Mr. Henry Enudi & Anor V. Mr. Chukwunweike Osumili (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The appellant was the 2nd defendant and counter claimant at the High Court of Delta State while the respondent was the plaintiff and defendant to the counter-claim. The 2nd defendant had purportedly purchased land along Umuebu Road, Obiaruku from the defendant’s family known as Okwudi or Umuegusu in 2004. The plaintiff was absent during this transaction. The defendant proceeded to survey this property and planted survey beacons thereon.

When the plaintiff got home he saw these beacons on the land and uprooted them. The 2nd defendant caused the plaintiff to be arrested and detained by the police. On plaintiffs release on bail he took out a writ of summons in the High court. He claimed thus at paragraph 14 of the amended statement of claim –

“14. WHEREOF the plaintiff claims against the defendants jointly and severally as follows:

(a) A DECLARATION that ownership and Title to all that large tract of land measuring approximately 130 feet by 986 feet-by 868 feet on the rear side (bounded by the land property of Mr. Egwunatum, Chief Frank and Mr. Ishekwene) situate along Umuebu Road (opposite Ukwani Local Government Secretariat Obiaruku within the jurisdiction of this Honourable Court, vested in the plaintiff and he is entitled under Ukwani Land Law and Custom to validly transfer part of all of this said land unilaterally.

(b) A declaration that ownership and title to the remaining unsold portion of the said land measuring approximately 235 feet by 118 feet, 215 feet by 237 feet bounded by the land property of Mr. Augustine Okpala, Mr. Egwunatum, Chief Frank and Mr. Ishekwene vests in the plaintiff and he is entitled to apply for and be granted Certificate of Occupancy over same.

(c) N5,000,000.00 (Five Million Naira) being damages against the defendants for their wanton acts of continuing trespass on the said plaintiffs land.

(d) Perpetual injunction restraining the defendants, their agents, servants, privies, heirs and chronies from continuing to commit wanton acts of trespass or disturbing the plaintiff’s exercise of rights over his said land.”

The 2nd defendant counter-claimed thus –

“WHEREFORE the 2nd defendant claimed as follows:

(a) A declaration that the 2nd defendant is entitled to the statutory right of occupancy over all that piece or parcel of land lying and situate off Umuebu Road in Obiruku which is shown and delineated in Survey Plan No.SC/DT/BH/201/2004, prepared by Surveyor O. to Dabiri with pillar nos. SC/DT B7884H, SC/DT B7883H, SC/DT B7882H, SC/DT B7881, SC/DT B7859H, SC/DT 87894H, SC/DT 87893H, SC/DT B7892H., SC/DT B7891H, SC/DT B7890H, SC/DT 7889H SC/DT7888H, SC/DT7887H, SC/DT B7886H and SC/DT B7885H.

(b) N10,000,000.00 (Ten Million Naira) being damages for trespass on the said land.

(c) Perpetual injunction restraining the plaintiff, his agents, servants, and privies from further trespassing on/over all that piece or parcel of land lying and situate off Umuebu Road in Obiaruku which is shown and delineated in survey Plan No. SC/DTBII/201/2004, prepared by Surv. O. T. Dabiri with Pillar Numbers SC/DT B7884H, SC/DT B7883H, SC/DT B7882H, SC/DT B7881, SC/DT B7859H, SC/DT B7894H, SC/DT B78893H, SC/DT B7892H, SC/DT B7891H, SC/DTB7890H, SC/DT B7889H, SC/DT B7888H, SC/DT B7887H, SC/DT B7886H and SC/DT B7885H.”

Issues were joined and the court proceeded to hear the case. In a considered judgment the trial court dismissed all the plaintiff’s claims. The court then proceeded to deal with the 2nd defendant’s counter-claim and concluded as follows: