Francis Idjakpa & Anor V. Ovie Ajigbereno (2008)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the Ruling of the Delta State High Court, Orerokpe Judicial Division in Suit No. HOR/15/88. The action leading to this appeal was commenced by the Appellants as Plaintiffs for themselves and on behalf of Idjakpa family of Kokori against the Respondent as the defendant. Later the defendant became a defendant for herself and also, in a representative capacity, on behalf of Omokoro family of Ushue Street, Kokori. The claim as endorsed on the amended statement of claim of the plaintiffs dated 12/12/94 was for a declaration of title in respect of a piece of land in Kokori and for damages for trespass as well as an order of perpetual injunction to restrain the defendants and/or their agents or privies from further acts of trespass unto the said piece of land.

The claim of the plaintiffs is based on traditional history and Kokori Native Law and Custom. According to the Plaintiffs, their father was Idjakpa who had one wife, Mrs. Etakpobunor. Between them they had 5 children namely; Francis, Patrick, Beauty, Felicia and Jonathan. Francis and Patrick being the Plaintiffs. The land in dispute known as Uluilegbe land, in Kokori Inland, was founded by Idjakpa. The father of Idjakpa was Akpojotor of Kokori Inland. The land was situated in an area that was taken to be a dreadful forest. It was the belief of the people of Kokori that anyone who approached this land would die of a mysterious illness. However, the Plaintiffs’ father, Idjakpa conquered this land and cleared it of its virgin forest.

According to the Plaintiffs, under Kokori Native Law and Custom the first person to clear an area of its virgin forest automatically has title to that land and was entitled to bring it under cultivation and upon his death it would pass to his children in common. It was also the case of the Plaintiffs that Idjakpa, having conquered the land in dispute, planted rubber trees on some parts of it while he cultivated other crops such as cassava, Yams etc on the other parts of the land. He continued this for over 50 years without any one challenging him or later any member of his family. Idjakpa died in 1970 and the mother of the plaintiffs, who were young, managed and collected proceeds from the land for the up keep and education of the children of the deceased Idjakpa. In 1974, the defendant came and claimed title to the disputed land on the basis that she was a relation of Idjakpa. Upon entry into the land the defendant asserted her right to it and chased the plaintiffs out of it.

In an amended statement of defence dated 23/2/95, the defendant denied most of the material averments of the plaintiffs and urged the Court to dismiss the action for being frivolous, vexatious and an exercise in futility.

Issues having been joined between the parties, the matter went to trial after series of interlocutory applications. While the matter was on trial, indeed after all witnesses had testified and all that was left was for respective learned Counsel to address the Court on all the evidence adduced, the defendant brought an application dated 18/2/99 to dismiss the Suit. The grounds for this application were: –

1. The land the subject matter of the Suit is located in a rural area of Delta State; and
2. The Area Customary Court has exclusive jurisdiction over declaratory customary title to land in rural areas.

This application was supported by a 7 paragraph affidavit deposed to by one Moji Okesina, a Secretary in the law office of the defendant’s Counsel. This was argued by learned Counsel to the defendant/applicant on 29/3/99. Learned Counsel to the Plaintiffs/Respondents did not file any response to the application and did not appear in Court to argue against the application, even though he was duly served with the application and had notice when it was to be argued. In a well considered ruling dated 14/4/99, the learned trial Judge, Ehiwario, J. held inter alia that: –

“The land, subject matter of dispute in this case, is located a Kokori-Inland; an area yet to be designated an Urban Area is under the management and control of the Local Government Authority. This Court therefore, by virtue of sections 39 and 41 of the Land Use Act has no jurisdiction over the dispute brought by the Plaintiffs/Respondents. The Plaintiffs are in a wrong forum. The Defendant/Appellant’s application is bound to succeed and I accordingly uphold it.

The Plaintiffs’ suit is therefore struck out with costs assessed at the sum of N1,000 in favour of the Defendant/Applicant.” – See page 18 lines 30-39 of record of appeal.

The Plaintiffs were dissatisfied with the decision of the learned trial Judge and therefore filed this appeal vide a notice of appeal filed on 27/4/99. This appeal is predicated on 2 grounds of appeal. In due course the Appellants, through learned Counsel Mr. H.A. Ororho filed the appellants brief of argument on 17/01/2000 but was deemed properly filed and served on 30/5/2000. The respondent failed or neglected to file any brief of argument. By an application dated and filed on 13/12/2000, Learned Counsel to the appellants sought for an order for this appeal to be heard and determined on the appellant’s brief alone. An order to that effect was made on 15/6/2002.

From the 2 grounds of appeal, the appellants formulated the following 3 issues for the determination of this appeal. They are: –

1. Whether the land in dispute, the subject matter of this Suit situate in Kokori is situate in a rural area by virtue of Bendel State Legal Notice BSLN NO. 14 of 1988 – Designation of Urban Areas (Order) 1987 made pursuant to the Land Use Act.
2. Whether the Defendant/Respondent has sufficiently discharge the burden to prove that the land, in dispute, situate in Kokori is in rural area andtherefore subject to Customary Right of Occupancy.
3. Whether the trial Judge was right in entering the application for striking out by way of Demurrer.

When the appeal came before us for Hearing on 26th May, 2008, learned Counsel to the appellants adopted and relied on his brief of argument. He drew our attention to the case of ALHAJI KARIMU ADISA V. EMMANUEL OYINWOLA & ORS (2000) 6 SC (PT.11) 47; (2000) 10 NWLR (PT.674) 116, a judgment of the Supreme Court delivered on Friday 23rd June, 2000, nearly a month after the appellants’ brief was deemed properly filed and served. Learned Counsel also filed a notification of additional authority. He then urged us to rely on ALHAJI ADISA (supra) and allow this appeal.

I have carefully considered the issues formulated from the grounds of appeal. To me, both the grounds of appeal and the issues formulated therefrom appear to be little inelegant. There is therefore the need to recouch the issues in such a way that could properly be said to represent the complaint of the appellants against the judgment of the lower Court. From a proper reading of all the grounds of appeal and their particulars as well as the motion of the Defendant/Respondent before the lower Court for an order to strike out the suit, it appears to me that the central and key issue in this appeal is the current state of the law on the interpretation and application of the provisions of S.39 and S.41 of the Land Use Act 1978. The decision of the learned trial in his ruling of 14/4/99 touched on this crucial issue. I therefore now say that the sole issue that could determine this appeal one way or the other is: –

“What is the jurisdiction of the State High Courts in respect of the rights of occupancy under the Land Use Act 1978?”