MR. Uwota Osagiede V. MR. Okah Uwabor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 15/3/2011 by the High Court of Edo State holden in the Abudu Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice G. O. Imadegbelo (hereafter simply referred to as “the learned trial Judge”). In its judgment, the lower court entered judgment in favour of the Plaintiff before it (now Respondent) and also dismissed the counter-claim of the Defendant before it (now Appellant).

The instant case was tried before the lower court on pleadings filed and exchanged by the parties. The Statement of Claim filed in the action by the Respondent is at pages 3 – 5 of the records. The Respondent claimed the land in dispute in the instant case as his own and narrated how he came to own the same. The Respondent further claimed that he had been farming on the land in dispute without any disturbance until the year 2001 when the Appellant first trespassed thereon by putting up a farm on a part thereof.

That the trespass later abated until the Appellant renewed same in 2004 and in 2006 with the Appellant claiming that the land in dispute was allotted to him by the Oba of Benin in 1940. Having also catalogued the acts of trespass committed by the Appellant on the land, as well as the acts of possession that his (Respondent) father exercised on the said land in his lifetime, the Respondent claimed the following reliefs against the Appellant –

“a. A declaration that the plaintiff is the bona fide owner and hence entitled to the customary right of occupancy of the land lying and situate at Idumore quarters, Idumuodin, Igbanke, measuring approximately 1,500ft by 700ft.

b. Perpetual Injunction restraining the defendant, his agents and privies from further trespassing into the plaintiffs land by any way whatsoever.

c. The sum of 1 Million Naira being special and general damages resulting from the defendant’s act of trespass on the plaintiffs land.”

The Statement of Defence filed in the action by the Appellant is at pages 16 – 20 of the records. Therein, the Appellant asserted to the effect that he owns and is in possession of the land in dispute which the Oba of Benin on 5/4/1940 allocated and granted his father permit to plant permanent crops thereon. The Appellant equally averred that the Oba of Benin is the traditional trustee of all communal lands in Benin Kingdom including Igbanke. The Appellant claimed that the land allocated to his father was a virgin land or forest and that it was his father that deforested the same. He also claimed to have inherited the land in dispute under customary law from his father. The Appellant asserted that the Respondent is the person who trespassed on the land in dispute. Relying on the facts pleaded in the Statement of Defence and having also pleaded a survey plan No.GE/ED/676/2006 for the purpose of establishing the identity of the land in dispute, the Appellant counter-claimed against the Respondent as follows:-

“(1) A declaration that since the Land Use Act came into force, the Defendant is deemed to be the holder of Customary right of occupancy over the Land in dispute by reason of his continued use and occupation of the land for farming agricultural purposes.

(2) A declaration that the defendant is the person entitled to the appropriate right of occupancy in respect of the land in dispute as shown in the property survey plan GE/ED/676/2006.

(3) AN ORDER of perpetual injunction restraining the plaintiff his servants, agents, workmen, privies and/or any person claiming through or in trust for him from further trespassing and/or interfering in any manner howsoever with the defendants (sic) peaceable enjoyment and/or possession of the land in dispute.

(4) N2,000,000 (Two Million Naira) as special and general damages for trespass upon the Land in dispute with particular reference to the economic crops destroyed thereon.”

The Reply to Statement of Defence and Defence to Counter-Claim filed by the Respondent is on pages 23 -25 of the records. In the process, the Respondent not only denied the case set up by the Appellant in the Statement of Defence and Counter-Claim, but also controverted the same. The Respondent in particular, pleaded how the land in dispute came to be shared to him by the elders of his family.

The Respondent testified in his own behalf and called one other witness. The Appellant only testified in his own behalf. After evaluating the evidence adduced before it and having had the benefit of the written addresses of the parties, the lower court granted the reliefs claimed by the Respondent against the Appellant and also dismissed the counter-claim of the Appellant against the Respondent in its judgment.