Chief J. E. Ukusare & Ors. V. Chief Murphy Ejumudo & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

By a writ of summons and amended statement of claim dated 13/1/92, the appellants as plaintiffs commenced an action at the Effurun High Court against the respondents as defendants claiming against them as per paragraph 29 of the amended statement of claim as follows:-

“29. WHEREFORE, the plaintiffs claim as follows:-

1. A declaration that by virtue of the facts/proceedings of suit No.W/12/71 and the agreements dated 1/3/74, 10/3/74. 16/3/74 and 15/4/74 thereon the plaintiffs are persons entitled to statutory right of occupancy over the piece or parcel of land lying and situate in Otorkporo and Okoribi in Effurun within the jurisdiction of this Honourable court.
2. A declaration that by peace agreement entered into on 10th March, 1974 which ratified those of 15/4/73 and 1/3/74 between the two families (plaintiffs and defendants), and the judgments referred to in relief (1) above, the verdicts in both suits W/127/74 and W/48/74 delivered 10/11/87 and 22/12/75 respectively were obtained by fraud/misrepresentation. They are therefore null and void.
3. A declaration that by the aforementioned judgment in relief (1) above and the said peace agreement the verdicts in suit No. W/127/74 and W/48/74 are caught by the doctrine of estoppel by conduct and representation as the issues involved in the said suits were the same in the peace agreements out of fraud/misrepresentation the defendants in the suit surreptitiously hid the facts of the existence of the peace agreements and/or judgment in relief (1) above.
4. A declaration that having regard to misrepresentation of facts of descent Eleri-Avbobonyeta being claimed to have the statue of family in Uvwie when in fact they have neither father or mother in Uvwie (being strangers) the verdict W/48/74 and W/127/74 were given in error. The strangers lack ancestral right to back the claim, and they did not buy.
5. A declaration that having regard to gross misrepresentation and/or fraud committed by defendants coupled with the existence of judgments and proceedings above as well as limitations set in peace agreement. Above judgments in Suit Nos.W/48/74 and W/127/74 were delivered in error and should be set aside.
6. A declaration that only Otorkporo land was disputed (not Okoribi) and that it is misleading (which is different or fraudulent for defendants to deny or ignore the existence of Adaze and Otorkporo Shrines owned and served by Ogbe on the lands.
7. A declaration that the Adaze shrines and Otorkporo shrines as well as Ogbe descendants long standing buildings in the area like those of Ukusare, Nikoro fairs and tenants constitute acts of possession apart from various crops, economic trees or other uses to which Ogbe had put his land.
8. A declaration that verdicts W/48/74 and W/127/74 were misled to the extent of various misrepresentation by defendant.

(a) By linking Okoribi with Otokpiri.

(b) By ignoring and denying Ogbe act of possession

(c) By falsifted and incorrect ancestral history.

(d) By existence of facts cited and acknowledged in an earlier suit W/12/11 -the entire community leadership under Late Chief Agbamu/Ayuluhu acknowledging Ogbe (Nikoro) ownership of all their lands East of old Kwale or Ugbomro Road.

(e) by fraudulent use of joint Plan LSU 960 against Ogbe despite modification in peace agreement referred to above.

9. A declaration that verdict W/48/74 AND W/127/74 are ipso facto reversible, not being validly based ill the light of reliefs 29 (7, 8, 9 above) herein enunciated.
10. An order of interlocutory injunction restraining the defendants, their agents or privies from carrying out any acts of trespass by way of leasing or doing anything to plaintiff’s tenants or their properties pending the determination of this suit.
11. An order of perpetual injunction restraining the defendants, their agents, or privies from carrying out any acts of trespass by way of leasing or doing anything to any portion of the said land or quitting or doing anything to any of plaintiff’s tenants or their properties on the said land.

In their reaction, the respondents herein, as defendants filed a statement of defence dated 18/10/91, denying the claims and in paragraph 23 of the statement of defence pleaded that if anybody is caught by the doctrine of resjudicata, estoppel and standing-by, it is the plaintiffs who being members of Ogbe family of Effurun, cannot relitigate the issue of ownership and possession of any inch of Otorkporo land in Effurun as a result of the judgment in Suit No.W/48/74 tied to survey plan No.LSU: 960 dated 23rd June, 1974 on which the defendants now also rely at the hearing of this suit.

The appellants as plaintiffs/applicants filed a motion dated 7/5/93 before the High Court, praying for an order of interlocutory injunction. The motion was supported by a 19 paragraphs affidavit sworn to by one Chief J. E. Ukusare, the first plaintiff/applicant, it was deposed as follows:

“1. That I am the first plaintiff/applicant in this suit and the present head of Ogbe family of Effurun.

2. That I swears to this affidavit with the consent and authority of the other plaintiffs/applicants,
3. That the plaintiffs/applicants herein sued the defendants/respondents in this suit claiming the following in it:-
4. A declaration that by virtue of the facts/proceedings of suit No.W/12/71 and the agreements dated 1/3/74, 16/3/74 and 15/4/74 thereon the plaintiffs are persons entitled to statutory right of occupancy over the piece or parcel of land lying and situate in Otorkporo and Okoribi in Effurun within the jurisdiction of this Honourable Court.
5. A declaration that by peace agreement entered into on 10th March, 1974 which ratified those of 15/4/73 and 1/3/74 between the two families (plaintiffs and defendants), and the judgments referred to in relief/above, the verdicts in both suits W/127/74 and W/48/74 delivered 10/11/87 and 22/12/75 respectively were obtained by fraud/misrepresentation, They are therefore null and void.
6. A declaration that by the aforementioned judgment in relief (1) above and the said peace agreement the verdicts in Suits W/127/74 and W/48/74 are caught by the doctrine of estoppel by conduct and representation as the issues involved in the said suits were in the said peace agreements.

Out of fraud/misrepresentation the defendants in the suit surreptitiously hid the facts of the existence of the peace agreements and/or judgment in relief (1) above.

4. A declaration that having regard to misrepresentation judgment of facts of descent Eleri-Avbobonyeta being claimed to have the status family in Uvwie (being strangers) the verdict W/48/74 and W/127/74 were given in error. The stranger lack ancestral right to back the claim, and they did not buy.
5. A declaration that having regard to gross misrepresentation and/or fraud committed by defendants coupled with the existence of judgments and proceedings W/12/71 (1) above as well as limitation set in peace agreement (2) above judgments in suit No.W/48/74 and W/127/74 were delivered in error and should be set aside.
6. An order of interlocutory injunction restraining the defendants, and their agents or privies from carrying out any act of trespass by way of leasing or doing anything to any portion of the land or quitting or doing anything to plaintiff’s tenants or their properties pending the determination of this suit.
7. An order of perpertual injunction restraining the defendants, their agents or privies from carrying out any act of trespass by way of leasing or doing anything to any portion of the said land or quitting or doing anything to any of plaintiff’s tenants or their properties on the said land.
8. That pleadings have been exchange in this suit and survey plans have been filed.
9. That since the inception of this my case and after exchange of pleadings, we recently discovered to our dismay that the defendants/respondents are still carrying out act of trespass on the said pieces or parcel of land.
10. That the defendants/respondents have started alienating/leasing some portions of the pieces or parcel of land involved in this suit.
11. That some of such alienation/leasing are as follows:-
12. Recent buildings being put up by an Isoko man and another by an Ibo man at Orokpagha are in Erovie quarters Effurun.
13. Several buildings springing up at Ukperugelete in Erovie quarters Effurun.
14. Several buildings springing up at Egborowere area in Erovie quarters, Effurun.
15. That we found as a fact that all the development enumerated above which have not reached completed stage were as a result of recent leases made to various persons sometimes last year.
16. That we confronted the various persons and in attempt to stop them from further development, the thugs of defendants/respondents came after us brandishing cutlasses and drove us away.
17. That as law abiding citizens we refused to trade sword for sword.
18. That we thereafter reported the matter to our solicitors Chief E. L. Akpofure who informed us and we verily believed him that an order of interlocutory injunction is necessary to stop the defendants/respondents from carrying out any further acts of trespass.
19. That in hearing this application we shall be relying on plan filed in this suit.
20. That our aforementioned solicitor informed us and we verily believed him that an order of this Honourable Court is required in restraining defendants/respondents from carrying out any further acts of trespass, leasing, alienation or doing anything whatsoever inconsistent with the rights of the applicants pending the final determination of the suit.
21. That unless the defendants/respondents are restrained they would have completely alienated or leased out the entire piece or parcel of land which is the subject matter of this suit, before this suit would be determined.
22. That it is necessary to preserve the subject matter of this suit pending its determination.
23. That we shall suffer irreparable damage and loss which cannot be quantified in monetary terms if this application is refused.
24. That the balance of convenience is in our favour.
25. That the defendants/respondents shall not be prejudiced if this application is granted.

Sequel to this, the respondents, filed a Notice of preliminary objection praying for the dismissal of the suit on the grounds-

“(a) The suit is incompetent as it is caught by the doctrine of res-judicata and/or issue estoppel by reason of Suit No.W/48/74 decided by Honourable Justice S. O. Uwaifo on 22/12/75 which went on appeal to the Supreme Court in Appeal No. Sc. 265/1976, paragraph 8 of the statement of defence filed on 18/10/91 refers.