Rev. David O. Okidika & Ors V. Joseph O. Luke & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED I. ADAN TSAMIYA, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of Rivers State High Court sitting in Ahoada in its appellate jurisdiction from the decision of the Customary Court Ahoada delivered on 8th day of December 2004 in the consolidated suits wherein the appeal of the appellants herein, was dismissed, thus affirming one decision of the trial Customary Court sitting in Ahoada, in Rivers State.

The claim of the appellants, herein, as the plaintiffs, before the trial Customary Court as per their claim at page 2 of the record of this appeal and in their suit No. ACC /35/99 reads:-

1. A declaration of title and customary right of occupancy over part of the Ude-Egbe farm land and part of Unugbu-lu-ogba swamp, situate at Ogbede village.
2. The payment of sum of N50,000.00 as damages for trespass and general damages for farming the lands in dispute for over 20 years, without consent;
3. The payment of N50,000.00 for digging the fish-ponds on Unugbulu-ogba swamp properly without plaintiffs’ consent,
4. Order of injunction restraining the respondents herein, as defendants, their agents, heirs, servant and privies, from further act of trespass on the said farm land and swamp. The defendants (as respondents herein, denied the appellants claims.

Subsequent to the above, the appellants also counter claimed in their counter claim suit No. AC/75/99 as follows:

1. Declaration that all the defendants, as appellants herein, are not members of members of Umu-ordu family of Ogbede village,
2. Declaration that the respondents herein, ore owners in possession of the said Ude-Egbe farms land and swamp, and has the customary right of occupancy thereof,
3. Order that the appellants should hand over to the respondents all the farms land/swamp belonging to the respondents that have been in custody of the appellants, which include:

(a) Ishiugbulu farmland

(b) Unu-wolo farm land,

(c) Iwhu farmland,

(d) Egbululca-ogbede farm land,

(e) Ele Ogbede farm land.

4. Payment of N5,000.00 for the use of the respondents’ farm land, and swamp.
5. A perpetual injunction restraining the respondents, their heirs agents, servants and privies from further act of trespass on the said farms land/swamp.

It should be noted for the purpose of trial, the parties to this appeal agreed for the two suits, namely, ACC/35/99 and ACC/75/99, having fulfilled the conditions for consolidation, to be consolidated and in fact they were consolidated by virtue of section 37(2) of Rivers State Edict No. 7 of 1987 for easy adjudication.

After hearing of evidence, and the learned counsel for the parties the trial customary court dismissed their entirely the appellants’ claims and entered judgment in favour of the respondents and affirmed the said farms land/swamp to the respondents.

On counter-claim, it was decided as ambiguous. The appellants appealed to the State High Court and in the High Court, the appellants submitted two issues for the determination of the High Court. In summary the issues were:

(1) whether the customary court Ahoade was not wrong in giving judgment in favour of Defendants/Respondents not withstanding their failure to prove boundaries of the land, traditional history and in the face of the existence of customary arbitration between the parties.

(2) Issue no 2 has to do with the question of bias and the constitution made by the respondents on the outcome of the trial before the customary.