Uwagboe Osagie & Ors V. Igbinosun Obazee & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 26/6/2012 by the High Court of Justice, Edo State holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice C.O. Idahosa – Chief Judge (hereafter simply referred to as “the learned “C.J.”).

The lower court granted the reliefs claimed in the action by the Plaintiffs before it and dismissed the counter-claim of the Defendants before it. Costs in the sum of N30,000.00 was awarded against the Defendants in respect of the counterclaim.

The instant case was commenced before the lower court by the Respondents through a Writ of Summons which issued on 27/6/1996. Parties duly filed and exchanged pleadings. The pleadings were also severally amended as considered appropriate or expedient by the parties.

The last of the pleadings of the parties upon which the case was tried before the lower court are: the Further Amended Statement of Claim (No. 2) dated 19/3/2004 and deemed as properly filed on 23/3/2004; and Further Amended Defence to Counter-Claim of the Respondents on the one hand; and the Consequential Amended Statement of Defence of the Defendants on the other hand.

The Respondents in the main claim a declaration of entitlement to the customary right of occupancy in respect of the land in dispute in the light of the boundary thereof vis-a-vis the land of the Appellants’ community. In the premises of the facts pleaded in aid of their case, the Respondents sought the following reliefs against the Appellants:-

“(i) A declaration that the Plaintiffs and their Community (Okabere Community) is entitled to a customary right of Occupancy over a large piece of land measuring about half a mile by half a mile bothering or between the Plaintiffs’ Community and the Defendants’ Community stretching from the “OBO-JUNCTION” to the moat on the right hand side of the OKABERE-SAPELE ROAD AND FROM OBO JUNCTION to the boundary between Okabere village and Oka-Ogo village on the left hand side of the OKABERE-SAPELE ROAD. The said land which forms part of Okabere land. The land claimed by the Plaintiffs is verged RED in Survey Plan No. MSC/ED/2000/125 dated 1/6/2000 filed by the Plaintiffs in this case.

(ii) N1,000,000.00 (One Million Naira) damages against the Defendants jointly and severally for trespass committed on the said land.

(iii) Perpetual Injunction restraining the Defendants and their Community from further trespassing on the Plaintiffs’ Communal land aforesaid.”

The Appellants not only responded to the case of the Respondents, but also claimed the land in dispute as theirs, and for this purpose counter-claimed against the Respondents in their Consequential Amended Statement of Defence for the following reliefs:-

“(a) Declaration that the Defendants are the owner by virtue of Bini custom and tradition and under the Land Use Act of 1978 of all that piece or parcel of land as being falsely claimed by the Plaintiffs and which said piece of land is more appropriately shown, demarcated, described and delineated in the Defendants’ litigation/survey plan No. AA/ED/DOS/2000 dated 5/5/2000 and whose boundary southwards lies midway between the Defendants’ Odighi Shrine and the Plaintiffs’ Erhue Shine (sic) coursing Eastwards and Westwards.

(b) A declaration that the Plaintiffs are mere licensees in relation to the Okabere-Okaniro Road only, and Trespassers on the said land in respect of all other acts of entry carried out by themselves, their agents, servants, employers and or privies on the rest of said land.

(c) The sum of N5,000,000.00 (five Million Naira) as damages for the said trespass.

(d) PERPETUAL INJUNCTION restraining the Plaintiffs, their generations, agents, servants, employees and or privies from trespassing, continuing the trespass, and or doing anything whatsoever with the Defendants’ entire land (including the land subject matter of this Suit as defined in Defendants’ litigation plan).” (Underlining supplied by me for emphasis).