Edio Ekretsu & Anor Vs Millar Oyobebere & Ors (1992)

LawGlobal-Hub Lead Judgment Report

E. O. OGWUEGBU, J.S.C. 

In a writ of summons issued on 20/10/76 at the High Court of the then Bendel State of Nigeria holden at Ugheli, Ekio, Ekretsu and Evru Onorovwie for themselves and as representing Unuaro family of Uwheru sued one Miller Oyebebere claiming the following reliefs:

“1. The sum of N2,000.00 (two thousand naira) being damages for trespass committed by the defendant on plaintiffs’ land situate at Okpunoho land, Uwheru, within the jurisdiction of this Honourable Court on 14th August, 1976 wherein the defendant by himself, his servants and his agents without the plaintiffs’ consent first obtained, broke and entered into the plaintiffs’ land and started digging a building foundation on plaintiffs land.

2. An order of perpetual injunction restraining the defendant as agents and/or servants from continuing these acts of trespass complained of.”

After filing the plaintiffs’ statement of claim but before the statement of defence was filed, one Chief Onivwegha Akokini and four others applied to the High Court. Ugheli by way of motion on notice praying the court for an order authorizing them to join in the suit as co-defendants and to defend the same for themselves and on behalf of Ohoro Community of Uwheru in Ugbeli Local Government Area.

Orders were made by the trial court as prayed. The plaintiffs amended their claim in view of the order of joinder of the co-defendants. The statement of claim was similarly amended.

All the defendants filed a joint statement of defence which was amended with the leave of the court on 10/6/81.

On 12/8/83 the plaintiffs filed a motion on notice “for an order granting the plaintiffs/applicants leave to further amend writ of summons and further amended statement of claim (herewith underlined ‘RED’ and deemed filed …………..”

The application was granted by the trial court on 31/8/83. The further amended writ of summons and statement of claim were deemed properly filed and served.

The further amended claim which is at page 147 of the record of appeal reads:

“The Plaintiffs’ claim against the defendants is as follows:-

1. A Declaration that the plaintiffs are entitled to the Customary Right of Occupancy or the land in dispute known and called ‘OKPUNOHO’ lying and situate at Orhoro shown on survey plan No. ER 1774 attached to Further Amended Statement or Claim.
2. The sum or N2.000,00 (Two thousand naira) being damages for trespass committed by the 1st defendant on plaintiffs’ land situate at Orhoho, Uwheru within the jurisdiction or this Honourable Court on 14th August, 1976 wherein the 1st defendant by himself, his servants and/or his agents without the plaintiffs’ consent first obtained, broke and entered unto the plaintiffs’ land and started digging a building foundation on the plaintiffs’ land.
3. An order or perpetual injunction restraining the defendants their agents and/or servants from continuing these acts of trespass complained of.”

The plaintiffs’ case briefly stated is that the 1st defendant entered the land in dispute and started digging foundation for the erection or a building in 1976 without first obtaining the consent or the plaintiffs – Unuaro Family of Uwheru on whose behalf this action is prosecuted.

The plaintiffs stated that Uwheru Clan was founded by Uwheru who had five children, namely Erovie, Orhoro, Egbo, Ehere and Urede. It was their case that each of the five children had his own portion or land named after him. Orhoro begat six children called Unuaro, Ebo, Emedie, Asavwayega, Okhiowaren, Etakerme. The six children founded various family of Orhoro and te families are named after each child. Each of the children of Orhoro has his own land and that of Unuaro family is Okpunoho land.

It was the plaintiffs’ case that Unuaro has exclusive possession and ownership ofOkpunoho land. The construction or Ugheli-Patani road which passed through the land in dispute enhanced the economic value or the land. This made Orhoro people ask for their permission to erect buildings along the road but the request was refused.

The refusal gave rise to an action for title, damages and trespass in the Customary Court of Evwereni-Uwheru Suit EU/63/77 – Exhibit “A”. The case was settled out of court and the terms of settlement were reduced into writing (Exhibit “E”).