Omimke Ebevuhe & Ors Vs Madam Etibio Ukpakara & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, JSC.

This is an appeal against the decision of the Court of Appeal sitting in Benin City, which on 7th December, 1990 dismissed in its entirety the defendants/appellants’ appeal from the trial Court’s decision wherein the plaintiffs/respondents had claimed in their writ of summons against the defendants/appellant in the following terms:-

“(a) A declaration of title to all that piece or parcel of land known as and called Erawha lying and situate in Erawha village Owhe Clan in Isoko Local Government Area, Bendel (now Delta) State of Nigeria within the jurisdiction of the Honorable Court, the extent of the land in dispute being shown and verged green and red on Amended Survey Plan No. E.R. 1724 tiled with this Amended Statement of claim.

(b) The sum of N300.00 (three hundred naira) damages for trespass by the defendants to the plaintiffs’ Erawha land aforesaid sometime in April, 1975 and

(c) An order of perpetual injunction to restrain the defendants, their servants and/or agents from further trespassing on the plaintiffs’ piece or parcel of land aforesaid.” (Parenthesis mine).

After pleadings were ordered, filed, duly amended and exchanged, the case went to trial before Akpiroroh, J. sitting at Oleh, then in Bendel but now Delta State. After both parties had closed their cases, the learned trial Judge on 29th May, 1987 in a well considered judgment, granted all the reliefs the plaintiffs/respondents (hereinafter in this judgment referred to as the respondents) had claimed, save that he reduced the damages for trespass of N300.00 to N200.00.

Being dissatisfied, the defendants/appellants (hereinafter referred to as appellants) appealed to the Court of Appeal, Benin City which as hereinbefore stated, dismissed their appeal on 7th December, 1990.

For a clearer and better understanding of this case the following are die background facts as made out on behalf of the parties.

For the respondents they are that the land in dispute is part of the land founded by Ovie their ancestor which land subsequently devolved on them. Ovie, they recounted, was the grandson of Azagba, who with his wife Owhe, founded Owhe Clan. Tracing their genealogy, they showed how Ovie had a daughter called Itete and two sons – Ejeasa and Otuata. Itete, it was maintained, beget Atamaro who in turn begat Esekwe and other children.

Esekwe, it was then stated, beget Ukpakafe, Okoro, Ugboka, Agbarugo Oguboru and other children. Ukparaka begat the 1st respondent, Okoro; Okoro begat late Johnny, the 2nd and 3rd respondents. Ovie his lifetime farmed on the land before he gave it to his daughter Itete and her descendants to farm on. Both Ovie, Itete and her descendants, it is said, exercised maximum act’s of ownership over the land in dispute. They also stated that they collected palm nuts, fished and hunted games on the land as well as owning rubber plantations and houses built by their tenants thereon.

The respondents demonstrated how sometime in 1961 the 2nd appellant and Emonido started to farm on the land, in consequence of which, the 1st respondent sued them to Oleh Customary Court and got judgment; the case being Suit No. 10C/55/61 vide Exhibit B. That in 1975, when dispute erupted over the land, the appellants summoned the respondents before the Odion 0logbo asserting ownership of the land and that after probing into the dispute, the Council gave judgment in respondents’ favour. Subsequently, the appellants again trespassed on the land; whereupon the respondents commenced the action giving rise to the case herein.

The appellants for their part denied the respondents’ claim; they in addition denied that Ovie was a descendant of Azagba and Owhe and any knowledge of the Oleh Customary Court case of 1961 vide Suit Na IOC/55/61 as well as the customary arbitration before the Odion in Council in 1975. In their claim to ownership of the land in dispute, they too relied on traditional evidence, acts of ownership and long possession. Their case is that the land in dispute called Otor-Uto was founded by Akpughe their ancestor from whom it devolved on them through Eweke. Their genealogy is to the effect that Azagba and his wife who founded Owhe begat Ogbu, Ovo and Uthata. Ovo begot Akpughe who founded Otor-Uto in Erawha land. Akpughe begat Edhegbe, Eweke and Ikperi.

After the death of Akpughe, his three children shared Oto-Uto land among themselves. Eweke begat Ariakpo, Eka, Ojokor and Erhieha and after the death of Eweke, his four children shared the land among themselves. In the course of time they maintained, Odjokor defaulted in joining to clear the path to Orise Owhe juju and his own portion of the land was seized and pledged to Esekwe, the ancestor of the respondents for 80k (equivalent of twenty cowries). They asserted that when the land was in possession of the respondents as a result of the pledge they (respondents) sued the 2nd appellant in respect of the house he built on it and that the other appellants were not a party to the action.

The appellants then asserted that sometime in 1975 they summoned the respondents before D.W. 1 (George Iduku Orvwighose) in his house in order to redeem the land pledged to Esekwe their ancestor and after deliberation, the appellants redeemed the land with the sum of N200 which they paid to the respondents.