Victor Ogbeide & Anor. V. Godwin Osifo (2006)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Edo State of Nigeria, at Benin City, delivered in Suit No. B/192/96: Godwin Osifo (substituted for his late father – Mr. Oteghile Osifo and Victor Ogbeide and Another) on the 22nd May 2001. The plaintiff before that court (hereinafter referred as the respondent) had by paragraph 14 of his 2nd further amended statement of claim dated 10th April, 2000 against the defendants (hereinafter referred as the appellants) the following reliefs: –

“1. A declaration that the plaintiff is entitled to the grant of Statutory Right of Occupancy to all that piece or parcel of land measuring 100 feet by 200 feet lying and situate along Upper Sakpoba Road, Ugbekun Village Ward 33E, Benin City, within the jurisdiction of this Honourable Court which, piece or parcel of land is delineated and verged BLUE in litigation survey Plan No. JAA/ED/D14/96 in this action.

2. N500,000.00 (Five Hundred Thousand Naira) only being special and general damages for trespass committed by the defendants in breaking and entering into the said land and digging a borrow pit thereon without the consent or authority of the plaintiff –

(a) Particulars of Special Damages

(i) 500 cassava stems at N20.00 each – N10,000.00.

(ii) 500 maize plants valued at N15.00 each – N7,500.00

Amount claimed as special damages -N17,500.00

(b) General and Special Damages – N482, 500.00.

(c) Total Amount Claimed As General and Special Damages – N500,000.00.

1. Perpetual Injunction restraining the defendants, their agents and servants and/or privies from entering or trespassing into the said land.”

Final pleadings filed by the leave of court and exchanged between the parties are the second further amended statement of claim dated 10th April 2000 and the amended joint statement of defence dated 14th July 1997.

Both sides called evidence in proof of the averments in their respective pleadings. Sequel to the taking of the addresses of counsel on both sides, the learned trial Judge, in a reserved judgment delivered on the 22nd of May 2001, found in favour of the plaintiff/respondent by declaring that he was entitled to statutory right of occupancy over the land in dispute; the sum of N17,500.00 (Seventeen Thousand Five Hundred Naira) was also awarded in his favour but against the defendants as special damages for trespass found to have been committed by them (the defendants/appellants), by breaking and entering the said land of the plaintiff/respondent without his permission and destroying his (plaintiff/respondent’s) cassava stems and maize which he planted thereon.

Being dissatisfied with the said judgment, the defendants/appellants have appealed to this court by a notice of appeal dated 28th June 2001 into which seven (7) grounds were incorporated. Distilled from the aforementioned grounds of appeal are three issues which the appellants have formulated for this court’s determination; and set out in their brief of argument deemed to have been properly filed on the 8th of July 2003, they are in the following terms: –

“1. Did the learned trial judge not err when he awarded the plaintiff special damages when the plaintiff did not strictly prove that he suffered such damages?

2. Did the learned trial judge not err when he said that the 2nd defendant was estopped from denying the contents of exhibit “B” which was based on a grant, which had been declared a nullity by a court of competent jurisdiction?
3. Whether the learned trial Judge did not err when he held that the plaintiff proved a right to possession?”

The respondent, through his brief of argument filed on 4th August 2003 also raised three issues for determination, they are as follows: –