Chief C. A. Benebo Omoni & Ors v. Chief Pennington D. Inoma Biriyah & Ors (1976)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

This appeal is against the judgment of Allagoa J, in suit PHC/118/72 delivered on 30/4/74 at the High Court of Rivers State sitting at Port Harcourt, in favour of the Plaintiffs, who are the Respondents before us, against the Defendants, the Appellants.

The nature of the claim as set out by the learned trial judge reads:-

“The Plaintiffs who sue for themselves and on behalf of the members of the family of INOMA BIRIYAN claim a declaration that they are entitled according to the Native Law and Custom of KE to the possession, occupation and full user as owners of the land known and called OKURUSO against the Defendants who are members of other families and sued as representing the community of KE.

“5000pounds damages for trespass etc. “An order for perpetual injunction”

The learned trial judge concluded his judgment thus: –

“Having found that the land in dispute is known to the parties and is OKURUSO land which the Plaintiffs cleared and occupied after the outbreak of fire and have in addition exercised definite acts of ownership I will make the declaration in their favour. It was wrongful for the Defendants to have embarked on a communal development of the land without the consent and approval of the Plaintiffs. It is not denied that houses were erected on the land, since however they are meant for (the) good of (the) community, I will award the Plaintiffs a nominal damage of N1000 in the hope that the Defendants will make a proper approach. “In order to avoid any misunderstanding of the above suggestion I will grant the Plaintiffs the injunction sought.”

On the evidence before the learned trial judge both parties know the land in dispute. They also agreed that after the outbreak of fire in 1905 there was a consultation with an oracle. On the suggestion of the oracle the ten families, including those of Plaintiffs and Defendants, who altogether comprise the community of Ke, decided to expand. Each family cut out an area of virgin land outside their homestead, and cleared it for development. The Amanyanabo at that time was Omoni V. The areas cut out and cleared were for the occupation and habitation by each individual family. It is not in dispute that the area cut out by the Plaintiffs’ ancestors was called Okuruso.

The Plaintiffs claimed that they gave a portion of the land to a religious sect known as the Three Cross Society.The Defendants however claimed, on the contrary, that they granted the land to the Society. The founder of Three Cross Society gave evidence that the land was granted to them by the Plaintiffs and there they erected their Church and three other houses. This point therefore was resolved in favour of the Plaintiffs.

The cause of the present dispute arose when the Defendants claimed that the Plaintiffs had forfeited their right to the land because they placed a harmful juju on the land. The Plaintiffs’ version was that their ancestor placed a protective juju on the land, but when it was found, as a result of the investigation by a native doctor, that it was dangerous, they removed the juju from their land. In 1973 however the Defendants forcibly entered the land in spite of protest by the Plaintiffs, and erected a dispensary and a maternity house on the land. As a result of this forcible entry, the Plaintiffs instituted this action against the Defendants.

The learned trial judge after a careful evaluation of the evidence came to the conclusion that the Plaintiffs’ land was never forfeited to the Ke Community since the Plaintiffs had removed the juju, said to be harmful, immediately it was so found by the native doctor. The learned trial judge held, and quite rightly in our view, that the act of the Plaintiffs in the circumstances did not constitute any misconduct, and that the consequential claim of forfeiture was unwarranted. There was an assertion that the Defendants’ claim to have forfeited the land was in accordance with Ke Native Law and Custom. That custom was never proved.

The learned trial judge having held that the Plaintiffs did not commit any misconduct and therefore any alleged custom that forfeits the interest of the Plaintiffs in the circumstances of this case shall not be observed or endorsed because “it will be repugnant to natural justice, equity and good conscience or incompatible either directly or by its implication, with any law for the time being in force”. See section 20(1) of the High Court Law of the Rivers State.

The learned trial judge also held, on the evidence before him that the traditional history as given by the Plaintiffs “is more in accord with good reason and common sense” as against that put forward by the Defendants.

It is settled law that where a party admits the title to certain land, which it claims, was originally vested in a rival party, then the onus is on the first party to prove that such rival party had been divested of such title. The issue that arose for consideration has nothing to do with a disputed claim of title between the Ke community and the Plaintiffs. They belong to the same community and where communal property is involved the title is vested in the community. The Plaintiffs are not setting up a title against the Ke community at all.