Josiah Aghenhen v. Chief Maduka Waghoreghor & Ors (1974)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N.

This is an appeal from the judgment of Ogbobine, J., in Suit No. UHC/42/69 delivered in the Ughelli High Court on 29 May, 1970, wherein he found for the plaintiffs as per their writ which was endorsed as follows:

“(1) A declaration that the plaintiffs as the persons adjudged in both Suit No. W72/60: Chief Maduku Waghoreghor and Anor. v. Josiah.

Aghenghen and 11 ors. and Appeal No. S.C. 563/66: Josiah Aghenghen and 10 Ors. v. Chief Maduku Waghoreghor and Anor. to be the owners and/or owners in possession of Avbredja parcel of land verged Pink on Survey Plan No. G.A. 213/61 lying and situate within the jurisdiction of this Honourable Court are entitled to:

(a) all monies due from an payable by the 1st defendants as rent or rental and/or compensation for the 1st defendants’ user and/or occupation of, and their operations on and/or in, Avbredia parcel of land aforesaid;

and

(b) all monies and/or sums due from any payable by the 1st defendants in respect of plaintiffs’ communally owned economic trees growing on the said parcel of land which were destroyed by the 1st defendants during the decade 1959-1969.

(2) An order that the 1st defendants to pay over to the Plaintiffs the sum of 9,983:4 (nine thousand nine hundred and eighty three pounds four shillings) or any sum or larger sum due from and payable by the 1st defendants as claimed by the plaintiffs in (1)(a) and (b) above.

(3) Perpetual injunction restraining the 1st defendants their servants and/or agents from paying any monies as claimed by the plaintiffs in (1) and (2) above to any person or persons other than the plaintiffs.”

At the outset both parties agreed not to call any oral evidence but to rest their respective cases on documentary evidence consisting mainly of the transcripts of two previous judgments between the same parties and in respect of the same piece of land. The combined effects of both judgments, one of which was given by the Warri High Court in Suit No. W /72/60 (Exhibit B) while the other was given on appeal against that judgment by the Supreme Court in Suit No. W.C. 563/66 (Exhibit C), may be summarised as follows:

(i) That the land in dispute is owned by the plaintiffs through their predecessors from time immemorial;

(ii) That the defendants are the customary tenants of an adjacent piece of land to whom, or to individual members of whom, land rights of customary user in the disputed portion had been granted by the plaintiffs from time to time, and that the defendants have cultivated their various portions by inter alia planting them with economic and other permanent crops;

(iii) That the plaintiffs’ claim to forfeiture of the defendants’ land rights in the disputed portion was refused by the court on the ground that the denial of plaintiffs’ ownership by the defendants was not so serious as to warrant the exercise by the court of its equitable jurisdiction to grant a forfeiture, and that the imposition of a fine of 100 was sufficient: see Chief Uwani v. Akom & Ors. (1928) 8 N.L.R. 19 and Chief Etim & Ors. v. Chief Eke & Ors. (1941) 16 N.L.R. 43;

(iv) That the plaintiffs’ claim to an order of injunction restraining the defendants from further acts of trespass with respect to the land in question was similarly dismissed;