Wilson Etiti & Anor V. Peter Eze Obibi (1976)

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S. SOWEMIMO, J.S.C.

The appellant and the respondent in this appeal were the defendant and plaintiff respectively in the lower court in a suit which the plaintiff, representing the Ogbuji family, claimed declaration of title to a portion of land known and called “Ali ogbuji”land situate at Elelenwo in Obio in the Rivers State.

A further relief was sought for an order of permanent injunction restraining the appellant from interference with the respondent’s use of the land. The case was tried at the High Court of the Rivers State sitting at Port Harcourt by Allagoa, J. (as he then was) and in his judgment he set out the issues joined in the pleadings of the parties thus:

“(1) Whether as plaintiff maintains the land in dispute belongs to Ogbuji Family or as the defendant says, it is communal property of Ngwomati, and if it is Ogbuji family land whether there can be a reversion.

(2) Whether or not Paul Chuku from whom the defendant claims his title was still living on the land, up to the 13th May, 1968”.

The learned Judge then proceeded to examine and evaluate the evidence led by both parties and made the following findings:

“On the preponderance of evidence which I find in favour of the plaintiff I find as a fact that the land in dispute is called Ali Ogbuji and is the property of members of ogbuji family who are within Ngwomati compound. That it was the father of the plaintiff Wuche who allowed Paul Chuku, defendant’s father to erect a temporary building on the land.

I also find that Paul Ohuku before the civil war and before he died erected and completed a concrete building on his own father’s land, following which according to customary law of Ikwerre clan, the land given to Paul Chuku to build reverts to the plaintiff and remaining members of Ogbuji family.

That the conduct of the first defendant in insisting to use the land for farming is unjustified. I therefore will make order restraining the first defendant and his agents and servants from entering Ali Ogbuji henceforth”.

On appeal before us learned counsel for the appellant contended that the respondent could only succeed on the claim if he was able to trace his family’s root of title to Ngwomati. As was rightly pointed out by the learned Judge the issue before him was not based on the plaintiff deriving title from Ngwomati. It was the defendant who claimed that he derived his root of title from Ngwomati and the onus is therefore on him to establish that claim. What the plaintiff pleaded and proved to the satisfaction of the court was that the piece of land originally belonged to one Ogbuji, a son of Ngwomati and that the Ogbuji family inherited the land as family property. The traditional history and acts of ownership, including the claim that defendant’s father obtained the land in disputes from the plaintiffs to erect a temporary building, were found proved. It was also established in evidence that during the life-time of the defendant’s father, the temporary mud building or buildings which he erected on the land had fallen down and were abandoned. The defendant’s father erected a concrete building on his own family land. The contention of learned counsel for the appellant cannot therefore be sustained having regard to the facts found proved by the learned Judge.

It was not in dispute that during the civil war the defendant fled away and on his return decided to use the piece of land for farming. The learned Judge held that this act was unjustified because the defendant had no lawful right to do so. There was evidence which the learned Judge accepted of the custom of the people of Elelonwa (to which both parties belong) that land allocated to another for erecting temporary buildings reverts to the grantor if the buildings fell and ceased to be used for the purpose of the grant and became abandoned. We are satisfied on the evidence that the learned Judge was right in his conclusion.

We wish to point out that the whole of this case was based on an appraisal of the evidence of the parties as to their rights to the piece of land. It was mainly an issue which was decided on the facts and nothing has been urged upon us to show that the findings of the learned Judge were wrong.

The appeal lacks merit and is hereby dismissed. The judgment of Allagoa, J., in Suit No. PHC/10/72 delivered on the 23rd July, 1973, including the award of costs is upheld. The appeal is dismissed with costs assessed at N120 in favour of the respondent.

Other Citation: (1976) LCN/2178(SC)