MR. Clement Ofuani V. Augustine Onuora Emordi, Esq & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BOLOUKUROMO MOSES UGO, J.C.A.(Delivering the Leading Judgment)

This appeal is against the judgment of the Delta State High Court of 22nd day of July 2013 in Suit No. A/80/2011 entered in favour of the 1st respondent against the appellant.

In that Court the 1st respondent as claimant claimed the following relief:

1. A Declaration that the 1st Respondent (claimant therein) is the owner and entitled to possession of Plot 132, Extract Survey of phase III, Block II & III at Central Core Area, Asaba in Oshimili South Local Government Area of Delta State, Nigeria containing an area of approximately 1977.838 Square Metres which land is more particularly marked and delineated in Survey Plan No.AS355 attached to Certificate of Occupancy No. 12481.
2. The sum of N50,000, 000.00 (Fifty Million Naira) only being general damages for trespass against the 1st Appellant (1st defendant therein for interfering with the appellant?s right of possession and ownership of the said Plot No. 132 by his continuing acts of trespass.
3. Injunction restraining the appellant by himself, his servants, workers agents, assigns and or privies from committing

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further acts of trespass on appellant?s land and to forthwith remove the structures and or building erected on 1st respondent?s Plot 132.

The relevant facts of the case are that 1st respondent and appellant are neighbours and owners, or at least lessees, of adjacent plots of land in a Government Layout called Phase 111, Block 11 & 111, Central Core Area, Asaba, Delta State. The appellant owns Plot No 133 demarcated by Survey Pillar Nos CP 216,CP 217, CP 219 and CP 220. Survey Pillar numbers 217 and 219 demarcate and separate appellant?s plot at its right side from Plot 134 belonging to an entirely different person.

On the left side of appellant?s said plot is Plot No 132 of the 1st respondent. It is demarcated by Survey Pillar Nos CP 215, CP 216,CP 220 and CP 221.

In other words, the one and only boundary between the appellant and 1st respondent?s plots is demarcated by Survey Pillar Nos CP 216 and 220 while Survey Pillar Nos 215 and 221 of appellant are far away from the plot of the appellant and rather form the other boundary of 1strespondent with Plot 131.

?Both appellant and 1st respondent and several

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others, it is common ground, were allocated their plots of land and issued Certificates of Occupancy by the Delta State Government, represented in the suit by the 2nd and 3rd respondents. The 2nd respondent is directly in charge of land and survey matters for Delta State Government of Nigeria. The appellant?s Certificate of Occupancy is Exhibit D1 while 1st respondent?s is Exhibit C1.Attached to each of these Certificates of Occupancy is a large Layout Survey Plan of the entire Core Central Layout. It is numbered AS 355. The adjacent plots of the appellant and the 1st respondent are clearly and distinctly marked with red ink in the said layout plan No AS 355 attached to each person? Certificate of Occupancy. The surveys pillars demarcating their plots as earlier highlighted are also clearly shown in Layout Survey Plan No AS 355. Both 1strespondent and appellant in their pleadings referred to this same Survey Plan No AS 355.

?The 1st respondent?s case was that the appellant while developing his Plot 133 encroached on his (1strespondent?s) Plot No 132 by building and fencing off a good part of it. He claimed to have discovered the

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trespass when the owner of Plot No 128, Chief Godson Echegile, tried to develop his plot situate after his own along the same line and discovered that it had been fenced off and could not be marked out. It was when representatives of Chief Echegile and the owner of Chief Echegile?s adjoining plot No 129, one Hon. Paschal Adigwe, were invited to trace and establish their boundary that it was discovered, he said, that the appellant had built across his (1st respondent?s) land diagonally by constructing his building and concrete fence on a straight line from Survey Pillar No CP 220 ? CP 215. Incidentally, initially believing, erroneously, that the appellant had properly identified his Plot No 133, he (1st respondent), also took his measurement of his own 100 feet plot from the appellant?s plot, adding quite interestingly in Paragraph 8 of his statement of claim that: