Chief Joseph Olanudu & Anor. V. Moses Temiye & Ors. (2001)

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IBIYEYE, J .C.A.

This appeal is against the judgment of Ajayi, J. of the Okitipupa Division of Ondo State High Court delivered on the 9th of October, 1992 in Suit No. HOK/32/87.

The appellants as plaintiffs in the court below claimed against the respondents as defendants the following reliefs in paragraph 30 of their joint statement of claim:

“(a) A Declaration that the descendants of Jatunwase/Lubawo, Olanudu Ayekun, Jaiye and Baba-Agba- the founders of Moboro villages in Ilaje/Ese Odo Local Government Area of Ondo State, they are entitled to continue to enjoy undisturbed, their ancient ownership and possession of the villages – Moboro – Nla and Moboro Kekere farm lands respectively and their adjourning fishing grounds and bush lands.

(b) Plaintiff’s lands by the defendants and their Urhobo agents, on or about the 2nd November, 1987 is an act of trespass and unlawful interference with the plaintiffs’ ancient and peaceful ownership and lawful possession of Moboro farm lands and fishing grounds.

(c) N7,500.00 being special and general damages arising from trespass and unlawful occupation of the plaintiff’s farm land and exploitation of palm trees at Moboro Nla bush land by force and for the wanton destruction of economic trees on the plaintiff’s land on or about the 2nd day of November, 1987.

(d) Perpetual Injunction restraining the defendants, their agents, servants, privies or howsoever from remaining on and/or committing further acts of trespass on the plaintiff’s land at Moboro village and its adjourning fishing grounds and farm lands.

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The defendants on their part filed a statement of defence and counter-claim. Since the averments in the counter-claim deal largely with the Island of Oriyanrin which is outside the contention between the plaintiffs and the defendants, I shall not reproduce any part of it. Paragraphs 6, 9, 10, 14, 18 and 25 of statement of defence are of moment and they read:

“6 .Contrary to the averments in paragraphs 4, 6, 7, 23, 24, 25, 27 and 28 of the statement of claim, plaintiffs are not the owners of the land at Moboro because the grand father of each of the plaintiffs was a stranger at Moboro.

(a) Came from Oyo in Oyo State and was married to a daughter of Ologbosere at Orere-ara.

(b) The grand father of the 2nd plaintiff was also a son-in-law to Ologbosere; he came from Owo, married a daughter of Ologbosere and settled with him (Ologbosere) at Orere-ara.

  1. Jatunwase Ologbosere founded Moboronla and later moved from there to settle at Orere-ara. His children Jaiye and Upenta remained there for many years, farming and fishing.
  2. The plaintiffs did not and do not live at Moboronla at all.
  3. The 1st, 2nd and 3rd defendants and other members of their Asisa family of Imoluwa fish around the Island of Oriyanrin and built huts or camps which they rent to Calabar people (including the 4th defendant) who tap palm wine and brew local gin there.
  4. The defendants deny categorically that they ever trespassed on plaintiffs’ land at Moboronla nor built any camps or structures thereon contrary to the averments in paragraphs 7,8,9,13,14,15 and 26 of the statement of claim.
  5. Save as is hereinbefore specifically admitted or not admitted the defendants deny each and every allegation of facts contained in the statement of claim as though same were herein set forth and traversed seriatim.”
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At the trial, the two plaintiffs testified individually by giving traditional history of their roots of title to Moboro lands. The PW1 testified mainly that he saw the defendant’s agent on Moboro lands and reported to the plaintiffs who caused their (defendant’s agents) arrest by the police and they were taken to Igbekebo Police Station where the 1st, 2nd and 3rd defendants went to bail them out. The PW2 was a qualified surveyor who drew the survey plan (Exhibit B) of the land in dispute.

The three defendants save the 4th defendant testified mainly on their ownership of the Island of Oriyanrin and the 1st defendant in particular said that he put the 4th defendant on Oriyanrin as a tenant. Four witnesses testified on behalf of the defendants. Thus, the DW1 and DW2 testified on the defendant’s ownership of the Island of Oriyanrin. DW3, the Acting President of Grade II Customary Court Igbekebo testified that he was delegated by the trial Judge to visit the imagined locus in quo at Moboro-Nla, Moboro Kekere and Oriyanrin. He did so and his findings are in evidence as Exhibit A. The DW4, an unqualified surveyor tendered a survey plan (Exhibit C) drawn in his presence by a qualified surveyor who did not testify.

At the close of taking evidence, the learned counsel for both parties addressed the court. In a considered judgment, the learned trial Judge held, inter alia:

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