Umukoro Usikaro & Ors. V. Itsekiri Communal Land Trustees & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The Court heard this appeal on 19th November, 1990. After a careful and close study of the record of proceedings and the briefs filed by counsel, and after listening to the oral submissions of counsel in elaboration of the various issues canvassed in their briefs, the court allowed the appeal and reserved its reasons for doing so to today. I now give my reasons for the judgment.

In the High Court, the plaintiffs’ claims, as amended are stated as follows:-

“The plaintiffs for themselves and on behalf of the ISIBOVBE FAMILY of EKUREDE (OKURODE) Urhobo Village of Agbassa, Warri, seek the following reliefs against

1. ALL THE DEFENDANTS is for a declaration of title to all that piece or parcel of land, lying and situate at EKUREDE (OKURODE) Urhobo village of Agbassa, Warri within the jurisdiction of this Honourable Court. The area and exact situation of the said piece or parcel of land is more particularly described and shown verged PINK in the Plan filed in support of this action.
2. The 1st, the 5th,8th defendants jointly and severally is for 5,000 (five thousand pounds) being special and general damages for trespass committed on the said plaintiffs land in that the 1st, the 5th, 8th defendants respectively by themselves, their Agents and/or Servants between 1969 and 1971 broke and entered the said land and damaged plaintiffs’ economic crops and trees without plaintiffs consent.
3. The 1st, the 5th and the 6th defendants is for a declaration that the purported lease of part of the land in dispute made by the 1st defendants to the 5th defendant on the 7th day of April, 1981 and registered as No.44 at page 44 in Volume 86 of the Land Registry Benin City the purported subsequent sub-lease of the same said portion of the land in dispute made by the 5th defendant to the 6th defendant on the 7th day of June, 1971 and registered as No.48 at page 48 in Volume 80 of the Land Registry, Benin City are respectively null and void ab initio and should be set aside. 4. The 7th and 8th defendants jointly is for a declaration that the purported sale or grant of the portion of the land in dispute made by the 7th defendant to the 8th defendant on the 10th day of October, 1969 and registered as No.20 at page 20 in Volume 75 of the Land Registry, Benin City is null and void ab initio and should be set aside.
4. All the defendants is for a perpetual injunction to restrain the defendants, their agents, servants and all other persons purporting to claim through them from entering the said land in dispute and particular from granting leases or other dispositions of the same to third parties.”

After all the pleadings had been filed and exchanged, the parties appeared before the court on 26/4/76 when the case was adjourned to 2/7/76 for mention and possible fixture. It should be noted that this was the first time that the court indicated that the case was ready for hearing when all the necessary preliminaries had been completed. There is no record of what happened on 2/7/76. However, on 8th September, 1976, parties appeared before the court when an application filed by the plaintiffs praying the court to enter judgment against some of the defendants in default of appearance was withdrawn and subsequently struck out. It was also on that day when the 10th and 13th defendants were granted seven days extension of time within which to file their statement of defence. The case was again adjourned to 29/11/76 for “mention and possible fixture.”

On 29/11/76, all the parties were present or represented in court and the case was adjourned to 11th to 15th April, 1977 for hearing.

There is no record of what happened on 11th April but on 9th May, 1977, the ruling of the court was:

“Court: Case adjourned to 12th to 14th October, 17th and 18th October, for definite hearing. Case to proceed if cases already joined (sic) for those dates cannot go.”

That was the ruling of Uche Omo, J. (as he then was) who had been previously hearing the matter. The record shows that the case came before Akpata, J. (as he then was) for the first time on 14th September, 1978. None of the parties was in court that day and the case was adjourned to 20 – 23rd December, 1978.

On 20th December, 1978, parties appeared before the court and on that day Dr. Akpojare for the plaintiff raised the issue of the legal position of the 1st defendant which, he contended was no longer clear having regard to the provisions of the Land Use Decree. The court was of the view that the point was well taken and the case was adjourned to 11/4/79 for mention “to enable them (1st defendant) make up their minds.”

On 11th day of June, 1979, the case was further adjourned to 11th September, 1979 for mention. There is nothing in the record to show what happened on that day but on 4th December, 1979 the case was adjourned to 17th and 18th March, 1978 (sic) for hearing.

Parties appeared before the court on 17th March, 1980 when Siakpere of counsel informed the court that Dr. Akpojaro, the principal counsel for the plaintiffs was ill and that he was in the United Kingdom receiving treatment. He then asked for an adjournment and the application, not having been opposed by any of the parties, was granted on terms. The case was then adjourned to 13th and 14th October, 1980 for hearing, and since it was the proceedings of the 13th October, 1980 that gave rise to this appeal I think the whole of proceedings of that day should be set out. They are as follows:

ON MONDAY THE 13TH DAY OF OCTOBER, 1980

W/66/70 U. Usikaro & 2 Ors.