Gbaniyi Osafile & Anor V. Paul Odi & Anor (1994)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin, which had on the 29th day of April, 1987 allowed an appeal by the defendants from the decision of Obi, J. sitting at Agbor in the High Court of former Bendel State.

The plaintiffs claim against the defendants, in the action which was brought in 1969, as per their amended Statement of Claim is as follows:-

“Whereupon the plaintiffs’ claim from the defendants jointly and severally are (sic) as follows:-

(a) Declaration of title on the said land.

(b) N400.00 (four hundred naira) damages for trespass and

(c) injunction restraining the defendants their agents and or servants from further trespass on the plaintiffs land.”

The case of the plaintiffs, who sued in a representative capacity, as revealed by their Amended Statement of Claim and supported by evidence may be stated as follows. The plaintiffs belong to two villages which are called Idumu-Esegbana and Idumu-Ozoba. Both villages are part of the town called Umenede which is made up of twelve villages. The plaintiffs who were respectively the heads of the two villages sued for themselves and on behalf of the people of the two villages.

According to the plaintiffs, each of the villages in question owns a portion of the land in dispute which is separated into two portions by the road from Agbor to Asaba. The northern portion which is marked (A) in the survey plan tendered by the plaintiffs as Exhibit “1” was said to belong to Esegbana people while the southern portion was said to belong to Ozoba people. Both communities were said to be related in that they had a common ancestor and that they inherited the ownership of the land in dispute on the death of their respective fathers and forefathers.

Their ownership of the land had therefore been from time immemorial from whence they had been in undisputed possession, exercising maximum acts of ownership. Such acts include farming and planting of crops and were carried out by them without let or hindrance from the defendants or any person. In addition, the plaintiffs claim that they have ancient walls and shrines on the land in dispute.

The plaintiffs adduced evidence to show that the defendants’ people and their (defendants’) ancestors had been customary yearly tenants to them (plaintiffs). In respect of the tenancy, the defendants and their ancestors paid homage in kolanuts, palm wine, yam and tobacco. It was on receipt of such homage that the plaintiffs would show to the defendants the portion of the land to farm during one farming season only.

The defendants who belong to the villages of Idumu Obi and Idumu Aban, which are part of the villages that constitute the town of Emuhu, share a common boundary with the people of Umenede that is the plaintiffs.

In the month of February, 1963, as was alleged by the plaintiffs, the defendants or their agents broke and entered into the land in dispute, cutting down rubber trees, palm trees and cassava trees in order to farm thereon. The defendants had neither permission from the plaintiffs to do so nor paid to the plaintiffs the customary homage. The plaintiffs appealed, protested and warned them to stop their acts of trespass but the defendants ignored them and continued with their acts of trespass. Hence the suit by the plaintiffs against the defendants.

On their part, the defendants in both their Amended Statement of Defence and evidence adduced denied the history set up by the plaintiffs as to their ownership of the land in dispute and their alleged yearly customary tenancy. The defendants stated that their two quarters of Idumu Obi and Idumu Aban are part of the 7 quarters that make up Emuhu town. The land in dispute belongs to Emuhu people. ((The defendants had been exercising maximum acts of ownership and possession over the land from time immemorial without let or hindrance from the plaintiffs or any person.