of N11,700.00k paid by the 1st defendant to court that is to say, to the registrar, High Court, Benin City, in respect of the damage done to the plaintiff’s house known and called No.1, Omo Street, Benin City during the construction of Mission Road, Benin City.

2. For an order that the said sum of N11, 700.00k in the custody of the 2nd defendant be paid to the plaintiff, he, plaintiff having obtained a declaration of title to the said No.1, Omo Street, Benin City by a decision of the High Court, Benin City dated 31st July, 1974, in suit No. B/68/72 which said judgment was upheld by the Supreme Court of Nigeria on 10th October, 1977 in appeal No. SC.320/1975.”

For a better appreciation of how the case herein originated, it is pertinent to set out albeit briefly, the facts giving rise thereto as follows:-

The appellant was plaintiff and the respondent as 3rd defendant, were first in the High Court Benin City in Suit No. B/68/72 in which the appellant was seeking against the Permanent Secretary, Ministry of Works and Transport, Bendel (now Edo) State of Nigeria, the registrar High Court Benin City and the respondent (joined in the suit by Order of Court dated 6/7/78) seeking:

(a) a declaration of Title, (2) Recovery of possession, and (3) perpetual Injunction to a piece or parcel of land.

While that case was proceeding in the High Court; the Government of Bendel (now Edo) State acquired part of the land for the extension of Mission Road, Benin City. The appellant in order to prevent the respondent or any other person from claiming the money due to be paid as compensation for the land and part of the building demolished, wrote to the Controller of Works and Permanent Secretary, Ministry of Works and Transport, Benin City through his solicitors on 2nd February, 1974 requesting that the money be paid into Court in the interest of justice. This request was duly acceded to.

At the end of the proceedings in the High Court the appellant had judgment in his favour. Whereupon the respondent appealed to this court (there being no Court of Appeal at the time). This court dismissed the respondent’s appeal, affirmed the order for declaration of Title but varied the order for perpetual injunction made by the trial court as too wide in scope, and dismissing the

appellant’s cross-appeal against the refusal of the trial court to make an order for recovery of possession; the trial court having in consequence arrived at the view that the respondent was in possession of that part of the building under Bini Customary Law.

Soon after the termination of the litigation hereinbefore alluded to, the appellant applied to be paid. As the money was not paid for obvious reasons, the appellant filed the suit giving rise to this appeal in the High Court claiming a declaration that he was entitled to be paid the compensation money as owner of No.1 Omo Street, Benin City, part of which was damaged and paid for by the

Bendel State Government.

The respondent whose possession of No.1 Omo Street under Bini Customary law had been confirmed by this court also applied in the pleadings ordered to be joined to the two defendants and he was so joined by Order of the court dated 6th July, 1978 as 3rd defendant.

The Benin High Court (Ekeruche, J.) gave judgment on 7th December, 1978 for the entire sum of N11,700.00 in favour of the appellant. Whereupon, the respondent appealed to the Court of Appeal, Benin Division sitting at Benin city (hereinafter referred to as the court below).

The court below allowed the respondent’s appeal on 7th December, 1988 and proceeded to divide the compensation equally between the appellant and respondent with costs against the appellant assessed at N400.