Edward Nikagbatse V. Labord Opuye (2010)

LawGlobal-Hub Lead Judgment Report

OYEBISI .F. OMOLEYE, J.C.A.

This is an appeal against the decision of the Warri Judicial Division of the Delta State High Court (hereinafter called the lower Court) per J.A. Obi J, delivered on 30th November, 1994.

The Appellant herein was the plaintiff in the lower Court. He claimed against the Respondent as defendant for the following:

(a) A declaration that the property known as No. 71, Okere Road occupied by the defendant on which the defendant demolished a mud building to erect the present block building is the property of the plaintiff under Itsekiri native law and custom and that any purported grant of the said property to the defendant by one Eworitsemogha Oki or by any other person or persons is null and void or is hereby avoided. (sic)

(b) A declaration that the defendant residing at the said No. 71 Okere Road, Warri is doing so as a trespasser being in occupation without the consent, authority or permission of the plaintiff.

(c) An order ejecting the defendant from the said property and granting possession thereof to the plaintiff.

(d) An order of perpetual injunction restraining the defendant, his agents or servants or any person or persons claiming through him from breaking and entering into the said property or in any manner interfering with the enjoyment of the said property by the plaintiff or any person claiming by or through him.

(e) An order of general damages of N100,000.00 against the defendant.

(f) An order setting aside any purported certificate of occupancy obtained by the defendant in respect of the subject-matter of this suit as being null and void and of no effect whatsoever.

The brief background facts of this matter from the point of view of the Appellant are that, the Appellant’s grand-father, Oki Nikagbatse who died in 1929 was the owner of the property in dispute among others. The said Oki Nikagbatse bore three children namely, Eworitsemogha (m), Joel Ogharanemeye (m) and Efejuku (f), in order of seniority. It was Eworitsemogha, the eldest male child that later sold the property in dispute to the Respondent. Joel Ogharanemeye was the father of the Appellant and two others. According to the Appellant, the property in dispute with the other properties of late Oki Nikagbatse were given to the Appellant’s father en bloc. For, it was alleged that of the three children of late Oki Nikagbatse, the Appellant’s father, Joel was the beloved and the entire vast landed property of Oki including the personal house where Oki lived and died were given to Joel. While Eworitsemogha, the eldest child who was considered to be irresponsible was virtually left out of the scheme of things and disinherited.

However, after the demise of Oki, Joel, the Appellant’s father was said to have obliged his elder brother, Eworitsemogha by permitting him to live in their father’s house which the Appellant’s father had rebuilt after the death of their father, Oki. Eworitsemogha in addition was said to have been allowed to collect the rent of some other houses built by the Appellant’s father for his upkeep. Eworitsemogha predeceased his younger brother Joel who died in 1948. After the death of the Appellant’s father, one Madam Erdmann a half-blooded sister of his took over the management of the entire family property. Madam Erdmann later became sick and unable to effectively look after the said property. From that point, the Appellant’s father’s mother, Ajuremikpiaghan Agbeyegbe took over from her. By which time, Eworitsemogha had allegedly began to meddle and deal improperly in the entire Oki’s properties.

Contrariwise, the Respondent had claimed that, Eworitsemogha sold part of the property in dispute to him in 1953 for the sum of twenty-seven pounds. The deed of conveyance evidencing that is Exhibit C. According to the Respondent there was a mud-house on the landed property at the time of the sale which he later knocked down and rebuilt. The Respondent has since been in possession and actually built other structures on the said property. It was during one of the development exercises that the Respondent was accused of trespassing into some other portion of the Oki’s property, beyond the portion originally purchased by him from Eworitsemogha. It was in respect of the excess portion that he was sued to the Warri Divisional Grade B Customary Court. In that suit, Eworitsemogha was a co-defendant and it was one Lucky, the elder sister of the Appellant who sued as plaintiff. The action was instituted by Lucky in a representative capacity. The proceedings and judgment of the Customary Court in respect thereof is Exhibit D. The said judgment was appealed, first to the Magistrate Court and subsequently to the High Court, both in Warri, Delta State. At the Warri High Court, the Respondent was adjudged the owner of the property and in respect of the portion in controversy, he was ordered to pay damages in the sum of eighty-five Pounds in lieu of the trespass committed thereon by him. The judgment of the Warri High Court in that suit was delivered on 25th October, 1965, it is Exhibit E. See pages 100 to 119 of the record of appeal. The Respondent has since remained in quiet possession of the entire property in dispute. The Appellant’s uncle, Eworitsemogha later died in 1986. However, on 14th March, 1988, the Appellant filed an action at the Warri High Court for declaration of title to the same property, damages for trespass and a restraining order of injunction against the Respondent. The suit is the subject-matter of this appeal as earlier on stated above.

In the bid to establish his said claim at the lower court, the Appellant called five witnesses, while the Respondent gave evidence and called one witness in defence of the case against him. Some exhibits were tendered in evidence, these are, Exhibits A, A1-A8, B, B1, C – G. At the close of the parties’ cases, their respective learned counsel addressed the lower Court. At the end of the trial, all the claims of the Appellant were dismissed. The judgment of the lower Court is contained in pages 68 to 95 of the record of appeal. The Appellant was not happy with the judgment, hence, he filed this appeal to this Court ‘vide’ his notice and grounds of appeal which contains seven grounds of appeal. The notice and grounds of appeal dated 16th February,1995 was filed on 20th February, 1995, see pages 120 to 126 of the record of appeal. For ease of reference, the seven grounds of appeal are hereunder reproduced verbatim as follows:

GROUND 1.