Newman Olodo & Ors. V. Chief Burton M. Josiah & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division, delivered on 5th June, 2002.

The respondents herein, were the plaintiffs in suit No.YCC/63/95 at the Customary Court, Onopa- Yenagoa filed by them in representative capacity. In their ‘Amended Claim ‘, they claimed against the defendants/appellants herein in a representative capacity i.e. for themselves and as representing Tombo family Unit of Izifa Compound, Ahenfa Epie, yelga, as follows:-

“A. A declaration that the plaintiffs (Izifa Compound) are vested with Customary Right of Occupancy over and covering the piece or parcel of land known and Called Azigene bush situate in Akenfa Epie, Yelga.

B. A declaration that the defendants who are descendants of one of Izifa’s daughters are not vested with an exclusive right or better right of ownership (title) than the plaintiffs over the land known and called Azigene bush situate in Akenfa Epie, Yelga.

C. An order of perpetual injunction restraining the defendants by themselves, their agents, assigns, servants or successors-in-title from exercising further acts of trespass or exclusive right over the said Azigene bush.”

The appellants, as plaintiffs in Suit No.YCC/64/95 (for themselves and as representing Tombo family Unit, Akenfa-Epie, Yelga) also claimed as follows:-

“A. Declaration that the plaintiffs are vested with an exclusively Customary Right of Occupancy over and covering the piece or parcel of land known and called OKPUZA LAND and the creeks therein situate in Azigene Bush Akenfa, Epie.

B. An order of perpetual injunction restraining the defendants by themselves, their successors-in-title, agents servants, assigns or privies from further acts of trespass.”

On 23rd November, 1995, the trial Customary Court ordered the consolidation of the two suits for purpose of hearing. Each party adduced evidence and called witnesses. At the conclusion of evidence, the court inspected the land in dispute in company of the parties/representatives. In its judgment delivered on 25/6/96, the trial Customary Court found in favour of the defendants and pronounced at page 70 of the Record as follows:-

“Having carefully considered the evidence before us, we hereby give the following judgment –

1. That the portion or piece of land called Azigene (excluding Okpuza land and creeks) belong to the people of Izifa family of Akenfa town. Accordingly, the Customary Right of Occupancy over the said Azigene land excluding (Okpuza lands and creeks) is hereby awarded to the plaintiffs.
2. The land known and called Okpuza land that is – the portions or parcels of land surrounding the four Okpuza creeks including Ozinkoye and Olodo fishing channels which the defendants inherited from their own grand father belongs exclusively to the defendants. In this regard, the Customary Rights of Occupancy over the lands surrounding the said Okpuza creeks including Ozinkoye and Olodo fishing channels is hereby awarded to defendants.
3. Both parties are hereby ordered to restrict their farming and fishing activities to their respective portions only.”

The plaintiffs felt unhappy with the stance posed by the trial Customary Court and appealed to the High Court of Appeal. Thereat, Ungbuku, CJ on 21st October, 1999 upturned the judgment of the trial Customary Court. The reason given by the learned Chief Judge was that the trial Customary Court failed to properly evaluate the evidence before it and thereby caused a miscarriage of justice.

The defendants who were not pleased with the judgment appealed to the Court of Appeal which heard the appeal. In its own judgment handed down on 5th June, 2002,the judgment of the learned Chief Judge was affirmed. The defendants have, ex debito justitiae, appealed to this court.

On 11th October, 2010 when the appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument filed on behalf of each party. Each counsel also advanced useful oral argument.