Okonji Ngwo & Ors V. Obi Okocha Onyejena & Ors (1964)
LawGlobal-Hub Lead Judgment Report
ONYEAMA, J.S.C.
This is an appeal by the defendants from the judgement of the High Court of Western Nigeria. There were four defendants, the first two representing the Ogbeilo family of Asaba who will in this judgement be referred to as the Ogbeilos, and the last two being people of Odanta, Ibusa, who will be referred to as the Odantas. The plaintiffs, who are the respondents to this appeal, represent the Idumugbe family of Asaba and will be referred to as the Idumugbes.
The Idumugbes claimed against the Ogbeilos a declaration of title to an area of land called Akwulo land drawn on a plan in evidence as Exhibit A and numbered GA225/57. They further claimed £200 as damages for trespass from the Ogbeilos and the Odantas and an injunction to restrain them from further acts of trespass on the land.
At the conclusion of the trial the High Court (Fatayi-Williams, J.) dismissed the claim for a declaration of title but awarded £10 damages against the Ogbeilos and £50 damages against each of the Odantas. The Ogbeilos and the Odantas were further enjoined “From going on the land in dispute (Ex “A”) and committing further acts of trespass therein.”
The case which was made by the Idumugbes at the hearing was that they and the Ogbeilos are descended from a common ancestor, Onaje. Onaje had six children of whom Obiaije, the eldest, was the founder of the Ogbeilo line and Ogbuebo, the fifth son, was the founder of the Idumugbe line. Onaje owned several pieces of land which, shortly before his death, he distributed among his six children. Obiaije was given the areas known as Akwu Odugba and Asiagonozo while Ogbuebo was given Akwulo and Akwuose. At a later stage the members of Onaje’s family decided to transfer Akwuose to the Ogbeilos so that there would be peace in the family. The other children of Onaje received other plots of land with which the trial was not directly concerned. Ogbuebo had a son, Obi Ugbe, who Inherited his patrimony, but who was sold into slavery by his uncle Icholoko. Icholoko took over ON Ugbe’s property including his patrimony, Akwulo. Obi Ugbe returned from slavery, however, and resumed dominion over his property. Thereafter he and his descendants remained in exclusive possession of the land in question farming it and letting portions of it to Urhobo tenants. The Ogbeilos and Odantas came on the land and disturbed the exclusive possession of the Idumugbes in 1957.
The Ogbellos in their defence denied that there was never a distribution of lands by the ancestor Onaje. They claimed to be descended from Onaje’s eldest son, Obiaije, and to have succeeded to the land in question, Akwulo, which Obiaije took in charge, on the death of Onaje, for the benefit of the other members of the family. They said that other members of the family who wished to do so could farm on the land provided they gave yams to the head of the Ogbeilos in accordance with native custom.
The Idumugbes and the Ogbellos agree that in 1931 there was a court case Appeal Suit 1/1931 in the Provincial Court at Ogwashi Uku between them about the land now in dispute. The proceedings were in evidence as Exhibit C.
The Ogbeilos then claimed £1110 as damages for trespass “on land situate in Asaba known as ‘Akwu-Ulo’ from the Idumugbes. The court which heard that case found the trespass proved and ordered on 12th March, 1931, as follows:
“The defendants (Idumugbes) are to pay tribute or acknowledgement of ownership to the plaintiff (Ogbeilos) at the rate of ten yams for each of the fourteen individual farms, or the equivalent value of fourteen shillings …. The established right of the Plaintiff to exercise the control of ownership in accordance with Native Law and Custom over Akwu-Ulo and Akwu-Ose land must be recognised. The Court has now arrived at the conclusion that, in order that such right shall be safe-guarded to the Plaintiff, acknowledgement of ownership in the form of tribute at a rate of ten yams per individual farmer must be paid to the Plaintiff for the privilege of farming on this land by each person of the defendants’ compound who avails himself of the privilege.”
The Odantas admitted that Akwulo land belongs to the Ogbeilos but did not admit that the area drawn on the plan Exhibit A is Akwulo land. They said the bulk of it is Akuoka or Akuashushu land while the narrow wedge of land bordering on the south and lying between it and the Asaba to ibusa road is Akwulo land. They show this on their plan Exhibit B which is numbered GA318/57. They admitted that they entered on the land claimed by the Idumugbes to be Akwulo land but which they say is Akuoka or Akuashushu land, and that they let portions of it to Urhobo tenants.
It is Clear from the evidence of one of the Odantas, however, that the area called Akuoka or Akuashushu by them is the same as the area called Akwulo by the Idumugbes. This witness, Enura Nwadei, stated: “If I stand by the Akpu tree along the Ibusa-Asaba Road, with my back to AkuOsl land, the land in front of me is Akulor land.” An examination of the plans will show that the [arid which would be “in front” of the witness in the position he described is Akwulo land. We also note that Monyei, a witness for the Idumugbes who gave the boundaries of the land in chief, was not cross-examined about them on behalf of the Odantas. The Odantas in their evidence said that Akwulo land belongs to the Ogbeilos, and it is the boundary land between the Ogbeilos and the Odantas land known as Akuashushu and Akuoka. On the evidence there is no doubt that the land shown as Akwulo on the plan Exhibit A No. GA225/57 is part of the Onaje patrimony.
The learned trial Judge after reviewing the evidence, accepted the evidence of the customary law of inheritance as given by the Ogbeilos and rejected the evidence of the Idumugbes that the ancestor Onaje distributed his lands to his children before his death. He found that the applicable customary law in Asaba is that when a father dies, his land is inherited by his eldest son who holds it in trust for his other children. These other children have a beneficial interest in the land and have a right to farm on it.
Regarding the case in hand, he found that Onaje’s lands were not distributed but that they were inherited by his eldest son Obiaije who held them do trust for his brothers. The children of Onaje went into various pieces of land, each child farming a particular piece of land. When these children died, their descendants continued to farm the land their ancestors farmed before them. It was in this way that Akwulo land came to be occupied by the Idumugbes whose ancestor, a descendant of one of the children of Onaje, had farmed it before them.
The learned Judge went on:
“I also find as a fact that until the Defendants” (i.e., the Ogbeilos and the Odantas) ‘Went on the land in 1957 the Plaintiffs’ people”, (the Idumugbes) “as direct descendants of Ogbuebo, had been farming without let or hindrance on Akwulo and they have cultivated yams, corn, cassava and beans on it.”
He found that the Idumugbes had been in exclusive possession of the land until 1957 and that the Ogbeilos and Odantas had wrongfully Interfered with that possession and were liable in trespass.
Turning first to the appeal of the Odantas, these appellants in their statement of defence pleaded that they had from time immemorial been in possession of Akwulo land as owners thereof. They did not pursue this line at the hearing, but claimed that they farmed on Akuoka and Akuashushu land, which belonged to them, and not on Akwulo, which, they said, belonged to the Ogbeilos.
The learned trial judge found that the area on which they farmed was Akwulo and that the Idumugbes were in exclusive possession of that area. He found that the Odantas had “no title whatsoever to the land in dispute or any right to be in possession of it.”
Mr Cole who appeared for the Odantas on this appeal argued that the Idumugbes should have lost their claim to damages for trespass and Injunction unless the evidence they offered was such as would have entitled them to a declaration of title H they had sought it against the Odantas in a separate action; he drew attention to the evidence at the trial to show that other people apart from the Idumugbes were in possession and submitted that the trial judge was therefore in error in finding that the Idumugbes were in exclusive possession; he submitted that there was evidence that the land was vested in Onaje family and that by suing the Ogbeilos the Idumugbes must be presumed not to have the authority of that branch of Onaje family to bring the suit.
The finding that the Idumugbes were in exclusive possession appears to us to put them in a position in which they can maintain an action for trespass against anybody interfering with that possession who cannot show a better title than they have. Counsel agreed with the statement of the law as given by the late Sir Henley Coussey in England v. Palmer, 14 W.A.C.A., p. 659, at p. 660 where the learned judge made k clear that mere possession is sufficient to maintain trespass against any one who cannot show a better title or right, so as to avoid the effect of the plaintiffs actual possession. The Odantas failed to show any tide at all and so were, on the established facts, liable in damages for trespass.
The Idumugbes did not claim to be representing the Onaje family in the suit, but only their branch of it; the case of Nsima v. Nnaji [19611 All N.LR. 441 referred to by counsel does not, therefore, cover the situation in this case.
We think that on the evidence before the learned trial judge he was right to give judgement for the Idumugbes against the Odantas and the appeal of Enura Nwadef and Dike Apani therefore fails.
The Ogbefos complain against the judgement on the main ground that it did not take into account the judgement in the 1931 case (Exhibit C) and the native custom, which was proved, that Onaje’s lands were vested In the eldest male descendant of Onaje’s eldest son in trust for the other descendants of Onaje.
Mr Okafor who appeared for the Ogbetlos put his case in this way: the finding against a distribution of his lands by Onaje among his six sons destroyed the case of the Idumugbes: the head of the Ogbeilo branch is in possession of the land in dispute for all the descendants of Onaje: the 1931 case was about this same Akwulo land: the Idumugbes were found to have trespassed into it then and cannot be said to have been in exclusive possession: to grant them an injunction would amount to excluding from the land the very person in whom it is vested by native law and custom.
Mr David for the Idumugbes answered that it was dear that the Idumugbes had not paid any tribute for using the land since 1936, at least, and that they had been in continuous possession from that time: he further pointed out that each branch of the Onaje family tree, except the Idumugbes, has according to the Ogbeilos, an area of the Onaje lands which it has retained more or less permanently and there is no reason shown why the Idumugbes, in common with other descendants of Onaje, would not have an area in its exclusive possession.
These facts, he submits, strengthen their claim to exclusive possession of the area in question and support the conclusions of the learned trial judge.
We think that in the contest between the Idumugbes and the Ogbeilos the 1931 case is of considerable importance. This appears to be recognised by the parties for they refer to the case in their pleadings.
The Idumugbes in their statement of claim pleaded:
“10 In the appeal case No. 1/1931 referred to above, the present plaintiffs appealed against the decision of the Provincial Court in a claim for damages for trespass by the first and second Defendants’ people and the case was referred to the lower Court for taking further evidence.
11. Then the Magistrate Court in Suit No. SC/1A/31 went into the matter and found for the plaintiffs as having title to the land now in dispute.
12. The first and second Defendants’ people appealed against this finding and the judgement was set aside on ground of jurisdiction.
13. The case was again sent back to the Supreme Court at Onitsha as Suit No. 28/1936; but before this case could be heard the parties came to a settlement out of Court in which the first and second Defendants’ people agreed to leave the land in dispute for the Plaintiffs and to take Akwu-Ose land and the parties reported that the matter had been settled out of Court.
14. Since this settlement in the year 1936, the Plaintiffs have been exercising maximum acts of ownership on the land by farming and letting out the land to tenants for collecting palm produce.”
The Ogbeilos answered as follows:
“8. In further answer to paragraph 13 of the Statement of Claim, the first and second Defendants admit that the case was sent back to the Supreme Court at Onitsha but the case was struck out as having been settled out of Court. The Defendants say that the terms of settlement though not recorded were that the Plaintiffs agreed to pay their yearly tributes to the Defendants and not as alleged by the Plaintiffs. Akwu-Ose was not in dispute.”
The Idumugbes’ case on their pleadings was that they went into possession of Akwulo land as a result of a settlement reached with the Ogbeilos, who abandoned the judgement of 1931, which was then subsisting, in regard to the Akwulo land. The Ogbeilos, while agreeing that there was a settlement, contended that under it the Idumugbes were to pay their yearly tributes to the Ogbeilos.
Neither party offered any evidence whatever in support of the terms of settlement pleaded. The 1931 judgement was between the same parties and in respect of the same land and decided that the established right of the head of the Ogbeilos to exercise ‘the control of ownership in accordance with Native Law and Custom over Akwu-Ulo” must be recognised. It also ordered that individual Idumugbes wishing to farm on the land had to pay him a tribute of ten yams for the “privilege of farming on this land;” and that he was not to withhold permission unreasonably and could not lease the land to non-Asabas if the Idumugbes wished to exercise their prior right.
The learned trial Judge nowhere considers this judgement which has not been shown to have been set aside or abandoned, and which is inconsistent with the case made by the Idumugbes at the trial.
There is a good deal of force in the argument, with which we agree, that to enjoin the head of the Ogbeilo branch from entering on the land Is to prevent the head of the Onaje family from exercising his right of control of the land under native custom which was established in the 1931 case and in the evidence at the trial
When the Idumugbes failed to pay tribute as ordered in 1931 the head of the Ogbeilos as head of the Onaje family would not be liable in trespass for taking steps to enforce payment or preventing the Idumugbes farming on the land until tribute was paid.
The position of the parties in relation to the land in dispute was crystallised in the 1931 case and the fact that the Idumugbes may have no other land on which to farm cannot weaken the force and effect of the judgement in that case. We note that the learned trial Judge, at the end of his judgement, advises the Idumugbes to pay the tribute of yams to the most senior member of the Ogbeilo family in his capacity as the direct descendant of the original customary trustee, for the sake of harmony and peace. That falls short of the 1931 judgement on the respective rights and duties which he has, and the Idumugbes have, according to native law and custom, which should be observed.
The following order is made:
1. The appeal of defendants No. 1 and No. 2, namely Okonji Ngwo and Okafor Odlta for themselves and on behalf of the Ogbeilo family of Asaba, from the High Court judgement in the Benin Suit No. W/42/57 dated the 30th August, 1962, is allowed and that judgment is set aside to the extent only that k relates to the said defendants.
2. The appeal of defendants No. 3 and No. 4, namely Enura Nwadei and Dike Akpani, from the said judgement is dismissed, and the judgement with the orders made against them and each of them is affirmed.
3. The plaintiffs shall pay defendants No. 1 and No. 2 fifty-five guineas, and the defendants No. 3 and No. 4 shall pay the plaintiffs fifteen guineas, as costs of appeal.
Other Citation: (1964) LCN/1111(SC)
