German Omorogbe & Ors V. Samuel Ajayi & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the Judgment of the Edo State Customary Court of Appeal, Benin City in the APPEAL NO.CA/11A/2003 BETWEEN GERMAN OMOROGBE & 3 OTHERS (For themselves and on behalf of Ewudu Community) Vs Samuel Ajayi & 5 others (For themselves and on behalf of Oghobaghase Community) delivered on the 22nd day of December, 2005 wherein the Appeal of the Appellants was dismissed and Judgment of the trial court upheld.

Briefly, the facts of the case are that at the trial court i.e. Ovia North East Area Customary Court, Okada, the Respondents claimed a declaration that Oghobaghase Community is an existing community in Ovia under Bini native law and custom, and N7,000.00 damages against the Appellants for their acts of trespass into Oghobaghase Community land and an order of perpetual injunction restraining the Appellants, their servants, agents and/or privies from further acts of trespass.

On the other hand, the Appellants filed a counter claim for a declaration that the Oghobaghase Community does not exist in Bini native law and custom, that Ajayi Camp forms part of Ewudu Community, and an order of perpetual injunction restraining the Respondents, their agents or privies from further acts of trespass on the land.

The trial court in its Judgment found for the Respondents as claimed and awarded N5,000.00 damages against the Appellants. The counter claim of the Appellants was also dismissed.

Dissatisfied with the Judgment of the trial court, the Appellants appealed to the Lower Court i.e. Edo State Customary Court of Appeal, Benin City.

At the conclusion of hearing at the Lower Court, the Appeal of the Appellants was dismissed and Judgment of the trial court was affirmed.

The Appellants, dissatisfied with the Judgment of the Lower Court, now appealed to this court.

The learned counsel for the Appellants formulated a lone issue for the determination of the Appeal. The said issue is reproduced as follows:-

“Whether the Customary Court of Appeal was right in affirming the judgment of the Ovia North-East Area Customary Court, Okada particularly their stand on the issue of the customary law relating to the planting of the Ikhinmwin tree”.

The Learned Counsel for the Respondents adopted the lone issue formulated for determination on behalf of the Appellants.

At the hearing, the Learned Counsel for the Appellants referred to the Judgment of the Lower Court delivered on 22/12/2005. The record of appeal was deemed as properly compiled and transmitted on 16/10/2014.

Learned Counsel also referred to the Appellants brief of argument which was filed on 21/6/13 but deemed as properly filed and served on 16/10/14.

He applied to adopt and rely on the said Appellant’s brief of argument as his argument in this appeal. And he urged that the appeal be allowed and the Judgment of the Lower Court set aside.