Chukwuma Ezekude V. Okwuezulu Odogwu & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C.

This appeal arose out of two consolidated suits in the High Court of former Bendel State which went on appeal to Court of Appeal, Benin branch. The two suits were first heard at Kwale but for reasons not found in the record, and not explained in this court, the matter was transferred to Ogwashi-Uku division of the High Court, on the very date the Kwale High Court was to deliver judgment in the matter.

The respondents herein were the plaintiffs in the consolidated suit while the appellants were made the defendants. The plaintiffs called the land in dispute “Agwe Umuofu” and the defendants called it “Agwe Udema”. But the land is the same; there is no dispute as to its identity. In the course of trial at Ogwashi-Uku the respondents intermittently called the same land “Agwe Utchi” and in a motion amended their claim to include declaration of title. Thus the plaintiffs claimed:

(i) title to the land which is an island in River Niger,

(ii) order to defendants to render account for rents, royalties collected by defendants on the land,

(iii) order for payment of the said rents etc, as in (ii) above to plaintiffs,

(iv) order for eviction of the defendants from the said land including the ponds therein and an order for perpetual injunction restraining the defendants (now appellants) their agents, privies, servants from further entry into the land in dispute.

The appellants represented by Chukwuma Ezekude are descendants of one Udema of Umuatake village, Akili (also known as Akili-Ogidi) now in Anambra State. This much is admitted by both parties. The respondents (plaintiffs) relied on traditional history, acts of possession and ownership; they also claimed not only use by them of the island but also acts of granting rents and fishing rights from time immemorial. The appellants on the other hand claimed absolute ownership of the land from time immemorial through their ancestor. At the close of the case for the parties, learned trial Judge gave judgment for the plaintiffs (now respondents) on all their claims. The defendants appealed to Court of Appeal which in turn upheld the decision of the trial court and this gave rise to the appeal to this court.

The appellants formulated the following issues for determination;

“(1) was the Court of Appeal right in holding that suit no. HCK/11/77 was properly constituted and that the respondents proved their representative capacities by overwhelming evidence

(2) was the Court of Appeal right, having regard to the manner the learned trial Judge reviewed the evidence in the case and his approach to the determination of the case, in confirming the judgment in the consolidated suits

(3) whether the Court of Appeal was right in holding that the learned trial Judge found the traditional evidence by the plaintiffs, satisfactory and cogent and that he believed it

(4) whether the plaintiffs in suit no. HCK/11/77 pleaded and proved their root of title to the land in dispute and if not, whether the court of Appeal was right in affirming the judgment of the learned trial Judge in the case

(5) was the Court of Appeal right in not giving proper consideration to exhibits 9, 13, 14 and 15 in its determination of the appellant’s appeal