Sunny Dike Odogwu & Anor V. Albert Chukwuka Ilombu & Anor (2007)

LawGlobal-Hub Lead Judgment Report

GUMEL, J.C.A.

This is an appeal against the judgment of Delta State High Court, Asaba, delivered on the 27th October, 2000 in favour of the plaintiff/1st respondent/cross-appellant against the 1st and 2nd defendants/appellants, and the 2nd respondent. In the said judgment, the trial court granted the 2 declarations sought by the plaintiff/respondent and also awarded the sum of N4, 500,000 (four million, five hundred thousand naira) as general damages for trespass and an order of perpetual injunction against the 1st and 2nd defendants/appellants and the 2nd respondent. The 1st and 2nd defendants/appellants were dissatisfied with this decision and they each filed their respective notices and grounds of appeal. The plaintiff/1st respondent cross-appealed on the refusal of the learned trial Judge to make an award of special damages.

By a writ of summons filed on 25th September, 1997, the plaintiff/respondent claimed before the High Court of Delta State at Asaba as follows:

“(1) A declaration that the statutory certificate of occupancy No. BDSR 6222 granted to the plaintiff on the 6th December, 1986, by the then Bendel State Government of Nigeria and registered as No. 50 at page 50 in volume B.83 of the Lands Registry formerly in the office at Benin but now in the office at Asaba is still subsisting;

(2) A declaration that the statutory certificate of occupancy No. DTSR 875 granted to the 2nd defendant, Grand Hotels Limited, on the 20th day of August, 1996, by the Delta State Government of Nigeria and registered as No. 16 at page 16 in volume CO. 16 of the Lands Registry in the office at Asaba in so far as it purports to include the parcel of land previously granted to the plaintiff, Albert Chukwuka Ilombu, under the statutory certificate of occupancy No. BDSR 6222 registered as No. 50 at page 50 in volume B.83 of the Lands Registry formerly in the office at Benin but now in the office at Asaba is null and void ab initio;

(3) N50, 000,000 (Fifty million Naira) special and general damages for trespass against the 1st and 2nd defendants; and

(4) An order of injunction restraining the defendants, their servants and agents from entering or remaining in the plaintiff’s land verged pink on the Government survey plan No. AS. 51 or from building or erecting any structure thereon or from in any manner whatsoever interfering with the plaintiff’s rights of ownership and possession of the said land.”

Pleadings were duly filed and exchanged. Witnesses gave oral evidence on both sides. A number of documents were also tendered and admitted in evidence. After the addresses of respective learned counsel, the learned trial Judge reserved and delivered a well considered judgment.

From the records of appeal, the fact of this case are that the 1st respondent/cross-appellant is the holder of a certificate of statutory right of occupancy Number BDSR 6222 dated 5th December, 1986, containing a plot of land measuring 2099.343 sq. meters which fell within a larger parcel of land acquired by the Delta State Government in 1993. By a notice of revocation of rights of occupancy pursuant to S. 28 of the Land Use Act, 1978, the Delta State Government revoked all the existing rights of occupancy involving a parcel of land comprising an area of approximately 3.150 hectares. The land of the 1st respondent/cross-appellant was one of the lands comprising, this land of approximately 3.150 hectres. The notice of revocation was published in the Delta State of Nigeria Official Gazette No.9 dated 19th July, 1993. The 1st respondent/cross-appellant claims that he was not served with any notice of revocation as required by law.

Based on their respective notices and grounds of appeal, the 1st and 2nd defendants/appellants as well as the 1st respondent/cross-appellant and the 2nd respondent complied with the rules of this court by filing and exchanging their respective briefs of argument. The appellants’ amended brief was filed on 28/4/2003. The 1st respondent’s brief was deemed filed on 17/2/2004. Also, the 2nd respondent’s brief was deemed filed on 17/2/2004 while the appellants’ reply brief was deemed filed on the 6/7/2004. With respect to the cross-appeal, the 1st respondent/cross-appellant filed a brief of argument and the appellants/cross-respondents’ brief was deemed, filed on 5th June, 2006. The 1st respondent/cross-appellants, reply brief was filed on 19/6/2006.

When this appeal came before us for hearing on 20th November, 2006, respective learned counsel adopted and relied on their respective briefs on the main appeal and the cross-appeal. The 2nd respondent did not respond to the cross-appeal. Learned counsel to the appellants. Dr. Ajibade took the liberty of the hearing to explain and highlight some areas of his amended appellant’s brief. Also, learned counsel to the 1st respondent, Chief Egonu, SAN responded to the explanatory remarks of learned counsel, Dr. Ajibade and further amplified some areas of his 1st respondent’s brief.

From the cumulative number of grounds of appeal, the appellants formulated the following issues for determination in this appeal. They are:

“1. On whom lies the burden of proof that the other party had trespassed on his land and whether that burden of establishing trespass has been met by the party with the burden of proof in this case;

2. Whether the judgment of the court below was the result of a proper evaluation of the entire evidence in the case;
3. Whether having regard to the plaintiffs’ statement of claim and the evidence before the court, the 1st appellant was personally liable to warrant the judgment of the lower court being entered jointly and severally against him;
4. What is the effect of notice of revocation that is gazetted and on whom lies the burden of proof of service or non-service of notice of revocation where same was properly gazetted;
5. Whether having rejected the plaintiff’s evidence on special damages the court can proceed to award a whopping general damages of N4,500,000 thereby granting the special damages through the backdoor. Can the plaintiff also claim general damages twice? and;
6. Whether this is a proper case for the grant of an order of perpetual injunction.”

The 1st respondent formulated a set of 5 issues for determination. They appear to be more succinct and elegant. They are: