Chief Jacob Cleopas Biariko & Ors V Chief A.m. Edeh-ogwuile & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Judicial Division delivered on 29th May, 1995 in Appeal No. CA/ PH/45/91. That court which I shall hereinafter refer to as the court below, had dismissed the appeal filed by the defendants/appellants against the decision of the Boli High Court that sat in Port Harcourt on 15th January, 1990 and which decreed title to the land known as Oran Inyong Anwasi, delineated and verged red in the plaintiffs/respondents’ Plan No. BOE/R.34/85/LD excepting the area called Agbanchichama in favour of the respondents. The trial court (coram Ichoku, J. as he then was) found in favour of the respondents by also awarding general damages against the appellants for trespass.

The appellants in addition, were restrained from committing further acts of trespass on the said respondents’ land while the counter-claim filed by the appellants was dismissed in its entirety.

It is pertinent to state at this juncture, albeit briefly, how the case on appeal found its way through the courts below to this court thus:-

The plaintiffs now respondents, claimed against the appellants, then defendants in the trial High Court as follows:-

“(a) A declaration that the plaintiffs are entitled to the customary right of occupancy in respect of a piece or parcel of land known as Oron Inyong Anwasi and which piece of land is lying and situate at Ayama, Agana Village in the Bonny Local Government Area within the jurisdiction of this honourable Court.

(b) N5,000.00 being general damages for trespass committed by the defendants through their servants and/or agents on the said piece of land on the 26th day of January, 1985.

(c) An order of perpetual injunction restraining the defendants by themselves, through their servants and/or agents from committing further trespass on the said land. Please see paragraph 19 of the amended statement of claim dated 9th day of May 1987 and filed on 11th day of May, 1987.”

The defendants/appellants (hereinafter referred to as the appellants simpliciter) in their counter-claim sought the following reliefs:

“(a) A declaration that the defendants are entitled to the customary right of Occupancy of their piece and parcels of land known as and called INYONG ORON ANWASI and ORON OTUBURU ANYAMBOKO situate at ANYAMBOKO ANDONI.

(b) N16,000. 00 special and general damages for trespass committed by the plaintiffs, their servants or agents on the defendants said pieces or parcels of land between 1980 and 1985 at Anyamboko.

(c) Perpetual injunction restraining the plaintiffs, their agents or servants from further trespass unto the defendants’ said piece or parcels of land.”

It is pertinent to demonstrate firstly, that even though the appellants were sued in their personal capacities, on the 14th day of January, 1986, they applied and were granted leave to bring their counter-claim by the trial court in a representative capacity i.e. on behalf of Anyamboko community.

Secondly, pleadings were filed and exchanged by the parties while each applied and were granted leave, to amend them respectively, The respondents’ plan was tendered and received as Exhibit ‘A’ while the appellants’ plan was tendered and received as Exhibit “H”.