Barrister Jacob Nayaba & Ors v. Dr. Mike E. Asemota (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA (Delivering the leading judgment)

This appeal interrogates the correctness of the judgment of the High Court of Justice, Edo State, sitting at Benin City (the lower court), delivered on 26th day of March, 2018 (Coram: Edigin, J).

Before that court, the respondent, as plaintiff/claimant, sued the appellants and others, as defendants, claiming, vide paragraph 15 of his amended statement of claim dated 17th January, 2014 and copied at pages 204 – 206 of the record of appeal, the reliefs reproduced hereunder.

“A. A declaration that the claimant is the rightful owner in possession under Benin Land Tenure of that piece or parcel of land measuring 350 feet by 750 feet situate, lying and being at Ogiso Quarters, former Ward 10/E, Benin City within jurisdiction and therefore entitled to statutory right of occupancy over the said piece or parcel of land.

The said piece or parcel of land is situating within the Jurisdiction of this honourable court, The particulars of the land shall be shown in a Survey Plan to be filed in this suit and the said piece or parcel of land is situate within the jurisdiction of this honourable court.

B. The sum of N500,000.00 (Five Hundred Thousand Naira) being damages for the trespass committed by the defendants on a portion of the said land measuring 50 feet by 100 feet situate, lying and being in Ogiso Quarters, former Ward 10/E Benin City.

C. An order of perpetual injunction restraining the defendants, their agents, servants, substitutes and or privies and anybody claiming through them for (sic) further trespass on the said land.”

The appellants, as defendants, contested the claim of the claimant, now respondent, by filing defences to same. The 1st appellant, as 1st defendant, filed an amended statement of defence/counter-claim dated 18th July, 2016, copied at pages 295 – 306 of the record of appeal. He counter claimed against the claimant/respondent as follows:

“A. An order that the plaintiff should pay the 1st defendant the sum of N500,000.00 (Five Hundred Thousand Naira) only for general damages and for instituting the action against him.

B. An order of perpetual injunction restraining the claimant, his privies, agents, and servants from claiming ownership of the 50feet by 100feet lying and situate at Ward 18H, New Layout, Ogiso Quarters, Benin City.”

The 2nd defendant, now 2nd appellant, also filed an amended statement of defence denying the claim of the respondent and asserting that the land in dispute belongs to the Uhunwundumwun Community, of which he is a member. The 2nd appellants amended statement of defence, also dated 18th July, 2016, occupies pages 307 – 315 of the record.

The facts of the case leading to this appeal can be summarized thus: According to the respondent, one Mr. J.O. Osadolor, then the Secretary to the Plot Allotment Committee Ward 10/B Benin City acquired a parcel of land measuring 450ft by 750ft by direct grant from the Oba of Benin in 1961. In 1968, his father, late Chief Richard Igbinomwanhia Asemota acquired from Mr. J. O. Osadolor a part of his land measuring 350ft by 750ft and same was also subsequently approved by the Oba of Benin.

His father went into possession of the land and remained in possession without let or hindrance till his death on October 12th, 1987. In 1989, the family of late Chief Richard Igbinomwanhia Asemota held meetings and took decisions part of which the land measuring 350ft by 750ft was shared to claimant as his inheritance amongst other properties as the eldest surviving son of his late father.

Since then, he has been in peaceful possession and enjoyment of the land by exercising maximum acts of ownership over the land by planting economic trees and farming on it.