James Omoruyi V. Gabriel Joshua Obanor (2011)

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 Iguobazuwa High Court in suit No.HIGU/10/1994 which was delivered on 1/8/2002 wherein the Appellants claims were dismissed and the reliefs of the Respondent as counter claimant were granted.

In his amended statement of claim at pages 62 – 66 the Appellant (the Plaintiff) claimed as follows:

a) A declaration of title to the piece of land measuring 300 feet by 200 feet lying and situate at Iguosa village, along Lagos Road, Benin City having acquire same under Bini Customary law.

b) The sum of N5,000.00 (five thousand naira) damages for trespass and destruction of the plaintiff’s cassava farm, and matches.

c) An order of injunction restraining the Defendant, his agents, privies and servants from further acts of trespass to the land.

d) A declaration that the plaintiff is the person entitled to the certificate of occupancy in respect of the land.

On declaration that the plaintiff is the person entitled to the certificate of occupancy in respect of the land.

On the other hand the Respondent (then Defendant) in his amended statement of defence and counter claims at pages 135 – 142 the Respondent counter claimed as follows:

a) A declaration that the defendant is the owner in possession of piece or parcel of land lying at Iguosa village; Benin City and therefore by section 34(2) of the Lands Use Act, 1978 is the person deemed to be a holder of the statutory right of occupancy in respect of the said piece or parcel of land by virtue of a deed of conveyance registered as No.28 at page 28 in Volume 485 at the land Registry Benin City and thereafter a holder of statutory right of occupancy in respect of that parcel of land verged Red in Plan ISO/ED/15895 dated 10th March 1995 and filed herein with the statement of defence and counter-claim.

b) N1,000.00 (One thousand naira) being damages for trespass in that on or about 2nd day of April 1994 the plaintiff broke and entered into the said piece or parcel of land without the defendant’s consent and therein committed several acts of trespass.

c) Perpetual injunction restraining the plaintiff either by himself servants or agents or howsoever from entering the said piece or parcel of land.

The matter went for trial and after evidence were given and exhibits tendered by both parties, the learned trial judge gave judgment in favour of the Respondent. Judgment of the trial court is at pages 162-197. The relevant part of the judgment is reproduced hereunder –

“After careful comparison of both exhibits 5 and 6. I am satisfied and find as a fact that the area verged Red in exhibit 5 is the same as the area verge pink in exhibit 6. In other words, the parties are disputing over one and the same parcel of land.