Frederick Onagba Oduaran & Ors. V. chief John Asarah & Ors (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

 In Suit No. W/20/66, an action was commenced by a Writ of Summons taken out on April 27, 1966, in the High Court of the Warri Judicial Division but, upon the creation of the Ughelli Judicial Division, was later transferred to the High Court at Ughelli, Mid-Western State, where it was concluded. The plaintiffs’ claim against the defendants jointly and severally are as follows:

1. Against the 1st and 3rd defendants jointly and severally, a declaration of title to all that piece or parcel of land lying and situate in the neighbourhood of Uwerun, Central Urhobo District, within the jurisdiction of this Honourable Court, which said piece or parcel of land is known as Oyiho and will be shown edged in Pink on the survey plan to be filed by plaintiffs.

2. An order for the payment over to the plaintiffs by the 1st to 3rd defendants jointly and severally of the sum of 997pounds:Os.Od. paid by the 4th defendant as compensation to the 1st to 3rd defendants in respect of the 4th defendants’ oil location known as Oreba I situate on the said plaintiffs’ land known as Oyiho, which said sum the 1st  to 3rd defendants claimed by  falsely and fraudulently representing themselves as owners of Oyiho land.

3. A declaration against the 1st to 3rd defendants jointly and severally that by setting up title adverse to the plaintiffs’ title in relation to the said land called Oyiho, they have forfeited under native law and custom the rights of user conferred on them by the plaintiffs.

4.An injunction restraining the 1st to 3rd defendants from further entering on the said plaintiffs’ land called Oyiho.

5. An order that the plaintiffs as owners of the land called Oyiho are entitled as against the 4th defendant to all compensation due now and in future from the 4th defendant for prospecting for oil on the said land.

Pleadings and plans were ordered on June 24, 1966, and were duly filed. The plaintiffs brought this action as representing themselves and the entire people of Uwerun in the Central Urhobo District against the defendants as representing themselves and the entire people of Ewu in the same Central Urhobo District of the Mid-Western State.

The plaintiffs averred in their Statement of Claim, that the land in dispute is a portion of their land known as Oyiho and is shown edged in green on plan No. JJ.M 9/66 made by Theophilus John, a licensed Surveyor; that the specific area in dispute is shown thereon edged in pink, and that the Oreba I Location granted by the defendants to the Tennessee Inc., is also within the pink area.

The said land known as Oyiho, they further averred, is bounded on the north by land of the Evwreni people, on the south and east by the plaintiffs’ other land not in dispute, and on the west by the land of the defendants and Orere people (who are also Ewu people), the River Urhiewhuru forming a natural boundary on the west. Their plan was later admitted by consent of both sides as Exhibit P1.

The plaintiffs also averred that, since its first settlement by their ancestor, from time immemorial, they had lived and farmed on the land, raised rubber and coconut and palm plantations on the land, put tenants on it, fished in the creeks and ferried people from the Uwerun side of RiveR Urhiewhuru to the Ewu side through the Urhuruigbedi waterside, had jujus on the land and, in fact, exercised maximum acts of ownership on the land without hindrance from the defendants or any other people until the Tennessee Nigeria Inc.,  entered upon the land in search of oil in November, 1965. The five children of the plaintiffs’ ancestor now occupy the five main quarters in Uwerun. It was finally averred that, long after the plaintiffs’ predecessors had settled on the present site, the defendants’ ancestors came and settled at a place called Ewu, which is about 3 miles from the opposite bank of the River Urhiewhuru which, being swampy, led the defendants to beg the plaintiffs to allow them to live with the plaintiffs on their own side of the bank of the river; Oguname was the first place thus granted for settlement by a man whose mother was an Uwerun, but the defendants’ people were in later years given permission to live at other places along the bank on the plaintiffs’ side of the river.

The 1st, 2nd and 3rd defendants, on the other hand, denied in their Statement of Defence that the land in dispute is at Uwerun or that it belongs to the plaintiffs or their ancestors. They admitted that it was by their permission and authority that the Tennessee Nigeria Inc. was in occupation of a portion of the land edged pink on the plaintiffs’ plan. They also admitted that they own the land lying to the West of the land claimed by the plaintiffs in this action, and averred that their land lies on both sides of the Ewu River (otherwise known as the River Urhiewu); they denied that the river was known as Erhiewhuru. They averred that part of the Eastern boundary of their land extends across the river to a boundary demarcated in yellow on their Plan (later admitted as Exhibit D.1) and consisting of trees, lakes and creeks extending from a point near Arhejo Fishing Fence in its northern part to Ogboro River in the south.

The defendants averred that their own ancestors were the first to settle on the land in the area, that from time immemorial they had been in effective control of it up to their boundary with the Ewhen community, and that their ancestors gave a portion of the land west of the land of the Ewhen people to the plaintiffs’ ancestors up to their present boundary at Oreba village. They also asserted numerous acts of ownership exercised by them, including farming, planting economic trees and other crops, fishing in the creeks and granting permission to various people (including members of the plaintiffs’ community) to use portions of the land.

Their most important averment in this respect was that various members of their community had founded ten villages, including Anvwo on the border of their land as shown on Plan D.1. Finally, the defendants stated that the plaintiffs had never had claim to the portion of the land in dispute until the discovery of oil made the plaintiffs bring the present “speculative claim”.