Archbold Ebba V Chief Warri Ogodo & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The plaintiffs, who are appellants in this appeal, for themselves and on behalf of Ebbah Family had on 8/6/87 sued Chief Warri Ogodo and Warder Samuel Ogodo, for themselves and on behalf of Ogodo Family and The African Timber & Plywood (Nig.) Ltd. as 3rd defendant claiming –

(1) An order apportioning the rent payable by the 3rd defendant between the plaintiffs and the 1st and 2nd defendants.

(2) An order that 1st and 2nd defendants do render a true account of all rents received by them from the 3rd defendant since the judgment in suit No. S/23/74 and payment over to plaintiffs of their share of the said rent.

(3) An order of injunction restraining the 1st and 2nd defendants from receiving the aforesaid rent to the exclusion of the plaintiffs and 3rd defendant from paying over to the 1st and 2nd defendants to the exclusion of the plaintiffs the aforesaid rent.”

Following separate applications made by the UAC of Nigeria Ltd. and the plaintiffs the African Timber and Plywood (Nig) Ltd. was struck off the suit and the UAC of Nigeria Ltd. was subsequently joined as the 3rd defendant in the action.

Pleadings were filed and exchanged and subsequently, by leave of court, amended. By their amended statement of claim the plaintiffs pleaded, inter alia, as follows:

8. Whilst Ogodo and Mivayegbedia were at Ugbunurhie in Sapele, various European traders came to what is now Sapele to seek new trading posts. As these alien traders required land by the river, they approached Mivayegbedia and asked for land at Ugbunurhie. Being a woman of advanced age at the time, she mandated Chief Ogodo to negotiate with the European on her behalf. He did so and the result was the Deed of Lease dated 6th August, 1902 as pleaded in paragraph 3 of this Amended Statement of Claim. The money paid by the grantee and the rent for the land was enjoyed by the plaintiffs’ grand mother and late Chief Ogodo in their life time.
9. Whilst Chief Ogodo and plaintiffs’ grandmother were at Ugbunurhie, plaintiffs’ father Ebbah left Ugbunurhie and founded his own land on which he built his village now popularly called Ugbeyiyi.
10. By Okpe Native Laws and Customs, the property of a deceased mother passes to her children upon death and in this way Ebbah succeeded to her late mother’s right to the rents and money due under the lease of Ugbunurhie land – the present site of the A.T. and P. granted to Mclver and Company Limited by the lease pleaded in paragraph 3 of this Amended Statement of Claim.
11. For some years after the death of plaintiffs’ father, about 1956, members of Ogodo family collected the rents due under the lease and at the time when Itoto Ogodo was head of Ogodo family, he did everything to ensure a harmonious relationship between members of plaintiffs’ family and Ogodo family.
12. After the death of Chief Itoto Ogodo members of the Ogodo family became aggressive and greedy and attempted to exclude plaintiffs not only from taking a share in the rents from 3rd defendant but totally from being natives of Sapele.
13. The matters came to a head when Ogodo family instituted suit No.S/23/74 against the Ebbah Family and others claiming ownership not only of A.T. & P premises but of Ugbeyiyi Village itself. Plaintiffs joined issues with the Ogodo family on their said claim and on the question as to whether late Chief Ogodo acted for himself beneficially or for himself and others including late Ebbah when he signed the Lease to Mclver and Company Limited in 1902. Plaintiffs will found on the pleadings and judgment in the said suit No. S/23/74.
14. The issue raised on the capacity in which late Chief Ogodo signed the said lease was resolved in favour of the plaintiffs when the trial Judge held:-

‘The 2nd and 3rd defendants are no customary tenants on Ogodo Quarter, and there was no doubt that late Chief Ogodo had these people in mind when in conveying land to Messrs. M.B. Mclver & Co. Limited, through their agent, Mr. John Grady, 1902, it was recited through their Ogodo was conveying’ ‘for himself on behalf of his heirs and successors lawful possession, title and interest and all of the above-named District whose consent is in accordance with the law and custom prevailing in southern Nigeria, West Africa.’

The District in the recital was Ogodo’ s Town, Sapele, in Southern Nigeria. It is obvious that the conveyance by late Chief Ogodo to Mclver Company Limited was on behalf of the people who have any proprietary interests in Ogodo Town and not only for Ogodo family or children. The evidence which I have accepted is that 2nd and 3rd defendants and Kekeke family have such interests in Ogodo Land plaintiffs may found on the said judgment and the judgment of the Supreme Court in suit No. SC/79/82 confirming the said judgment of the Sapele High Court.

15. Inspite of the said judgment and inspite of repeated demands, the defendants have treated the sums of money due under the 1902 lease as if Ogodo Family are solely and beneficially the owners of the land lease in complete disregard of the plaintiffs’ rights and have refused to accept the plaintiffs as being entitled to any interest in the said lease.
16. Plaintiffs by their solicitors’ letter Ref. No. TJO/187/GC/85/EF (a) wrote to the 3rd defendant (copying 1st and 2nd defendants) demanding particulars of outstanding rents or moneys due in

respect of the land and suspension of all payments due under the lease. 3rd defendant by their solicitor K.O. Longe & Co., wrote a letter dated 16/7/85 in reply, but it has since done nothing to meet plaintiffs’ demands. Wherefore plaintiffs claim against the defendants jointly and severally as follows:-

(1) An order apportioning the rent payable by the 3rd defendant between the plaintiffs and the 1st and 2nd defendants.

(2) An order that 1st and 2nd defendants do render a true account of all rents received by them from the 3rd defendant since the judgment in Suit No. S/23/74 payment over to plaintiffs of their share of the said rent.

(3) An order of injunction restraining the 1st and 2nd defendants from receiving the aforesaid rent to the exclusion of the plaintiffs and 3rd defendant from paying over to the 1st and 2nd defendants to the exclusion of the plaintiffs the aforesaid rent.”

The 1st and 2nd defendants, for their part, pleaded, inter alia in their amended statement of defence thus:-