VERO EDO V. JESUOROBO EKHATOR & ORS (2016)

Background

Matter arose from Suit No. B/619/2009 between Mrs. Vero Edo (Claimant) and Jesuorobo Ekhator, Lucky Obanor and Mr. Ogie (Defendants). Claimant contended that she acquired two contiguous parcels of land at Irhirhi/Ugiokhuen Village, Ward 36A (totaling 200ft x 200ft) by deeds of transfer executed in March 1996 and approved by the Oba of Benin in February 1977. She alleged that, in September 2009, the Defendants trespassed, destroyed beacons and commenced construction on part of her land, employing armed supporters to intimidate her. Claimant sought:

• Declaration of her statutory right of occupancy
• General damages of ₦2,000,000 for trespass
• Perpetual injunction against further trespass

The Defendants filed an amended statement of defence and inelegantly titled “Proposed Amended Statement of Defence and Counter Claim,” praying:

• Declaration that 2nd Defendant is best person to apply for Certificate of Occupancy over the same 200ft x 200ft parcel
• Declaration that the Claimant’s entry amounted to trespass
• Perpetual injunction restraining the Claimant
• General damages of ₦5,000,000

Claimant did not formally defend the counterclaim, rendering it deemed admitted if Claimant’s own claim failed. Each side called witnesses and tendered documents in support of their chain of title and possession.

Issues

After considering all pleadings, evidence, and final written addresses, the court framed a single determinative issue:

Which party has proved its case on the balance of probabilities and preponderance of evidence?

Ratio Decidendi

1. Documentary evidence is the best evidence for proving title; oral evidence cannot contradict properly executed documents except where fraud is pleaded. (Egharevba v. Osagie)
2. In land disputes, the identity of the disputed parcel must be established with clarity so that a surveyor can locate it precisely. (Babatola v. Alaworoko)
3. Title may be proved by any one of five modes: traditional evidence, authenticated documents, positive acts of ownership over time, long possession/enjoyment, or possession of connected land. (Omotayo v. Cooperative Supply Association)
4. Counterclaims, like main claims, must be proved on the balance of probabilities. Failure to do so results in dismissal. (Usman v. Garbe)
5. Hearsay evidence is inadmissible to prove survey or chain of title where maker of document is not called. (Felicity Ojo v. Gharoro)

Court Findings

The court found that:

• Claimant established identity of the land by leading the surveyor (CW1) who prepared Litigation Survey Plan No. ISO/ED/D55/2010 (Exhibit A) dated 7 December 2010, and by tendering deeds of transfer (Exhibits B & B1) and Oba’s approvals (Exhibits C & C1).
• Additional documentary proof of possession—survey plan of 2000 (Exhibit E) and receipts for development materials and plantation purchases (Exhibits D, D1, D2)—reinforced Claimant’s unbroken chain of title and peaceful possession from 1996 to 2009.
• Defendants’ counterclaim failed because their sole transfer document (Exhibit F) involved only 2nd and 1st Defendants, with the transferee (1st Defendant) absent from testimony. Their survey plan (Exhibit G) was hearsay, as the surveyor was not called.
• Defendants’ evidence lacked cohesion: their pleadings and evidence did not support the reliefs sought in the counterclaim, and they could not establish that the disputed land lay within Ugiokhuen Village as claimed.
• Onus lay on Claimant to prove title and trespass; she did so. Defendants failed to discharge their burden as counterclaimants.

Conclusion

The court held that Mrs. Vero Edo proved a better title and peaceful possession of the disputed land. The Defendants trespassed without her consent. Judgment was entered for the Claimant as follows:

1. Declaration that the Claimant is entitled to the statutory right of occupancy over the parcel at Irhirhi/Ugiokhuen Village as described in Plan No. ISO/ED/D55/2010 dated 7 December 2010.
2. Perpetual injunction restraining the Defendants, their agents, servants, privies and assigns from further trespassing.
3. General damages of ₦500,000 awarded to the Claimant for trespass.
4. Counterclaim of Defendants dismissed.

Significance

This decision underscores the primacy of documentary evidence and the necessity of calling document makers to testify. It affirms that in land disputes the identity of the parcel must be proven with precision, and that counterclaims must be consistent with pleadings and proved on the balance of probabilities. It also illustrates the High Court’s careful scrutiny of hearsay in title disputes and reinforces the principle that proper registration and survey are critical to establishing land rights under Nigerian law.