Daniel E.idehen V. David Ehigie Osemwenkhae (1997)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C.

In his writ of summons filed in Benin High Court of the defunct Bendel State, the plaintiff claimed as follows:-

“1. A declaration that, being vested with the Customary and traditional title to a piece of land in Benin City within the jurisdiction of this Court, he is entitled to a Certificate of Occupancy in accordance with the Land Use Decree 1978.

2. A sum of N100.00 being damages in that about the year 1975 the defendant broke and entered into the said land which measures 70 feet by 150 feet and covered by plot approved paper dated 20th December, 1972.
3. An injunction restraining both the defendant, his servants, agents and assigns from further trespass. The value of the said land being N100.00.”

The claims were denied by the defendant, and pleadings were ordered, filed and exchanged. The case proceeded to trial. The plaintiff gave evidence and called two witnesses who justified in support of his case. The defendant also gave evidence and called two witnesses in support of his case. At the end of the hearing, the learned trial judge delivered a reserved judgment in which he found in favour of the plaintiff as follows:-

1. A declaration that the plaintiff is entitled to a certificate of occupancy over a piece of land in the New Layout in Ward 40A Oregbemi measuring 70′ x 150′ and bounded by beacon numbers 38. 24 and 37 on the Benin/Agbor Road opposite Airewele High School;
2. A sum of N 100.00 as damages for trespass in that the defendant in about 1975 broke and entered the said land measuring 70′ x 150′ and covered by plot approval paper dated 20th December, 1972;
3. An injunction restraining both the defendant, his servants, agents and assigns from further trespass.”

Dissatisfied with the judgment of the trial court, the defendant appealed to the Court of Appeal, Benin Division, at the end of which the appeal was allowed with the following conclusion:-

“In conclusion, I must hold that, on the record, the plaintiff had not discharged the onus on him to prove, with certainty , the land he was laying claim to. This appeal, therefore, succeeds and it is hereby allowed. The judgment of the court below including the order for costs given in this matter on 30/3/82 is set aside. Plaintiffs claims are dismissed in toto.”

Aggrieved by the Court of Appeal decision, the plaintiff has appealed to this court.

The facts of the plaintiffs case as contained in his Statement of Claim can be stated thus:-

The land in dispute was allocated to the plaintiffs father by Ward 40A Allotment Committee in 1972. It is a plot of land measured seventy feet by one hundred and fifty feet (70ft x 150ft) situate at Oregbemi opposite Airewele Grammar School, Benin City, demarcated by beacons Nos. 38-24-37. On the G allocation of the plot his father was issued with allocation paper Exhibit I, signed

by Oba of Benin in line with Benin native law and custom. On the death of the plaintiffs father intestate all his estates, movable and real, were vested in his children. When his late father acquired the plot of land he paid compensation to one Madam Dorah for the rubber trees on it for which she issued him with a receipt Exhibit 2.

Some time in May, 1972,the defendant without a claim of right trespassed onto the land and started a building thereon, utilizing the building materials that were stored on the land by their late father. The defendant has persisted in his trespass and has refused to give up. The plaintiff being the eldest son of deceased father, filed this case for and on behalf of himself and the other children of the deceased to recover the land.

I shall refer to the appellant and the respondent in this judgment as plaintiff and defendant.

The plaintiff and the defendant in compliance with Order 6 rule/5(1) (a)and (2) of the Supreme Court Rules, 1985 [as amended] filed and exchanged briefs of argument.

In the brief filed by the plaintiff the following four issues have been formulated for determination by this court: