Emavworhe Etajata & Ors V. Peter Igbini Ologbo & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C

From available facts contained in the printed record of appeal, both the plaintiffs and the defendants before the High Court of the then old Bendel State (trial court) were of same family i.e. OMOYWIARE, family of IGWREKPOKPO village in Ughelli Local Government Area. The plaintiffs claimed to sue for themselves and on behalf of the said family. The defendants were sued in their individual capacities. They denied that the plaintiffs were suing on behalf of Omovwiare family as the plaintiffs did not seek or had the consent of that family.

The dispute was on land which formed part of Ugbusi land situated and lying in Ughelli Local Government Area. The plaintiffs claimed that some portions of the said land were sold or leased by the defendants to various persons for which the sum of over N50,000.00 (Fifty thousand Naira) was received by the defendants and shared among themselves to the exclusion of other members of Omovwiare family. The land, according to the plaintiffs contained plaintiffs’ and other members of that family’s plantations, fish ponds, plaintiffs’ buildings, juju shrine, cassava plants; fish traps and many other crops. Plaintiffs and other members of Omovwiare family and their material ancestor, Imohkwe, had undisturbed enjoyment and possession of the said land until 1977 when the defendants challenged the rights of the 1st plaintiff and Ediri Etajata to sell rubber plantation to one Japan for building purposes. The land in dispute was founded by Imohkwe from time immemorial and was the first person to set foot on and to occupy

the land when it was virgin forest. The respondents claimed further that the said Imohkwe shared the Ugbusi land and gave part to his daughter called Omovwiare and the remaining part to his other child called Itoto.

Both plaintiffs and defendants are descendants of Omovwiare. The plaintiffs claimed also that in 1960, there was a dispute between members of Omovwiare family and Itoto family over the boundary between their respective portions of the land. The dispute was settled on the 13th of August, 1960. After the settlement, the defendants told the plaintiffs and other family members that they, defendants as representatives of Omovwiare family would meet members of the Itoto family for the settlement terms to be put into writing and signed by the representatives of both families so as to avoid future boundary disputes. The defendants, according to the plaintiffs, instead of drawing up terms of settlement with the representatives of Itoto family, surreptitiously entered into an agreement dated the 1st day of April, 1961, with some members of the Itoto family which agreement purported to transfer the title in the said land to defendants exclusively. The defendants, plaintiffs further alleged, had since then kept the said agreement away from the plaintiffs and other members of Omovwiare family until early in 1977 when the 1st plaintiff and his mother tried to sell a portion of the said land to one Japan. The defendants fraudulently prevented the plaintiffs and other members of Omovwiare family from having interest in and share of the proceeds from the sales of the various plots. They also refused to render account of the sale proceeds. The plaintiffs pleaded the particulars of the fraud alleged.

Now, because of the defendants refusal to give account of the proceeds of the sales of the land and for their refusal as well to share such proceeds, the plaintiffs resorted to filing of this suit. The claims indorsed in the writ of summons and as repeated in paragraph 25 of the further amended statement of claim read as follows:-

“When defendants ignored the said letter, plaintiffs were compelled to bring this action for themselves and on behalf of Omovwiare family against the defendants jointly and severally claiming as per writ as follows:–

1. A declaration that the land in dispute known and called Ugbusi land situates and lying in Iwrekpokpo village within Ughelli Judicial Division is the property of the said family to which plaintiffs and defendants belong.
2. A declaration that defendants hold the proceeds from the sales of several portions of the said Ugbusi land on trust for the said Omovwiare family.
3. That the said agreement dated 1st April, 1961 be declared null and void on the grounds of fraud.
4. That an account be taken of such sales and of the money received from the sales of the several portions of the said land by defendants.
5. That defendants pay over to plaintiffs for the said family whatever is due to them after the taking of such account.
6. An injunction restraining defendants, their agents from further sale of Ugbusi land without the consent and authorization of the plaintiffs and the other members of Omovwiare family.
7. Any further or other reliefs.”

The defendants as per their further amended statement of defence, except where they made express admission. denied each and every allegation or facts contained in the rurther amended statement of claim filed by the plaintiffs. Defendants for instance denied emphatically that they sold or leased the said land over N50,000.00(Fifty thousand naira) to various persons. They denied the existence or Itoto family land. They also denied that lmohwke.

during his life time shared the aforesaid said land into two between his son Itoto and daughter Omovwiare. They averred that all Imowhe lands had since his death devolved according to Ughelli/Urhobo native law and custom on the descendants or Imowhe.

The matter proceeded to hearing at the end of which the trial Court granted partially, the plaintiffs” reliefs in the following terms:

(i) That the land in dispute is the property of the entire Omovwiare family.

(ii) Injunction restraining the defendants, their servants or agent from further sales of the land in dispute without the authority and consent of the members of the Omovwiare family, was granted.

(iii) That the defendants were to account only for the sale to PW5.

The defendants were dissatisfied with the decision of the trial court and appealed to the Court of Appeal, Benin Division. The court below, on 12th May, 1989, dismissed the appeal and affirmed the trial court’s judgment except for relief (1) which was varied to read:”