Moses Okhuarobo V. Chief Egharevba Aigbe (2002)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

The appellants are the surviving defendants in a suit instituted by the plaintiff at the then High Court of Justice, Bendel State wherein the plaintiff’s claims as set out in paragraph 40 of his amended statement of claim are as follows:

“(a) A declaration that the plaintiff is entitled to a statutory right of occupancy to all that house, land and premises situate at and generally known as No. 192, 2nd East Circular Road, in ward “E” council otherwise known as ward 10 ‘E’ in Oredo Local Government Area, Benin city in the Benin Judicial Division and that the purported sales of the said property by the 1st, 4th and 5th defendants to the 2nd defendant is void and of no legal effect whatsoever.

(b) N10,000.00 damages for trespass committed by the defendants and or their servants and agents on the said house and premises on or, about the 16th day of January, 1978.

(c) An order of the court to set aside the sale of the said property by the 1st, 4th and 5th defendants to the 2nd defendant on or about the 5th day of October, 1976.

(d) A perpetual injunction preventing the defendants their servants, agents and privies from intermeddling with the said property in any manner inconsistent with the plaintiff’s right now and in the future”.

The 1st, 2nd and 3rd defendants set up a counterclaim in paragraph 27 of their further amended statement of defence in which, as against the plaintiff, they claimed thus:

“(a) A declaration that they are entitled jointly or severally to a statutory right of occupancy to all that property known as and situate at No. 192, 2nd East Circular Road, in ward ‘E’ council otherwise known as ward “10E” in Oredo Local Government Area, Benin city within the Benin Judicial Division.

(b) N10,000.00 (Ten thousand naira) being damages for trespass committed on the building by the servants or agent of the plaintiff.

(c) An order of perpetual injunction restraining the plaintiff, his servants and or agents, privies from interfering with the said property in any manner inconsistent with the defendants rights over the said property”

In this land dispute, therefore, both parties claimed entitlement to a statutory right of occupancy to all that house and premises situate at and known as No. 192, 2nd East Circular Road, Benin city, damages for trespass and perpetual injunction.

It is clear from the pleadings of the parties and their oral evidence before the trial court that the main issue between them is as to who has a better title to the premises in dispute. It is also not in dispute that the principal contestants, to wit, the plaintiff of the one part and the 1st and 2nd defendants of the other part claimed respectively to have derived their title to the property from a common vendor, to wit, Uwague Ehanire.

From the state of the pleadings, it is crystal clear that the plaintiff’s root of title is founded on a gift of the property in dispute by the said Uwague Ehanire to the plaintiff in appreciation for domestic services rendered. This is pleaded in paragraph 8 of the plaintiff’s further amended statement of claim as follows:

“8. The plaintiff avers that about 1909, the plaintiff was houseboy to his late cousin, Uwague Ehanire who died in the early 1950s.