Oterail Odadhe v. Otowodo Okujeni & Ors. (1973)

LawGlobal-Hub Lead Judgment Report

IBEKWE, J.S.C

In an action instituted in the Ughelli High Court, the plaintiff herein appellant claimed for himself and on behalf of the Imowhe family of Emevor against the 1st and 2nd defendants, ‘a3500 damages for trespass on the plaintiff’s parcel of land known as Ubiedhor, situate and lying at Ubiedhor village in Isoko District of Urhobo Division. Plaintiff also claimed an injunction to restrain the defendants their servants and agents from entering or in anyway dealing with the said land.

Pleadings were ordered and filed. In the relevant portions of his statement of claim the plaintiff averred as follows:-

“2. The lands in dispute are shown in the plan filed in this action and are part of the land of the IMOWHE family which is verged green in the said plan.

3. The whole of the land verged green in the plan filed in this suit belongs to the IMOWHE FAMILY who have been in possession from time immemorial during which period the plaintiff and his family (IMOWHE) have exercised maximum acts of ownership and possession over the said land, including the lands in dispute.
4. Some-time in 1962 second Defendant broke and entered the parts of the land verged red and marked “B” and started farming thereon without the permission of the plaintiff first obtained.
5. Plaintiff warned the second Defendant against continued trespass but second Defendant refused and continued with his trespass and cut down a number of valuable trees.”

The 2nd defendant in reply averred as follows:-

“3. With regards to paragraphs 2 and 3 of the Statement of Claim the 2nd defendant stoutly denies the land in dispute as belonging to IMOWHE family and that at no time has IMOWHE family either been in possession of the aforementioned land in dispute or exercised maximum acts of ownership.

4. That Urume family of Emevor had put the aforesaid land as shown in the plan filed by the 2nd defendant, in custody of his father Eni who died since 1944 and who had lived on the land with the 2nd defendant Akpovili Eni and had exercised maximum acts of possession undisturbed.
5. That the eldest male member of Urume family now living is Ontaturu to whom the 2nd defendant owes allegiance and recognises and his landlord by making periodical gifts, but before Onaturu was one OWHE EKOKOTA.
6. That the 2nd defendant stoutly denies paragraphs 8 and 9 of the Statement of Claim and says that the plaintiff and his people have never been in possession of the land in dispute and cannot therefore complain of trespass.”

From the pleadings, it is clear that the gist of the 2nd defendant’s case is that his father Eni was put on the land by the Urume family of Emevor and that, after the death of his father in 1944, he the 2nd defendant has continued to be on the land and has exercised “maximum acts of possession undisturbed.”

The 2nd defendant recognises the oldest male member of Urume family, one Onaturu, as his overlord, to whom he makes periodical gifts in acknowledgment of the latter’s title to the land.

At the trial, the plaintiff gave evidence and also called five witnesses. It would appear that, after the plaintiff had closed his case and the 1st defendant had begun to give evidence, one Chief Onaturu Otuetue who was described as the present Odion of Emevor and the Head of the Urume or Emole Family of Emevor through whom the 2nd defendant claims his right to be on the land, intervened, claiming that his family is the owner or the land, and praying the court to join the family as defendant to the action.

Accordingly, by an order of court, the family was joined in a representative capacity as the 3rd defendant.

In the relevant portions of his defence the 3rd defendant averred as follows:-

“3. The plaintiff’s father asked for a piece of land from Eruvie the founder of Eruvie family of Emevor who allowed him a small portion of land situate in Eruvie family land where be built a hamlet and Eruvie family land is situate at Umude bush but it is not one and the same with Emole land.

4. The third defendant stoutly denies paragraphs 2, 3, 8 and 9 of the Statement of Claim filed by the plaintiff in this action and at the trial the third defendant will put the plaintiff to the strictest proof of the allegations therein contained. The third defendant further states that the survey plan filed by the plaintiff does not represent the true position, area and description of the land, but the plan filed by the 2nd defendant represents the true position, area and extent of the land, the property of Urume family of which the third defendant is its Head and Oldest Member.
5. The third defendant further avers that he is at present the Odion of Emevor and before him was Owhe Ekokota also a descendant of Urume family.
6. That many years ago Akpona of Urume family gave a portion of Emole land to the 2nd defendant’s father who married ORIVRI, a daughter of Emole and the 2nd defendant’s father built a hamlet there and it was here the 2nd defendant was born, lived and planted some rubber trees on a portion of the land since 1944 into which it has been alleged he trespassed. The 2nd defendant made periodical payment to the Urume family.
7. That the third defendant and their ancestors founded Emole land many, many years ago, when it was a virgin forest and it passed through many descendants of Emole and then to the present Urume family and that both the 2nd and the third defendants and with other members of the family have exercised maximum acts of possession and ownership over the said piece of land without let or hindrance.
8. The third defendant states that he and the members of his family have rubber trees, mango trees, cocoa trees, cassava farms, kola-nut trees in the land and oil bean trees, Iroko wood trees, “Obiara” trees, “Owaghan” trees marking the boundaries of the Emole family land.”

In a well-considered judgment, the learned trial judge entered judgment for the plaintiff against the 1st defendant who has not appealed against that decision, but dismissed the plaintiff’s claim against the 2nd and 3rd defendants.

In reaching his decision the learned trial Judge, Atake, J., said:-