Chief Justus Uduedo Akpor V. Odhogu Iguoriguo & Ors (1978)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

In this action the plaintiff, represented by Chief Justus Uduedo Iguoriguo, is the Odhe Branch of the Emeni family of Irri town in the Isoko Administrative Division of Bendel (formerly, Midwestern) State of Nigeria and the defendant, represented by Odhogu Iguoriguo and four others, is the Ateme family of the same town in the same Administrative Division.

We have before us an appeal by the said Ateme family from a judgment of the High Court of Midwestern (now, Bendel) State holden at Ughelli in favour of the plaintiff (in this judgment hereafter also referred to as the “Odhe-Emeni family”) by which the Odhe-Emeni family was granted:

“(a) A declaration of title to the piece or parcel of land known and called EDHERIUWA in Irri bush and which area is shown described and verged pink on the Survey Plan No. TJN 911 marked Exhibit ‘A’ in these proceedings; and

(b) N50.00 damages for the trespass;

(c) an order of permanent injunction against members of the Ateme family” their servants agents and privies from further entry on the said parcel of land and committing any acts of trespass thereon.”

The above award is a sequel to the claims by the Odhe-Emeni family against the Ateme family aforesaid for the following reliefs i.e. (a) a declaration of title to the parcel of land called Edheriuwa (b) 100pounds damages for trespass and (c) an order of perpetual injunction restraining members of the said Ateme family from entering the said land/or trespassing thereon.

In a nutshell, the principal complaint of the Ateme family is that owing to the many long intervals of delay in taking the evidence of the parties and their witnesses in these proceedings and, the long delay between the taking of the evidence of some of the said witnesses and the delivery of judgment of this action, “the learned trial Judge ought to be regarded as having lost his impressions of the case” and of the many witnesses who testified during the trial. It was, therefore, urged on behalf of the Ateme family that the learned trial Judge (in the court below) could not have made good use of his advantage of having seen and/or observed the witnesses as they testified and in the circumstances the judgment aforesaid ought not to be sustained.

We will now set out the facts which form the background to this appeal so far as they are relevant to the argument advanced in support of the same and the submissions urged upon us. The Odhe-Emeni family who claim to be owners of the land in dispute -Edheriuwa – contend that about forty-eight years ago a member of their family- one Izaghe Ogbodor (now deceased) pledged the area of land in dispute to one Udherioke (the maternal grandfather of the 6th defendant in these proceedings – Iyeri Udehereioke) and another person called Okero (alias, Efoma) both of whom were brothers of the full blood, for a loan “of 3 boxes whiskey valued 12/-each i.e. a total of 36/-“. After taking possession of the same, Udherioke and Okero farmed the land in dispute and at a later date they invited members of the Ateme family to join them in farming the said land.

When at a later date the 6th defendant whose mother, Akporietaka, was a daughter of Udherioke took full control of the land in dispute she (6th defendant) continued to allow the Ateme family use of the same. About six years immediately prior to the institution of these proceedings, the first defendant herein offered to Akporietaka (then very ill) 36/- in an attempt- according to the plaintiff “to redeem the pledge”. Akporietaka accepted the sum of 36/-. The 6th defendant soon learnt of the surreptitious transaction between Akporietaka (her mother) and the first defendant and offered in return the sum of 36/- to the defendant who rejected the same. Eventually, at the request of the Odhe-Emeni family Akporietaka also requested the first defendant and members of Ateme family to leave the land in dispute but they refused to comply with the request. A special meeting of the committee of the Irri Community Union thereafter intervened, at the request of the Odha-Emeni family.

The Chairman and the secretary of this special committee -Peter Useh and Jonathan Eraunu respectively heard and considered evidence from both family and decided that members of the Ateme family should receive a total of 13Pounds (representing the total expenses allegedly made by the Ateme family in respect of the land in dispute) and thereafter vacate the area for use exclusively by the Odhe-Emeni family. When the Ateme family refused to accept the 13Pounds and leave the said land, they were sued in the Uzere Customary Court (in Suit UCC/76/69). The proceedings of the Uzere Customary Court were received in evidence, as Exhibit ‘A’ in these proceedings. Because the Ateme family continued to “trespass on the land in dispute” inspite of the decision in Exhibit ‘A’ the Odhe-Emeni family initiated these proceedings.

Summarily, the case of the Ateme who deny the pledge alleged by the Odhe-Emeni family is that the land in dispute has always been, from time now out of memory, that of the said family. The family denies offering at any time any money to Akporietaka or negotiating with the 6th defendant who, according to them, belongs to the Emeni family of Irri whose action against her (the 6th defendant) in these proceedings is, alleged by the Ateme family, to be entirely collusive. The Ateme family denies that there was any intervention, as alleged by the Odhe-Emeni family, by the Irri community Union or a special committee thereof; and, in any case, it denies that any representative of the family ever appeared before a committee of the said Union for a settlement or attempted settlement of the dispute in respect of the land Edheriuwa.

The case for the Odhe-Emeni family was put before the court through a total of 11 (eleven) witnesses the first of whom (the plaintiff) gave evidence on the 11th of January, 1972 and was cross-examined on the next day (12th January, 1972) when also the first plaintiff witness testified. The second, third (Peter Useh – Chairman of the committee of the Irri Community Union), fourth (Jonathan Eraunu – the secretary to the said committee) witness for the plaintiff testified on the sixteenth of March, 1972. The fifth, sixth, seventh witnesses for the plaintiff testified on the 4th of May, 1972; and cross-examination of the seventh witness continued on the 5th of May, 1972. The eight witness for the plaintiff testified on the 30th of May, whilst cross-examination of the ninth witness which began on the same day ended on 6th June, 1972. On the 23rd day of October, 1972 the Odhe-Emeni family closed its case after the tenth plaintiff witness testified.

The defence opened on the 21st November, 1972 when the first defendant testified, thereafter further hearing was adjourned to the next day (the 22nd November) when it was further adjourned to 20th – 22nd December, 1972. However, on the 20th December, 1972 the following note appears on the record: