In the High Court of Bendel State the respondents herein as plaintiffs brought an action against 1st-6th appellants (defendants in the Court of 1st instance) claiming in these terms:
"As against all defendants -
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1
A declaration of title to all that piece or parcel of land known as Ogude land lying and situate in Ikuewhu village and its neighbourhood in Agbarho clan Eastern Urhobo Division within the Ughelli Judicial Division in respect of which this Honourable Court continues to exercise jurisdiction. The exact area and situation of the said piece or parcel of land will be more particu¬larly described and shown on the survey plan to be filed in support of this action. Annual value of the said piece or parcel of land is N40.
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2
The sum of N1,000 (One thousand naira) being general damages for trespass committed by the defendants a year ago in respect of a portion of Ogude land in possession of the plaintiffs.
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3
Perpetual injunction restraining the defendants, their servants, privies and/or agents from trespassing and/or further trespassing on plaintiffs' said piece or parcel of land.As against lst-4th defendants only A declaration that the defendants by setting up title adverse to the plaintiffs' title in relation to the said Ogude piece or parcel of land they (defendants) have forfeited under customary law or native law and custom their rights of user with respect to that portion of Ogude piece of parcel of land granted and/or allowed to them by the plaintiffs"
By order of court made in April, 1976, the 7th-9th defendants (7th-9th appel¬lants herein) were made parties to the suit. The 7th defendant/appellant Chief Oghuvwu Obodo joined for himself and on behalf of Eridi family of Ovwerhe village, Agbarho, Ughelli Local Government: 8th defendant/appellant. Chief Arubi Omamohwe, joined for himself and on behalf of Okparigun family of Ehwerhe village, Agbarho, Ughelli Local Government area, while the 9th defendant/appellant. Chief Agbamukoro Ayandju (substituted on 5/7/77 for Chief Okparumo Ayandju de¬ceased), joined on behalf of Okparegbe Community of Agbarho, Ughelli Local Government area. Pleadings were ordered, filed, and delivered. It is pertinent at this stage to mention that the plaintiffs, that is respondents herein, filed a plan of the land in dispute as between them and 1st-6th defendants/appellants. The plan No. ER.1491 was admitted in evidence as exhibit A. The 7th-9th defendants/appel¬lants filed a plan of the land which they claim was in dispute. The plan No. MWC/1186/77 was admitted in these proceedings as exhibit C.
Having refused the claim for trespass on the ground that there was no evidence before him that the 1st-4th defendants/appellants went beyond the area granted to Obukohwo, he then dealt with the claim against 1st-4th defendants/appellants for forfeiture. On this he concluded:
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"Much as I have already accepted that radical title to the area granted to Obu¬kohwo lay in the Ogude family, the position today would seem to be different. Section 1 of the Land Use Decree 1978 now vests title to all land in Bendel State in the Governor. In the circumstances, although I find that those defendants have been blameworthy in their conduct of denying throughout this case that they derived possession from the plaintiffs, no useful purpose will now be served by making an order of forfeiture against them".
The plaintiffs appealed to the Court of Appeal which in a unanimous judgment dated 25th November, 1982 (Ete, Agbaje and Okagbue, J.J.C.A.) allowed their appeal although the order on title was varied. More specifically Agbaje, J.C.A. who wrote the lead judgment decided as follows:
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'The judgment of the learned trial judge, dismissing the plaintiffs' claims for a declaration of title to the land in dispute and forfeiture of the interest of the 1st-4th defendants in the land is hereby set aside. In its place I hereby declare that the plaintiffs are entitled to a right of customary occupancy of the land in dis¬pute against all the defendants in the case. The claim for forfeiture against the 1st-4th defendants by the plaintiffs is hereby granted. The 5th-9th defendants are hereby restrained by me from coming on the land in dispute".
As the plaintiffs did not appeal against the learned trial judge's decision on trespass and injunction the Court of Appeal did not disturb it.
It is pertinent to state that the Court of Appeal did not upset the findings of fact made by the learned trial judge. Its decision was rather based on those findings.
