Francis A. Odiete & Anor. V Omamujewhe Okotie & Ors. (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

In the High Court, Sapele, in the Mid-Western State, Francis Odiete and Stephen Oritsedere on behalf of themselves and on behalf of Oghoghovbe Family of Abraka as plaintiffs had instituted an action against the present respondents who were then defendants claiming, according to the endorsement of their writ of summons, as follows:-

(1) Against the 1st-3rd defendants only a declaration of title to a piece of land at Ekrejeta Quarter in Abraka in Western Urhobo District of Delta Province. The area and situation of the said piece or parcel of land will be more particularly described and shown in the survey plan to be filed later in court by the plaintiffs ‘9197 the annual rent of the said piece of land is ’91’a310.

(2) Against all the defendants, the sum of ’91’a3200 being general damages for trespass committed by the defendants on the said piece of land.

(3) An order of injunction to restrain the defendants and their agents and/or servants from further trespassing on the plaintiffs’ said piece of land with respect to which plaintiffs now seek a declaration of title.”

The plaintiffs’ statement of claim avers that both plaintiffs are members of the Oghoghovbe Family of Ekrejeta Quarter in Abraka; that Ekrejeta is one of the four quarters which make up the Oruarivie Section of Abraka (the other quarters being Urhuake, Urhuogo and Urhuavie), that each quarter had its own separate and defined area of land, that Ekrejeta Quarter itself is made up of 5 families of Oghare, Osori, Ojugo, Evebua and Owherhuo and that the plaintiffs are descendants and members of the Oghera Family branch. The statement of claim further states that Oghare had four children namely, Oghoghovbe, Omokoro, Owa and Uwruvbe and that Oghoghovbe and his children had always farmed the land in the present dispute without any let or hindrance whatsoever until the events that led to the present dispute. The statement of claim also avers that some time ago one Okotie, the ancestor or progenitor of the defendants and a member of the Ehobo Family of Urhuoka Quarter, begged one Chief Okonedo of the plaintiffs’ people “for a piece of land at Ekrejeta Quarter near the river…..where he could do his fishing,” that the said Okotie and his family lived on the area granted to them for some years but that at present his descendants and people have now started to plant economic trees on the said land gradually extending the dimensions of it and indeed had sold a portion thereof to the 4th defendant, Madam Evbesioro Agbuji, who was erecting a building thereon. The defendants’ statement of defence claimed the land as the bona fide property of the 1st-3rd defendants who by themselves and their ancestors had always been possession thereof exercising all acts of ownership including the planting of economic trees, founding settlements thereon and in particular paragraph 10 of the statement of defence reads as follows:-

“10. In further answer to paragraph 6 and 7 of the statement of claim the 1st-3rd defendants say that in so far as the plaintiffs seek to bring this action of behalf of Oghogovbe family (which Oghoghovbe is said to be the child of Oghare) of Ekrejeta Quarter, they are estopped by the decisions in (a) Suit No. 191/38 between J.A. Majoroh, a member of the plaintiff’s family of Ekerejeta and Ataghogho, a member of defendant’s family (Okotie family) given on 28/11/38 by the OLD ABRAKA CLAN COURT, (b) Suit No. 164/39 between Ataghogho a member of defendant’s family (Okotie family) and J.A. Majoroh a member of plaintiff’s family, given on 18/12/39 by the OLD ABRAKA CLAN COURT, (c) The appeal therefrom, Appeal No.7/A/1940 given by I.R.P. Heslop Magistrate full powers on 30/3/43 at Kwale. These actions, Suit Nos. 191/38 and 164/39 and case No. 7/A/1940 will be founded upon at the trial.”

At the trial, the parties gave evidence in support of their pleadings. The plaintiffs by their surveyor produced a plan of the land which, according to them, represents the area in dispute and this was admitted in evidence as Exhibit GOE1 and GOE1A. The defendants through their own surveyor produced their own plan of the land in dispute and this was admitted in evidence as Exhibit OEO1. The plaintiffs called evidence to describe the land which they claimed and the boundaries. One of the witnesses called by the plaintiffs gave evidence touching on the relationship of the lands of the parties to each other. He was David Oghenetueka Dafe the Clan Otota or spokesman at Abraka. He testified, inter alia, thus:

“Each sub-section has its own settlements and farm lands. Coming from Agbor towards Sapele, Ekrejeta is the nearest sub-section to Sapele. Urhuoka is next to Ekrejeta. A tall tree called Patapata marks the boundary between them. A foot path leads from the main road to the Ethiope River. Standing on the foot path and facing the river the land the left hand side belongs to Ekrejeta and that on the right hand side from the Patapata tree belongs to Uruaka. That is on the Agbor side. After that going towards Sapele one gets to Ekrejeta further on another footpath leads to the River, Okotie settlement is within the area enclosed by the two foot paths.”

One of the principal issues canvassed at the trial was the case fought and won by one Majoroh a native of Ekrejeta to whom the plaintiffs said they had given a portion of their land for settlement. Testifying with respect to the case of Majoroh, the 1st plaintiff, Francis Akpovbovbo Odiete said as follows:-

“After Okotie’s death the 1st, 2nd and 3rd defendants and Okotie’s other children entered Chief Majoroh’s land and planted rubber trees there. Majoroh sued them at the Abraka Native Court for trespass. He obtained judgment. Chief Majoroh was a native of Ekrejeta. He is dead.”

The witness was also emphatic that the District Officer did not at any time in the course of the proceedings in that case demarcate the land in dispute between the Ejeta Family as represented by Majoroh and Ataghogho Okotie representing Okotie’s family.

The defendants gave evidence of the settlement on the land by their own ancestor Okotie who had migrated there “from the main Abraka Town”, settled there as of right and without the permission of Chief Okonedo or anyone else. Speaking about Majoroh and the case he had with the defendants’ people, the 2nd defendant, Avwevughware Okotie, testified in part as follows:-

“We once had a dispute over the land in dispute with the plaintiffs’ family, Ekrejeta family. Their family sued Otabobo our half brother. The claim was heard at the Abraka Native Court. My brother lost the case. He appealed to the District Officer’s Court at Kwale. The District Officer inspected the land and demarcated it between the Ekrejeta family. The footpath marking the southern boundary of the land was the line of demarcation. I know Chief Majoroh, he was the spokesman in the Ekrejeta family.”