Chief Odum & Anor V. Chief P.b.o. Chinwo & Ors (1978)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C.

The plaintiffs in this case claim for themselves and for the representatives of the Odum Family of Orogbum Diobu, whilst the defendants were sued for themselves and as representing the Ogbunabali people of Ogbunabali village, Diobu. The institution of proceedings by the plaintiffs was caused by the defendants challenging the right of the plaintiffs to lease land to a private company for development purposes.

The defendants contended that the whole area of Ogbunabali is communal land to which both parties have the right of use and occupation as in the case of each portion occupied by each of the 24 families. If at any time any family intends to part with any portion of its holding, the consent of the whole family must be obtained. It was the refusal of the plaintiffs to obtain the consent of the other members of their family that gave rise to this case.

The plaintiffs claim declaration of title to the whole area of land occupied by their family (Odum family), averring that the land was granted to them by Chukuoka, who was a descendant of the common ancestor of both parties. The defendants, on the other hand, said that there was no such right and that the area of land in dispute, being part of the area of Ogbunabali communal land, was never granted out and out to the plaintiffs’ family.

The contest in the lower court, therefore, devolved on whether there was an out and out grant made to the plaintiffs’ family, or, on the other hand, the land was part of the communal land of the whole Ogbunabali Village, Diobu. It is not in dispute, as revealed in evidence, which we shall refer to later, that the defendants’ family comprises twenty-four sub-families of which the plaintiffs’ family is one. No evidence was led, except the ipse dixit of the first plaintiff himself, of a purported grant. There was no evidence led as to how the grant was made and as to the area allocated.

The case which the plaintiffs set out to make in their Statement of Claim was not established in their evidence. The first plaintiff claimed to be the head of Odum’s family of Orogbum Diobu, but he had to admit that up till 1972, someone else was the head chief and still held the staff of office. He also admitted that he had not been installed as a chief of the family and, therefore, could not validly say that he is the present head of the family. The relevant paragraphs of the Statement of Claim averred:-

“4. The people of Ogbunabali are the offsprings of the same ancestor, that is Rebisi, who is the father of Abali and Ogbum by the same woman. There are twenty-four sub-families; Ogbunabali and the plaintiffs are one of such sub-families.

5. The name Ogbunabali is derived from Abali and Ogbum Village which together is called Ogbunabali. Abali has his own lands distinct from that of Ogbum’s lands.
6. Village is made up of 2 main families that is Chukuoka and Sele. Chukuoka and Sele have also separate lands of their own as well as Abali. No one interferes with each other.
7. The Chukuoka family has 5 sub-families each of these sub-families has portions of land granted and allocated to them by their ancestor Chukuoka. The portion of land allocated to Odum’s family which is one of the sub-families of the Chukuoka family, has been in their peaceful possession and ownership from time immemorial without any interference from any other sub-families of the Chukuoka family, the Sele family or the Abali family.
8. Successive generations from late Chief Odum Maruzor, late Ogbonna, late Wolu, late Kocha, late Ihinda, late Nene and Ojukwu Odum who died on the 2nd of January, 1940, have been farming on the land and so have the present generation been farming on the said land and doing all manner of work without let or hindrance from any one.
9. The land the subject matter of this suit hereinafter referred to as the “land in dispute” is situate along Ogbunabali Street, Orogbum Diobu, Port Harcourt, and is otherwise known and called “Ekwu Gbogbo” containing an area of approximately 11.55 acres and shown on Plan No. SL 7/72 and registered as No. 29 at page 29 in Volume 3 of the Lands Registry in the office at Port Harcourt and to be produced at the trial has been in the peaceful possession enjoyment and undisturbed ownership of the said Odum family of Orogbum, Diobu. The……of the said land will be founded upon at the trial.
10. Around 1958, the people of Ogbunabali decided to develop Ogbunabali for good reasons.

(a) To stop the current wave then of selling individual or family holdings Ibos/Strangers by irresponsible sons of Ogbunabali;

(b) indirectly to stop the then Eastern Nigeria Government from acquiring Ogbunabali East since the Government then had acquired Ogbunabali West Layout, Trans-Amadi Industrial Layout and the Diobu Government Residential Area Layout.

11. To this end “The Ogbunabali Village Community Development Union” was inaugurated with a Draft Constitution. Among other major laudable objectives of the Union was “to develop Ogbunabali Village as a modern Town befitting it as the home of the indigenous owners on which Port Harcourt Town was founded”. The operative date of the Constitution is not known nor can it be said that it was assented to by the Ogbunabali Community. Furthermore, no meetings of the said Ogbunabali Community Development Union were ever held or any officer appointed nor was any of the provisions of the Articles of the Constitution of the Ogbunabali Village Community Development Union such as subscriptions and levies, legal aid ever observed or Executive Committee or Trustees of the Union ever appointed.”The defendants in their amended Statement of Defence averred as follows:-

“2. Save as admitting that the plaintiffs reside at Orogbum Village, Diobu, Port Harcourt, the defendants and each of them deny paragraph 1 of the Statement of Claim.

3. In further answer to paragraph 1 of the Statement of Claim, each and every one of the defendants avers that there is no Odum family in Orogbum, Diobu. There is however a sub-family called Odum Maruzo which with Ogoloma-Maruzo sub-family together make up the Maruzo family.

The two plaintiffs belong to the said Odum-Maruzo sub-family which is headed by Chief Gabriel Odum, who is not a party to this action.

4. The defendants deny paragraph 2 of the Statement of Claim and will contend at the trial that in law, the plaintiffs cannot bring this action as they did not obtain the consent of all the principal members of the said Odum-Maruzo sub-family including Chief Gabriel Odum who is the Head of both the plaintiffs’ Odum-Maruzo sub-family and that of the main Maruzo family.
5. In answer to paragraph 3 of the Statement of Claim, the defendants and each of them aver that there are 24 and not 23 families in Ogbunabali Village. Furthermore, the defendants say that some of the said 24 families are not made parties to this suit.
6. With reference to paragraph 4 of the Statement of Claim, the defendants admit that the people of Ogbunabali are the offsprings of the same ancestor, that is Rebisi, who is the father of Abali and Ogbum by the same woman but the defendants deny the allegation that the plaintiffs are one of the 24 families that make up Ogbunabali Village.
7. Save as admitting that the name Ogbunabali is derived from Abali and Ogbum and that the town or village constituted by their offsprings to date is known as Ogbunabali the defendants and each of them categoricially deny each and every material allegation of fact contained in paragraph 5 of the plaintiffs’ Statement of Claim.
8. In further answer to the said paragraph 5, the defendants aver that all Ogbunabali lands – that is to say all lands handed down to Ogbum and Abali by Rebisi, their common ancestor – have according to their custom and from time immemorial been regarded and treated as communal land and the joint property of all the descendants of Abali and Ogbum.
9. Furthermore, the said Ogbunabali lands include the lands acquired by the Government of Nigeria in 1913 for the establishment of Port Harcourt, the lands comprised in the area now known as Ogbunabali West Layout and the lands comprised in the survey Plan No. ESP/313 referred to in paragraphs 12 and 15 of the plaintiffs’ Statement of Claim. The land claimed by the plaintiffs herein lies wholly within the area shown in the aforesaid Plan No. ESP/313.
10. The defendants deny all the material allegation of facts contained in paragraph 7 of the Statement of Claim.
11. In further answer to paragraph 7, the defendants aver that Chukuoka family is made up of six (6) rather than five (5) families as alleged by the plaintiffs. One of such families is the Maruzo family comprising the Odum-Maruzo sub-family. The land in dispute was and is still held in trust by the Maruzo main family for the use of members of Maruzo family in particular and that of the Ogbunabali community in general.
12. Furthermore, the defendants deny the plaintiffs’ averment that the Chukuoka family allocated any land to “Odum family” either as alleged or at all. In addition, the defendants and each of them say that the land in dispute has never been in peaceful possession of “Odum family” but that whatever acts were or are being done on the said land were or are done by members of the Maruzo family (to which the plaintiffs belong) not in their right as absolute or unencumbered owners of the land but always subject to the leave and licence of Ogbunabali people in whom the title to the said land have always resided and still reside.
13. In answer to paragraph 8 of the Statement of Claim, the defendants admit that many of the persons named in that paragraph who are members of Odum-Maruzo sub-family have farmed the land in dispute but the defendants further added that several other persons who belong to the Odum-Maruzo and Ogoloma-Maruzo sub-families have also farmed and are still farming on the said land in dispute.”

The learned counsel for the plaintiffs in his opening address stated inter alia as follows:-

“Plaintiffs seek title to a piece of land at Ogbunabali. Plaintiffs surveyed this land and had it registered at the land registry, Port Harcourt, Plan No. SL/72 registered as No. 29 Page 29 Volume 3 Land Register. There is no real dispute as to ownership but this land which plaintiffs claim as their exclusive property is said by defendants to be a communal property of all Ogbunabali people of which both plaintiffs and defendants are members. Ogbunabali comprises 24 families – plaintiffs make one of those families and defendants belong to the remaining 23 families.

Ogbunabali is made up of two groups – Ogbum group and Abali group each having its own separate land. Plaintiffs are of the Ogbum group. In 1958 both groups merged and decided to hold their landed property in common. They also made one survey plan of the whole Ogbunabali area on the lines of their community of property. This was for development purposes. Each one to deal with land must obtain possession from the community. This arrangement fell through and each began to develop its own area. Then a firm by name Nixon, Burrows and Partners came to agreement with plaintiffs to develop the plaintiffs’ land by establishing a housing estate. Defendants said we should not do that and that the whole area was communal land. This is the cause of action. Plaintiffs will call evidence to show that the land belongs to them.”