Professor John Osemeikhian V. Chief Joe Edionwele & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Edo State High Court of Justice, Ekpoma Judicial Division in Suit No. HEK/58/2004, between Professor John Osemeikhian (for himself and on behalf of late venerable E.A.M Osemeikhian of Idumebo, Ekpoma), Chief Joe Ediomwele, and Gabriel Irehobhude (for himself and on behalf of the family of Irhehobhude of Ujemen, Ekpoma) and Peter Agbebalun, delivered on the 23rd of April, 2013, wherein the Plaintiffs€™ claim was dismissed in its entirety.

The facts generating the instant appeal arose from the action in suit No HEK/58/2004, filed by the plaintiff before the Ekpoma Judicial Division of the Edo State High Court. The plaintiff€™s claim, as borne in his third further amended statement of claim are for the following reliefs:-

i. A declaration that the expanse of land commonly known as OSEMEIKHIAN ESTATE lying abutting Idumebu village and Ujemen village, Ekpoma more particularly demarcated on the east by Ikhideu Egoro Road, on the west by A.A Itua€™s property and on the south by

Iruekpen-Eguare Road measuring approximately 6.2362 hectares (15.41 acres) and incorporating both portions of land in dispute (A & B) was, has always been and still is the plaintiffs estate from time immemorial.

ii. A declaration that various acts by the defendants on the portions in dispute ascribed to the defendants specifically amount to gross trespass on the plaintiffs estate.

iii. An order on the first defendant to remove any illegal structure already put on plaintiff€™s estate or in the alternative an award of general damages of 2 Million for the removal of the illegal structure.

iv. An order on the second and third defendants for the payment of N240,000.00 as special damage for the destruction of the 3,000 cement blocks found on the plaintiffs land.

v. An order for the payment of 500,000.00 general damages by each of the three defendants.

vi. An order of perpetual injunction restraining all the defendants, their agents or privies from ever trespassing either directly or indirectly upon the plaintiff€™s estate.

vii. An order of forfeiture against the third defendant€™s holdings of his land, for challenging the title of the plaintiff, who is his overlord.

It is the plaintiff`s case at the court below that the respondents physically trespassed on to two portions of his estate. He contends that his grandfather as the original settler founded the land which was originally a virgin forest. In an effort to prove his case, the plaintiff called a total of five witnesses and testified thereafter. On the other hand, each of the defendants testified, and jointly called three witnesses in their defense.

At the close hearing, addresses were filed and adopted by all the parties and on the 23rd of April, 2013, the Lower Court delivered its judgment, the concluding part of which reads thus:

€œFinally, I have found earlier on in this judgment that the main head of the claim of the claimant is incompetent; as all a party is entitled to under the Land Use Act (which vests ownership on the Governor, its possessory title of either statutory right of occupancy, or customary right of occupancy, it follows that all the other ancillary reliefs in paragraph 17(ii) to 17 (vii) of his third further Amended Statement of claim cannot stand. They all fail. See Awoniyi vs. Registered Trustees of the Rosicrucian Order (AMORC) (2000) 10 NWLR (PT 676) 522€, thus dismissing the plaintiff`s case in its entirety.