Mark Ugbo & Ors Vs Anthony Aburime (1994)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

In the High Court of the former Bendel State of Nigeria, the plaintiff, who is now the respondent instituted an action against the appellants who therein were the defendants claiming jointly and severally, as subsequently amended, as follows –

(1) A declaration of title to statutory right of occupancy to the area verged pink on Plan No. CS10/43 filed with this statement of claim.

(2) N500,000.00 damages for trespass.

(3) Perpetual injunction to restrain the defendants, their servants or agents from further trespass on the land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged with the same amended by various orders of court.

The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses.

It is convenient at this stage to set out briefly the background facts to the dispute between the parties. The plaintiff’s case is that by Exhibit 2 dated the 11th July, 1970, he applied to the Oba of Benin through the elders of Isiohor village in the then Ward 11k for the grant of a piece or parcel of land. The said land measured 600 x 1000 feet and was situate at Isiohor village in the Benin Judicial Division of the former Bendel State of Nigeria, now Edo State. This application was duly approved by the Oba of Benin on the 8th December, 1970 in accordance with Bini customary law. After obtaining a grant of the said parcel of land, part of which is now in dispute, the plaintiff who was then negotiating to sell the same to one G. O. Igbinedion had the land surveyed in the name of the said Igbinedion. This survey plan is Exhibit I numbered WE. 1145 and dated the 6th January, 1971.

The proposed, sale of the land to Igbinedion failed to materialise and the plaintiff proceeded to make another survey thereof in his own name, this time. This second survey plan is numbered OSB/1562 and was tendered as Exhibit 5 in these proceedings. It is the Plaintiff’s case that sometime in February, 1982, the 1st and 5th defendants broke into and entered his said piece or parcel of land, destroyed his beacons and uprooted his rubber trees thereon. About the same time, the rest of the defendants purported to resell his said land in dispute to one Iyayi Efianayi who testified as P.W 6 in this case.

There was also the letter, Exhibit 3, which the 2nd, 3rd, 4th and 5th defendants wrote to the plaintiff claiming that the land in dispute was allocated to the 1st defendant and not to the plaintiff. Following these developments the plaintiff filed this action against the defendants jointly and severally as aforesaid. Exhibit 6 is the plaintiff’s litigation plan No. CS/10/43 showing the land he acquired per Exhibit 2 and the “portion thereof that is in dispute.

The defendants for their part, claimed that the 1st defendant obtained grants of three pieces of land including the land now in dispute from the Oba of Benin after due recommendations by the leaders of Isiohor village. These were in 1971, 1972 and 1973 respectively. The Oba’s approvals in respect of these grants were tendered in evidence as Exhibits 9 and 10. It is their case that the 1st defendant acquired altogether three parcels of land. One measured 200 x 200 feet and two were of the size 400 x 400 feet. These pieces of land he acquired are shown in the 1st defendant’s survey plan number OSA/1517/BD. 83 dated the 5th April, 1983 and are therein clearly shown marked Plots “A” “B” and “C”. This plan was tendered in evidence as Exhibit 8. The defendants asserted that the land in dispute is owned by the 1st defendant and not the plaintiff. It is their case that the plaintiff was claiming two of the 1st defendant’s pieces of land which measured 400 x 400 feet and 200 x 200 feet respectively. They further claimed that the land allocated to the plaintiff was in an entirely different location.

At the conclusion of hearing, the learned trial Judge, after a most careful review of the evidence found that “the parties” were “fighting over the same piece or parcel of land” and that the approval granted to plaintiff in respect of the land in dispute under Bini customary law is earlier in time than the 1st defendant’s approval. He therefore entered judgment for the plaintiff against the defendants as follows –

“Judgment is therefore entered in favour of the plaintiff as follows:-

(1) A declaration of title to statutory right of occupancy to the area verged pink on Plan No. CS.10/43 Exhibit 6;