His Highness, Alhaji A.g. Momoh & Ors. V. His Highness, Alhaji I.m. Umoru & Ors. (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA J.S.C.

This case has a chequered history- The court below was saddled with the task of having to hear the appeal for the second time under the following circumstances. The present appellants as plaintiffs first commenced the action in 1981, before the High Court of Auchi in suit No. HAU/46/81 presided over by Akpovi (J) (as he then was). Judgment was delivered in 1984 whereby the learned trial judge refused to grant the declaratory reliefs and the order of injunction being sought by the plaintiffs. In the said judgment the learned trial Judge gave what he termed as “a compromise solution” judgment.

Dissatisfied with that decision the plaintiffs appealed to the court below, which allowed the appeal but made consequential order remitting the case to the High Court Auchi for re-hearing de novo. Their further appeal to this court was struck out. The plaintiffs were thereby left with no legal option but to revert to the earlier order of the court which was to re-hear the case de novo.

The re-hearing commenced before Maidoh (J). But upon the creation of Delta State out of former Bendel State and the subsequent deployment of Maidoh (J) to the Delta state Judiciary the case was assigned to Sadoh (J) who decided in favour of the Defendants in 1994.

In their 3rd Further Amended Statement of Claim, the Plaintiffs claimed the following reliefs:

“(a) A declaration that in accordance with Auchi Customary Law and tradition, the plaintiffs, the people of Auchi, are the persons vested with all existing rights to the use and occupation of all that piece or parcel of land lying and situated in Auchi, in the Etsako Local Government Area of Bendel State and within the jurisdiction of this Honourable Court, and verged pink in plan No. 1092 filed herewith, (the said land though well known to the defendants is as shown).

(b) A declaration that the plaintiffs, the people of Auchi or Auchi Community by virtue of Auchi Customary Law and tradition, are the persons entitled to the Customary and/or Statutory Right of Occupancy in respect of the said piece or parcel of land.

(c) An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents or any person claiming through or under them or whatsoever from entering re-entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use and occupation of the land or any part thereof in derogation to the plaintiff’s vested rights or interests therein.

(d) Additionally, the plaintiffs seek forfeiture or declaration of forfeiture by the defendants of the area of plaintiffs land (Sabo Quarters) occupied by the defendants with the permission or tacit permission of the plaintiffs before disputes arose between the parties, and by reason of defendants’ claim of title thereto and denial of the plaintiff’s title.”

The defendants on their part filed a 2nd Further Amended Statement of Defence.

The Plaintiffs called a total of 5 witnesses. In addition, the 3rd and 4th plaintiffs also testified while on the part of the defendants the 1st defendant testified.

At the close of the case for the parties, learned Counsel each addressed the Court. Following this the learned trial Judge gave judgment in favour of the Defendants.

Dissatisfied with judgment the plaintiffs appealed to the Court of Appeal sitting in Benin City.

On 19/1/2000, the lower court, delivered its judgment in which all the issues canvassed by the Appellants were resolved against them. The appeal was accordingly dismissed and the judgment of the learned trial Judge was affirmed.