Ayiwe Odjevwedje & Anor V. Madam Obenabena Echanokpe (1987)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The appellants were the plaintiffs in a suit which they brought against the respondent as defendant in the High Court of Bendel State, holden at Ughelli. The plaintiff’s claims as per their statement of claim were as follows –

“(1) A declaration that the Plaintiffs are the occupiers of the piece of land shown on Survey Plan No. ECBS 355/80 filed with this Statement of Claim.

(2) N7,000.00 being special and general damages for the trespass committed by the Defendants and/or her Servants (and) Agents when sometime in January, 1980,they entered the land and destroyed rubber trees belonging to the Plaintiffs and started building operation.

(3) Perpetual injunction against the Defendant and/or her servants and agents from further acts of trespass, and/or interference with Plaintiffs’ possession.”

Pleadings were ordered, filed and served. At the trial the 1st appellant as the 1st plaintiff, testified and called two witnesses, one of whom (P.W.2).was a surveyor. The defendant did not give evidence or call any witness. The trial judge was therefore left with unchallenged evidence adduced by the plaintiffs to determine the case. Since the defendant’s case rested on her pleadings, it becomes necessary to refer to both the statement of claim and the statement of defence for the purpose of showing the issues joined by the parties. Paragraphs 3,4,5,6 and 7 of the statement ‘of claim averred as follows –

“3. The land in dispute in this case known and called “Ukunumene” is situate at Ekiugbo village within the jurisdiction of this Honourable Court. The land which was founded by Chief Odjevwedje of Iwherenene the ancestor of the Plaintiffs, is verged in green in the Plan No.ECBS 355/80 filed with this Statement of Claim.

4. Many years ago Chief Odjevwedje the ancestor of the Plaintiffs gave a piece of land within the land in dispute to the defendant’s ancestor one Ojawuri for building and planting cash crops. The piece of land given to Ojawuri was near the Southern boundary of the land in dispute. Mr. Ojawuri built and lived there until he died. He kept within the boundary granted to him by Plaintiffs’ ancestor.
5. After the death of Mr. Ojawuri, one of his descendants Omumu the brother of Echanokpe trespassed on part of the land in dispute by planting rubber trees on it. Descendant of Chief Odjevwedge one Echalimi then filed an action against Mr. Omumu for trespass in the Ughelli Village Group Court in Suit No.70/41. The Plaintiffs got judgment against defendant and defendant appealed to Urhobo Divisional Appeal Court in Suit No. 79/41 which allowed the appeal.
6. The Plaintiffs then appealed to the Magistrate Court Warri in Suit W/124/1942 and that Court allowed the appeal. On further appeal by Omumu to the Supreme Court defendant’s appeal was dismissed. Plaintiffs will at the trial of this action rely on suits pleaded in paragraphs 5 and 6 of this Statement of Claim especially Suits Nos. W/124/1942: Isalomi ys. Omumu, W/41A/1946: Isalomi v. Omumu, and Survey Plan filed in Suit No. W/124/1942.
7. Since the Suits pleaded in paragraph 6 of the Statement of Claim the Plaintiffs have enjoyed their piece of land without any interference from anybody until on or about January 1980 when defendant and/or her agents, servants without Plaintiffs’ consent and very much against Plaintiffs’ interest broke and entered the said piece of land and felled over 300 rubber trees and started moulding blocks on the land. The Plaintiffs immediately warned the defendant but she was adamant. Plaintiffs summoned the defendant before the Ekiugbo’s meeting but defendant refused to go before it.”

These averments were denied by the defendant in paragraphs 4, 5, 6, 7, 8, 9, 10, 14, 17, 18, 21 and 22 of her statement of defence. Simultaneous with the denials, the defendant set-up her case. The paragraphs in question state

“4. The defendant categorically denies paragraph 3 of the statement of claim. There is no land at Akiugbo called “Ukunumene”. Ukunemene is a name of a juju at Ekiugbo. It situates in a small forest near to the old Ekiugbo market place abutting the Ughelli-Patani Road. Ukunumene juju forest is quite different from the land in dispute. The present Fremason houses at Ekiugbo abut Ukunumene juju forest.

5. With further reference to paragraph 3, the defendant avers that Odjevwedje was a native of Iwrenene. The land in dispute is a portion of land within Ekiugbo. Ekiugbo was founded long, long before lwerenene was founded. Odjevwedje who lived at Iwrenene after Ekiugbo was founded could not and did not found the land in dispute.
6. The defendant denies paragraph 4 of the statement of claim. She avers that Ojawiri the father of Buluku was old enough to be the father of Odjevwedje. Odjevwedge and Buluku were age group. The land in dispute was a small portion of a larger parcel of land founded by Erhiekevwe (m). He was the first person to set foot on it and cleared it of its virgin forest. Erhiekvwe was the son of one Ogbe one of the two men who found Ekiugbo village.
7. Erhiekevwe begat Aganogbo (m) and Kesiena (f) among others.
8. Kesiena was married to one Odjevwedje of Iwrenene. At her marriage Erhiekevwe made an out and out gift of a portion of his land to his daughter Kesiena according to native law and custom of Ughelli people and the remaining portion was inherited by Aganogbo. The land in dispute is a part of the parcel of land inherited by Aganogbo.
9. Aganogbo begat Erhinyeraye (f) and Numa (m). Erhinyeraye was married to one Buluku the son of Ojawiri of Ekiugbo. At her marriage, her father Agenogbo made an out and out gift of a portion of the land to Erhinyeraye also according to Ughelli native law and custom. She farmed and lived on the land until her death. She was buried on the land over 60 years ago. This now is the land in dispute in this case.
10. Erhinyeraye begat defendant’s father Echanokpe who also lived, farmed and died on the land. He was also buried there. The defendant in turn inherited the land from her father and she has been farming and living on the land in dispute.”

“14. The land given to Kesiena has a common boundary with the defendant’s land now in dispute.”

“17. The land Erhiekevwe gave to his daughter Kiesiena and that which Aganogbo later gave to his daughter Erhinyeraye have common boundary.

18. The 1st and 2nd plaintiffs in this case are not the descendants of Odjevwedje and Kesiena. The 1st plaintiff is grand child of Odjevwedje by another woman. The 2nd plaintiffs mother was a sister to Odjevwedje the husband of Kesiena.”

“21. With regard to paragraphs 4 and 5 of the statement of claim, the defendant avers that the land that was now in dispute. The land in dispute in that case was the parcel of land Erhiekevwe gave to Kesiena. The plaintiffs included Ukunumene juju forest in the land in dispute in that case. The cause of the action was that Mr. Omumu crossed the boundary between the two parcels of land and planted rubber trees on the land given to Kesiena. In fact the defendant’s father was alive and living and farming on the land in dispute in this case and had also planted his rubber trees and other crops on the land before the case pleaded by the plaintiffs started.

22. Recently, the defendant felled some of her father’s rubber trees with a view to building on it. The plaintiffs objected and summoned the defendant to Ekiugbo community meeting. The community met and heard evidence from both sides and decided in favour of the defendant. The defendant shall contend during the trial that the plaintiffs are estopped from bringing this action against the defendant.”

In his judgment dismissing the plaintiffs’ claims, the learned trial judge observed as follows –

“It would appear that the plaintiffs relied on previous suits contested over the land, especially Suit No. W/41A/1946 Isalomi v. Omumu and the survey plan, attached thereto which plan was tendered in Suit No. W/124/1942 Isalomi v. Omumu.