Otuaha Akpapuna & Ors Vs Obi Nzeka Ii &ors (1986)
LawGlobal-Hub Lead Judgment Report
The proceedings giving rise to this appeal were commenced by the respondents before this court in the then ASABA-OGWASHI-UKU Judicial Division of the HIGH COURT OF MID-WESTERN STATE (NOW BENDEL) of Nigeria.
The claim reads as follows:– “(a) A declaration that all that piece and parcel of land lying and situate in OBOMKPA, ASABA DIVISION, which land is verged in pink on PLAN NO. LSU 145 filed by the plaintiffs in this case is the property of the plaintiffs’ people of OBOMKPA.
(b) The sum of £10,000 (ten thousand pounds) being general and special damages for trespass in that the defendants, their servants and or agents, on or about the 23rd December, 1970 broke into the land, cleared a portion of it and deposited a juju pot thereon, thereby desecrating plaintiffs’ ancestral shrine, which the plaintiffs had to reactivate at great expense – (then follows particulars of special damages). (c) An injunction restraining the defendants, their servants and or agents and each of them from further acts of trespass upon the said land.”
The action was prosecuted throughout by the respondents as representatives of the Obomkpa Town of the then Asaba Division and defended also in a representative capacity by the appellants on behalf of Idumuokakwu quarter of Ukwunzu Town. In their last amended statement of claim the respondents (plaintiffs in the court of first instance) averred inter alia as follows:-
“1. The plaintiffs are people of OBOMKPA Town in ASABA DIVI-SION and bring this action for themselves and on behalf of the people of their town. 1A. Both OBOMKPA TOWN and UKWUNZU TOWN are clearly shown and marked in (i) 3rd Edition of Mid-Western Nigeria Map No. 1000/2/7-71 of 1971; (ii) ASABA and IKA DIVISIONS Map of 1966; (iii) ISHAN DIVISION Map No. 1000/1/5-71. 2 The defendants are members of Idumuokakw village of UKWUNZU TOWN, ASABA DIVISION and are sued for themselves and on behalf of the people of their village. 3. The land in dispute is situate in OBOMKPA and is known as ‘OJIOKPA’, OFIA OBOMKPA or OFIA IRU AFA. It is more particularly described as to its extent and location and verged PINK on Plan No. LSU 145 filed with the statement of claim.
4. The land in dispute is bounded on the South and South-West by the land of the people of UKWUNZU on the North by plaintiffs’ OWUWU Stream, on the North-West by plaintiffs’ OJIOKPA Stream which has a confluence with MOBO Stream of the people of UKWUNZU, and on the East and South-East by plaintiffs’ peoples land. 5. The plaintiffs inherited a large expanse of land from one ANA GBA, their earliest ancestor who broke the land including the one now in dispute as a virgin forest. 6. Anagba was a member of the family of one Chima who was a Chief under an Oba of the old Benin Kingdom.
Chima angered the Oba who thereupon ordered his warriors to get Chima, remove his staff of office (Ufie) from him and if necessary kill him in the process. Chima got wind of this plan and escaped with his whole household and supporters. 7. Among those who escaped with Chima were Onicha, Ado, Adago, Chaeze, Anagba, Ifite, Ukpali Oligbo, Gbuwalo, Esigie, Alimini Ugo.
PAGE| 2 8. Chima and his train after a long travel settled at a place near the present Onicha-Ugbo in Asaba Division, and subsequently as the pursuit on them heated up they spread to found some of the towns now known as UMUEZECHIMA in ASABA DIVISION. 9. There are now nine towns in Umuezechima also called Ezechima Clan viz: Obior, Onicha-Ugbo, Issele-Uku, Onicha-Ukwu, Obomkpa, Ezi, Onicha-Olona, Issele-Mkpitima and Issele-Anagba. 10. Ado and Chaeze were strong men of war to whom aged and tired Chima entrusted the staff of office for safe custody. Anagba was a famous medicine man who was to direct the flight with his magical powers. 11. At a place now called Onicha-Ukwu Chima’s people made a sacrifice to confuse their pursuers who in fact withdrew for a long time.
12. The flight had to continue however and Anagba through his constant consultation on his AFA (oracle) directed his people (who could continue the flight) through the land now known as Obomkpa at which place his wife gave birth to a child. Anagba left a small party to take care of his wife and child having made sure from his oracle that the place was to be his permanent home.
13. Anagba directed the remainder of the party, headed by Ado, Chaeze and Ifite, through to the town now called Ezi where a child was born to Ifite. Ifite remained there. 14. Anagba having made sure that Ado and Chaeze were on the right track, and that the Ufie of Chima was therefore safe, retraced his step to his family at Obomkpa. Ado and Chaeze continued through the place now caled UKWUNZU, ILLAH to the present Onitsha in East Central State. Onitsha is also known as Onitsha Ado. 15. Anagba traversed a large expanse of land including the area now in dispute, and planted several protective jujus thereon. By his magical powers he controlled the flow of several streams on the said land thereby making the land the safer for habitation.
16. The land traversed by Anagba (including the place now known as UBULUBU) extended to EMULE and also UKPEI (OHORDUA) which is across OJIOKPA Stream. 17. When the warriors of the Oba of Benin withdrew, they returned to the Oba to report that Chima’s people had fled beyond capture, but the Oba did not accept the story. He instead took it as a challenge to his might and ordered reinforcement from various sections of his kingdom, including some of those who had returned who would then act as guide to the fresh recruits.
18. A fresh search for Chima’s people followed, but the would-be assailants, after a long travel, arrived within the present Asaba Division as friends. They had camped near the present Idumuje–Unor and Ugbodu. 19. It was during the reign of Obi Ngwuagiliga of Obomkpa that one IKOGWUDA and a few men came to Obomkpa. They introduced themselves as friends and after a few days, left and settled at a place now known as ODO village, UKWUNZU, which is the foundation of UKWUNZU town. 20. Several Obis have reigned in Obomkpa since the time of Anagba, among whom was Obi Obome. 21. During the reign of Obi Obome, a strong hunter named UWAGBOI OMEZI came to Obomkpa with a few followers and begged Obi Obome to allow them to settle on his Obi’s land.
Obome granted this request and asked his son Uya to show Uwagboi a site. Uya showed Uwagboi a place in Obome’s farm. 22. Uwagboi and his followers later left to stay at a place called Ogodor far away on the way to EBU, but some of these followers returned to Obomkpa and resettled in the old farm spot. This settlement which was referred to by the then Obomkpa people as UGBOBA (father’s farm) grew to become one of the four villages that make up Obomkpa town. The whole town had a common Obi and did things in common. 23.
Obi Uya reigned after Obome, and Usifo succeeded Uya, then Dibia after whom reigned his son CHIDI. During the period of CHIDI’s reign, one KABAKWU was the head of OGODOR family. Obi CHIDI was the father of Obi NSUEBO who begat Obi NZEKA the 1st plaintiff in this case. 24. The said KABAKWU was the son of one OFUATE of OGODOR and ANOMCHIONYE the daughter of Obi UYA of Obomkpa. 25. KABAKWU was convicted of a criminal offence at ILLAHCROWN COURT and fined five pounds which he could not pay. His mother ran to Obi CHIDI who then ordered the four villages of Obomkpa, namely – Ogbe Obi, Ugboba, Ogbe-Onoi and Ukpatu to contribute £1.5/- each with which KABAKWU was redeemed. KABAKWU was brought back to Obomkpa amid great rejoicing.
26. The plaintiffs as owners in possession, have economic and cash crops on the land in dispute. They have farmed it, worshipped their jujus as their ancestors before them, and have on payment of royalties to them allowed timber contractors to cut timber in the land without hindrance from anyone including the defendants.
PAGE| 3 27. On or about the 23rd of December 1970, the defendants, their servants and or agents, acting in concert with the defendants in High Court Suit No. A/11/71, who are from Ugboba, Obomkpa entered and cut a long part within the land in dispute, and cleared the portion verged yellow on plaintiffs’ plan. They further deposited a juju pot within the cleared portion, thereby desecrating the ancestral ‘AFA’ shrine of the plaintiffs which the plaintiffs had to reactivate at great expense. 27A.
In the said Suit No.A/11/71 the defendants in that case have conspired and are asserting that they from Ugboba village of Obomkpa is a town (not a quarter/village of Obomkpa) and have boundaries with the defendants of UKWUNZU. The plaintiffs hereby plead the statement of defence and plan filed by the defendants in A/11/71 and the proceedings in Ezechima Clan Court Suit No. 28/51”.
So far as relevant, the appellants met the above averments as follows in their amended statement of defence:- 3. “The defendants deny paragraphs 2, 3, 4 and 5 of the statement of claim and will put the plaintiffs to the strictest proof thereof. In further answer to paragraph 2 of the statement of claim, the defendants assert that there are seven quarters in UKWUNZU town and the defendants come from one of the seven quarters. 4. With regard to paragraphs 3 and 4 the defendants state that the land in dispute is in UKWUNZU and it is part of the land called ‘OFIA IKOKA’. It is verged in pink in the defendants’ plan. The entire OFIA IKOKA is verged violet in the defendants plan Number MWC 110/72 filed with this statement of defence. (The countersigned Survey plan by the Surveyor-General, Mid–Western State will be tendered at the trial).
The defendants’ plan accurately shows the land in dispute and all relevant surrounding features. 7 (a) The defendants further state that UKWUNZU town had long been established ever before the founding of any of Chima’s towns. (b) The defendants at or during the trial will found on the Intelligence Report on ODIANI GROUP, ASABA DIVISION, BENIN PRO-VINCE by MR. R. B. KERR, DISTRICT OFFICER and as No. WP 13809A Secretary’s Office, Southern Provinces; and other legisla-tions, plans and maps relevant to the existence and establishment of UKWUNZU with its allied towns.
8. During the wave of one of the Benin wars, some refugees who were led by one Ise ran to UKWUNZU where they took shelter from the ravages of the war. 9. Later Ise and his retinue continued their flight till the settled at the site now known as Issele-Uku. 10. Ise begat Chima and Chima begat Obioma, Onicha and Oligbo. 11. Anagba was the ancestor of the plaintiffs’ people and he was a herbalist who came from Ogidi in the East Central State (now Anambra). 12. The said Anagba served Oligbo, one of the descendants of Chima and during his servitude he conceived NKEMAMUNA, one of the daughters of his master and eloped with her. 13. Anagba then fled with, Oligbo’s daughter to UKWUNZU where they were given by the defendants’ people a site opposite UGBOBA town as sanctuary. 14. It was at the reign of Obi Madagbai one of the Obis of UKWUNZU that the plaintiffs’ people came to the defendants’ people for the said protection.
15. Obi Madagbai sheltered the erring Anagba and played a leading role in trying to pacify the highly infuriated Oligbo. 16. It is generally believed that Oligbo died of the shock and shame of the daughter’s scandal and Anagba was only reconciled to Oligbo’s son called Obi Owelle at the incessant intercessions and plea of Obi Madagbai of UKWUNZU. 17. Anagba paid dearly for his crime before he was forgiven. 18. UKWUNZU was founded by Ogbe who migrated from IFE to the new land due to the spirit of adventure.
19. Ogbe and his followers were the first people ever to settle at UKWUNZUand they farmed extensively on the land in dispute and areas now known and called Ogodo, Ubulubu, Obomkpa. 20. Besides his family members Ogbe left Ife with his brother called Ugbodu. It was Ugbodu who founded the present Ugbodu town while Ogbe founded UKWUNZU. 22. Only 5 known rulers, who are of late referred to as Obis have reigned at Obomkpa whilst several Obis have reigned in UKWUNZU since the time of Ogbe. PAGE| 4 24. The defendants also deny vehemently paragraph 26 of the statement of claim. On the other hand, the defendants and their people are owners in possession of the disputed land.
As owners in possession they have exercised maximum acts of ownership thereon to with: (a) Farming (b) Hunting (c) Worshipping juju (Shrines) (d) Exploiting timber without any hindrance from the plain-tiffs, their people or any other person. (e) Planting economic crops.’ Issues having been so joined the action proceeded to
Other Citation: (1986) LCN/2285(SC)