Edheremu Ugbodume & Ors. V. Rev. Moses Abiegbe & Ors. (1991)

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O. OLATAWURA, J.S.C. 

This appeal arose from two consolidated actions between the Appellants and the Respondents.

In the High Court of the then Mid-western State, the Respondents in this appeal instituted an action on 28/2/67 against the Appellants. The parties were Rev. Moses Abiegbe and three others for themselves and on behalf of the Descendants of EKPO in Igbide and Ovwodokpokpo villages in Isoko Division as plaintiffs. They sued Edheremu Ugbodume and two others for themselves and representing the people of Ore were village in Isoko Division. This case was later transferred to Ughelli Judicial Division. The Suit No. in Warrri Judicial Division was W/12/1967 whilst it bore the suit number UCH/17/67 in Ughelli Judicial Division. The suit no. in Warri Judicial Divsion was W/12/1967 whilst it bore the suit number UCH/17/67 in Ughelli judicial Divsion.

In 1970 vide suit No.W/44/70 Ukpe Orewere and two others took out a writ of summons for themselves and on behalf of the people of Enhewe village against Rev. Moses Abiegbe and three others for themselves and on behalf of the people of Ovwodokpokpo village. The earlier case of UCH/17/67 was renumbered W/125/73.

On 18th February 1974 two actions in W/125/73 and W/44/70 were consolidated. Their claims respectively are as follows:

W/125/73:

“1. A declaration of title to the piece or parcel of land at Igbide known and described as “Ahoro” land -the exact area of the said land in dispute will be-shown in a plan to be filed in support of this claim.

2. A declaration that the defendants by denying plaintiffs’ title to all the land in dispute and by refusing to pay customary rents to plaintiffs have forfeited under native law and custom their rights of user in respect of the said land.
3. The sum of 200 (Two Hundred Pounds) being general damages for trespass and/or meane (sic) profits.
4. Perpetual injunction restraining the defendants their agents and/or servant from further going on the said AHORO land aforesaid.”

In W/44/70 the claims read thus:

“1. A declaration of title to all that piece or parcel of land known as EHAO lying and situate at Enhwe in Isoko Division within the jurisdiction of this honourable Court. The exact area and situation of the said EHAO or parcel of land will be more particularly described and shown on a plan to be filed in support of this action; annual value (rent of the land in dispute) is (now N30).

2. A declaration that the defendants by selling up a title adverse to plaintiffs’ title in relation to the said EHAO land they (the defendants) have forfeited under native law and custom their rights of user in respect of that said EHAO land allowed to them by the plaintiffs.
3. The sum of 1,000.00 (One thousand pound, now N2,000.00 (Two Thousand Naira) being damages for trespass committed by the defendants in respect of the said EHAO land.
4. Perpetual injunction restraining the defendants, their servants and/or agents from further trespass on plaintiffs said piece or parcel of land”

Pleadings were exchanged in the consolidated actions.

The plaintiffs in W/125/73 were regarded as the plaintiffs in the consolidated actions whilst the plaintiffs in W/44/70 were regarded as the defendants.

Evidence was led on both side. Learned counsel addressed the learned trial judge on the issue raised in their pleadings. After a thorough review of the evidence and due consideration of the address of counsel on both sides, the learned trial judge Akpata J. (as he then was) gave judgment in favour of the plaintiffs (now respondents in this court) against the defendants (now appellants in this court) as follows:

“In the circumstances the plaintiffs are accordingly declared the owners of the area verged pink in Exhibits A and B plans No. (sic) TJM 655 and 1650 respectively covering about 545.2 acres … This declaration of title granted the plaintiffs is however, subject to the Land Use Decree”.

In addition, the learned trial judge forfeited the right of user granted the defendants on the ground that they denied the plaintiffs title. He also granted an order of perpetual injunction against them and limited it to the area verged pink in Exhibits A and B.