Onosiaherhovwe Ekeri & Anor V. Edo Kimisede & Ors (1976)

LawGlobal-Hub Lead Judgment Report

BELLO, JSC

This appeal relates to two actions which were consolidated and tried together in the High Court, Ughelli.  The first action was Suit No. UHC/40/69 filed in the Ughelli High Court in which the members of Ikrisuovwa family, who were the plaintiffs, claimed against the people of Kiagbodo village for:

(1) A declaration of title to a parcel of land forming part of IDJERHE land which lies and is situated between Ovwodokpokpo village of Olomu Clan and Kiagbodo village.

(2) The sum of £200 being special and general damages for trespass committed on the said land by the Kiagbodo people in November 1969.

(3) A perpetual injunction restraining the people of Kiagbodo, their agents or any person acting through or for them from committing further acts of trespass on the said land.

The area of the land which is the subject matter of the claim in the Suit No. UHC/40/69 is verged green in the plaintiffs’ survey plan No. TJM 903.  The second action was later filed by the defendants, the Kiagbodo people, in the first action in the High Court, Warri, wherein they claimed as plaintiffs against the people of Ovwodokpokpo which includes the members of Ikrisuovwa family, who were the plaintiffs in the first action, for:

(1) A declaration of title to a piece of land known as Imgbile-Ogbo lying and situate in and within the neighbourhood of Kiagbodo village.

(2) A declaration that the people of Ovwodokpokpo by setting up title adverse to the people of Kiagbodo’s title in relation to the said IMGBILE-OGBO land have forfeited under native law and custom their rights of user with respect to the said piece of IMGBILE-OGBO land granted to them by the people of Kiagbodo.

(3) The sum of £500 being general damages for trespass committed by the people of Ovwodokpokpo on the IMGBILE-OGBO land in possession of the people of Kiagbodo.

(4) A perpetual injunction restraining the people of Ovwodokpokpo, their servants, privies or agents from further trespassing on the said land.

At the instance of one of the parties the second action was transferred to the High Court, Ughelli, where it was numbered as Suit No. UHC/10/71. The area of the land in dispute in the second action is shown pink in the survey plan No. WE 1094, which was made for the people of Kiagbodo. It is a large area of land which includes the land, the subject matter of dispute in the Suit No. UHC/40/69. Upon the consolidation of the two actions, the people of Ovwodokpokpo including the members of Ikrisuovwa family have been referred to as the plaintiffs while the Kiagbodo people have been referred to as the defendants throughout the proceedings in the consolidated actions.      It is common ground from their ultimate pleadings that the parties had their origin from the same ancestral grand-parents. They are descendants of two brothers, namely, Oghoro and Igbile, alias Imgbile, the ancestors of the plaintiffs and the defendants respectively.    The plaintiffs aver that about 600 years ago the two brothers left their place of birth and settled at Onokpobri village and thereafter Oghoro moved northwards where he found Kiagbodo, Jakpa and Ovwodokpokpo settlements. During his adventure, Oghoro married the daughter of one Alaka and had five issues of the marriage, the eldest son being one Benuen, alias Benagham. The plaintiffs assert that Imgbile did not accompany oghoro to any of the new settlements but stayed at Onokpobri where he died; that Oghoro attended the funeral of his brother and took away with him one Ogbenekri, his nephew to Kiagbodo where Oghoro permitted Ogbenekri to settle as a customary tenant. The plaintiffs explained that, that was how the defendants came to be their customary tenants on Kiagbodo land.

The plaintiffs further averred that upon the death of Oghoro, his several lands devolved on his eldest son, Benuen, and when the latter died the lands were shared among his children who included Isuovwa family to whom Idjerhe land was exclusively given; that since the distribution of Benuen’s estate, the Isuovwa family have been in exclusive possession of Idjerhe land and exercising maximum rights of ownership over it; that in November 1969 the defendants asked the plaintiffs for a grant of a portion of the land to build a school and that while negotiation and reconciliation were going on between the parties for the grant the defendants trespassed on the land in dispute in Suit No. UHC/40/69 by entering and felling trees and crops thereon for the purpose of building the school.   PAGE| 4   The defendants admit the migration of their ancestral father and uncle but averred that their uncle was then a minor incapable of founding any settlement; that Imgbile, their father, founded the Kiagbodo settlement where Oghoro married the Alaka’s daughter who begat Benagham; that the couple and their son after having sojourned in Alaka’s village, Benagham returned to Kiagbodo where his cousin, Oghenikri, granted him a piece of land which he called Ovwodokpokpo, to settle as a customary tenant. According to the defendants that was how the plaintiffs came to be the customary tenants of the defendants on Ovwodokpokpo land; the area of the tenancy is verged yellow in the Plan WE 1094 over which the plaintiffs had been paying annual tribute until in 1940s when they ceased to pay.    The defendants further aver that in 1969 the plaintiffs not only challenged their title over the Ovwodokpokpo land, which was subject to the customary tenancy, but also trespassed on Imgbile-Ogbo land, which was never given to the plaintiffs.

In a reserved judgment, after paraphrasing the evidence given by the several witnesses in the case and indicating his assessment of the evidence, the learned trial Judge found:

(1) that the traditional evidence adduced by the plaintiffs was contradictory and unsupported by contemporary events;

(2) that P.W.8, P.W.10 and P.W.11 did not tell the truth on the history of Ovwodokpokpo;

(3) that the weight of the traditional evidence was in favour of the defendants that Kiagbodo was founded and owned by Imgbile;

(4) that it was Ogbenekri, son of Imgbile, that put Benuen on Ovwodokpokpo land as customary tenant and consequently the plaintiffs are customary tenants of the defendants on the said land;

(5) that all the witnesses of the parties who testified on the negotiation and reconciliation by the parties in respect of the request for land for the school perjured themselves;

(6) that the defendants did not prove their claim for forfeiture and trespass but that they proved the claim for declaration of title and injunction. Upon the foregoing finding of facts, the learned trial Judge dismissed the plaintiffs’ claim in toto in Suit No. UHC/40/69 and entered the following judgment for the defendants:

“(a) A declaration of title under native law and custom to the entire piece or parcel of land known as Imgbile-Ogbo lying in the neighbourhood of Kiagbodo, which parcel of land is shown pink on the Survey Plan No. WE 1094 tendered by the defendants (but plaintiffs in Suit No. UHC/10/71) and marked Exhibit K in these proceedings.

(b) An Order of Permanent Injunction shall issue against the plaintiffs (i.e. defendants in UHC/10/71) to restrain them from alienating the land to strangers or dealing with it in any way whatsoever which may prejudice the rights of the plaintiffs without the knowledge, authority and consent of the people of Kiagbodo.

(c) The plaintiffs in UHC/10/71 (people of Kiagbodo) are entitled to costs which I assess at N950.00 against the defendants in that case”.

The plaintiffs have now appealed against the dismissal of their claim in Suit No. UHC/40/69 and also against the judgment entered against them in respect of Suit No. UHC/10/71. Among the several grounds of appeal argued at the hearing of the appeal is ground No. 12, which reads:

“12. The decision is against the weight of evidence and in particular the learned trial Judge owing to the inordinate lapse of time between the completion of the evidence and the delivery of the judgment had become a complete stranger to the facts of the case and was not in a position to form a proper view of the credibility of the witnesses on the most vital and contested issues of fact, particularly those relating to versions of the occurrences at the peace meeting, and he thereby came to a wrong conclusion”.

It may be pertinent to point out in detail the course taken by the proceedings at the trial. After the pleadings had been completed, hearing in the case commenced on 20th May, 1971, when P.W.1 gave evidence; the 1st plaintiff gave evidence in June and July 1971 with adjournments in the intervals; three witnesses on 25th October 1971; two witnesses on 16th December, 1971; one witness on 18th January, 1972 and the remaining ten plaintiffs witnesses between April, 1972 and 19th September, 1972, the date on which the plaintiffs closed their case and the 1st defence witness gave evidence.

Three other witnesses gave evidence in September/November, 1972; although the 1st defendant started his evidence on 7th December, 1972, the hearing was adjourned and he did not complete his evidence until the 16th of July, 1973. The   PAGE| 6   remaining two defence witnesses gave evidence on 19th July, 1973, when the case for the defence closed. Counsel addressed the court in July and August 1973 and the reserved judgment in the case was delivered on 30th November, 1974. We may pause to summarise the time lapses.

There appears to be a delay of 3 years 5 months from the commencement of the hearing to the date when judgment was delivered; and of 2 years 2 months from the date the plaintiffs closed their case and the defence began to the date of the judgment. There was a delay of about 16 months from the date the hearing was comple

Other Citation: (1976) LCN/2261(SC)