MR Francis Temewei & Ors V. MR Tom Benbai & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the Ruling of the High Court of Justice Delta State of Nigeria in the Bomadi Judicial Division, holden at Bomadi in Suit NO. HCB/1/2003, HCG/42/2004 between MR. FRANCIS TEMWEI AND 2 OTHERS (For themselves and on behalf of Ogulagha Community in Burutu Local Government Area) VS MR. BENEBAI AND 7 OTHERS delivered on 9th day of December, 2004 wherein the learned trial Judge dismissed the Appellant’s application at the Lower Court.

The facts of the case are that the Appellants i.e the Plaintiffs at the Lower Court instituted an action at the High Court of Justice Delta State vide their writ of summons and claimed against the Defendants now Respondents as follows:-

1. Declaration of title under Ijaw Native Law and Custom to all that piece and/or parcel of land situate at and known as Osain Land which said piece or parcel of land is well known to the parties herein and is situate in Burutu Local Government of Delta State of Nigeria within the jurisdiction of this Honourable Court.
2. Declaration that the Plaintiffs are the only person entitled to receive any Compensation or any payment(s) by whatever name called in respect of the sale, hire, lease, acquisition or however in respect of the Osain Land and its surrounding area and in particular for the acquisition by the Delta State Government through the 6th – 8th Defendants of the shore line up to the hinter land for the Forward Operational Base for the Nigerian Navy.
3. An order of perpetual injunction restraining the 1st – 4th Defendants, their servants, agent and/or privies from demanding and/or receiving any compensation and/or payments by whatever name called for the acquisition or in any manner however for any part of the osain land and in particular in respect of the acquisition by the Delta State Government through the 5th – 8th Defendants of the shore line up to the hinter land of the Osain Land for the Forward Operational Base for the Nigerian Navy.
4. An order of perpetual injunction restraining the 5th – 8th Defendants, their servants, agents and/or privies from making any payments by whatever name called for the acquisition of any part of Osain Land to the 1st – 4th Defendants, their servants, agents and/or privies and in particular for the acquisition of the shore line of the Osain Land to the hinter land for the Forward Operational Base for the Nigerian Navy.
5. Other suitable reliefs.

The ruling which resulted in the present appeal was as a result of an application dated and filed on 21/1/2003 wherein the Plaintiffs/Appellants sought for the following reliefs against the Defendants/Respondents.

The reliefs are reproduced as follows:-

(1) An Order of interlocutory injunction restraining the 1st-4th Defendants, their servants, agents and/or privies from demanding and or receiving compensation and/or payments by whatever name called for the acquisition or in any manner whatsoever for any part of the Osain Land erroneously referred to as Beneboye land and in particular in respect of the acquisition by the Delta State Government through the 5th – 8th Defendants of the shore line up to the hinterland of the Osain and for the forward Operational Base for Nigeria Navy pending the determination of the substantive case.

(2) An Order of interlocutory injunction restraining the 5th – 8th Defendants, their servants, agents and/or privies from making any payment by whatever name called for the acquisitions of any part of the Osain Land erroneously referred to as Beneboye land to the 1st – 4th Defendants, their servants, agents and/or privies and in particular for the acquisition of the shoreline up to the hinterland of the forward Operational Base for Nigerian Navy.

The application was supported by a 36 paragraphs affidavit.

Pertinent paragraphs of the affidavit are paragraphs 1-34 reproduced as follows:-

“1. That I am the 1st Plaintiff/Applicant herein by virtue of which I am conversant with the facts of this case.

2. That I depose to this affidavit with the mandate and authority of the 2nd and 3rd Plaintiff and the entire members of the Ogulagha Community.
3. That the other plaintiffs and I have been authorized by the community to Commence and prosecute this action in a representative capacity and on behalf of the Ogulagha Community before this Honourable Court.
4. That a verifying affidavit by a member of the Ogulagha Community and the authorization by the Ogulagha community are annexed hereto as exhibits “A” and “B” respectively.
5. That the approval of the authorization granted to the 2nd and 3rd Plaintiffs and I is necessary hence this application.
6. That I know the places of 1st – 3rd Defendants in Warri and Ogulagha, however I do not know the exact members of their premises except the 4th Defendant who is a point man and one of the leaders of the Defendants and who I am sure will ultimately ensure that the processes reach all of them.
7. That the pieces and/or parcels of land which are the subject matter of the action, which pieces and/or parcels of land is called Osain land is well known to all the parties herein. The said Osain land is erroneously referred to as Beneboye land by the 5th – 8th Defendants herein. The said Osain land is situate within and is part of Ogulagha Community in Ogulagha, in Delta State of Nigeria within the jurisdiction of this honourable court.
8. That the aforementioned Osain land is but part of Plaintiffs’ larger expanse of land called Ogulagha lands which larger expanse of Ogulagha lands were conquered by Plaintiffs foremost ancestor, Ogula at a time beyond human memory.
9. That Ijo the founder of the Ijaw nation migrated with his children the most senior of whom were Gbaran and Ogula from Isreal through Ife, Benin, etc and to the Upper Niger Delta.
10. That whilst Gbaran settled in the Escravos river, Ogula the ancestor of the Plaintiffs settled by the Forcados river which river he (Ogula) named after himself. Both Gbaran and Ogula were first settlers in the aforementioned areas.
11. That after Ijo the founder of the Ijo of Ijaw nation left one of his sons called Gbaran at the Escravos river and another of his sons, Ogula or Gula at the Forcados river, Ijo left for the eastern region to a place called Agadagba Bou in Egbedi creek.
12. That most other founders of other Ijaw clans/communities, including Iduwini (m) who foundered Amatu in the present Bayelsa State, left Egbedi creek to found Amatu.

13.That Ogula sometimes called Gula or Goolah, after he was left behind by his father Ijo at the Forcados River which he named after himself he (Ogula) with his wives and children deforested the whole area around the said river. Ogula, his wives and children exercised maximum acts of ownership and possession over the entire areas around the said river. Ogula his wives and children built houses, fished in the said River and in the creeks around the river and farmed all the available lands.

14. That from the Forcados River Ogula and/or his descendants conquered and deforested the pieces and parcels of land herein before referred to and known as Osain land.
15. That Ogula and/or his descendants exercised maximum acts of ownership and dominion over the aforementioned Osain land. They fished the River and Creeks around the said land, farmed and at times leased parts of the said lands to companies and/or individuals.
16. That long after the Plaintiffs had settled in the aforementioned Osain lands ancestors of the 1st – 4th Defendants migrated from Amatu in the present Bayelsa State back to the Ogula territories founded by Ogula the son of Ijo who was left behind at the Forcados river when his father Ijo continued onwards to the eastern region and to Agadagba Bou in Egbedi Creek as earlier deposed in this affidavit. Iduwini (m) left Egbedi creek to found Amatu the same place from where the ancestors of the 1st – 3rd defendants stated their migration back to the territories including Ofougbene long founded by Ogula and his descendants.
17. That when the ancestors of the 1st – 4th Defendants also known as the Oborotru People came to the Ogula or Ogulagha territories they were initially permitted by the descendants of Ogula (plaintiffs herein) to settle of a place near the slave depot of the Ogulagha people. The said place is now called odimodi market.
18. That from the present day Odimodi market 1st – 4th Defendants ancestors moved to a place close to Forcados which place including Forcados had been founded by Plaintiffs ancestor’s Ogula.
19. That from the area near Forcados ancestors of the 1st – 4th Defendants as a result of incessant slave raids moved to Ofougbene which is also called Orusolmo.
20. That from the time the 1st – 4th Defendants ancestors stepped into Ofougbene other land founded by Plaintiffs’ ancestors they were welcomed by Plaintiffs ancestors who regarded them as brothers. Plaintiff ancestors permitted the 1st – 4th Defendants ancestors to settle with them as customary tenants but did not insist that they pay tributes to them in view of their common lineage to their foremost ancestor Ijo.
21. That with the passage of time the descendants of the 1st – 4th Defendants grew in number and wealth. Their population grew in Ofougbene and coupled with their wealth they forgot their status as tenants and/or strangers in Ogulagha land including Ofougbene and systematically started to lay claim of ownership over the Ofougbene land and ridiculously they have recently started laying claims to Osain land the subject matter of this action.
22. That as a matter of fact there is no member of the 1st – 4th Defendants’ community living in Osain. The 3rd Plaintiff is the chairman of Osain community.
23. That in or about the 9-01-20902(SIC) Plaintiff uncovered what must have been the best kept secret of the past decade, the acquisition by the Delta State Government through the 5th and 8th Defendants of the shoreline up to the hinterland of Osain Land of the Plaintiff.
24. That plaintiffs also learnt that the 1st – 4th Defendants claiming to be owners of Osain Land have applied to be paid compensation for the said acquisition.
25. That the payment of any sum of money to the 1st – 4th Defendants for the acquisition of any part of Osain land will be a declaration that persons who have no connection whatsoever to Plaintiffs Osain land have been declared owners of the said land.
26. That any such payment to the 1st – 4th Defendants will lead to an unimaginable up-heard in Osain community and in the communities surrounding it.
27. That no amount of money in this wide world will be sufficient to atone for the payments of any monies for Osain land to 1st – 4th Defendants who are not owners of the said land. The danger such wrong payment can pose to the security of lives and property is the main reason for this application.
28. That the information at the disposal of the Plaintiffs is that the payment for the said acquisition will be made by the 5th – 8th to the 1st – 4th Defendants in a matter of days.
29. That granting this application expeditiously is therefore in the interest of justice.
30. That plaintiffs in bringing this application have not been guilty of any delay. This application has been brought as soon as the secret plot to acquire our lands and pay compensation to the wrong persons was uncovered.
31. That greater justice will be done in granting this application than in refusing it.
32. That as earlier deposed to damages and indeed no amount of money can adequately compensate the plaintiffs of any payment made to the 1st – 4th Defendants. The injury that would be suffered by such payments is not quantifiable in monetary terms.
33. That the Defendants will suffer nothing if this application is granted as prayed.
34. That the plaintiffs are prepared to enter into an understating as to damages if it turns such that the application ought not to have been granted”.

In opposition to the application, the 2nd Respondent swore to 11 paragraphs affidavit, it is reproduced as follows:-

“1. I am the 2nd Defendant Respondent in the above named suit.

2. By virtue of my position, I am familiar with the facts of this case and I swear to this Counter Affidavit with the consent and authority of 1st set of Defendants/Respondents.
3. I have read and understood the affidavit deposed to by 1st Plaintiff/Applicant and I verily understand same.
4. Paragraphs 2, 3, 4, 5 and 6 of the affidavit in support of motion are denied and not relevant to this application.
5. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 of the affidavit in support of the motion are denied. In answer to the said paragraphs 1st set of Defendants aver as follows:-

a. However 1st set of Defendants/Respondents are the undisputed bona fide owners of the piece or parcel of land in respect of which the 2nd set of Defendants/Respondents revoked all their rights of Occupancy as a result of which 2nd set of Defendants/Respondents intend to pay compensation thereof to us.