Ojah V Ogboni (2) (1996)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

This is an appeal against the decision of the Court of Appeal, Enugu Division, delivered on the 21st day of April, 1989, dismissing the appellants appeal in a dispute concerning land in Etono II village, Biase Local Government Area, Akamkpa Division of the Cross River State of Nigeria. The said land is more particularly delineated and shown verged pink in survey plan No. EAAC/446/LD dated the 21st July, 1973 tendered as Exhibit 1 by the plaintiffs in the suit.

The respondents, as plaintiffs, for themselves and on behalf of the people of Biase Development Council Area, Akamkpa Division, had in the Calabar Judicial Division of the High Court of Justice, Cross River State, instituted an action against the defendants, who are now the appellants, for themselves and as representing the people of Etono II village, Biakpan, Biase Development Council Area, claiming as follows:-

“1. A declaration that land occupied by Etono II Village more particularly described on Plan No. EAAC/446/LD is part of Biakpan Communal land under the headship of the paramount ruler of Biakpan (annual value of land approximately N100.00).

2. Perpetual injunction to restrain the defendants by themselves, servants, agents or assigns from leasing alienating or doing anything in Etono II Village inconsistent with the Communal ownership by Biakpan in all that piece of land now occupied by Etono II Village, Biakpan.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged with the same amended by various orders of court.

At the subsequent trial, both parties testified on their own behalf and called witnesses. They also adduced evidence of traditional history in proof of their claims.

The case of the plaintiffs is that the defendants people of Etono II had been and were part and parcel of Biakpan. The common ancestor of both the plaintiffs and the defendants was one Akpan Ubaghara who settled with the four groups of his people on their present land. The groups comprised of the Onoronwanza Biakpan, Imienyo Biakpan, Emudakotong Biakpan and Emibit Biakpan. Each group settled in a given area and sprang up to form a village of Biakpan. A fifth village, Etono II, was subsequently formed in the following manner.

In the olden days, it was an abomination in Biakpan for a woman to give birth to twin children. When this happened, both the mother and her twin children were usually killed. However, following the birth of a set of twin children by the daughter of a highly respected Biakpan chief, the said chief appealed to his people to spare their lives. The Biakpans accepted his plea but would not allow them to live together or interact with “uncontaminated” or full-fledged Biakpan citizens.

Accordingly they were settled in and allowed to occupy a nearby chosen site which was part of the piece or parcel of land first acquired and settled upon by the said Akpan Ubaghara. In the course of time, other women who gave birth to twins with their children were similarly sent to the same location which subsequently grew into a community or village of its own called Etono II, to distinguish it from Etono I which is situate north of the Cross River.

The plaintiffs claimed that the people of Etono II had always accepted that they were of the same kindred as the Biakpans and that the land which Etono II occupied was communally owned by the entire people of the Biakpan community, of which the people of Etono II are a part. They averred that the defendants speak the Biakpan language as their mother tongue although, in the course of time, they also acquired another language as a result of the movement of people from Etono I to Etono II with the permission of the Biakpans. The plaintiffs explained that as a consequence of the spread of civilization and the influence of christianity, the people of Etono II were no longer discriminated against as outcasts but were gradually assimilated into the main Biakpan clan as full-fledged citizens with no disabilities. Only Biakpan chiefs could alienate or make allocation of land for farming in any of the five Biakpan villages including Etono II. Over the years, the entire Biakpan community including Etono II, had as a unit instituted and defended suits in respect of lands in Biakpan and Etono II and the defendants people had benefited from the result of such litigations jointly pursued.

About 1972, at the end of the Nigerian civil war, the plaintiffs stated that the defendants started to make claims to exclusive ownership over land in Etono II. The defendants further asserted that they were separate and distinct community from the main Biakpan clan with exclusive and independent rights over land in Etono II hence this action.

The defendants, on the other hand, claimed that Etono II had never been a village in Biakpan. It has from time immemorial been a distinct entity from Biakpan village and autonomous in all matters concerning ownership of land, chieftaincy, language and tradition and distinguishable from the plaintiffs Biakpan village. They asserted that inheritance to land in Biakpan is matrilineal whereas it is patrilineal in Etono II. This explained why the defendants’ people owned land in Biakpan arising from inheritance on inter marriages between the peoples of Etono II and Biakpan. They claimed that Etono II, Biakpan, Etono I and Ikun are four separate ancestral linages of Ubaghara clan and that each of these villages is distinct and autonomous over matters concerning land, ancestral shrines and chieftaincy. The people of Etono I and II migrated to Biase from a place called Mbe Oton and later settled in their present respective locations.

They claimed that the Biakpans came later and settled upon a piece of land which was part of the land earlier acquired by settlement by the Etono II people. The Biakpans were allowed to occupy their abode by the paramount Chief of Etono II on given conditions. They stressed that land in Biakpan is never owned communally. The unit of land ownership in Biakpan, as in the other Ubaghara clan communities, is the family or extended family. They stated that the authority and control of the paramount head of Biakpan and the Biakpan land chief did not extend to Etono II.

At the conclusion of hearing, the learned trial Judge, Effanga, J., after an exhaustive review of the evidence on 7th day of March, 1986 found for the plaintiffs and decreed as follows-