Mitini Nyavwaro & Ors. V. Babiya Ogegede (1971)

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Parties

1. MITINI NYAVWARO
   2. WEITABA EYERQKOKG
   3. FRAWA GAGA
   4. JAMES OJOMA – Appellant(s)

AND

BABIYA OGEGEDE – Respondent(s)

FATAYI-WILLIAMS, J.S.C.

In a judgment of this court in Suit No. S.C. 155/1964 delivered on 4th March, 1966 (admitted as Exhibit ‘B’ during the hearing of the present case), we observed that the Owhrode people, in consolidated suits instituted in 1955, obtained a declaration of title against the representatives of the Ejovbe people, and successfully resisted the claim of the representatives of the Iwreka people for a declaration of title, to a piece of land known as Okomu in Urhobo Division.

The decision not only established that the Owhrode people were the owners of the said land, it also established that the Ejovbe and Iwerka people were lawfully in occupation of it as customary tenants.

Later in Suit No.W/27/1963 (Exhibit ‘A’) the Owhrode people, in 1963, brought another action in the Warri High Court against their customary tenants (the Ejovbe people) for forfeiture of their rights as customary tenants on the land known as ‘Okomu’, recovery of possession, damages, and for injunction. Paragraphs 5 and 6 of their writ in that case read:

“5. Recovery of possession from the 1st defendant and the people of Ejovbe, that part of the land aforesaid known as ‘Okomu’ waterside which was granted to Chief Ogegede during his life-time by the plaintiffs.

6. An injunction restraining the 1st defendant and the people of Ejovbe, their servants and agents from carrying on canoe ferrying service across the Okomu River to Okpare from Okomu Waterside.”

The learned trial Judge dismissed both the claim for recovery of possession and for the injunction referred to above. As a matter of fact, all the Judge ordered, and that only in respect of the claim for forfeiture, was that the customary tenants should pay a ‘fine- of 50pounds in lieu of forfeiture; he non-suited their claim for damages. Being dissatisfied with that judgment, the plaintiffs that is, the Owhrode people appealed against that decision to this court. In the judgment of this court in that appeal,S.C. 155/1964 delivered on 4th March, 1966 (Exhibit ‘B’), the court observed that ” what the appellants were most concerned to secure was that the court should fix a suitable sum as tribute and direct that it should be the sum payable in future.” The court, after noting that the appellants had suggested 5pounds a year and that this appeared to be a reasonable amount to fix, ordered therein as follows:

“We vary the judgment of the trial Judge:

(i) By setting aside the order that the defendants shall pay a fine of 50pounds to the plaintiffs and substituting an order that the people of Ejovbe and Iwreka jointly and severally shall pay tribute at the rate of 5pounds a year to the people of Owhrode. with effect from the date of the judgment of the High Court, that is, the 6th December, 1963; and

(ii) By setting aside the order of non-suit in respect of the claim for damages and substituting an order dismissing the claim.”

In the present case, the plaintiff (now respondent), a grandson of one Ogegede and one of the people of Ejovbe, in the Magistrate’ Court at Ughelli in Suit No. MU/99/66, claimed against the defendants jointly and severally the sum of 100pounds as special and general damages for trespass to his (that is, the plaintiff’s) land at Ogegede Waterside In Ejovbe. The particulars of claim stated that on or about the 17th April, 1966 the defendants without the consent or permission of the plaintiff entered the said land which was in plaintiff’s lawful possession and disturbed his user thereon. He then claimed 10shillings for special damages and 99.10pounds as general damages. It is significant that this claim was commenced on 14th April, 1966, barely six weeks after the judgment of this court (Exhibit ‘B’) referred to above.

Briefly, the plaintiff’s case is this. He is one of the people of Ejovbe who had been declared in an earlier case to be the customary tenants of the Owhrode people in respect of a piece of land known as Okomu. Included in this piece of land is Ogegede Waterside where the plaintiff lives and which is the subject matter of the present case. As the customary tenants of the Owhrode people on the said Okomu land, the plaintiff and his people were also ordered to pay the Owhrode people an annual tribute of 5pounds. All the defendants are from Owhrode and are thus among the overlords of the plaintiffs people. Not only does the plaintiff live there, he also maintains the Ogegede Waterside which was founded by his grandfather named Ogegede. On the day of the alleged trespass, the defendants came on the plaintiff’s land at Ogegede Waterside and ferried passengers from there across the river to Okpare and from Okpare back to the Ogegede Waterside without the consent of the plaintiff. The plaintiff in the presence of one Idama Ogbodu of Edjovbe, tried unsuccessfully to stop the defendants from ferrying the passengers from his land on the waterside. Idama Ogbodu (1st P1./W.) described what happened on that day as follows: