Osayemwenre Amayo V Osayende Erinmwingbovo (2006)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This is an appeal by the defendant Osayemwenre Amayo against the judgment of the Court of Appeal given on 27 July, 1995. Before the trial court, the plaintiff Osayande Erinmwingbovo claimed against the defendant the following reliefs:

(1) Declaration that the plaintiff has possessory title to that piece of land situate at Orio village, Benin City within the Benin Judicial Division and therefore the plaintiff is entitled to obtain a Certificate of Occupancy in respect of the said land shown in plan No. BEC 34.

(2) N1,000.00 (One Thousand Naira) damages for trespass on the said land in that in January 1979, the defendant

broke into the said land and started farming thereon without the plaintiff’s consent.

(3) An order of perpetual injunction restraining the defendant, his servants or agents from entering the said land without the plaintiff’s authority.” The plaintiff in paras. 3,4,5,6,7,8,9,10,12 and 13 of his amended statement of claim pleaded as follows:

(3) The plaintiff’s father was until his death in 1950 the owner of a large farm situate at Ekoken in Orio Village in Benin within Benin Judicial Division. The plaintiff’s grandfather Osagie was the original founder and settler on the land in dispute and the plaintiff’s father inherited the land from the grandfather after his father’s performance of the Bini customary burial rites. His father farmed on this Land and planted rubber trees thereupon.

(4) The plaintiff’s father had 4 surviving children and the plaintiff was the eldest son.

(5) The said farm was mainly rubber plantation with scattered cash crops like kolanut and pear trees.

(6) When the plaintiff’s father died in 1950 the farm land together with the plantation was inherited by the plaintiff after performing the burial customary rites and ceremonies according to Bini custom and he continued to farm on the land.

(7) In 1956 the plaintiff caused the plantation to be surveyed. The area is verged pink on plan No. BEC.34 attached herewith. The said plan will be founded upon at the hearing of this suit.

(8) The plaintiff continued to farm on the land without disturbance until sometime in 1959 when the defendant’s father one David Amayo encroached on the rubber plantation and trespassed on the land.

(9) The plaintiff immediately filed an action against the defendant’s father in the grade ‘A’ customary court holden at Benin City and the plaintiff obtained judgment against the defendant’s father.

(10) The plaintiff avers that the defendant’s father died sometime in 1978.