Marcus Opuiyo & Ors. V. Johnson Omoniwari (Deceased) & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

This appeal arose out of a land dispute between two families from Rivers State. The appellants (hereinafter referred to as the plaintiffs’), for and on behalf of the Amaso family of Ogoloma in Okrika, Rivers State, brought a suit at the Port-Harcourt High Court against the 1st respondent Johnson Omoniwari, now deceased (hereinafter referred to as the defendant) of Kinugbe family of Koroni Biri, Ogoloma claiming the following reliefs:

“(a) that the plaintiffs arc entitled to the statutory right of occupancy to all that piece or parcel of land situate at Amaso Compound of Ogbimebiri or Polo, Ogoloma which said land is more particularly delineated on Plan No.CTH.30(L/D) and therein Verged red.

(b) order of forfeiture of the defendants use of the land and house granted to him without fee by plaintiffs ancestors.

(c) a perpetual injunction restraining the defendants, their kinsmen, servants and agents from further interference with the plaintiffs ownership and possession of the said land in dispute.”

Both parties filed and exchanged pleadings after which the suit was tried by Sagbe J. The plaintiffs’ case was simple and straightforward. They pleaded that the land in dispute, situate at Ogbikime Polo, in Ogoloma was first allocated to plaintiffs’ ancestor Amaso. The land has since remained in the Amaso family through the descendants of their ancestor. The 1st defendant later sought the permission of one Oruta of Amaso family to reside in a house built on the land by Amaso. The permission was granted. A time came when the plaintiffs’ family needed the house because of the expansion as a result of population growth within the plaintiffs’ family. This imposed on the plaintiffs the necessity to ask the 1st defendant to quit the plaintiffs’ land. The 1st defendant refused to quit and instead claimed the ownership of the land in dispute. The plaintiffs then sued claiming as earlier set out above.

The defendants in their statement of defence denied that they belonged to Kinigbo family of Koromibiri, Ogoloma or that the land belonged to plaintiffs” ancestor Amaso. It was pleaded that the land in dispute was first settled upon by one Kwo, the 1st Amanyanabo of Ogoloma who was 1st defendant’s great grandfather through his son AmawatanKa who beg at 1st defendant’s father Owoniwari. It was pleaded further that the 1st defendant’s father, at his death, was buried on the land in dispute.

At the trial, the plaintiffs called three witnesses in support of their case. The defendants called two witnesses. On 15-6-92, the trial judge in his judgment dismissed plaintiffs’ suit. He concluded the judgment in these words:

“The plaintiffs claim that the defendant left the land in dispute and returned to it after he had been deprived of the land allocated to him by the Obudibo family. The defendant denied this allegation and said that it was not true that the plaintiffs allowed him to return to the land conditionally. He also said that he had no relationship with the Obudibo family.

The accepted methods of proving ownership of land are traditional history of ownership, and where that is inconclusive, then proof of acts of occupation and use of the land over a considerable long period of time without challenge or disturbance from any other claimant and where that fails, proof of exclusive possession without permission. In our instant case, from the pleading and evidence adduced by the plaintiffs in support of their traditional history of ownership it cannot be said that they have proved exclusive ownership of the land in dispute.

In our instant case the defendant has led evidence both oral and documentary in proof of his customary title to the land in dispute and there are evidence of repeated acts of ownership by the defendant to give rise to the inference that he is the owner.

The plaintiffs’ line of succession is unsatisfactory and poorly traced. The defendant’s root of title is more probable. I, therefore, prefer the traditional history of the defendant to that of the plaintiffs.

In my view, the plaintiffs’ family has not been able to prove that they have a better title to the land in dispute that the defendant. So that there claim for the customary right of occupancy over the land fails and is hereby dismissed.

Since the claim to customary right of occupancy fails the claim for forfeiture of defendant’s use of the land and house also fails and is also hereby dismissed.