Oyibo Iriri & Ors Vs Eseroraye Erhurhobare & Anor (1991)

LawGlobal-Hub Lead Judgment Report

O. OLATAWURA, J.S.C. 

This appeal arose out of two consolidated suits which were separately instituted by both parties in Sapele Judicial Division of the Bendel State High Court. The appellants were the defendants in the first suit filed by the respondents, whilst the respondents were the defendants in the second suit instituted by the appellants.

The issue at stake is the ownership of a parcel of land called by different names, a practice not unusual in land matters. The suit by the present respondents: S/34/69 against the present appellants was filed on 25/11/69. The other suit S/2/71 was filed by the present appellants. Both suits were later consolidated. The present respondents were plaintiffs whilst the present appellants were defendants in the court of trial In their amended statement of claim, the plaintiffs claimed against the defendants as follows:

“As against all the defendants

(1) A declaration of Title to that parcel of land at Mereje sub-clan Okpe Western Urhobo known as Okpirien or Okinokwa land lying between Ovbivbi stream and Ore Stream along Sapele Warri Road in an area edged yellow in plaintiffs’ plan No. AR.1005 filed in this suit.

(2) The sum of N500 being general damages for trespass when the defendants entered on a portion of the land without the plaintiffs’ permission to disturb the plaintiffs in their use of the land in November, 1969.

(3) Injunction to restrain the defendants and their agents from further acts of trespass on the land.

As against the 5th Defendant only

(4) An order of forfeiture against the 5th defendant only in respect of that portion of the said Okpirien land edged black in plaintiffs’ plan adjacent to the area edged green in the plan in which is inscribed the words “Trinity College Okwidiemo Grammar School for Boys” or the payment of rent in lieu of forfeiture.”

Pleadings were ordered and delivered. The facts relied upon by the plaintiffs in the court of trial were that the plaintiffs’ ancestor was one Enaide. The action was filed in a representative capacity on behalf of Enaide Family of Mereje. The land in dispute is situate on the left side of Sapele/Warri Road after Adeje and is part of Mereje land. The defendants who are of Idiemo Family are members of Erhuohwo family of Ugolo, Okpe.

The original home of the parties is Ororokpe. It was founded by four brothers: Orhue, Evrike, Esezi and Orhua. It was during the reign of the first Esezi and after his assassination that people fled into all directions. This assassination led to an upheaval, and consequently a one-time community became small settlements around the original settlement. Both Udegbeme and Odorume from Orhue Quarter founded Mereje Village. Their descendants founded other settlements within the virgin forests in Mereje Village. Enaide who was the son of Udugbeme founded a place called Okwuvo and he later cleared the land in dispute called Okpirien land. The land was blessed with palm trees hence Enaide and his people collected a lot of palm fruits. The place is also called Okinokwa. Enaide family exercised maximum acts of ownership over the land in dispute: built farm huts on the land and fished in the streams and ponds. Apart from fishing, they also hunted on the land. There were also economic trees and cash crops like rubber and cocoa.

The cause of the dispute was the challenge to their title by the defendants (1-4) who claimed the land in dispute as the property of Idiemo family. It is the version of the plaintiffs that Idiemo came from Ugolo. He collected palm fruits on the land but paid tribute in the form of palm oil. The 5th defendant applied to be joined and was joined by the court as a 5th defendant on 3/4/70. The 5th defendant is related to both parties. The 5th defendant approached the plaintiffs’ family for a piece of land on which to build a school. His request was granted but subject to the payment of rent after the school could have been well-established. He built the school, Trinity College but later turned round to disown the plaintiffs and switched over to the defendants to enter into a private arrangement about the ownership and title of the plaintiffs, hence the claim for forfeiture against him.

The defendants’ case (i.e. the 1st-4th defendants) was that the plaintiffs are not Okpe citizens. They denied that Enaide, the plaintiffs ancestor was one of Orhue’s descendants who fled Ororokpe after the upheaval following the assassination of Esezi. It was their case that Udugbome was not the father of Enaide and Enaide did not found any village in Okpe. He was, according to the defendants, a slave to one Okokor the daughter of Okpo who was the defendants’ ancestor. Enaide grew up and later got married to one of Okpo’s slaves, it was that union that led to the birth of “Idiemo.” This Idiemo was not the same Idiemo who was the defendants’ grandfather. The plaintiffs Idiemo was, according to the defendants, called Idiemo-Enaide. It was the defendants’ ancestor who settled the plaintiffs’ ancestor in Okuwo. This Okuwo is beyond Ovwivwi stream, which is the boundary of Emereje clan and Ugolo clan.

The defendants denied that the land in dispute is called Okpirien or Okinokwa but that the land called Okpirien had been litigated upon in an earlier suit S/6/68 and that it was in that suit that the plaintiffs’ counsel acknowledged this fact. The Solicitor’s letter was admitted in the course of the proceedings as Exhibit K.