Ndubuisi Onwuanyi V. Lawrence Borha (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The claim at the Edo State High Court of Justice, holden at Benin City, at the instance of the respondent was with respect to land acquisition under Benin Customary land tenure. The respondent in his further amended statement of claim averred that he had applied for a parcel of land measuring 300 feet by 2,000 feet situate at Ward 11/K Isiohor village, through the Ward Plot Allotment Committee, to the Oba of Benin.

The said Ward 11/k Plot Allotment Committee recommended his application which was approved by the Oba of Benin in 1971. Furthermore, that the land was conveyed to him by the Oba of Benin vide a deed of conveyance which was registered in the Lands Registry at Benin City. Thereafter, the respondent built an eight (8) room bungalow on the parcel of land. However, the appellant claiming title to the same parcel of land, trespassed into the land and destroyed the respondent’s 8 room bungalow thereon.

He therefore sought for:

(i) A declaration that the plaintiff is the person entitled to a certificate of occupancy of the piece or parcel of land in question;

(ii) N25,000 damages for trespass, malicious damages to his building and seasonal crops planted on the parcel of land;

(iii) Perpetual injunction restraining the defendants, their agents, servants and/or privies from coming on the said land for any purpose whatsoever.

The defendants in their amended Joint Statement of defence averred that the 2nd defendant had transferred the parcel of land to the appellant in 1977. That the said parcel of land measuring 300 feet by 300 feet was granted to him upon the grant of his application by the elders of Isiohor village, headed by the 3rd defendant vide a letter dated 14th May, 1977.

He alleged that he was informed by the elders of Isiohor village that they possessed the power to allocate land within their community which is beyond the moat, hence such an allocation needed no approval of the Oba of Benin. The defendant further averred that in 1985, the appellant discovered that a building was being erected up to foundation level which he reported to the police and the builder of the said house was arrested. That still in 1996, the same person started building on appellant’s land again whereupon he directed his caretaker of the land, one Raymond, to dismantle the windows and doors on the said building.

Both parties testified and called witnesses at the trial and tendered in evidence some documents. Learned counsel for the parties addressed the court. The learned trial judge, in a considered judgment, found for the respondent and entered judgment for him as per his claim. This was on 18th July, 1995.

Dissatisfied with the aforesaid judgment, the appellant appealed against it on two grounds of appeal. They complain thus:

1. The learned trial judge erred in law when he entered judgment in favour of the plaintiff as follows:-

(a) That the plaintiff is the rightful person entitled to a Certificate of Occupancy of the piece or parcel of land described in the Oba’s approval and the survey plan No. CS3/126 dated 26th January, 1976 and attached to the conveyance which are exhibited ‘A’ and ‘B’ respectively in these proceedings.

(b) That the defendants shall pay N25,000.00 damages for trespass and malicious damage to building and crops belonging to the plaintiff.

(c) The defendants, their agents, and servants or privies are hereby restrained from trespassing on the said plaintiff’s land more properly and appropriately described in (a) above for any purpose whatsoever.