Chief Claude Diete-amange & Ors V. Sylvester Mange-pege & Ors (2003)

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MICHAEL EYARUOMA AKPIROROH, J.C.A.

This is an appeal against the judgment of the Rivers State High Court sitting at Bori, delivered on 16th July, 1990.

The Plaintiffs who are the respondents in this appeal claimed from the defendants (appellants) in the court below the following reliefs:

l. “Declaration of Customary Right of Occupancy to a piece of land known as Korobada Kiri lying and situate at Obolomabiri Nembe;

2. Perpetual Injunction restraining the defendants, their privies,agents and servants from interfering with the plaintiffs rights of use and enjoyment in and over the said land.

Pleadings were ordered, filed and exchanged. The respondent’s case put briefly in the Court below is that the land in dispute was founded by Obolo, the founder of Obolomabiri and situates at the back of Obolomabiri. Obolo used the land in cultivating specie of banana called Amakorumo Idu. When Obolo died, the land devolved on his first daughter, Atubu according to their custom. Atubu descendants continued to use the land until it devolved on the respondents, Later, one of the descendants of Atubu by name Amene converted the land to a raffia palm plantation by planting raffia palms on it. As a result of the raffia palms planted on the land,it became known as “Koro Daba” Kiri”, meaning raffia palm tree pond. Since the time of Amene, the respondent’s family had been tapping win” from the palm trees. They also hired out the palm trees to Ibibio palm wine tappers on payment of rents. They also allowed one Mr. Ferguson to plant rice on the land on a Seasonal basis.

When the Nembe Grammar School was established at Anymain Polo, they allowed the Community to gain access to the School through the land in dispute. They also protected the land from trespassers until the appellants laid claim to it.

The appellant’s case put briefly is that the 1st and 2nd appellants are Chiefs and members of Amango/Ojoko group of Houses Nembe, while the 3rd and the 4th respondents are Chiefs and members of Ikata/Oruwari group of Houses. Nembe and the land in dispute belong to the two groups of houses and situates at Ogbolomabiri, Obuakiri or Ogbolomabiri back bush which starts from Tombi to the end of Amasara Polo.

A very long time ago, Nembe comprised three statements, namely Oboloma founded by Obolo, Olodiama founded by Olodi and Oyoama founded by Onyo. As a result of conflicts, fights, and smallpox opedemic outbreak, they deserted the three settlements for Kalabari land and other places. After a century, Kala Ekule led few immigrants from Kalabari to Nembe and settled at Opu Pogu otherwise known as Ogbolomabiri.

Ogbolomabiri back bush was a den of wild animals at that time. The Chiefs led by Chief Allagoa ordered that the back bush should be cleared and it was cleared between 1904 and 1917. After its clearing, it was shared among the twelve chieftaincy houses, Ojoko and Oruwari houses portion is shown on the survey plan as the land in dispute which is quite different from Oboloma.

They have been using the land since it was shared. In 1963, one Mr. Ferguson approached them through his father in law, Chief James T. Ogbari for permission to use the land in dispute as a rice plantation and it was granted to him. In 1977 while the 2nd appellant was going to his office, he met the members of the respondent’s family with a surveyor surveying the land in dispute and he made a report to Mingri. In 1981, they saw the 2nd respondent clearing the land and this was reported to the Mingri who invited them for arbitration and after visiting the land, found in their favour which decision accepted by the respondents.

After the end of the hearing and in a reserved and considered judgment, the learned trial judge granted the two reliefs claimed by the respondents.

Dissatisfied with the judgment, the appellants have appealed to this court and formulated five issues for determination as follows:

ISSUES FOR DETERMINATION

(i) “Whether in this case the Plaintiffs/Appellants proved the boundaries of the land in dispute with the certainty required in law, in view of the dispute between the parties as to the boundaries of or the identity of the land in dispute ( Ground 1 of the Grounds of Appeal).