Osibakoro D. Otuedon & Anor V. Ambrose Olughor & Ors. (1997)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C. 

The Plaintiffs who are now Appellants in this appeal, had sued the 1st set of Defendants (now 1st and 2nd Respondents) and Shell B. P. Petroleum Development Company of Nigeria Limited (now 3rd Respondent) in the High Court of the former Bendel State (Warri Judicial Division) claiming as herein under:

“1. AS AGAINST the 1st to 4th Defendants a Declaration that the Plaintiffs are the owners of all that piece or parcel of land Gbolokposo/Gbomro Village within the jurisdiction of this Honourable Court on which the 5th Defendants established a drilling location, and are entitled to all compensations, rents and other monies paid and/or payable by the 5th Defendants in respect of the said Defendants’ operations on the said land, – Annual rent is 10 Pounds.

2. An order of Court that all compensations, rents and other monies payable by the 5th Defendants for rights of user enjoyment or disturbance of the said land be paid to the Plaintiffs.
3. An Order of Injunction restraining the 5th Defendants and their Agents and/or servants from making payment of any compensation for rights of user, enjoyment or disturbance to the 1st to 4th Defendants or any other family or Community.”

Pleadings were ordered, filed and exchanged. In the course of the proceedings, the 2nd set of Defendants (that is, 4th-7th Respondents) were, by order of Court, joined as Defendants in the action. This necessitated the claims being amended as herein under:

“1. AS AGAINST the 1st to 4th, 6th and 7th Defendants a Declaration that the Plaintiffs are the owners of all that piece or parcel of land at Gbolokposo/Gbomro Village within the jurisdiction of this Honourable Court on which the 5th Defendants established a drilling location, and are entitled to all compensations, rents and other monies paid and/or payable by the 5th Defendants in respect of the said Defendants’ operations on the said land.

2. An Order of Court that all compensations, rents and other monies payable by the 5th Defendants for rights of user enjoyment or disturbance of the said land be paid to the plaintiffs.
3. An order of Injunction restraining the 5th Defendants and their Agents and/or servants from making payment of any compensation for rights of user, enjoyment or disturbance to the 1st to 4th, 6th and 7th Defendants or any other family or community.”

The parties, except the 3rd Defendants (formerly 5th defendant), with leave of Court, amended their pleadings several times. The action had a chequered history in the High Court. It went through the hands of a number of Judges of that Court. There were two aborted trials each before Aluyi and Akpata JJ, as they were then. A third, and final trial commenced before Uwaifo J, as he then was, in April 1983. After further amendments to the pleadings, the trial came to an end with the judgment of the Court on 10th July 1985-16 years after the writ was taken out!

At the final trial, the parties led evidence in support of their respective case and after addresses by their learned counsel, the learned trial Judge, in a reserved judgment, adjudged as follows:

“In view of what the parties can really contest in respect of this peninsula, I think that a judgment that is capable of limiting any future contest to mere boundary dispute (if need be) is desirable. That boundary can then be ascertained. It will be unfair to leave the parties with any idea that either side can ever hope to claim exclusive ownership of the peninsula. It will be a forlorn hope for them to start all the full contest all over again. The plaintiffs have at least since 1925 (a period of 60 years) been engaged in litigation from being overrun by Effurun people, the home people of the defendants.

I have not considered a non-suit appropriate. There is no question of dismissing the plaintiffs’ claims in toto because of its consequences. I suppose the best and right thing that can be done is to make it possible for both parties as Nigerians to live on the land, each on their own as landlords not tenants. Let it even be like the Greeks and Turks as Cypriots on the island of Cyprus! Not as warring parties but as kith and kin permitting their long history of intermarriage to meliorate their relationship.

The declaration I make therefore is that the plaintiffs are the owners of Gbolokposo village right from the boundary already found established between Gbolokposo and Effurun, and shown in survey plan No. WE 2866 (exhibit A) but does not extend into any part of Gbomro village. The boundary between Gbolokposo and Gbomro may remain to be determined as an issue – just as a houndary-lint’ issue. Subject to this, the claim as formulated is dismissed.”

The learned trial Judge had found –

1. “The land in dispute is a peninsula marked by Warri River and Erere or Kerekere or Ekerekere Stream. It is completely surrounded (and this is a common fact) by Urhobo lands. Within it is one obviously predominant Itsekiri settlement. , The said Itsekiri settlement is Gbolokposo village while the Urhobo such settlements are Gbomro and Okwatata villages. There is also Efoghere village inhabited, by Urhobos. However, the land can almost be regarded as “waterside” land mass, which type of land, from the overall evidence in this case, was and is of most attraction to Itsekiri people.”
2. “The plaintiffs are Itsekiri community while the title defending defendants in this suit (sometimes referred to in this judgment as the defendants) are Urhobo community and families.”
3. “I think it can safely be said that the parties know the physical location and extent of the land in dispute. I have already referred to it as a peninsula. It is clearly so. This is borne out by the waterways shown in exhibit A (Plaintiffs survey plan), exhibit C, (Gbomro people’s survey plan) and exhibit F (Abade and Ogbe Families’ plan. The prominent settlements earlier referred to, namely, Gbolokposo, Gbomro and Okwatata are within the said land in all three survey plans. The only extra comment is that the plaintiffs through their surveyor gave oral evidence of what he was told constituted the boundary with Effurun. The 1st plaintiff himself gave the same evidence of that with Effurun. The defendants gave no such oral evidence.

In my view the land verged green as shown to belong to Ogbe family is an incursion and appears to create an arbitrary boundary.”

“I also accept the evidence that there is established boundary between Gbolokposo and Effurun. In my view the boundary is as shown in the plaintiffs’ survey plan No. WE. 2866 (exh. A) and given, in evidence by the surveyor, Ivharayi Williams (P.W.1.). The defendants did not effectively controvert this by stating what the boundary line comprises. It is not sufficient that their survey plans. exhibits C and F, simply show a boundary not supported by evidence.”

He thus accepted the boundaries of the land as given in Plaintiffs’ Plan Exhibit ‘A’