Jack Afiuwa Ekpoke & Anor V. Douglas Usilo & Ors. (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C

The appellants were plaintiffs and the respondents defendants in the High Court of Justice, Midwestern State of Nigeria (now Bendel State) in Suit S/26/70 filed at Sapele wherein the plaintiffs claimed according to the endorsement on the Writ of Summons:

“(1) A declaration of title under Okpe Native Law and Custom to that parcel of land lying along Jeddo-Ughoton Road, Okpe Clan in an area shown on the plan to be filed in this Suit. The annual rent of the land is 10 Pounds or N20.00.

(2) An order that the sum of 210 Pounds (Two Hundred and Ten Pounds) paid by Shell-BP Petroleum Development Company to the defendant in respect of a burrow pit on the plaintiffs’ land and which the defendants refused to hand over to the plaintiffs’ community in spite of persistent demands should be paid by the defendants to the use of the plaintiffs.”

Pleadings were ordered and duly delivered. The issues joined later came up for trial before Oki, J. and after hearing evidence from the parties and their witnesses, he found in favour of the defendants and dismissed the plaintiffs’ claim in a considered judgment, the concluding paragraphs of which read as follows:

“In this case the plaintiffs have failed woefully to prove title either by traditional evidence or by acts of ownership. The defendants’ traditional evidence appears slightly better in that it is linked with Ogodo who was accepted on all sides as one of the sons of Esezi 1 who went to Ughoton. Moreover, the defendants appear to me to be more in possession of the land than the plaintiffs if indeed plaintiffs are.

The plaintiffs have failed to prove either of the arms of their claim. In the result their claim must be dismissed and is accordingly hereby dismissed.”

Being aggrieved by this decision, the plaintiffs lodged their appeal to this court and the grounds relied on and set out in their Notice of Appeal are as follows:

“(1) That the decision of the court cannot be supported having regard to the weight of evidence;

(2) The learned trial Judge erred in law when he held that the judgment of the Native Court in Case No. 64/65 Abiogweche v. Ererheri and another in the Okpe Native Court No. 1 operates as res judicata against the plaintiffs/appellants in this suit when it is clear that

(a) The parties are not the same

(b) The subject matter is not the same

(c) The land is not the same.

(3) The learned trial Judge misdirected himself in law when he said