Midford Edosomwan Vs Kenneth Ogbeyfun (1996)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

The plaintiff’s claims against the defendant as finally settled in paragraph 25 of his Statement of Claim are as follows:-

“(1) A declaration that the plaintiff is entitled to the grant of a Statutory Right of Occupancy in respect of the parcel of land measuring 100 feet by 100 feet situate at Uselu, Ward 23/L, Egua – Edaiken, Benin City which said parcel of land is delineated in Pink on Survey Plan No. MWC/163/82 filed with this Statement of claim.

(2) N2,000.00 being damages for trespass in that on or about 17/7/81 and 9/10/81 the defendant, his servants and/or agents went into the land in peaceful possession of the plaintiff, committed various acts of trespass details of which have been furnished above in this statement of claim.

(3) An order for perpetual injunction restraining the defendant, his servants and/or agents from committing further acts of trespass on the said land.” .

These claims were denied by the defendant. At the end of the hearing of the case, Oki, J (as he then was) after a thorough and painstaking consideration of the evidence adduced, dismissed the plaintiff’s claims in their entirety.

Dissatisfied with the judgment of the trial court, the plaintiff appealed to the Court of Appeal, Benin Division. The appeal was unanimously dismissed by the Court of Appeal which affirmed the decision of the trial court. The plaintiff has now further appealed to this court.

Both the plaintiff and the defendant will be referred to as the appellant and the respondent respectively in this judgment.

The facts of the appellant’s case as revealed in the evidence presented before the trial court are as follows-

Sometime in 1975 the appellant approached P.W.2, Unwensuyi Edosomwan, to purchase part of the land which the latter said he had acquired in 1962 under Benin Customary Law by applying through the Egue-Edaiken Plot Allotment Committee Ward 23/L and which the Oba of Benin finally approved in October, 1962. The land acquired by P.W.2 is situate along Ufumwen Street Uselu, Benin City and measured 160 yards by 160 yards, lying within the area of authority of Ward 23/L Plot Allotment Committee, Egue-Edaiken Benin City. It is particularly demarcated by ward beacons nos. 2551, 21, 143,23, 133,69 and 11/3. The land in dispute which is within the larger parcel of land acquired by P.W.2 measures 100 feet by 100 feet. The appellant bought from P.W.2, the land in dispute. See paragraph 5 of the Statement of Claim.

Having purchased the land, the appellant cleared it and started planting food crops in it. He got it surveyed, mauled some cement blocks therein and began constructing a building of 12 bedrooms. When the building was at its foundation level, the respondent came into the land accompanied by some mobile police, drove out the appellant and his workers, covered the 12 room foundation; and constructed a wall round the land in dispute. The appellant complained to Emina Obaseki and some other elders of the community, but before the elders could settle the dispute, the respondent caused the police to search the appellant’s house. During the search the police removed some vital documents belonging to the appellant which were however not related to the land in dispute .

The facts of the respondent’s case as revealed by his pleading and evidence are however briefly as follows:

The respondent applied through the Egun Iyoba Plot Allotment Committee in charge of Ward 23/L for the allocation of a parcel of land measuring 200 yards by 200 yards within the area of the Committee’9191s jurisdiction. With the assistance of Alex Obude (D.W.2) and a member of Egun Iyoba Plot Allotment Committee in’9197charge of Ward 23/L the parcel of land he was applying for was identified. D.W.2 reported back to the Committee. The respondent then completed the application form in quadruplicate which were thereafter signed by the members of the Allocation Committee. The respondent took it to the Oba for approval of the grant which was a condition precedent for any valid customary grant of land. Having obtained the approval of the Oba, the respondent paid ‘a350(fifty pounds) to D.W.2 as compensation for the latter’91s rubber trees on the parcel of land. The respondent then engaged a surveyor for the survey of the land granted to him, and after the survey plan was produced, he engaged the services of a lawyer who prepared a deed of conveyance by which the parcel of land was conveyed to him.

After the execution of the deed of conveyance, the respondent cut down all the rubber trees on the land and that was in 1974. In 1975, he sold part of the land measuring 100 ft by 100ft to Albert Evbomwa (D.W.4), and in 1976 he also sold another portion of the same land to one Emmanuel Edeghere leaving him with 100 ft by 200 ft. These transactions were carried out by the respondent without any challenge from any person.