Chief David Omekume & Ors V. Edward Akpati Ogude & Anor (2016) LLJR-CA

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UGOCHUKWU ANTHONY OGAKWU, J.C.A.

This appeal has been spawned by an action and cross action which was filed at the Ndokwa West Area Customary Court but heard and determined at the Ukwuani Area Customary Court. The first salvo was fired by the Appellants when they sued the Respondents claiming the following reliefs:
?The Plaintiffs claim against the Defendants jointly and severally as follows:
1. A Declaration that as Owners in possession the Plaintiffs are entitled to the grant of Customary Right of Occupancy over all that piece or parcel of land known and called Umu-Uzu Farm land situate at Ogbagu ? Ogume Bush within the jurisdiction of this Honourable Court.
2. The sum of N500,000.00 (Five Hundred Thousand Naira) being Damages for trespass in that on or about the 2nd day of May, 1994 the Defendants through their father Chief Charles Chukwuka Ogude without the consent and authority of the Plaintiffs first sought and obtained broke and entered into the land in dispute and placed a juju thereon thereby claiming ownership of the land.

3. An Order of perpetual injunction

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restraining the Defendants by themselves, their Servants, Agents or privies from committing further acts of trespass on the land.?

By way of cross action the Respondents claimed the following reliefs:
?The Plaintiffs claim in this Court against the defendants the following reliefs:
A declaration that the Plaintiffs as the persons having possessory right are entitled to the grant of customary right of occupancy over the piece or parcel of land known as and called Charles Chukwuka Ogude?s land lying, being and situate at Umuzu in Ogbagu-Ogume.
The sum of N500,000.00 (Five hundred thousand Naira) jointly and severally being damages for trespass in that the defendants, on or about the month of April, 2004, without the consent and authority of the plaintiffs, began to brush the land and fell the rubber trees thereon in order to farm on the land.
An order of perpetual injunction restraining the defendants, their servants agents and or privies from entering the land, brushing the land, felling the rubber trees on the land and from doing act on the land which is in derogation of the plaintiffs possessory

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right/interest/title to the land.?

The cases were transferred to the Ukwuani Area Customary Court where they were consolidated for hearing. The Respondents became the Plaintiffs in the consolidated suit while the Appellants were the Defendants. At the end of the plenary trial, the trial Area Customary Court entered judgment in favour of the Respondents, conclusively holding as follows:
?Based on the aforementioned reasons the plaintiffs who are in possession and having exercised various acts of ownership on the land in dispute and based on the absolute transfer of title from the 1st defendants father to the father of the plaintiff?s are declared and granted customary right of occupancy over the land in dispute situate at Umuzu farm land in Ogbagu Ogume.
N50:000:00 is awarded in favour of the plaintiffs against the defendants as damages for trespass on the plaintiffs land.
The defendant their agents, privies and or servants are hereby restrained from entering the land, brushing felling the rubber trees on the land and from doing any acts on the land in dispute.
The case of the defendants is dismissed in its entirety

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and cost of N10.000:00 is awarded in favour of the plaintiffs against the defendants.?

Peeved by the decision which went against them, the Appellants appealed to the Delta State Customary Court of Appeal in Appeal No. DCCA/14A/2012: CHIEF DAVID OMEKUME & ORS vs. EDWARD A. OGUDE & ANOR. Once again, the Appellants paregoric was not forthcoming as the Delta State Customary Court of Appeal (hereinafter referred to as the lower Court) dismissed their appeal with the ultimate peroration that:?In view of the above considerations, we are in full agreement with the decision reached by the lower Court. In the light of all that have been said, all the issues canvassed herein are resolved in favour of the Respondents and all the grounds of appeal filed also fail. We will therefore, dismiss this appeal and it is hereby dismissed with costs assessed at N10,000.00. We affirm the judgment of the trial Court.?

The judgment of the lower Court which was delivered on 27th March 2013 is at pages 189-217 of the Records.

The Appellants were dissatisfied with the judgment of the lower Court so they appealed to this Court. Their Notice of Appeal