Goddy Edosa & Anor V. Mrs. Ekomwenrhenrhien Ogiemwanre (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GEORGE OLADEINDE SHOREMI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court Benin City Edo State in suit No. B/319/2003 delivered on 10th April 2008.

The Respondent, Plaintiff in the lower court claimed as follows “Plaintiff claims from the Defendants jointly and severally a declaration.

1) That she is entitled to s Statutory Right of Occupancy in respect of that piece or parcel of land measuring more than 50 feet by 100 feet including two rooms of the main house known as No. 48, Dawson Rood, Benin City being part of the property she received from her father Omwenke Agho as gift intervivos and later formed part of the inheritance from her father, Omwenke Agho (deceased) as at 1947 or thereabout.

2) N8,000,000.00 (Eight Million Naira) damages for trespass in that on or about the 17th day of April, 2003, the second defendant without the consent of the plaintiff purportedly sold and or leased the plaintiff’s land to the 1st defendant who pulled down the two rooms and also fenced round the empty land property of the plaintiff lying and situate at No.48, Dawson Road.

3) Perpetual injunction to restrain the defendants or their agents from developing the two rooms apartment and empty land property of the plaintiff,

4) In the alternative N25,000,000.00 (Twenty-five Million Naira) compensation for the two rooms apartment and measuring more than 50 feet by 100 feet lying at 48, Dawson Road, Benin City belonging to the plaintiff. Show on the survey plan pleaded.

Pleadings were exchanged the Appellant defended the case by a joint 2nd amended joint statement of defence. Witnesses were called and the trial Judge in his judgment delivered on 10/4/08 concluded as follows:

“On the whole, I hold that the Plaintiff’s claim for declaration of her entitlement to a, statutory right of occupancy damages for trespass and injunction succeed and I make the following orders jointly and severally against the Defendants:-

1. I declare that the Plaintiff is the person entitled to a statutory right of occupancy in respect of that piece or parcel of land with an area of 474 sq metres situate at No.48 Dawson Road, Benin City and verged red in litigation survey plan No. ISO/ED/D38/2005 or 30/8/2005 admitted as Exhibit P2 in this proceedings.
2. The sum of N200,000.00 damages for trespass.
3. A perpetual injunction restraining the Defendants their agents from further act of trespass to the land.

In view of the success of the main claim, the alternative claim for N25,000,000.00 compensation for the property no longer calls for consideration”.

The Appellant being dissatisfied with this judgment filed a notice of appeal with ten (10) grounds of appeal. The grounds of appeal are set out without Particulars hereunder:

“1. The decision is against the weight of evidence’

2. The learned trial Judge erred in law when he held thus “Although Erhabor who was the Okaegbe at the Burial of Onwenke agho died about five months ago according to the Plaintiff and did not testify in the case, and Akpitanyi is also dead. It is my view that their death should not diminish the weight attachable to evidence of other Person especially members of the family who knew what happened, although their names were not set out in the Pleading.”

(c) The carpenter on the land who allegedly paid rend to the Plaintiff was not called’

4. The learned Trial Judge erred in law when he held that the acts of the Defendants constitute an interference with the Plaintiffs Possession.
5. The learned trial judge erred in law when he held that the Plaintiff has proved her case and is entitled to the relief sought.
6. The Learned trial Judge erred in law when he held that the land in dispute was given by Pa Agho to the Plaintiff during his lifetime.
7. The Learned Trial Judge erred in law when he perpetually restrained the defendants.
8. The Learned trial Judge erred in law when he held that the plaintiff was entitled to a declaration of statutory Right of occupancy.

g. The Learned trial Judge erred in law when he held that “I award N200,000 as general damages for trespass”.