Ojeifo Eigbejale Vs Ebhomienlen Oke & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

In the Ekpoma Judicial Division of the High Court of Justice of the former Bendel State of Nigeria, the plaintiff, who is now the appellant, caused a writ of summons to issue against the defendants, who herein are the respondents, claiming, as subsequently amended as follows:-

“1. A declaration that the plaintiff is entitled to the grant of a Statutory right of occupancy to that piece or parcel of his farm land and rubber plantation lying and being situate at Udomi Village, Uwessan in Irrua clan, Okpebho Local Government Area of Bendel State of Nigeria which said piece or parcel of farm land and rubber plantation are more properly delineated in pink in plaintiff’s survey plan no. WE 4095 which is filed with this Statement of Claim.

2. N10.000.00 being general damages for defendants provocative acts of trespass and maliciously and wantonly destroying plaintiffs mature rubber trees and other economic crops.
3. A perpetual injunction restraining the defendants, their servants and/or agents from further acts of trespass on the said plaintiff’s farm land and rubber plantation.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

At the subsequent trial, both parties testified on their own behalf and called witnesses.

It is desirable at this stage to set out paragraphs 8, 9, 10, 12 and 14 of the plaintiff’s statement of claim. These are as follows:-

“8. The area known as Uwessan in Irrua Clan is made up of eight component villages viz: Unogbo, Ujabhole, Udomi, Ihiolulu, Idumaghodo, Afuda, Idumoza and Ohe. All the villages are Ishan people. Although the villages together are jointly known as Uwessan under Irrua Clan, each and every village has its own land and clearly demarcated boundaries. One village throughout their history has never been a tenant of the other, although one individual can move from one village land to become a tenant of another village.

9. In Ishan Native Law and Custom the method of acquisition of land is by deforestation. This is to say that the first person to deforest a parcel of land becomes the owner.
10. One Oghaloa who is a great great grand father of the plaintiff was the founder of Udomi village in Uwessan. He deforested the entire area now known as Udomi farm land. As a result of inter tribal wars and the scramble for land in those days, he made a town wall or moat around his own village. The remains of the town wall or moat is clearly shown on the survey plan filed in the suit.
11. ……
12. That by reason of his deforestation of a large area of land including the land in dispute verged “Pink” in the Survey Plan filed with the Statement of Claim, which said deforestation is the Customary incidence of acquiring title to land in Ishan the said Oghaloa thus became the owner and in full possession of all the land he deforested including the land in dispute.

13…………

14. In Ishan Native Law and Custom and/or in Udomi Native law and custom when the first surviving son of any person has performed the burial ceremonies of his father, he thereafter steps into the shoes of his father and inherits all his properties.”

In answer thereto, the defendants in paragraphs 1,3,4,17 and 24 of their Statement of Defence replied thus-

“1. The defendants admit paragraphs 1,2,3,4,9 and 14 of the Statement of Claim but add that while the 3rd defendant is the Odionwele of Ujabhole, the 4th defendant holds the traditional title of the Iyasele of Irrua, though he is a native of Ujabhole and lives there.

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3. The defendants admit paragraph 8 of the Statement of Claim but in further answer to the said paragraph, the defendants aver that Ujabhole is the oldest village in Uwessan in that it was the first village to be founded in Uwessan. It is followed by Unogbo, Afuda, Ibhiolulu, Imumogholo, Idumoza, Ohe and Udomi which is the youngest village in that it was the last village to be founded in Uwessan years after Ujabhole was founded.
4. The defendants admit paragraph 10 of the Statement of Claim to the extent that Oghalua was the founder of Udomi except as above, the defendants deny same but put the plaintiff to the strictest proof thereof.

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17. Under Ishan native law and custom which is applicable to Ujabhole, the first person to deforest a virgin forest becomes the owner of the land. Other methods of owning land include inheritance, gift and/or purchase.

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24. The boundary separating the land given to Oghalua to settle from that of Ujabhole is clearly shown in blue in the survey plan filed with the defendant’s Statement of Defence. There was no time Udomi was walled round, neither was a moat constructed round the village.”

On the state of the pleadings, it seems to me clear that both parties are in agreement that under Ishan customary law, land may be acquired inter alia by deforestation. Pursuant to this Ishan custom, the first person who deforested a virgin land became the founder and owner of such piece or parcel of land. It is also not disputed that upon the death of such an owner, his successor, on the performance of his burial ceremonies, acquired the deceased’s property, including his land by inheritance .