Kurobo Samesi V. Micah Igbe & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, (OFR) J.C.A. (Delivering the Leading Judgment)

This is an appeal by the Plaintiffs against the judgment of the Rivers State High Court dated 30th December 1994 dismissing in its entirety the claim against the Defendants. As indorsed on the writ dated 8th December and issued on 29th December 1973 and paragraph 12 of the plaintiffs’ amended statement of claim, the claim against the Defendants is for declaration of title, damages for trespass and injunction over the land in dispute. Let me briefly state the facts of the case that gave birth to the appeal.

The plaintiffs claim is over the parcel of land they call Iginama- Toru-Ugbo, a name derived from the claimants’ principal juju, Iginamu, on the land. Ossiama River, otherwise called Iginamatoru, runs through the land in dispute as well as plaintiffs’ villages of Ondewari and Okpotuwari. The two villages, plaintiffs assert, were founded by Okpotu and Onde. It is plaintiffs’ case that these two had allowed Defendants precursor, Egwe, to settle to the south of Okpotuwari village. Egwe settled first at Ikolighaguyo and then at Amabiriyo areas along Ikebiri creek off the Iginamotoru.

These settlements, inhabited by defendants’ predecessors, is the land in dispute which the plaintiffs aver form part of the area founded by Olodi the founder of the Olodiama Clan. It is their further case that the clan now consists of the following communities: Ikebiri, Ikeremo, Okpetuwari, Ondewari and Olugbubiri. The settlements derived their respective names from Ike, Ikeremo, Okpetu, Onde, and Ohigbo all Olodi’s children. The communities share common boundaries.

Defendants’ case, on the other hand, is that the land in dispute, Apiebou, is a communal bush situate at Iginamotoru creek in the present day Bayelsa State. It forms part of the farm land they own and peacefully possess and enjoy from time immemorial. They farm, fish, let out and carry out all manner of work without let or hindrance from the plaintiffs or any other. The land in dispute is delineated in defendants plan No. JTR 85LD. It is defendants’ case that they are descendants of Olodi, the founder of Oladiama clan. Olodi had eight children from three wives. The children include Korosori Korosori the founder of Korokorosei settlement. Six other settlements were founded by Olodi’s other children with the seven villages constituting the Olodiama’s Clan. The children who founded the six other settlements are Tebi, Ike, Ikeremo, Biri Ikeingbie, Okpetu, Onde and Ohigbo. They founded Tepidaba, Ikebiri, Ikeighe Biri, Okpetuwari, Ondewari and Ohugbobir settlements respectively. Ekeremo left the creek and found his settlement in Patani in Delta area.

On Olode’s death his son Korosori Korosori left for Anyonabiri and finally settled at the present Kokorosei settlement. Igina, one of the earliest descendants of Korosori Korosori founded the Iginamatoru settlement, the land in dispute. He lived at the spot called Iginama and the entire creek, Iginamatoru, was named after him. Igina’s descendants including the Defendants have exercised maximum and uninterrupted acts of ownership over their land which they cultivated, carved and peddle, weave mats and baskets, fish in ponds and lakes as well as let parts out to Ibibio tenants, It is also Defendant’s case that an Ekowe Native Court had decided over the land in dispute in 1923 in case No.592/23 and a Divisional Officer had thereafter advised parties to keep to the boundaries defined for them.

The plaintiffs called six witnesses to prove their case while the defendants called five. At the end of the trial which included the lower court’s visit to the locus in quo, the court disbelieved plaintiffs’ case and dismissed their entire claim. Being dissatisfied, they have appealed on an amended Notice containing fifteen grounds.

Parties have filed and exchanged their briefs of argument which, at the hearing of the appeal, they adopted and relied upon. The four issues distilled at paragraph 2.1 of the Appellants’ brief reads:

“i.) Did the learned trial Judge follow in this case the correct procedure as laid down by law for visits to locus in quo, if not, are his findings based on the said visit sustainable in the circumstances this case?

(Grounds 4 and 15 Appellants Grounds of Appeal)

ii.) Was the learned trial Judge right when he held that the averment in paragraph 7 of the Amended statement of Defence to the effect that the Defendants “are not in a position to deny the traditional history of Olodiama clan as averred” by the Plaintiffs did not amount to an admission of the said traditional history pleaded by the Plaintiffs?

(Ground 11 Appellants grounds of Appeal).

iii.) Did the learned trial Judge adopt the correct approach in his evaluation of the evidence in this case; if not, are the findings of the learned trial Judge sustainable?

(Grounds 2, 3, 5, 6, 8, 9, 10, 12, 13 and 14, Appellants Grounds of Appeal).