Ejemruvwo Oyovbiare & Ors. V. Ted Omamurhomu (1999)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

The appellants who were plaintiffs in the trial court instituted the action leading to this appeal against the respondent who was the defendant claiming as follows:

(a) A declaration that as Owners in possession of the land verged pink within the land verged green in Survey plan No. KP704 at Adeje Village, outside an urban area and in whom the land was vested prior to 1978, the plaintiffs continue to be holders in possession of the said land and are the person (sic) entitled to the Customary Right of Occupancy over the land.

(b) The sum of N10,000.00 (ten thousand Naira) being damages for trespass and nuisance committed on the land.

(c) An order of perpetual injunction restraining the defendant from committing any further acts of trespass and nuisance on the said land:’

Pleadings were ordered, filed and exchanged. At the conclusion of that hearing, the learned trial judge Akenzua, J. in a considered judgment dismissed the claims of the plaintiffs. The plaintiffs dissatisfied with the judgment of the learned trial judge appealed to the Court of Appeal, Benin Division. That court allowed the appeal and ordered a retrial of the case by the High Court of Delta State. Dissatisfied with the order of retrial, the plaintiffs have further appealed to this court.

By their pleadings and oral evidence given on their behalf the plaintiffs claimed that from time immemorial, their ancestor Okoro founded a large parcel of land verged green in Survey Plan No. KP704 (Exhibit “A”), that by Urhobo Native Law and Custom, the land of a founder or owner upon his death passes on to his descendants from generation to generation and that it is through this process that the land in dispute founded by Okoro passed on to them. They also claimed that from the time of its founding, the plaintiffs’ ancestor Okoro and after him his descendants have been in possession of the said land by farming, cultivating economic crops, building houses and granting parcels of it to various persons.

In paragraph 2 of the Statement or Claim the plaintiffs averred:

“2. The defendant is a native of Okwuvo in Okpe Local Government Area. After the death of his father, his mother Ejerha married Akerho Oghoghome (m) of Okwuvo who was the Headmaster of L. A. School Adeje in those days, Defendant’s mother moved to Adeje with defendant to live with her husband Akerho Oghoghome in a house built on the land by the L.A. School Adeje which plaintiffs’ family gave him.”

The defendant’s case is that his mother purchased a piece of land verged brown on Exhibit ‘”G” in 1966 from one Chief Agbi Goba the head of Okoro Family who had since died, that the plaintiffs were present during the transaction, that it was then he first knew the plaintiffs and that there was a written agreement evidencing the sale. That when Chief Agbi died, Avwiakparu family members protested and said that Okoro family had no right alone to sell the piece of land to his mother. Among the members of Avwiakparu family that protested were Chief Oghoro, Ogedegbe, Idisi and Umukoro. The matter was referred to one ldamugolo Erakpotobor who testified as P.W. 5 in this case. A new agreement Exhibit “E” was prepared in the house of P.W. 5 by the 3rd Plaintiff (John Akpome).

On 14-1-68, the defendant bought another piece of land in his own right from one Orherekeraye Edigbor who had also died, This piece of land is verged pink on Exhibit “G”. That an agreement Exhibit “F” was entered into in respect of this transaction and he surveyed the land after the purchase.

He testified that the 3rd plaintitf is the Secretary of Avwiakparu family at the time Exhibit “E” was prepared, he was also the head of Okoro family. The 3rd Plaintiff (John Akpome) also signed Exhibit “E” as Secretary of Avwiakparu family and that the plaintiffs were all present during the transaction.

The case of the defendant was clearly brought out in paragraph 8 of the statement of defence, paragraph 8 reads:-

‘”8 In answer to the Plaintiff’s case the Defendant states as follows: