Chief Albert Alikor & Ors. V. Rev. Chief M.W. Ogwo & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
On the 13th December, 1999, the Respondents who were the Plaintiffs in the lower Court filed an amended statement of claim, claiming from the Appellants who were then Defendants the following reliefs:
“WHEREFORE, THE Plaintiffs claim from the Defendants the reliefs/remedies:
(a) A declaration that the statutory right of occupancy in respect of that piece or parcel of land lying and situate at Awhua/Ahua village, Omagwa, Isiokpo in the Ikwerre/Etche Local Government Area, otherwise known as and called ‘EKWU OMEKTU AGWUO-NUAWHUA, rests in the Plaintiffs.
(b) N1,000,000.00 being general damages for trespass.
(c) A perpetual injunction restraining the Defendants jointly and severally, personally and through their servants, and/or agents, privies and representatives in interest from committing further trespass on the land in dispute.”
The Appellants as Defendants in an amended statement of claim in paragraph 7 thereof averred thus:
“Save as hereinbefore specifically admitted, the Defendants deny each and every allegation contained in the statement of claim as though the same were herein set forth and traversed seriatum”.
The Appellants also counter-claimed as follows:
- The Defendants repeat the averments in paragraphs 1 – 7 of the Defendants, statement of defence.
- WHEREFORE the Defendants claim against the Plaintiffs is for:
(a) A declaration that the statutory right of occupancy in respect of that piece or parcel of land called AKWU EHIE lying and situate at Imogu village. Omagwa vests in the Defendants;
(b) N1,000,000.00 (One million naira) being general damages for trespass:
(c) A perpetual injunction restraining the Plaintiffs jointly and severally, personally through their servants, agents, privies and representatives from committing further trespass on the land in dispute.
The facts of the case as can be gleaned from the records are that: The Respondents in the appeal were the Plaintiffs in the lower Court; while the Appellants were the Defendants in that Court. All the parties are from Omagwa in Ikwerre Local Government Area of Rivers State. They share a common ancestor or pregnitor in Agwa who was claimed to have been the sole founder of the entire Omagwa village.
The Respondents in the lower Court claimed to be are native of Omoeketu in Oma-agwa and that they own the land in dispute which they called ‘EKWO OMUEKETU AGWUO-NU-AWHUA’. According to them AGWA, the original founder of the land fathered OPARAGWA, IMOGU, ORLU AGUBIA AND. OCHIM. That Ogum fathered EKETU and that they ate the descendants of Ogum through their father called “EKETIJ”.
It is the Respondents’ case that Eketu fathered eight sons i.e. OTTAH, WOGWUM, OBOH, AWHUA, OKOLOPA, AGWUO, NWENNE, NJOR and IHUOMENA and that the portion shared to Ogum by his father was inherited and shared within his children who have been referred to above. The Plaintiffs averred that the area directly in dispute is the portion shared directly to Agwuo and Awhua by Eketu their father.
On the other hand, the Defendants’ case is that the Plaintiffs are stranger elements in Omagwa. That they (Plaintiffs) came from a place called “AMAEKE ETITI” in the Bende Area of Umuahia in the present day Abia State. They contended further that the Plaintiffs’ ancestor “EKETIJ” was a. non-existing; that Ogwum had no so-called Eketu and that the Plaintiffs’ claim to the land in dispute through Eketu is unfounded.
The parties filed and exchanged their pleadings and called respective witnesses in proof of their respective claims. Counsel to the parties submitted written addresses which were subsequently adopted. In a considered judgment delivered on the 5th of October, 2005, the learned trial Judge held inter alia as follows:
“In view of the foregoing it is my view and I so hold that considering the totality of the case put forward by both parties, Defendants have failed to prove their case on the balance of probabilities. They have failed to discharge the burden of proof placed on them. I therefore find no merit in their claim and hereby dismiss same. Plaintiffs’ on the other hand having established their title by credible and reliable evidence, I hereby hold that their case has merit and accordingly enter judgment in favour of the Plaintiffs…”
The learned trial Judge needless to say granted all the reliefs claimed by the Plaintiffs with five Thousand Naira costs in their favour and against the Defendants.
Aggrieved by the decision of the Court below as adumbrated above, the Appellants appealed to this Court through their original notice of appeal containing seven grounds of appeal dated 09/11/2005 and filed on 10/11/2005.
The Appellants by subsequent order of this Court granted on 07/11/2006 were given leave to file and argue 17 additional grounds of appeal, and also leave to amend the notice of appeal incorporating all the grounds of appeal. The amended notice of appeal which was exhibited to Appellants’ motion on notice dated 11/08/2006 and filed on 14/08/2006 was deemed as properly filed and served with effect from 07/11/2006.
In compliance with the rules of this Court, the parties duly filed and exchanged their briefs of argument. Learned Counsel for the Appellants withdrew the Appellants’ brief dated and filed on 18/12/2006 and the Appellants’ reply brief dated, and filed on 26/09/2007 and both briefs were struck out. Learned Counsel adopted and relied on the Appellants brief dated and filed 16/09/2008 as well as the Appellants’ reply brief dated and filed on 22/10/08. Learned Counsel for the Respondents equally withdrew the Respondents’ brief dated and filed on 18/05/2007 and same was accordingly struck out. Learned Senior Counsel adopted and relied on the Respondents’ brief of argument dated and filed on 21/10/2008 as his arguments in this appeal.
From the twenty four grounds of appeal, learned Counsel for the Appellants in a brief settled by J.T.O. Ugboduma Esq. distilled seven issues for determination as follows:
“(1) Whether the learned trial Judge was justified in law when she held that the Respondents action was competent.
(2) Whether the Appellants were not denied their right to fair hearing in the circumstances of this
(3) Whether the learned trial Judge misdirected herself or misconceived the case of the parties as to the real bone of contention between the parties in the suit.
(4) whether the learned trial Judge was justified in holding in one breath that there was no conflict in the traditional evidence of the parties and in holding in another breath that there was conflict and in resolving the conflict other than in accordance with the test laid down in the case of Kojo II v Bonsde (1957) 1 WLR 1223,
(5) Whether from the pleadings and the’ evidence led in the suit, the learned trial Judge was justified in law when she held that the Respondents had proved their case based on traditional history and to have based her judgment on that ground in their favour’
(6) Whether from the pleadings and the evidence led in the suit, the learned trial Judge was justified in law when she rejected the Appellants, case and dismissed the counter claim.
(7) Whether the decision of the learned trial Judge is against the weight of evidence.”
For his part, in a brief settled by F.A. Oso Esq (SAN), learned Counsel formulated three issues for determination to wit:
“(i) whether the court below properly evaluated the traditional history of the parties in the case and therefore came to a right decision.
(ii) Whether the parties were fairly heard by the Court below.
(iii) Whether the Respondents’ cast as constituted was competent.
On the 29th January, 2009, when the appeal came before us for hearing, learned Counsel for the Appellants, J.T.O. Ugbodump Esq adopted the Appellants’ brief as well as Appellants’ reply brief as alluded awhile ago and urged us to allow the appeal. Learned Senior Counsel Mr. Eso also adopted the Respondents’ brief and he urged us to dismiss the appeal for lacking in merit.
Let me pause at this juncture and say that I have critically examined the issues formulated by Counsel for and against the issues at stake. Issue No. 1 as formulated by the Appellants’ Counsel is not dissimilar with the issue No. 3 as formulated by learned Senior Counsel for the Respondents. Issue No. 2 as formulated by the Appellants is similar to issue No. 2 as formulated by the Respondents. I am of the view that this appeal can be disposed of by giving consideration to the issues as formulated by the learned Senior Counsel for the Respondents. They seem to me to encapsulate more comprehensively all the areas in dispute to be explored in the consideration of this appeal. It is in this light that this appeal will be considered.
It is pertinent to observe at this stage that the Appellants filed a reply brief which he adopted with his main brief on the 19/01/2009. A thorough and meticulous examination of the reply brief would show that most of the points raised therein were already canvassed in the main brief of the Appellants. Needless to say a reply brief is meant to answer or respond to new or fresh points raised in the Respondents’ brief. See: Order 17 Rule 5 of the Court of Appeal Rules and the case of Shuaibu v Maithoda (1993) 3 NWLR (Pt.284) p. 748.
In the circumstances of this appeal, I am minded to say that the new issue raised in the Respondents’ brief, if it has to be responded to is that part of his Senior Advocate’s submission that some findings made by the learned trial Judge were not appealed against which the learned Counsel for the Appellants has responded to in the said reply brief. In view of the foregoing, the reply brief of the Appellants will only be considered in the light of the fresh issue raised by the learned Senior Counsel as highlighted above.
Issue No. 1 is whether the Court below properly evaluated the traditional history of the parties in the case and therefore came to a right decision. In arguing this issue learned Senior Counsel contended that it is common place that the parties in the case in hand predicated their claims in the Court below on evidence traditional history by original occupation.
The question to be asked from the onset is what is the duty or responsibility of the party whose case is based on a traditional history as in the case we have in hand. The law is now settled that where a claimant to Right of Occupancy (Statutory or Customary) based his claim on a traditional history and he successfully discharge the onus of proof of that root of title, there is no need for him to lead evidence proving or showing acts of possession or any mode of proving title to land. See Balogun v Akanji (1988) 1 NWLR (Pt. 70) 301 at 322, paragraphs B to E and Idudun v Okumagba (1976) 1 NWLR 200 at 210.
It has also been held in a plethora of decided cases that a party relying on evidence of traditional history must plead his root of title. He is required to show in his pleadings and evidence who those ancestors of his are and how they came to own and possess the land and eventually passed it to them. See Akinloye v Eyiyola (1968) 7 NWLR and Ohiaeri v Akabueze (1992) 2 NWLR (Pt. 221) p.1.
Finally, where the pleaded root of title to the land has not been proved, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass. See Balogun v Akanji (supra) at 301; Fasoro & Anor Beyioku & Ors (1988) 2 NWLR (Pt. 263) and Oyare v Keji & Anor. (2005) 123 LRCN 17 at p.32.
Having stated the law and all that, it is appropriate to consider the respective cases of the parties vis-a -vis the evidence adduced for and against with a view to finding whether or not the learned trial Judge properly evaluated the traditional history of the parties in the case.
As can be gleaned from the printed record, the parties in providing their case called a total of three witnesses who needless to say gave evidence in support of the traditional history canvassed by each party. The crucial point for consideration in this issue is whether at the risk of being repetitive, the learned trial Judge evaluated the evidence adduced by both sides of the divide.
It is noteworthy to note that, the learned trial Judge after reproducing the evidence of traditional history of the two competing parties held thus:
“The question that arises for determination is that between the two histories which is not probable? This calls for placing both histories on the imaginary scale of -justice and to find out which preponderates not by number of witnesses called by each party but the quality of probative value of the testimony of these witnesses.” Chukwu v Nneji (1990) 6 NWLR (Pt. 156) p. 363 at 381 – 382 paras G – A.
The learned trial Judge went on to formulate three sub-issues to be determined for the purposes of deciding which of the two histories is most probable. They are:
“(1) Who is Eketu? A migrant or freeborn of Omagwa.
(2) Is there a link between Eketu and Ogum or not.
(3) Can the evidence of migrants be sustained?
After a thorough and meticulous consideration of the evidence adduced by the parties spanning over seven pages of his judgment (203 -213) the learned trial Judge held thus:
“I believe the testimony/evidence of the Plaintiffs that they are children of Eketu. In other words, descendants of Eketu.”
He further held that:
“The traditional history on the genealogical descent of Eketu from Ogum of the Plaintiff is consistent and continuous. No break in the story line, no doubt or mystery raised.”
On the traditional evidence of the Defendants/Appellants, learned trial Judge held that the traditional evidence of DW1 and DW2 did not seem probable to him at all. It defied explanation. How could Ogum’s sons be called Omuekelu and not Omuogum as would have been expected especially when defendant (DW2) alleged Eketu was a migrant?
The learned trial Judge having carefully reviewed both histories came to the conclusion that Plaintiffs traditional history is more concise, credible, continuous believable and most probable. He went on to hold thus:
“The imaginary scale of justice preponderates more in favour of the Plaintiffs’ case as against the material contradictions, gaps, mysteries and unanswered questions in the testimony of Defendants’ witnesses which are hereunder out lined:
- How come Olo and Ogum founded a village after them called Omuolo meaning children of Olo when Ogum is a brother and not a son to Olo. From the evidence of traditional history relating to the use of the word Omu and considering the literal meaning of the word, this piece of evidence is very doubtful.
- How can we explain the fact that Eketu a purported migrant came to own a large village in Omagwa known as Omueketu comprising of eight sub villages four of which purportedly Ogum’s sons. This is an unsolved mystery.
- How can we explain the fact that Chief Okolokpa of Okoiokpa village admitted that even though he is a descendant of Ogum he is from Omueketu. His village is called Omueketu. Contrary to DW1’s testimony that Okolokpa was from Omuogum.
- How can we explain the fact that DW1wr who said there was no man called Eketu and that, not heard of any such person, under cross-examination now admits that Eketu is a migrant and had four sons, Oboh, Nwenne, Agwuo and Awhua?
- All the witnesses from Omagwa admitted that in Ikewerre ‘Omu’ means ‘children’ and so any name beginning with Omu simply means r children of the name of the person following the word Omu and the witnesses further said that any such name actually means such person fathered such children. The evidence of DW3, DW7 and PW3 refers. In other words Omu-Eketu (children of Eketu) simply means Eketu fathered the said children. If this is the case and in view of (3) above, can it be said that Defendants are migrants?
- Furthermore how do we verify and/or corroborate the history of DW1 as to plaintiffs being migrants when none of his witnesses corroborated same, whereas plaintiffs’ testimony was corroborated by PW3. On this issue,_ Chief Okara contended that it is only a descendant of Agwa or a person from Omueketu that can corroborate the evidence of PW1. White I totally disagree with Counsel about who can corroborate what evidence, I wish to state that PW3 who corroborated PW1,s testimony as earlier stated is a descendant of Agwa from Omuolo and even though Chief Okara contends he had no permission to testify on behalf of his family, PW3 categorically stated he came as an individual, like all other witnesses in this case’ to testify and besides, there is no law preventing him from testifying in his individual capacity. DW2 whose evidence also corroborates PW1’s testimony is from Omueketu.
- The fact that DW1 admits that Eketu had sons called Oboh, Nwenne, Agwuonu Awhua negates his testimony that Omueketu is a corrupted version of Ama eke Etiti. It is established that these sons founded villages after them as is customary with Ikrverre custom. They are called Omueketu.
- Finally DW says the land in dispute is in Imogu-Omuetutua, the Imogu seen during the visit to the locus is after Agwuo nu Awhua. The area where the land in dispute is situate is called Omueketu. DW2 said the whole area even after the boundary to Agwuo nu Awhua is Omueketu. He did not say Imogu-Omuetutua was next to Okolokpa village or before it. Rather, that the whole area belongs to Omueketu; including the area immediately after the boundary. This too is a matter that cannot be explained.
- How can we explain the geographical location of Omuetutua next to Okotokpa if at all; when DW1; DW2 and DW4 all testified to the fact that Omuetutua is in Imogu and Imogu is the last village in Omagwa? From Isiokpo you get to Okparagwa; Omuagubia, Omueketu before Imogu, what then is Omuetutua doing outside Imogu right in the middle of Onrueketu”‘
From the above issues as adumbrated (supra) it is clear that on the balance of probabilities the scale of justice will preponderate to tilt in favour of the plaintiffs/Respondents. There are indeed several gaps in the traditional evidence of Defendants/Appellants as stated above which defy explanation and leave much room for doubts. The evidence of Defendants/Appellants is not conclusive.
In the light of the foregoing, issue No. 1 is answered affirmative.
The next issue for determination is issue No. 2 which is whether the parties were fairly heard by the Court below.
Learned counsel for ‘the Appellants’ contention under this issue is that there were glaring instances in the judgment of the learned trial Judge which showed that the learned trial Judge descended into the arena to shore up the case of the Respondents to the detriment of the Appellants. Some of the instances learned Counsel contended are Omagwa community, site; “Ngbaboana” or Four Road Junction; Respondents’ survey plan; Defendants boundary witnesses; competency of action and Rejection of Appellants documents duly pleaded and admitted in evidence to prove act of ownership.
It is the submission of the learned Counsel that the foregoing are some of the instances where the learned trial Judge failed to hold the balance between the parties. He further submitted that this constitutes a breach of the fundamental right of the Appellants to fair hearing as enshrined in Section 36(1) of the 1992 Constitution.
Learned Counsel for the Respondents on the other hand contended that to say that the Court below descended into the arena, with all due deference to the learned Counsel, is unjustifiable to say the least. To buttress his submission point, learned Counsel referred us to page 232 of the record wherein the learned trial Judge held thus:
“On the issue of the Community Secondary School, it is evident that there is no Secondary School on the land in dispute. That the Defendants gave the said piece of land out to the Community is not the issue. Is the School presently on the land? That is the act of possession. Why was the School taken to another site or village? No evidence was given to that effect. It will therefore be wrong to say that Omuetutua gave land to the Omagwa Community when there is no School on ground. DW4 himself said it was the first site mapped out for the School. However, the School was moved to another site, why? A look at both plans shows that whilst Defendants’ claim to have given same out for a School. Plaintiffs’ plan shows it is one of the causes of action wherein they claim Defendants trespassed thereon. The visit to the locus did not show Omuetutua in possession… Both the plans and evidence show that rather than being an act of possession, the said proposed site for the School as stated by the Defendants is part of the reason for this action. The Court has to decide whether the Defendants had a right to enter the said land or not such an act which is the subject matter of an action for trespass cannot pass as an act of possessions which act, must have ensured without objection from anybody.”
Learned Senior Counsel contended that what the Court below is saying in the paragraphs quoted (supra) is that what the. Appellants regard as an act of possession was indeed an act of trespass and a cause of action which made the Respondents to have taken the present action against the Appellants. Learned counsel posed this question that can anyone justifiably regard the above conclusions of the court below “as a descent into the arena of conflict? He answered the question in the negative. Learned Counsel opined that there must have a gross misconception of the purport of those findings and conclusions by the Court below which led to it being misunderstood.
It is the submission of the learned Senior counsel that assuming, without conceding that the given out of the Omagwa Community Secondary School land was done by the Appellants as an act of possession, that cannot even avail their case in any way. Learned Senior Counsel is of the view that the dismissal or rejection of their traditional history by the Court below and justifiably too, has made that donation to be an act of trespass and not possession. He relied on the case of Balogun v. Akanji (1998) 1 NWLR (Pt. 70) 301 at 322, paragraphs B – E.
Now, it is settled beyond peradventure that fair hearing according to our law envisages that both parties to a case be given opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing the parties’ case, should be fair and impartial without showing any degree of bias against any of the parties. See Ekpeto v Wanogho (2004) 18 NWLR (Pt. 905) 394 at 411 (per Kalgo, JSC and Okoduwa v The State (1988) 2 NWLR (Pt. 76) 333 a p. 351 (per Belgore, JSC as he then was).
In the latter case Okoduwa v The State (supra) the apex Court held thus:
“There are certain fundamental norms in the system of administration of justice we operate. That system is the adversary system, in contradistinction to the inquisitorial system. In that adversary system parties, with their Counsel, and the Judge have their respective roles to play. Basically, it is the role of the Judge to hold the balance between the contending parties and to decide the case on the evidence brought by both sides and in accordance with the rules of the particular Court and the procedure and practice chosen by the parties in accordance with those rules. Under no circumstances must a Judge under the system do anything which can give the impression that he has descended into the arena, as, obviously, his sense, of justice will be obscured. This is the necessary inference from all the decided cases on the point….”
It is pertinent to state at this juncture that the crucial issue for resolution in this issue is whether the parties to the case under consideration have been given a fair hearing in line with the law on this issue as adumbrated above. A cursory look at the proceedings of the court below would leave no one in any doubt that both parties were accorded equal opportunities to present their respective cases without let or hindrance by the learned trial Judge. I am minded to say without fear of any contradiction that this is what fair hearing is all about. I am of the further view that the Court below was not bound to consider the Appellants acts of possession when their traditional history of settlement has been reasonably rejected. In the case of Balogun v. Akanji (supra) the Supreme Court per Oputa, JSC said:
“The dictum of the full Court per Weber J in Ekpo v. Ita (supra) (that the onus is on the plaintiffs claiming a declaration of title to land to prove acts of possession and or ownership, numerous and positive enough to warrant the inference that the plaintiff’s were exclusive owners, applies, is erroneous. The dictum will only apply where the Plaintiffs’ root of title is acts of possession. It will not apply where the root of title, pleaded and, relied upon is traditional evidence (as in this case). In either case, acts of possession may be exercised subsequently and consequently to the primary root of title relied upon”.
From the above postulations, the learned trial Judge was not under any obligation whatsoever to consider paragraph (ii) (vii) (viii) and (ix) under issue No. 2 as formulated by Appellants. This is so because they are all acts of ownership and possession and are caught by the decision in Balogun v. Akanji (supra).
This issue like the previous one is resolved in favour of the Respondents and against the Appellants.
Issue No. 3 is whether the court below property evaluated the traditional history of the parties in the case and therefore came to a right decision. In arguing this issue, learned counsel for the Appellants contended that by paragraph 1 of the Amended Statement of claim, the Respondents pleaded that they are natives of Omueketu village in Omagwa and that they brought the suit for themselves as representatives of Omueketu village.
Learned counsel further contended that the capacity the Respondents sued was also stated in the title of the suit as “suing for themselves and as representatives of Omueketu village/community of Agwuo/Ahua village, Omagwa .. ”
Learned counsel posited that the Respondents brought the suit in a representative capacity on behalf of themselves and that of Umueketu village or Omueketu village/community or Agwuo village, Omagwa.”
Learned Counsel referred to the testimony of PW1 under cross-examination wherein the witness stated thus:
“The area we call Eke-Oueketu-Agwa/Ahua is the land we are claiming in this Court. Individual families within the Agwa/Ahua own their own portion in the land in dispute.”
Learned Counsel further posited that the same witness (PW1) had said in his evidence that the Agwa/Ahua land is owned by individual families within the land. He further referred to some portions of the evidence adduced by the Respondents showing individual ownership of the land in dispute and submitted that from the said evidence of PW1 he and others claimed to own individual/family lands within the lands in dispute. That being the case, learned Counsel further submitted that neither the Umueketu (Omueketu) village nor Agwa/Ahua as a whole can bring this suit in a representative capacity as the land in dispute is not communally owned.
It is the submission of the learned Counsel that the several families/individuals who are alleged to own separate portions of the land ought to have brought separate actions in respect of their respective portions. Learned Counsel went to say that the Respondents therefore do not have same interest in the suit and cannot sue on behalf of the other families of individuals who are alleged to own separate parcels of land in the land in dispute.
Learned Counsel finally submitted that the action is incompetent and the trial Court lacks jurisdiction to determine it. He relied on the cases of ofia v Ejem (2006) 11 NWLR (Pt. 992) 652 at 665 paragraphs B – D and F – G and Oragbade v Onitiju (1962) 1 All NLR 32 at 37. We were urged to resolve this issue in favour of the Appellants.
Learned Senior Counsel on the other hand viewed the suit from a different perspective and contended that because PW1 said that individual families own their land in the said area in dispute will not defeat the act of being heard in a representative capacity.
Now, the law is trite that to bring an action in a representative capacity persons representing and the persons being represented should have the same interest in the case or matter. There must be common interest and common grievance. see Oragbade v S.J.M. Onitiju (1962) 1 All NLR 62 also cited in 1962 WNLR p.21 and Marktand Co. Ltd v Knight SS Co. Ltd (1970) 2 KB 1021.
The question that must be asked and answered at this stage is that what is the evidence on record apart from the one quoted by the Appellants on pages 5, 6 and of their brief of argument? The evidence as can be gathered from the printed records is that, the Respondents are descendants of Agwa through Ogum and Eketu. They traced their link from Agwa to the Respondents on record as biological descendants of same. The Agwanawa Community is, one. They are just members of one and the same village. In fact, it is the entire Agwanawa village that was in issue and not farmlands. The action is not a case or situation where different families or communities with different genealogical background are claiming differently their different portions of land in common course or matter.
In the case of Ofia v Ejem (supra) the apex Court held thus:
“If it is shown, as demonstrated in this case, that portions of the land are rather owned by constituent villages that make up the Community sought to be represented and in whom it is alleged resides title, then only those constituent villages owning the portions in issue have the legal right to institute an action either to enforce or protect their rights thereto; definitely not the larger community. It must be noted that, it is not the case of the Appellants that though the land is community owned, possession of portions thereof reside in individual villages constituting the community. That would have been a different thing and more understandable …”
It is instructive to note that the circumstances and facts of the case in hand are quite different from those in the cases of Ofia v. Ejem and Oragbade v. Onitiju (supra). In the case in hand the Respondents’ community/village is one and the different families that make it up can own farmlands independently of one and the other. I am of the considered view that this will not make the action incompetent so as to have brought it within the principle enunciated by the Supreme Court in the cases of Ofia v Ejem and Oragbede Onitiju (supra).
In the light of the foregoing reasoning, I am of the firm view that the respondents’ case was competently instituted. This issue is therefore resolved in favour of the Respondents and against the Appellants.
In conclusion, the three issues having been resolved in favour of the Respondents, this appeal fails and is accordingly dismissed with N50,000.00 costs to the Respondents.
Other Citations: (2009)LCN/3160(CA)
