Evangelist Jacob Onakovwe Kpeku & Ors. V. Chief Doufa Sibekenekumu & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Delta State High Court delivered by Hon. Justice P. O. Onajite Kuejubola (Mrs) on 27th July 2010. The facts that led to this appeal are as follows:

The Respondents herein, who were Plaintiffs at the trial court sued the Appellants herein for a declaration of title to land and an order of perpetual injunction against the Appellants herein.

The Respondents instituted the suit in a representative capacity for themselves and representing the people of Isaba Community in Warri South-West Local Government Area of Delta State. The Appellants also sued the Respondents as counter-claimants at the trial court in a representative capacity representing the people of Ogbe-Sobo (Aladja) in Udu Local Government Area of Delta State. The Respondents instituted the suit at the lower court in 1970. The Appellants filed a counter-claim against the Respondents in 2006.

The claim of the Respondents against the Appellants at the lower court is set out as follows:

(1) A DECLARATION that in accordance with native law and custom of the Plaintiffs, the Plaintiffs are the owners of the land known as ISABA BOU in Isaba of Warri South-West Local Government Area of Delta State. The said parcel of land is within the jurisdiction of this Honourable Court and particularly shown and delineated on the amended plan No. ISO/BD/1765/90 filed with the 8th amended Statement of Claim thereon verged in pink.

(2) A perpetual injunction restraining the Defendants, their agents, servants/privies and all other persons purporting to claim through them from interfering with the plaintiffs rights and interests in and over the said piece and/or parcel of land in particular from entering the said land, granting leases or other dispositions of the same to third persons.

The Appellants’ counter-claim was as follows:

(1) A DECLARATION that the Defendants are entitled to a Right of Occupancy in respect of the piece or parcel of land verged yellow and measuring 1081.434 hectares in litigation survey plan No.DT/TK 4,800A with the jurisdiction of this Honourable Court.

(2) A perpetual injunction restraining the plaintiffs their servants, agents, privies, assigns and whatsoever purporting to claim through them or on their behalf from interfering with and or entering the Defendants land measuring 1081.434 hectares in litigation survey plan No.DT/TK 4,800A, prepared by Surveyor T. K. Kpeji Registered Surveyor.

At the end of the trial, the trial court granted the reliefs of the 1st and 2nd Plaintiffs and dismissed the counter-claim of the Defendants. Dissatisfied with the judgment of the trial court the Defendants/Appellants hereinafter referred to as Appellants appealed to this court by filing 10 grounds of appeal.

From the said grounds, the Appellants distilled the following issues for determination as set out below.

1. WAS THE LEARNED TRIAL JUDGE RIGHT IN NOT CONSIDERING THE FULL WEIGHT AND EFFECT OF THE PREVIOUS JUDGMENTS OF 1934 AND 1965 BETWEEN THE SAME PARTIES OVER THE SAME SUBJECT-MATTER TO DETERMINE THE MERITS OF THIS CASE AS AGAINST OTHER ISSUES RELIED ON BY THE COURT; GROUNDS 1, 2, 3, 4 AND 5 OF THE GROUNDS OF APPEAL.
2. DID THE LEARNED TRIAL JUDGE PROPERLY EVALUATE THE EVIDENCE GIVEN BY THE PARTIES ON THE IMAGINARY SCALE OF JUSTICE BEFORE DECLARING 1ST AND 2ND PLAINTIFFS AS OWNERS OF THE DISPUTED LAND WHICH WAS BASED PRINCIPALLY ON ALLEGED ACTS OF POSSESSION BY 1ST AND 2ND PLAINTIFF AS WELL AS RELIANCE ON THE GAZETTE AND MAP OF DELTA STATE; GROUNDS 6, 7, 8 AND 10.
3. HAVING REGARD TO THE WAY AND MANNER THE CASE WAS CONDUCTED WITH CONFLICTING TRADITIONAL ROOT OF TITLE OF THE 1ST AND 2ND PLAINTIFFS ON ONE HAND DIFFERENT FROM THE CASE PUT FORWARD ON BEHALF OF THE 3RD PLAINTIFF BY THE SAME COUNSEL WHETHER THE CASE OF PLAINTIFFS AS A WHOLE OUGHT NOT TO HAVE BEEN DISMISSED IN TOTAL FOR BEING INCONSISTENT, CONTRADICTORY AND IMPOSSIBLE TO BE GRANTED BY A COURT OF LAW AS CONSTITUTED.

On their part, the Respondents identified the following issues.

(1) That the trial judge did not consider the full weight and effect of the previous judgments of 1935 and 1965 between the parties.