Bernard E. Akporiaye V. Chief Daniel E. Okumagba & Ors (1998)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, JCA.

The appellant, Bernard, Akporiaye, was the 3rd defendant in this suit instituted at Warri High Court as Suit No. W/69/84. The 1st respondent, Chief Daniel Okumagba, was the plaintiff while the present 2nd and 3rd respondents were then the 1st and 2nd defendants respectively. The plaintiff’s claim as set out in paragraph 29 of the plaintiff’s amended statement of claim is as follows:

“AS AGAINST ALL THE DEFENDANTS JOINTLY AND SEVERALLY-

(1) A declaration that the Certificate of Occupancy No. BDSR 2634 granted by the erstwhile civilian, Governor of the Bendel State of Nigeria (Professor A.F. Alli) on his last day in office, the 30th day of September 1983, registered as instrument No. 4 at Page 4 in Volume D12 of the lands, Registry in the Office at Benin is unconstitutional, unlawful, irregular, null and void and consequently ineffectual to pass unto the 3rd defendant any title, right or interest in respect of the land in dispute shown on the plaintiff’s survey Plan N9. ESF/24/84 filed in this action and apparently referred to by survey plan No. MWC/391/83, attached to the Certificate Occupancy aforementioned, comprising an area of 6231.814 square metres forming but part of the plaintiff’s parcel of land in plaintiff’s possession and developed by the plaintiff with the approval of the planning authority over seven years ago as Scheme 4 in Olodi, Oki and Ighogbadu Families’ Layout lying and situate at Okere, Warri within the jurisdiction of this Honourable court.

(2) A perpetual injunction restraining the 1st and 2nd defendants by themself, their agents or otherwise however from processing, issuing and/or granting any Certificate of Occupancy or any other type of title, right or interest in respect of the plaintiff’s parcel of land aforesaid or any party thereof to, and/or in favour of the 3rd defendant.

AS AGAINST THE 3RD DEFENDANT ONLY-

(3) The sum of N100,000.00 (one hundred thousand Naira) being damages for trespass committed by the 3rd defendant in 1983 on the plaintiff’s said parcel of land in possession of the plaintiff.

(4) A perpetual injunction restraining the 3rd defendant from committing acts and/or further acts of trespass on the plaintiff’s parcel of land aforesaid.”

Pleadings were filed and exchanged and thereafter the case went for trial before Akhigbe, J. Evidence was led by the parties at the trial and at the conclusion of the hearing, the learned trial Judge delivered his reserved judgment on 27th October, 1989. In it, the learned Judge held that the plaintiff had proved all the items of his claim. He accordingly entered judgment in his favour as follows:

“I am satisfied that the plaintiff has proved his case, and I so hold. As a result, judgment is hereby entered for the plaintiff against the defendants as follows:

(1) A declaration that the Certificate of Occupancy (Ext.1) granted by the 1st defendant on 30/9/83 in favour of the 3rd defendant in respect of the land in dispute belonging to the plaintiff is irregular, null, and void.

(2) The sum of N2.000 being damages for trespass committed by the 3rd defendant in and from 1983 on the said land of the plaintiff.

(3) A perpetual injunction restraining the 3rd defendant from committing acts and/or further acts of trespass on the plaintiff’s said parcel of land.

(4) A perpetual injunction restraining the 1st and 2nd defendants by themselves, their agents or otherwise howsoever from processing, issuing, and/or granting any Certificate of Occupancy or any other type of title, right or interest in respect of the plaintiff’s parcel of aforesaid land or any part thereof to and/or in favour of the defendant.”