Staff Olomu V. Daniel Garan (2000)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an appeal against the judgment of the Delta State High Court, sitting at Effurun, presided over by Hon. Justice Omo-Agege, Chief Judge. By writ of summons dated 22/4/86, the plaintiff who is the respondent in this appeal, claimed against the defendant who is the appellant, as follows:-

(a) The sum of N20,000.00 being damages for acts of trespass (which are still continuing) committed by the defendant in that he, the defendant, wrongfully broke and entered upon the plaintiff’s land situated at Ekpan (Bendel State of Nigeria) within the jurisdiction of this Honourable Court during the last six years.

(b) A perpetual injunction to restrain the defendant, his servants, agents and/or privies from committing and/or continuing the afore-said acts of trespass.

A Survey plan of the land in question may be filed later. The defendant has failed refused and/or neglected to stop his acts of trespass inspite of repeated warnings by the plaintiff, hence plaintiff claims as above”.

Pleadings were ordered, filed and exchanged, and by leave of court amended.

The case proceeded to trial on the plaintiff/respondent’s further amended statement of claim and the defendant/appellant’s 2nd amended statement of defence. By his paragraph 19 of the further amended statement of claim dated 10/3/97, and plaintiff/respondent’s final pleadings, he claimed as hereunder:

“19 WHEREOF the plaintiff sued the defendant as per writ of summons.”

At the trial, the parties led evidence in respect of their respective cases. The plaintiff/respondent called a total of six witnesses including himself whilst the defendant/appellant called four witnesses and testified as D.W.5. After address by their learned Counsel, the Learned trial Judge, in a reserved Judgment delivered on 26/9/97 in favour of the plaintiff/respondent as claimed in the writ of summons and concluded thus:

“Accordingly, I award the plaintiff the sum of N20,000 as damages for trespass as against the defendant. I also grant perpetual injunction to restrain the defendant, his servants, agent and/or privies, from committing and/or continuing further acts of trespass on the land in dispute.”

The facts of this case are simple and are as follows:-

The plaintiff in this case was one Jacob Garan of No. 50, Airport Road, Warri (now deceased) who in 1975, bought a piece of land measuring approximately 3.450 hectares situate at Ekpan,Okpe Local Government Area of Delta State of Nigeria. The transaction took place in 1975, and the plaintiff acquired title from Ovwowho Family of Ekpan, the original title holders of the land conveyed to the plaintiff by a Deed of Conveyance, in 1975, registered as No. 28, at page 28 in volume 348 of the land registry, Benin City. The Land is shown on Survey Plan No.NM 2040 prepared by a Licensed Surveyor of No. 49, Warri Sapele Road, Warri. In 1981, the plaintiff was convicted and sentenced to 5 years imprisonment. While in prison, the plaintiff received information through his brother that his land was being bulldozed by unknown persons. As a result of the information received from his brother, the plaintiff caused a warning to be published in the Nigerian Observer and the warning was published in 1982. On his discharge from prison the defendant, Staff Olomu challenged the title of the plaintiff over the piece of land hence the institution of the action by the plaintiff against the defendant, leading to this appeal.

According to the defendant, Staff Olomu who is also known as Staff Ovierigho Aghogho Olomu, the land is situated at Ekpan but not included in the plaintiffs survey plan No. 176, attached to the plaintiff’s statement of claim. The defendant contends that the land in dispute does not form part of the land conveyed to plaintiff by Ovwowho family of Ekpan. The defendant on the other hand claimed title to the land in dispute through Abolodje another branch of Ovwowho family.

Being dissatisfied with the judgment of the trial Court the defendant/appellant appealed upon one original and with leave of court, 9 additional grounds of appeal. By order of this court dated 1/6/99, one Daniel Garan was substituted and ordered to defend the appeal for himself and on behalf of the children of late Jacob Garan.