Chief Asaba Emiri & Ors. V. Chief Dominic Imieyeh & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C

The respondents in this appeal were the plaintiffs at the trial court, and the appellants were the defendants. In suit No. HCK/13/82 which was filed in the Kwale High Court of former Bendel State, the respondents claimed against the appellants, as per their further amended statement of claim, the following reliefs:-

“(1) A declaration that the plaintiffs are the owners in possession of that piece of parcel of land known and called Odu-Ugili land lying and situate at Ase town within the jurisdiction of this honourable court and are entitled to the customary right of occupancy.

(2) A claim of N10,000.00 (ten thousand naira) damages in that on or by early 1980 and continuing, the 5th defendant without obtaining the consent or permission of the plaintiffs trespassed into the plaintiffs’ family land edged on by 1st – 4th defendants.

(3) An injunction restraining the defendants, their privies. Servants and/or agents from ever trespassing on the plaintiffs’ land and/or molesting the plaintiffs or doing anything injurious to the land or determination the plaintiffs’ interest in and/or enjoying and using of the land.

(4) An order of forfeiture against 1st and 2nd defendants and eviction of all the defendants including Madam Ubege Emiri for the defendants through 1st and 2nd defendants dared to challenge the title of the plaintiffs who are their landlords.

(5) A declaration that the plaintiffs are entitled to be given the certificate Emiri v. Imieyeh of occupancy in respect of the land in dispute as more properly and particularly described and delineated in their plan No, KP.2338.”

At the trial, pleadings were filed and exchanged by the parties. In proof of their case, each party called witnesses and tendered documents which were admitted in court. The respondents as plaintiffs called six witnesses including the 1st plaintiff/ respondent while the defendants/appellants called six witnesses including the 3rd and 4th defendants/appellants. At the close of the case, learned counsel for both sides addressed the trial court at length.

On the 27th day of February, 1987, the learned trial Judge, Bazunu J. delivered a considered judgment in which he found for the plaintiffs/respondents and made the following orders:-

(i) A declaration of title to the land in dispute excluding the area pledged to the late grandfather of the defendants and the areas given to the 1st defendant and his brother John by way of gift, as shown in Exhibit “A”, plan No.KP.2338 of ‘4-1-85, subject to the provisions of section 40 of the Land Use Decree 1978.

(ii) N300 general damages against the defendants jointly and severally for trespass.

(iii) Perpetual injunction restraining the defendants by themselves, their privies, servants and or agents from further trespassing on the land without the prior consent and or authorisation of the plaintiffs.

The appellants herein were dissatisfied with the judgment of the learned trial Judge and they appealed to the Court of Appeal Benin Division. They filed a notice of appeal containing three grounds of appeal initially on the 30th of April, 1987. On the 2nd day of May, 1987, the appellants filed an application in the Court of Appeal Benin praying the court to grant them leave to file and argue four more additional grounds of appeal which application was later heard and granted as prayed. The appellants had therefore seven grounds of appeal, filed in their appeal in the Court of Appeal, Benin.

In the Court of Appeal, written briefs were filed by both parties which were also exchanged between them in accordance with the rules of court. The issues for determination set out by the parties in their respective briefs were not very much different, and the Court of Appeal after hearing learned counsel for both parties on their briefs and considering the evidence before the trial court in the record of appeal, came to the following conclusion per Uche Omo JCA (as he then was):-