Mr. Victor Osademe & Anor V. Mr. P.E. Agbadamu & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A (Delivering the Leading Judgment)

This is an appeal from the decision of the Federal High Court sitting in Benin City in Suit No. FHC/B/CS/54/2000 delivered on 28th day of June, 2005.

The Appellants as plaintiffs at the trial court filed a writ against the Respondents as defendants jointly and severally claiming as per their Amended Joint Statement of Claim as follows:

(a) A Declaration that the plaintiffs are entitled to possession of all that piece or parcel of land (allocated space) lying and situate at the Low Cost Housing Estate, Ikpoba Hill, Benin City bounded by street 56, 59, 52 and a thorough fare between street 58 and 52 measuring approximately 2,292 square meters for each of the plaintiffs and demarcated in survey plan prepared by the 3rd Defendant and that the lease to the plaintiffs in still valued subsisting.

(b) Special damages of Six Hundred thousand Naira (N600,000.00).

(c) General Damages: Two Million Naira (N2,000,000.00) for trespass.

(d) Perpetual Injunction restraining the defendant from further trespass into the allocated space lying and situate at the Low Cost Housing Estate, Ikpoba Hill, Benin City, measuring approximately 2, 295 square meters per each of the plaintiffs.

(e) An order directing the defendants to deliver possession of this land to the plaintiffs and an order setting aside any other subsequent grant of plaintiffs’ land or any part thereof to the 1st, 2nd 4th – 5th defendants as illegal and void.

The brief background facts of this matter are that, sometime in September, 1989, the 3rd Respondent allegedly allocated to the Appellants a parcel of land at the low cost housing estate, Ikpoba Hill, Benin City, for the purpose of establishing thereon a school and bookshop. The Appellants took possession and got the land surveyed. Thereafter in 1991, the Appellants set up a duly registered nursery school on the site. However, sometime in 1997, some officials of the 3rd Respondent allegedly invaded the land and destroyed the structures thereon.

Subsequently, the 3rd Respondent wrote a letter to the Appellants to the effect that the said parcel of land had been allocated to eight individuals, including the 4th, 5th and 6th Respondents but not the 1st and 2nd Respondents. Allegedly, the 1st, 4th, 5th & 6th Respondents trespassed on the land thereby destroying the remaining structures and economic trees planted thereon by the Appellants.

Hence, the Appellants instituted against the Respondents the suit, the subject-matter of this appeal, at the Federal High Court, Benin City. At the close of trial, the learned trial Judge dismissed the suit for want of the jurisdiction of the trial Court to adjudicate upon the said suit. The Appellants are displeased with the said decision and they filed an appeal to this Court vide their notice and grounds of appeal dated and filed on 19th September, 2005. The notice and grounds of appeal contained two grounds of appeal. See pages 142 to 144 of the record of appeal.

Mr. M.K. Agienoji, the learned counsel or the Appellants prepared an Appellants’ brief of argument dated and filed on 13th November, 2006. In the brief, two issues were distilled from the two grounds of appeal for determination.

The two issues are:

Issue 1