D.O. Idundun V. Daniel Okumagba (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, JSC 

In Suit No. W/48/1968 commenced in the High Court of the Mid-Western State sitting in Warri the plaintiffs claimed against the defendants jointly and severally: PAGE| 2 “1. A declaration that in accordance with Itsekiri Customary Law, all that piece or parcel of land at Okere, Warri, described in Plan No. WE.2367 filed in this suit and verged PINK is the property of the Ogitsi family of Okere subject only to the overlordship of the Olu of Warri now vested in and exercisable by the Itsekiri Communal Land Trustees by virtue of the Communal Land Rights (Vesting in Trustees) Law 1959 and the Warri Division (Itsekiri Communal Land) Trust Instrument, 1959. 2.

A declaration that, in accordance with Itsekiri Customary Law, defendants have forfeited their rights of user and/or occupation and any other rights or estate in or over that part of the land in dispute marked Area ‘B’ and any right they may have in or over that part of the land in dispute marked Area ‘A’ in the Plan No. E.2367 filed by the plaintiffs in this suit.

3. An order of injunction to restrain the defendants, their servants and/or agents and any other person or persons purporting to claim under or through them from entering the land in dispute and/or interfering with plaintiffs’ rights and interest in and over the said land in dispute and in particular from granting leases or other disposition of the same to any other persons or collecting rents or any other dues from any other persons in respect of the land in dispute”. Pleadings were ordered and were duly delivered.

The averments in the plaintiffs’ amended Statement of Claim and the evidence adduced in support showed clearly that the claim was based partly on traditional evidence and partly on acts of ownership. The averments in the defendants’ Statement of Defence and the evidence given by them in support gave a completely different version of the traditional evidence. The defendants also testified as to their acts of ownership on the land in dispute. It must be pointed out at this stage, however, that the defendants did not counterclaim for title to the land.

In a considered judgment, the learned trial Judge after reviewing, at great length if we may say so, all the evidence adduced by both parties, rejected the traditional evidence adduced in support of the plaintiffs’ claim after observing as follows: “Considering first the traditional evidence in the case, my view of that aspect of the evidence in plaintiffs’ case whereby plaintiffs have sought to establish that the land in dispute and even also Okere village were part of the kingdom founded by Ginuwa I and also their evidence that Ogitsi owned the whole of Okere land including the land in dispute in this case is that it is unconvincing.

The plaintiffs say that Ginuwa I founded a kingdom and that before Ekpen came to Okere the area of Okere was or would be part of that kingdom. There is no evidence of the extent or area covered by that kingdom, nor is there any evidence going to show any act or acts in history which made the area part of the kingdom founded by Ginuwa I before Ekpen came there … The evidence in plaintiffs’ case only shows that Ginuwa I when he was trying to make a settlement after leaving Benin got as far as Ijalla where he ultimately settled, lived, died and was buried.

There is no evidence in plaintiffs’ case going to show that in the process of making his settlement or kingdom he or any persons under him settled anywhere beyond Ijalla and towards or in Okere. PAGE| 3 I do not believe that any kingdom founded by Ginuwa I extended to Okere. Plaintiff’s evide

Other Citation: (1976) LCN/2240(SC)