Omuferen Uyovbaria And Ors V Chief M. Kporoaro And Anor (1966)
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BRETT, J.S.C.
In consolidated suits instituted in 1955, representatives of Owhrode people obtained a declaration of title against representatives of Ejovbe people, and successfully resisted the claim of representatives of Iwreka people for a declaration of title to a piece of land in Urhobo Division known as Okomu. The decision established that Owhrode people were the owners of the land, but that Ejovbe and Iwreka people were lawfully in occupation of it as customary tenants. In the present suit, commenced in 1963, the representatives of Owhrode people sought against their customary tenants a declaration of forfeiture, possession or damages, and various injunctions. The trial Judge held that the defendants had made themselves liable to suffer forfeiture by refusing to pay tribute and by driving their landlords away from parts of the land of which they were in actual possession, but he ordered the defendants to pay a “fine” of £50 in lieu of forfeiture, and non-suited the claim for damages, with a view to enabling the plaintiffs to bring further proceedings for arrears of tribute and for rents.
The plaintiffs have appealed against this award, but the defendants have not, and the judgment of this Court must rest on the assumption that the Judge was correct in his finding that tribute is payable and that the defendants were liable to forfeiture.
At the beginning of their arguments the chief complaint which the appellants made was that the trial Judge was wrong to non-suit the claim for damages, and that he ought to have awarded a sum by way of damages based on the arrears of unpaid tribute, but the respondents pointed out that tribute had not been paid since 1920, and that the Judge had found that the quantum of tribute when it was last paid had not been satisfactorily proved. It turned out 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, but the Court has no power to do this on a claim for the common law remedy of damages, and if the tribute payable for the future is to be fixed it must be as a condition of relief from forfeiture. either in addition to or instead of the “fine” of £50. A precedent for taking this course is to be found in the decision of the Full Court in Uwani v. Akom (1928) 8 N.L.R. 19 and we think it preferable to the imposition of a lump-sum “fine”, such as was imposed in the earlier proceedings mentioned in the judgment of Mar-tindale, J., in Etim v. Eke (1941) 16 N.L.R. 43, since the payment of a fixed sum annually will help to remind both the landlords and the tenants of the nature of their interests in the land, and if the amount payable is fixed now it may save both parties the expense of a third action at law. The appellants suggested £5 a car and this appears to be a reasonable amount to fix.
We vary the judgment of the trial Judge (i) by setting aside the order that the defendants shall pay a fine of E511 to the plaintiffs and substitute an order that the people of Ejovbe and Iwreka jointly and severally shall pay tribute at the rate of £5 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 set-ting aside the order of non-suit in respect of the claim for damages and sub-stituting an order dismissing the claim. We make no order as to the costs of the appeal.
Other Citation: (1966) LCN/1342(SC)
