Alfred Asagba & Anor Vs Onowha Ogaje & Anor (1972)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, JSC 

The title of this case in the High Court in respect of defendants requires some explanations. On reading the pleadings, as the learned trial Judge pointed out in his judgment, the two named defendants were sued in different capacities e.g. the defendant, Alfred Asagba is sued for himself and on behalf of the Asagba family whereas the second defendant Erute Ikpirima is sued for himself and on behalf of the Okotie family. The two defendants were separately represented by counsel at the hearing. This explains why the appellant is the first defendant although on the face of the writ the two defendants are sued jointly. It is necessary also to draw attention to the different spellings of the name of one of the two villages in dispute. It has been referred to either as Okuofori or Okwobori or Okwovbori or Okuovbori. This explains how these names have been used in this judgment. The appeal before us is against the judgment in Suit No. W/6/63 which was heard in the Warri High Court of the Mid-Western State by Atake, J. The claim consists of three items, viz:-

(a) a declaration for ownership by the people of Amukpe of all piece or parcel of land situate near Ikwewu village and Okowovori village;

(b) An injunction to restrain the defendants, their servants and/or all agents from entering the said parcel of land;

(c) An injunction to restrain the defendants from interfering with rights of the people of Okwovbori and Ikwewu villages and from collecting palm fruits or clearing the bush for farming purposes or planting rubber seedlings or harvesting the existing crops or building residential houses”.

Pleadings were duly filed. The plaintiffs in paragraphs 3, 6 to 10 and 12 to 15 of the Statement of Claim set out the basis of their case; they aver that the land in dispute is verged red in Survey Plan No. GB 3663 tendered in evidence at the trial as Exhibit 1; that the plaintiffs and defendants have a common ancestor, one Owere; that twelve villages, including the two in dispute, form what is known as ‘Amukpe Communal land’; that their common ancestor came from Orerokpe in Okpe Clan; that all the lands in Amukpe are jointly used and occupied by all descendants of Owere; and that the custom, which is strictly observed, prohibits the alienation of any portion of the Amukpe Communal land. The plaintiffs further aver in their Statement of Claim that the 1st plaintiff is a “first cousin in blood” of 1st defendant and that both of them are children of one Odjegba, who was himself a son of the common ancestor Owere; that five caretakers were appointed to look after specified portions of Amukpe Communal land; that in breach of the custom against alienation, the first and second defendants who were two of the five caretakers refused to surrender the lands placed in their care in spite of several requests; that the 1st defendant later surrendered a portion edged ‘brown’ in Exhibit 1; that the two defendants and other children of the remaining caretakers arranged amongst themselves to claim ownership of the lands and villages placed under their charge; that when this became known to members of Amukpe family the five caretakers were summoned and that three of them surrendered lands held by them, whilst the two defendants refused to surrender the portions under their care except the portion verged brown. The portions now in dispute consist of the land and villages of Ikwewu and Okwovbori and that in spite of several demands the two defendants refused to surrender the two villages to the Amukpe people.

The first defendant in his amended Statement of Defence avers in paragraph 2 as follows:-

“2. At the hearing of this suit the 1st defendant would raise a preliminary objection of Estoppel, by record, i.e. the defence of res judicata and would rely on the following judgments:-

(a) Suit No. MW/11A/49: Chief Ihwiwu, ( for himself and the Asagba descendants of Amukpe) and Emavboya Okorokporo (for himself and as representative of Ikuewu and Okuovbori people of Amukpe) and Chief Odebala and Emavboya Okorokporo (for themselves and on behalf of the people of (Amukpe) and Chief Ihwiwu Asagba (for himself and on behalf of Asagba family).

“The case MW/11A/49 was a consolidated appeal by Chief Odebala and Emavboya Okorokporo against Chief Ihwiwu Asagba against two judgments of Western Urhobo Native Court of Appeal which granted title of Ikwewu and Okuovbori land to Asagba Family of Amukpe, and the appeal was entered in favour of Asagba Family, thus confirming title in them, and granting Asagba damages for trespass.

(b) SUIT No. W/5A/52: Chief Ihiwu v. Emavboyan Okorokporo. The matter mentioned in (a) above went on appeal to High Court, Warri, where again the Appeal by Amukpe people was dismissed, but granting Ikuewu and Okuovbori people the right to occupy the land as Customary tenants of Asagba Family.

(c) SUIT No. W/53/58: In the High Court, Warri, Oghomienor Asaga (for Asagba Family) v. Mavboyan and Ors. in which the plaintiffs (Asagba Family) claimed £600 against Mavboyan and others of Okuovbori for waste in Okuovbori Oil Palm bush. Judgment was entered for plaintiffs. Survey plan NO. CC. 20/44 tendered per identification by plaintiffs.

(d) SUIT No. FSC. 387/1959: In the Federal Supreme Court, Lagos, Emavboyan v. O. Asagba the Appeal against the judgment in (c) above to the Federal Supreme Court was dismissed with costs.

(e) CASE No. 2/1959: In Western Urhobo Grade ‘B’ Customary Court, Oghomenor Asagba (For Asagba) v. Emavboyan Okorokporo and Ors.(For Ikwuewu and Okuovbori people of Amukpe) Action for forfeiture, Trespass and Injunction to Ikuewu and Okwovbori land: Action dismissed in Customary Court. Appeal to Magistrate’s Court, Sapele (in MS/36A/60) also dismissed but further appeal to High Court, Warri in W/39A/61 allowed. Right of ownership of Ikuewu and Okwovbori land affirmed in Asagba Family of Amukpe. (f) CASE No. 22/1960: In the Western Urhobo Grade ‘B’ Customary Court Orerokpe, Odebala Idirharume (m) (For and on behalf of the Amukpe people) v. Chief Amujaine Asagba (m) for himself and on behalf of Asagba Family, action for declaration of title to the lands known as Ikwewu injunction. The case was dismissed with £26:5/- costs and judgment for defendants as to title. Survey plans No. CC. 20/44 and No. GA. 100/57 were tendered in the case as Exhibits D and E respectively. (g) CASE No. MS/15A/61: In Sapele Magistrate Court the case mentioned in (f) above went on appeal by plaintiff/respondent, appeal dismissed.

The first defendant further avers in his amended statement of defence that the land claimed by the Asagba family as represented by him is larger than that claimed by the plaintiffs; that the land in dispute had always been the property of the Asagba family from time immemorial who had exercised all the time maximum rights as owners; that the two villages became vested in the ancestor of the Asagba Family, by purchase from the ancestor of the Okotie family, that the villagers in Ikwewu and Okuvbori had always paid tribute to the Asagba family as their customary tenants. The 2nd defendant in his Statement of Defence claimed that the two villages – Ikwewu and Okuovbori belong to his family, i.e., the Okotie family from time immemorial. In short the 2nd defendant maintained that at no time were the two villages sold to anybody. The relevant paragraphs of the Statement of Defence are 3, 4, and 7 of the 2nd defendants Statement of Defence which read:

“3. Save that the land in dispute is situate near Amukpe Town the second defendant denies paragraph 3 of the Statement of Claim and puts the plaintiffs to the strict proof.

4. In further answer to paragraph 3 of the Statement of Claim the 2nd defendant avers that portions of the Ikwewu and Okuovbori palm bush shown in the plan filed by the plaintiffs in this action belong to the Okotie family who is represented in this action by the 2nd defendant. The said portions of land are vested in the 2nd defendant and his family from time immemorial.

7. Save that there is a common purse of Amukpe people in which all rents collected on behalf of the Amukpe community.

The plaintiffs, at the trial, gave evidence in support of their traditional history. The 1st defendant also did likewise and in addition tendered the judgments set out in paragraphs 2 of the the amended defence and on which the plea of estoppel by record was based. The 2nd defendant also gave evidence of traditional history. He denied that his ancestor or any member of the Okotie family ever sold the two villages to the Asagba family. He also denied that the Asagba Family were the overlords of the two villages or that the villagers were customary tenants of that family. He corroborate

Other Citation: (1972) LCN/1335(SC)