Frank Eribenne V. Mr. Ali Sunday Ug & Anor (2007)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE OLUFUNLOLA OYELOLA ADEKEYE, J.C.A

The claim of the plaintiff Mr. Ali Sunday Ugo before the High Court of the Federal Capital Territory reads as follows:-

(I) Declaration that the plaintiff is the owner or a person with sufficient interest and entitled to certificate of occupancy in that piece of land situate, lying and being at Angwar Magaji Pyape-Nyanya Abuja Municipal Area council measuring 30M X 30M (100 feet by 100 feet) fenced round within the portion of property demarcated by beacons AZ1, AZ2, AZ3 and AZ4 belonging to the 2nd defendant.

(II) The sum of N5, 000,000 (five million naira) as general damages against the 1st and 2nd defendants jointly and severally for trespass.

(III) An order of the Honourable court directing the 1st defendant to immediately remove the structure erected on the plaintiffs land without his consent, permission or authority.

(IV) Injunction restraining the defendants themselves, or agents, servants, privies assigns or howsoever called from disturbing or further disturbing the plaintiff or any of his authorized agents from peaceful enjoyment of the land in question.”

Parties filed and exchanged amended statement of claim and amended statement of defence. The facts of the case briefly are that the plaintiff purchased a plot of land in Abuja to erect a residential building through his friend James Ochigbo who then resided in Abuja. The plaintiff himself ordinarily resides in Lagos. The piece of land 30m x 30m in dimension was purchased from the 2nd defendant Alhaji Allah Yayi Zakoyi.

The plot is located within a larger piece of land owned by the 2nd defendant and marked with beacons AZ1- AZ4. The plaintiff took possession of the land fixed his beacons and fenced same round, pending the time the 2nd defendant would process the certificate of occupancy on the land. He paid a purchase price of N120, 000 in respect of the land and deposited another sum of N15, 000 towards processing of the certificate of occupancy for the land.

Parties executed a power of Attorney on the 9th of June 1993 as evidence of payment for the land. On a visit of the plaintiff to the land in December 2000 he met the 1st defendant Mr. Frank Eribenne on the land erecting a house inside his fence. The 2nd defendant made an effort to grant him an alternative piece of land in the process of settling the matter amicably. The plaintiff refused the land as it was inside a thick jungle. Meanwhile the 1st defendant hurriedly continued with the construction of his house on the land. Vide pages 70-87 and 87-101 of the Record. This prompted the plaintiff to resort to court action. The 1st defendant claimed to have purchased the same piece of land in dispute from one Engineer Zakari Dogo for a sum of N400, 000 in 1999. Engineer Zakari Dogo traced his title to the plot of land to the 2nd Defendant and buttressed his claim with a power of Attorney executed by the parties in 1991 exhibited as DF1. DF1 was pleaded and tendered as evidence of payment of a sum of N220,000 paid by Engineer Zakari Dogo on 11/5/91 in respect of a piece of land with fence.

The 1st defendant claimed that when he bought the land from Engineer Dogo in 1999 he met the land already fenced with 9 inch blocks. The power of Attorney DF2 was executed. Vide pages 103-107 of the Record. The 2nd defendant testified that he sold the land in dispute to Engineer Zakari Dogo in 1999, six years after the first transaction with James Ochigbo, who was intermediary between himself and the plaintiff because he did not hear from either James Ochigbo or the plaintiff again. He further admitted that at the time he sold the land to the plaintiff in 1993 he did not sell the land to any other person before him. Vide pages 108-113 of the Record. Two witnesses testified for the plaintiff, the 1st defendant testified for himself while three witnesses testified for the 2nd defendant. The learned trial judge in his considered judgment delivered on 21/2/05 found that the plaintiff proved his case against the 1st and 2nd defendants and held as follows:-

(1) That the plaintiff is the owner or person with sufficient interest in the properly in question situate at Angwar Magaji, Pyape-Nyanya in Abuja Municipal Area council measuring 30M X 30M (100 feet by 100 feet) fenced round within the portion of property demarcated by beacons AZ1, AZ2, AZ3 and AZ4 belonging to the 2nd defendant.

(2) The 1st defendant being an innocent purchaser for value could not be said to be liable for damages for trespass. The 2nd defendant therefore is to pay the plaintiff fifty thousand naira (N50, 000) as damages for trespass.

(3) The 1st defendant having acquired no valid title shall forthwith remove the structure he puts in place on the land in question without the plaintiffs consent, permission or authority and

(4) The defendants are by themselves, their agents, servants, privies assigns or by any person claiming interest through them hereby restrained from disturbing the plaintiff or any of his authorized agents from peaceful enjoyment of the land in question.”