Before Their Lordships
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
OLAJIDE OLATAWURA Justice of The Supreme Court of Nigeria
IDRIS LEGBO KUTIGI Justice of The Supreme Court of Nigeria
Between
1. FAWOLEAJAYI
2. D. M. AJAYI Appellant
AND
IGIEROBO OMOROGBE Respondent
…………………….A…………………….
OLATAWURA, J.S.C. (Delivering the Leading Judgment): It will be necessary to refer briefly to the history of this case in order to appreciate the issue involved. The appeal is not on the merit of the issues decided by the High Court of Justice in the former Mid-Western State of Nigeria, (now Edo State) of the Benin Judicial Division.
The respondent issued a writ of summons against 3 defendants: (1) Chief Ajayi (2) Mr. D.M. Ajayi and (3) Madam Rali Kadiri on 6th April, 1974. The latter has since died. The reliefs claimed are as follows:
“(a) A declaration of title in accordance with Bini Customary Law to the land in dispute as shown coloured pink on Plan No.ER 2238 filed with this Amended Statement of Claim.
(b) N200.00 being damages for trespass.
(c) An injunction restraining the defendants, their servants and or agents from further acts of trespass upon the said land.
The matter proceeded to trial after several amendments to the pleadings. On 3rd May, 1980, Omosun, J. (as he then was) gave judgment in favour of the plaintiff as follows:
“In view of Section 40 of the Land Use Decree 1978, the proper order to make is that the plaintiff is entitled to the Statutory Right of Occupancy, Benin City having been designated an urban area. There will be damages of N 120.00 against the defendants jointly and severally and injunction to restrain the defendants from committing further acts of trespass on the land in dispute verged pink in Exhibit C.”
