Madam Imachi Ekine Bobmanuel & Ors. V. Elder Isaac Gillis West & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the defendants against the judgment of T.K. Osu (J) sitting in Port Harcourt Judicial Division of Rivers State High Court.

The suit originated from Degema Judicial Division by relevant order made thereof, same was transferred and concluded in Port Harcourt Judicial Division.

The dispute rages around a parcel of developed land known as Okponnaolu Gate situate in Tom West Compound in Buguma in Asari Toru Local Government Area of Rivers State. At the lower court, the respondents and the appellants were plaintiffs and defendants respectively. For ease of reference, parties shall hereinafter be referred to as “appellant” and “respondents” respectively. The plaintiffs’ case, from available facts in the printed record of appeal is that they are children and grand-children of a man called Okponnaolu, whose brothers are Wariboko, Tamuno and Dagogo, all of whom belong to a family known as Tom West Compound of Buguma. The said Tom West Compound is part of a group of houses known as Elebike Group of Houses in Buguma.

The plaintiffs claim that the defendants are grandchildren and great grandchildren of Wariboko and that both the plaintiffs and the defendants belong to or are members of Tom West Compound. The traditional history led in evidence by the plaintiffs is that the property in dispute belonged to the said Okponnaolu and it was Chief Tom West, then head of Tom West Compound that allocated the said land in dispute to Okpannaolu for the latter to build and reside thereon and that the allocation was made to Okpannaolu alone. The plaintiffs through PW1. (i.e. 4th plaintiff) admitted that at the time of allocation, the property belonged to the Tom West Compound headed by Chief Tom West. The plaintiffs, through PW1 further stated that Dagogo, brother of Okpannaolu was his grandfather and that 2nd plaintiff who was 4th plaintiff’s mother was a direct daughter of Dagogo and as such PW1 himself was offspring being children and grandchildren of Dagogo and are therefore members of Tom West Compound. The plaintiffs claim that 1st plaintiff is a direct biological son of Okpannaolu by adoption. They contended that Okponnaolu adopted a woman named Ibitubo as his daughter and gave her to his brother Dagogo, as a wife and that she it was that gave birth to the 2nd plaintiff and the mother of the 3rd plaintiff in the course of Ibitubo’s marriage with Dagogo and that as such the said Ibitubo, 1st, 2nd, 3rd and 4th plaintiffs are entitled to inherit the properties of Okpannaolu.

The plaintiffs claim that the defendants are licensees of the plaintiffs. The plaintiffs’ sole witness on this point was the PW1 who gave evidence that the said license was a customary license. He went further to state that Dagogo, his father was a licensee of Okpannaolu in the land in dispute. They claim that in 1967 the original 2nd defendant was granted a portion within Okpannaolu Gate to put up a building but that the grant was revoked and that in 1991, the original 2nd defendant was prevented from carrying out a renovation or reconstruction of a building on the land in dispute while in 1993 and 1994 the defendants sought to prevent the plaintiff from the performance of funeral rites intended for the burial of second Harry West and Fyne Dagogo West both of whom were descendants of and granddaughter of Okpannaolu respectively. The plaintiffs contended that these were acts constituting challenges to the plaintiff’s overlordship of the property in dispute. The plaintiffs therefore sought that it be declared that the defendants are licensees, orders of forfeiture and mandatory injunction.

The defendants challenged that right of the plaintiffs down to their root of title, that is, Okpannaolu, their ancestor. It was the defendants’ case that the original allotment of the land to Okpannaolu was not to him exclusively, but to him and his three brothers jointly and so they as descendants of one of those brothers are co-owners of the land. They also alleged in the alternative that the land belongs to the entire Chief Tom West Family and so the plaintiffs have no right to terminate the defendants’ use of the land as the parties are equally members of the Tom West Family. The defendants contended that when Buguma Town was founded in 1884 the entire landmass in the town was shared among the compounds that are the groups of related families, one of which was Chief Tom West Compound. Out of the area belonging to the Chief Tom West Compound, a parcel of land was allotted by Chief Tom West, Head of the Compound to Okpannaolu who developed the land gradually and positioned the houses to form a gate at the entrance into the premises. Thus, the land when developed earned the name “Okpannaolu Gate.”

Defendants admitted evidence of the plaintiffs that all the houses at the Gate were built by Okpannaolu, who allowed his brothers Wariboko, Dagogo and Tamuno to occupy the other houses he built at the Gate apart from the first one in which he lived with his immediate household. That upon the demise of Okpannaolu his immediate descendants inherited his property and exercised all rights of ownership over the years. It is also the defendants’ case that in 1967 the plaintiffs stopped them from building on part of the land and in 1991 they also prevented the defendants from renovating one of the houses by withholding their (that is plaintiffs’) consent. That on both occasions the parties attended a local arbitration constituted by Chiefs of Tom West Compound, Buguma. On a different occasion the plaintiffs, in evidence of their ownership had permitted one Mr. Soberekon to build on a portion of the land in dispute without any challenge. Despite all these, the defendants who are the descendants of Wariboko, one of the brothers of Okpannaolu, are claiming that they have equal rights with the plaintiffs to the property in dispute.

They seem to be vesting that title on their belief that since they were born and bred on the land in dispute, their grandfather, Wariboko must have been a co-owner of the land. To that extent they are denying their status as licensees of the plaintiffs on the land and are contesting the plaintiffs’ rights as exclusive owners on the basis that this land was allotted jointly to Okpannaolu and his three brothers.

Parties joined issues on their respective claims. The appellants denied the allegations of the respondents. At the conclusion of the trial, learned trial Judge entered judgment for the plaintiffs whereby he declares the defendants as licensees of the plaintiffs. He granted an order of forfeiture against the defendants and decreed a mandatory order compelling the defendants to forthwith vacate the property in dispute.

Dissatisfied with the judgment of the lower court, the appellants appealed to this court. In compliance with the Rules of the Court, briefs of argument including appellants’ reply brief were filed and exchanged by the parties. Learned counsel for the appellants posed the following sole issue for determination:

“The issue for determination in this appeal is whether or not the learned trial Judge was right in entering judgment for the plaintiffs having regard to the pleadings, evidence led, the state of the law and the approach adopted by him.”

On the part of the respondents one issue was formulated for determination of the appeal thus:

“Whether in the circumstances of this suit, the learned trial Judge was right in granting the plaintiffs’ claim.”