Chief Johnson Imah & Anor V. Chief Ajowele Okogbe & Anor (1993)

LawGlobal-Hub Lead Judgment Report

ADIO, J.S.C.

The appellants, for themselves and on behalf of members of Akuku Community, in the High Court of the defunct Bendel State, Auchi Judicial Division, sued the respondents, for themselves and on behalf of Ojirami Community claiming:

“(i) A declaration that the plain1iffs are entitled to the customary right of occupancy of all that piece or parcel of land shown and verged pink in survey plan No. LSF 2757 filed in this suit.

(ii) N250,000 being general damages for the defendants’ trespass on the said land.

(iii) Perpetual injunction restraining the defendants whether by themselves, their agents or servants or otherwise howsoever from committing further acts of trespass on the said land.”

Pleadings were duly filed and exchanged. With the leave of the Court, the Statement of Claim filed by the appellants and the Statement of Defence filed by the respondents were amended. The evidence led by the appellants was that two ancestors of members of Akuku Community, Ogboro and Uyorogun, led them from Benin to the present site of Akuku land many years ago. When they got to the site they went on top of the hill called Oyan-Kuo and settled there because there was war going on at the material time. Members of the community, though living on the hill, used to farm on the land at the foot of the hill which was not occupied by anybody. In the year, 1918, they left the top of the hill and had since then been living and farming on the land at the foot of the hill. Sometime, the Government built a dam in the area and the dam is called Ojirami dam. The place where the respondents subsequently settled was on one side of the dam and the appellants’ settlement was on the other side.

Members of the appellants’ community had farms and houses on the land at the foot of the hill where they settled. They built a school there and two shrines of the community were on the land which is now the land in dispute. It is verged pink on the survey plan tendered by the appellants that was admitted and marked Exhibit “A”.

In 1980, the dam was flooded and it swept away the appellants’ buildings and some other things they had on the land in dispute. At the request of the Bendel State Government, the appellants’ community gave two parcels of land, edged yellow on the survey plan (Exhibit “A”), to the Government to enable the Government build houses there to re-settle the members of the appellants’ community. While the building operation was going on, members of the respondents’ community started to claim that the land in dispute belonged to them.

They entered the land in dispute, destroyed certain things there, and packed away others such as cement blocks and sand. Further, they used to come to the appellants’ village, brandishing cutlasses, singing and saying that they were ready to fight the appellants. Some sheds were erected on the land in dispute by some female members of the respondents’ community.

In the view of the respondents, the survey plan, Exhibit “A” tendered by the appellants, was not correct. They, respondents, tendered a survey plan drawn by their own surveyor. The survey plan was Exhibit “H” in which the land in dispute was also verged pink. The respondents too alleged that they were living on the hills but subsequently they too came down and were living at Ojirami at the foot of the hill. According to the respondents, their community gave the Government the land on which the dam was built and they also gave permission to the appellants’ community to build a primary school on the land in dispute. The respondents had on the land in dispute a market, two juju shrines, farms and the foundation of a town hall. Okejarni was the boundary between the land of the appellants and the land of the respondents.

The learned trial Judge, after consideration of the evidence before him and the submissions of the learned counsel for the parties, held that the land in dispute was not in doubt, as to its identity, to both parties and that the question of calling boundary-men to establish the boundaries of the land in dispute, in relation to which the appellants were claiming customary right of occupancy, did not arise. He concluded that the land in dispute was at Akuku village and stated that he was satisfied that the evidence led by the appellants was more probable and he accepted it. In his view, the appellants were in possession of the land in dispute when the respondents trespassed on it. He, therefore, granted the appellants the declaration that they were entitled to the customary right of occupancy of the land in dispute edged pink in Exhibit “A” and awarded N50,000 damages to the appellants for trespass committed by the respondents. The appellants’ claim for injunction failed.

Dissatisfied with the judgment, the respondents appealed to the Court of Appeal. The Court of Appeal held that the award of damages in relation to the alleged trespass was wrong as the quantum of the damages given was not a correct and judicious exercise of the discretion of the learned trial Judge. The damages given were exemplary without any reason given for such nature of grant which was contrary to known principles. The court was, in any case, of the opinion that the finding of trespass itself was in error because possession of the land in dispute was then in the State Government, and not in the Akuku community.

The court held further that the sum of N3,000 damages would have been sufficient if the appellants’ claim for damages had been proved. In the case of the claim for declarations at the appellants were entitled to the customary right of occupancy of the land in dispute, the Court of Appeal held that the declaration could not be granted to cover the two pieces of land (edged yellow in Exhibit “A”) within the land in dispute edged pink.

The Court of Appeal also held that, in the circumstances in this case, the learned trial Judge was wrong in holding that the respondents proved the boundaries of the land in dispute to entitle them to a grant of declaration of customary right of occupancy in respect of it. The court, therefore, allowed the appeal, set aside the judgment of the learned trial Judge, and dismissed the appellants’ claim for declaration of customary right of occupancy and the claim for damages for trespass on the land in dispute.