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: