Ben Jekpe & Anor V Chief (Dr.) S.T. Alokwe & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The appellants in this appeal were plaintiffs in Suit No. HAU/40/89 which originated in the Auchi Judicial Division of the High Court of the former Bendel State of Nigeria. The respondents herein were the defendants. There were three sets of defendants and each set filed a statement of defence. The 1st defendant who is the 1st respondent in this court stands alone. The second set is represented by the 2nd, 3rd and 4th respondents and the third set is represented by the 5th and 6th respondents.

In paragraph 63 of the further amended statement of claim, the plaintiffs claimed ten reliefs in the form of Declarations that the Apa of Okpekpe is the customary title of which the Clan Head of Okpekpe is known and addressed, that the lmiekpe kindred of the plaintiffs is the sole and exclusive ruling kindred in Okpekpe, that the 1st plaintiff is entitled to be recognised by the 2nd to the 4th defendants as the holder of the Chieftaincy title of Apa of Okpekpe, that the 1st plaintiff is entitled to be appointed to the vacant stool of the Clan Head of Okpekpe in Etsako Local Government Area in the former Bendel State, that the declaration made by the Bendel State Government relating to the Chieftaincy title of Onwueweko (Clan Head) of Okpekpe which was published as Bendel State Legal Notice No. 2 of 1990 in the Bendel State of Nigeria Gazette No. 4 Vol. 27 of 15th January, 1990 is illegal, unconstitutional, null and void as it is contrary to the customary law of Okpekpe and the Constitution of the Federal Republic of Nigeria 1979 and that the creation of the new traditional Chieftaincy title of Onwueweko of lkpekpe by the 2nd to 4th defendants and the appointment of the 1st defendant thereto is illegal, null and void.

The last three reliefs were prayers for orders of perpetual injunction.

The case was tried on the pleadings filed and exchanged by the parties by Maidoh, J. On 30th May 1991, in a reserved judgment, he dismissed the plaintiffs’ claims in their entirety. The plaintiffs appealed to the Court of Appeal, Benin Division and the 5th and 6th defendants cross-appealed. In its judgment, the court below allowed the plaintiffs’ appeal in part and held as follows:

“It is the judgment of this court that the appeal has failed substantially. Appeal succeeds partially. The judgment of the lower court is upheld in substance except on the question of Relief

63(g) whereby the Declaration sought by the appellants is granted . ………………………… In the light of the above, I therefore hold that the cross-appeal lacks merit and is dismissed ”

Aggrieved by the partial dismissal of their appeal the plaintiffs have further appealed to this court.

When the appeal came up for hearing on 9th January, 2001,the attention of the court was drawn to a notice of intention to withdraw the appeal against all the respondents signed by the 1st appellant for himself and on behalf of the other appellants and filed on 12-7-2000. The 1st appellant who signed the notice was in the court and he confirmed that he filed the notice for himself and on behalf of Imiekpe Kindred of Okpekpe, the appellants. The 3rd and 4th appellants on record who were also in court filed counter-affidavits disowning the purported notice and averred that they did not authorise 1st appellant to withdraw the appeal and he did not obtain their consent to do so. They expressed their readiness to go on with the appeal having filed their brief of argument. The court allowed the 1st appellant to withdraw from the appeal and struck out his name. The name of the 2nd appellant who is dead was also struck out. The appeal proceeded on the briefs filed by all the parties and counsel appearing for the parties adopted their respective briefs and made oral submissions in amplification of the briefs. The appeal was adjourned to today for judgment.

The plaintiffs filed the following grounds of appeal:

Grounds of Appeal

1. That the learned Justices of the Court of Appeal erred in law in upholding the judgment of the Court of trial having upheld Ground 1 of the plaintiffs’ appeal and held that the learned trial Judge jumped the gun thus dismissing plaintiffs’ claim.

Particulars of Error

a. The learned trial Judge did not consider or evaluate the entire evidence before him before giving judgment.

b. The learned trial Judge breached the principles enunciated in the following cases: