Mr. Gabriel Origbo & Anor V. Winifred Usaka (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL C. OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Benue State sitting in Makurdi and delivered by Hon. Justice T.A. Igoche on 02 – 07 -2010.

The Plaintiff (now Respondent) had in the lower Court claimed as per the writ of summons filed on 17-7 -2007 and paragraph 26 of the amended statement of claim filed on 29 -10 -2008 against the Defendants (now Appellants) jointly and severally as follows:

1. A declaration that the Plaintiff is entitled to the portion or parcel of land lying and situate at Makurdi, Benue State covered by Certificate of occupancy No. BNA 7807 and bounded by beacon Nos. MKC 2042, MKC 2043, MKC 2048 and MKC 2049 covering a total area of 0.143 hectares on Makurdi TPD 03 at Logo II close to Owner Occupier Quarters along Abu King Shuluwa Road: Makurdi.
2. An order of perpetual injunction restraining the Defendants, privies, relations from trespassing or laying claim to the said plot No. BNA 7807,
3. An order of perpetual injunction restraining the Defendants from further intimidating, harassing and threatening the Plaintiff.
4. Five million (N5, 000,000.00) naira damages.

The two Defendants (hereinafter called “the Appellants”) reacted by filing a joint statement of defence and counter claim for the same piece of land. The Respondent also filed a reply and defence to counter claim.

In their counter claim the two Appellants sought the following reliefs:-

i. A declaration that the counter claimants are the owners of the land and the people entitled to the grant of a statutory Right of Occupancy,

ii. An order setting aside the Certificate of Occupancy No. BNA 7807 granted to the Plaintiff as having been given in error

iii. An order of perpetual injunction against Plaintiff/Defendant restraining her, agents, privies from trespassing or otherwise disturbing the counter claimants’ peaceful enjoyment of their plot of land

iv. Three million (N3,000,000.00) naira in general damages

A summary of the facts as presented by the Respondent as Plaintiff in the lower Court is that she applied for and was allocated a plot of land in 1993 by the Benue State Ministry of lands and survey, through the Land Use and Allocation Committee. The said land covered a total area of 0.143 hectares. She was taken to and shown the land by a staff of the ministry and at the land she met the villagers who were living there and they took her to the village head by name Torgenga called his son Tyav and told him her mission and that the particular plot of land has been allocated to Respondent by the State Government.

She subsequently took possession and had the land surveyed and beacon placed thereon by a staff of the ministry of lands and survey by name Mr. Orube. In 1995 she applied for and was granted a Right of Occupancy. She also built corners and one room structure on the land as well as farmed cassava on it. Sometimes in 2003 she visited the land and found that the Appellants had trespassed on it, removed her beacons and even planted mango and orange trees thereon.

She wrote a letter of complaint to the Ministry and a committee was set up to look into the dispute between her and the Appellant and the committee found in her favour but the Appellant refused to give in. For the Appellants, the land belongs to them because they bought it from the customary owners of the land through one Tyav Torgenga in the year 2000 and an agreement to that effect was executed.

At the conclusion of hearing at the lower Court counsel for both parties filed and exchanged written address which they eventually adopted on 17 – 05 – 2010. In its judgment delivered on 02 – 07 -2010 the lower Court found in favour of the Respondent and dismissed the Appellants’ counter claim.

Being aggrieved and dissatisfied with the said judgment the Appellants filed a Notice of Appeal dated10 – 08 – 2010 and filed on 30 – 08 – 2010. The said Notice of Appeal contains 6 grounds of appeal which reads as follows:-