Rufus Isaac V. John Odigie Imasuen (2006)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A

This is an appeal against the judgment of the High Court of Justice, Edo state of Nigeria in the Benin Judicial division, Holden at Benin City, delivered on the 1st March, 1994 in Suit No. B/1/84, John Odigie Imasuen Versus Rufus Isaac. The Plaintiff (hereinafter referred to as the RESPONDENT) had, by the endorsement in paragraph 21 of his further amended statement of claim dated 29th June, 1988, claimed against the defendant (hereinafter referred to as the APPELLANT) the following reliefs:-

1. Declaration of title to statutory right of occupancy to the said parcel of land, which is more particularly, delineated and verged PINK in the said Plan No. ISO/BD/1091/86 of 29/7/86 filed with this further amended statement of claim situate and lying at and being in Ward 37B, Orikpa Village Area, Benin City.
2. N50, 000.00 being damages for trespass in that on or about January, 1979, the defendant by himself, servants or agents broke and entered on to the plaintiff’s said parcel of land without plaintiff’s permission or authority and carried on building operations, on the land.
3. Perpetual injunction restraining the defendant his servants or agents from committing further acts of trespass on the said land.”

Pleadings in terms of further amended statement of claim and further amended statement of defence were filed and exchanged between the parties. Both sides called evidence in proof of the averments in their respective pleadings. At the end of the case and sequel to the taking of the addresses of counsel, in a considered judgment delivered on the 1st of March, 1994, the trial judge found for the plaintiff/respondent.

In so doing, the learned trial held inter alia:

“This case as the learned defence counsel rightly said rests on who has a better title to the land.

Is it the defendant or the plaintiff?

The plaintiff in this case has established in evidence that the land in dispute was given to him in 1973 by Ward 37B. His evidence was buttressed by evidence of PW3 – Christopher Obanor the Assistant secretary/Land Pointer to the Oriokpen Plot Allotment Committee. But the defendant claimed to have got from DW1 (Mrs. Amadasun) who got from Agbomareniye Elema.

But the root of title of Agbomareniye Elema is Exh D2 dated 15/1/62 approved by the Oba of Benin on 24/4/62.

There is no documentary evidence of the transfer of the land from Elema original owner to Mrs. Amadasun who transferred (sic) to defendant. This creates a lacuna in his root of title.

There is a break in the chain or link between original and owner and Mrs. Amadasun. This being so the root of title of defendant is spurious.

Moreover, no member of Ward “A” gave evidence to support the case of the defendant to say that the land in Exhibit D2 was allocated to Agbomareniye Elema who transferred to Mrs. E. Amadasun (D.W.1). Even if there was such evidence of transfer to Mrs. Amadasun by Agbomareniye Elema, it is not enough as DW3 (Sunday Elema) said that he knew when Mrs Amadasun was transferring the land to defendant. The deed of conveyance Exh. D3 did not help matters because the transfer dated 26/2/74 referred to in Exhibit D3 is not before the Court. There is therefore no evidence that Agbomareniye transferred to Mrs. E. Elema Amadasun……………. I agree with the learned counsel for the plaintiff that at the material time when the Land Use Act came into effect the land was vested in the plaintiff, the defendant or person who transferred to him having not got title to the land. …………….

The learned defence Counsel made the point that even if the land was in Ward 37B, the Boundary Dispute Determination Law validated title of defendant. It is my view that the Boundary Dispute determination Law is inapplicable in this case because the defendant has not proved that he took from any of the wards over which Edict of 1977 was promulgated.

I believe that the land is in Ward 37B and not Ward “A” if Agbonmareniye Elema sold to Mrs Amadasun (D/W1), which is not proved, it was certainly not, the land in dispute.

The plaintiff has successfully proved trespass on his land. It was in evidence that the defendant built a house on the land. The plaintiff is therefore entitled to damages for the trespass. He is also entitled to injunction sought.”