Sunday Temile & Ors. V. Jemide Ebigbeyi Awani (2001)

LAWGLOBAL HUB Lead Judgment Report

KARIBI-WHYTE, J.S.C.

This appeal is against the judgment of the Court of Appeal, Benin Division, Benin City, delivered on the 26th November, 1993. The court in a unanimous decision of Akpabio, Ejiwunmi and Ogebe JJCA dismissed the appeal of the defendants/appellants against the judgment of the learned trial Judge, Unurhoro J. of Warri High Court with costs against the appellants assessed at N700. Defendant has further appealed to this court.

The facts of this case are fairly simple and straightforward. The real issue between the parties is whether plaintiff/respondent was allotted plots 8 and 9 of the Ajamimogha Layout, as a gift by the family as he claims, or was allotted plot 31 by the family as a gift as claimed by the defendants/appellants. The learned trial Judge and the court below have found for the plaintiff/respondent. The learned trial Judge also awarded N1,000 damages and granted perpetual injunction restraining Sunday Temile, the 3rd defendant/appellant from interfering with the possession of the plaintiff. N200 damages was awarded against all the defendants.

It is pertinent to set out the claim of the plaintiff/respondent and a short background story of the facts leading to the litigation for a proper appreciation of what will be stated hereafter.

The claim as endorsed in paragraph 20 of the further amended statement of claim reads –

“1. Plaintiff’s claim against the defendants jointly and severally is for a declaration that all that pieces or parcel of land lying, situate and being Plot 8 in the Awani Family Layout Ajamimogha Warri within the jurisdiction of this Honourable Court is the property of the plaintiff in accordance with Itsekiri Native Law and Custom and being the person in whom by possession it was vested before the commencement of the Land Use Act 1978 is deemed to be the holder of a statutory right of occupancy and is entitled to a grant of statutory right of occupancy in respect of same.

2. As against the 3rd defendant N2,000.00 damages for trespass in that the 3rd defendant in or about January, 1984, without plaintiff’s consent or permission broke and entered the plaintiff’s said Plot 8 in the Awani Family Layout and laid building foundation thereon.
3. As against the 3rd defendant an order of perpetual injunction restraining him, his servants or agents from entering the plaintiff’s said Plot 8 in Awani Family Layout or interfering in any way with plaintiff’s possession of it.”

Short Synopsis of the facts

In or about 1968, the Awani family, conceived of and started a project for developing their parcels of land into planned layouts. They employed a professional surveyor for the purpose. He is Theophilus John. The surveyor was to cut survey lines, and produce a master plan of the Awani family land. The plaintiff was detailed to work with the surveyor, to identify and show to the surveyor the extent of the family land; and its boundaries with neighbouring landowners. Plaintiff worked under the directions of Chief B. A. M.E. Awani, the Chief and Head of Awani family.

In appreciation of the part played by the plaintiff in the completion of the development of the Awani layout into 75 plots, the family, in a family meeting granted plaintiff Plots 8 and 9 of the layout as compensation in recognition for his efforts in the project. Pursuant to this gift Chief B. A. M. E. Awani instructed the Surveyor, Mr. Theophilus John to prepare a survey plan of plots 8 and 9 in the name of the plaintiff, and for plaintiff to pay the surveyor the necessary survey fees. The surveys plan No. T. M. 1913, showing the freehold property of Jemide Awani, of plots 8 and 9 at Awani family Lay-out at Ajamimogha Warn, made by Theophilus John on 11th June, 1975, was admitted in evidence at the trial and tendered as Exhibit P. 1.

Following disagreement between plaintiff and Chief B. A. M.E. Awani, (now late), plaintiff refused to continue working under him. Chief B.A. M. E. Awani, then informed plaintiff that he had leased out Plot 8 to the 3rd defendant/appellant, Sunday Temile. When confronted about the lease of Plot 8 to Sunday Temile, Chef B. A. M. E. said that the family gave the respondent Plot No. 31 and not Plot No. 8.

According to the plaintiff, relying on the grant by the family he had leased out Plot No.9 to one Madam Ekpemina, who had since erected a storey building on it. Plaintiff respondent denied ever having been allotted plot No. 31. He stated that plot No.31 was among the plots Nos:23-36 allotted by late Chief B. A. M. E. Awani to the Plush Organisation Ltd. in a lease dated 15th day of September, 1975. At the trial this lease was tendered in evidence and admitted as Exhibit P3.

The defendants in their statement of defence, denied that plaintiff/respondent was ever allotted plots 8 and 9. They averred that plaintiff/respondent was only one of three persons who the Awani family detailed to assist their Surveyor, Theophilus John in the survey of the Ajamimogha layout. The two others were Chief C. A. Lori and Achegogo Shamdoff. In appreciation of their efforts, each of them was allotted one plot as the family had no money to give them. The plots allotted to them were plots Nos. 30 to Chief C. A. Lori, plotNo.31 to the respondent/plaintiff and plot No.32 to Achegogo Shamdoff. Each of them was to pay N100, instead of the N800 paid by other members of the family for such allotments. They paid and were accordingly issued with receipts. The defendants/appellants contend that plaintiff/respondent had given his own plot NO.31 to the Plush Organisation Ltd. as part payment of his share in that company. They also averred that Chief B. A. M. E. Awani never gave any letter of authority to the Surveyor to survey plots 8 and 9 for the plaintiff/respondent as was the usual practice. The defendants/appellants alleged that plaintiff/respondent fraudulently manoeuvred the surveyor to survey plots 8 and 9 in his name. When the surveyor realised this he got the written instruction of Chief B.A. M.E. Awani as to the proper owners of the plot, which is Sunday Temile, the 3rd defendant/appellant for whom the Surveyor surveyed the plot and Madam Ekpeminaghan.

At the trial, plaintiff/respondent testified and called four witnesses including the current Chief of the Awani family, Chief Pius Awani, the 1st defendant to the action. The 1st and 2nd defendants did not testify for the defence. The 3rd defendant/appellant testified and called one witness. Learned counsel to both parties addressed the court. The learned trial Judge in his judgment held that the plaintiff/respondent had made out a case for damages for trespass and injunction and accordingly entered judgment in favour of the plaintiff in the following terms –

1. As against the defendants jointly and severally, plot Nos.8 and 9 in the Awani Family Lay-out in Ajamimogha, Warri is the exclusive property of the plaintiff in accordance with Itsekiri Native Law and Custom before the commencement to a grant of a certificate of occupancy, Warri having been declared by the Governor of Bendel State as an urban area.
2. As against the 3rd defendant only, the sum of N1,000 as general damages for trespass.
3. As against the 3rd defendant only, an order of perpetual injunction restraining him, his agents and/or privies from entering into the said plot 8 or in any way interfering with the plaintiff’s possession of the said plot 8 in the Awani Family layout in Ajamimogha, Warri.

Appellant appealed against the judgment to the Court of Appeal Division at Benin City; alleging six grounds of appeal out of which four issues for determination of the appeal were formulated by the appellant. Respondent formulated two issues. The court below contracted the issues formulated by the parties into the two issues reproduced hereunder.