Minakiri Iro Tubonemi & Ors V. Tom Benebo Dikibo & Ors (2005)

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SAKA ADEYEMI IBIYEYE, J.C.A.

This appeal was prompted by the decision of Denton-West, J. of the Rivers State High Court of Justice, sitting in Port Harcourt, delivered on the 16th day of June, 1998, in Suit No. PHC/194/78.

The case which culminated in the decision appealed from had a chequered history having suffered series of transfers from one Judge to another coupled with several adjournments as well as change of learned Counsel from its initiation in 1978, until finally determined in the trial court on the 16th of June, 1998, making a total litigation period of about two decades.

The parties in this case are made up of the plaintiffs and two sets of defendants. The parties filed and exchanged their respective pleadings. The plaintiffs who are now the respondents at paragraph 10 of their joint Statement of Claim sought the reliefs reflected in the Writ of Summons.

The reliefs which are jointly and severally against the two sets of defendants are as follows:

“1 . Recovery of possession of a piece or parcel of land situate at Dikibo Ama in Okrika District within the jurisdiction of the Honourable Court, the possession of which was granted by the plaintiffs to the defendants vide the document dated 14th June, 1913.

2. Perpetual injunction restraining the defendants and each of them, whether by themselves or their servants, workmen or agents or otherwise howsoever, from interfering with the plaintiffs’ rights and interests in and over the use of the said land, the plan of which will be more particularly delineated and shown in a survey plan to be filed with the statement of claim in this suit.”

The two sets of defendants in their separate statements of Defence separately denied the several averments made by the plaintiffs to sustain the reliefs sought.

At the hearing of the suit in the trial court, only the plaintiffs adduced evidence by calling one witness who apparently was not cross-examined at all.

Despite the absence of the defendants at the trial of this suit the learned trial Judge entered judgment in favour of the plaintiffs at page 72 of the record of proceedings, inter alia, as follows:

“From the totality of the foregoing, I find that the Plaintiffs are entitled to their claim of possession as contained in exhibit B, except that in order to avoid unnecessary hardship that could be occasioned the defendants in relocation (sic), they shall be granted a period of grace of three months to move their business, sheds, etc if they so desire from the disputed land. See OBIJIAKU v. OFFIAFI (1995) 7 KLR page 1554.

Further order of perpetual injunction of this Court is hereby granted the plaintiffs against the defendants restraining the defendants with effect from the 15th day of September, 1998, from further infringing on the rights of the plaintiffs in respect of their land in exhibit B, more particularly delineated and verged red in exhibit C.

Finally, damages in the amount claimed N100,000.00 (one hundred thousand Naira) is hereby awarded to the plaintiffs.”

The 1st set of defendants, Minakiri Iro Tubonemi, Alaboma Iro Tubobemi and Idaye Andry, being utterly dissatisfied with the judgment of the trial Court appealed to this Court on six grounds of appeal. The said defendants now appellants thereafter sought and got leave of this Court to file three additional grounds of appeal to make a grand total of nine grounds of appeal. The appellants identified only six issues from the nine grounds of appeal for the determination of this appeal in their joint brief of argument filed on 19th March, 2002, but deemed filed on 16th April, 2002. The six issues are as follows:

“(a) Was the trial Judge right to award to the plaintiffs damages of N100,000.00 unsolicited in the pleadings or evidence of the plaintiff’s and in any case, did the plaintiffs make out any case to justify the award?