Paul Omoregbe V. Ehigiator Edu (1971)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

Plaintiff, now appellant, had instituted an action against the defendant, now respondent, in which he claimed declaration of title to a piece of land with a thatched house thereon situate at Idunmwungha village in Benin district, possession of the said house, and an injunction restraining the defendant, his agents and/or servants from trespassing on the said property.

The plaintiff’s case as borne out by his statement of claim and the evidence adduced by him in support is as follows. The plaintiff, a road overseer with the Ministry of Works and Transport, was, in January 1941, sent to Ehor to supervise some road work between five and ten miles from Benin City. At first he lived in the road camp. Later he went to live at Idunmwungha village as a tenant of one Ehigiator Asemota. Not long after, Asemota sold the house and the purchaser gave the plaintiff notice to quit. With nowhere to move to, the plaintiff went to the reigning Enogie of the village, one Chief Orumwense, and asked for a plot of land on which to build. The Enogie asked him to see the Odionwere (the next in rank to the Enogie) and the elders of the village. He saw them. Four days later, one Ogieseri Ojugo (2nd PW) was asked by the elders to show the plaintiff a building plot between miles eight and nine on the right hand side of the road from Benin City to Ehor. Ojugo showed him the plot which was later handed over to the plaintiff in the customary manner after the customary ceremonies had been performed at the site by the Enogie, the Odionwere and the elders of the village.

At this ceremony, the plaintiff gave the Enogie and the elders a present of 8 kolanuts, four bottles of gin, and a head of tobacco. Among those present at this ceremony of the handing over of the plot were Orumwense, the Enogie of the village, Iyiewuare the Odionwere, Imade, Eruba, Omorose, Igbinosun, Ogieseri Ojugo (2nd PW), and Ogieva Iyiewuare. After the land was handed over to him, the plaintiff cleared and levelled it and built a bamboo hut on it.

Three months after he had been given notice to quit, he moved into this bamboo hut which he later rebuilt with mud. He lived in the mud hut for four years and then left when he was transferred first to Agbanikaka and later to Akure in 1948. The land on which the plaintiff built the mud hut and shown on the survey plan (Ex. A) is the one now in dispute.

Before the plaintiff’s transfer from the village, the defendant asked the plaintiff to let him live in the mud house. Because they both came from the same quarters in Benin the plaintiff agreed, provided the defendant would maintain the house.

Between 1948 and 1964 when he was posted back to Benin city, he visited the house four times and slept there on three occasions. As Benin city was only eleven miles away from the village, the plaintiff went there again in 1966 and noticed some structural alterations in the house. When he questioned the defendant about the alterations, the defendant claimed the building as his own because he had carried out the structural alterations. The plaintiff disputed the claim and consequently sued the defendant.

In support of his claim the plaintiff called three witnesses one of whom is Okonedo (4th PW) the purchaser of the house in which he first lived as a tenant. The other is Ogiesare Ojugo (2nd P) who testified as follows:

“I know the plaintiff at Idunmwungha when he was working at the Ministry of Works at Idunmwungha. He was then living at Usiemefo’s house in the same village. Usiemefo Okonedo was the owner of the house. By this time the defendant was living in the house of one Omokaro. At that time, I was the “Oga” of the town and was also in charge of tax collection in the village. The plaintiff after staying in Okonedo’s house for a time, approached the elders for land on which to build. The people approached were one Orumwense the Enogie, and one Iyi-Ewuare the Odionwere along with other elders. Myself and one Imade were delegated by the elders to show the plaintiff the spot on which to build his house. This spot was very close to Rev. Ohuoba’s school compound. We showed him the piece of land and he had a common boundary with one Okhonmina, deceased (but his son is alive still). When he had been shown the spot, he said he liked the spot and gave the elders drinks and kolanuts. He brought his brother Iserhien and one Thomas to help in setting up the building, aided by other people the ‘eroghaes’ (men of his age group) in the village.

I am presently the chairman of the school committee in the village and also a tax collector. I was a councillor for five years and was also a court member at Eyaen Customary Court. I am an ‘Odion’ (an elder) in the village. The Enogie and the Odionwere at the time have long been dead. The present Enogie who is now in court was a young man at that time. The present Odionwere Imade Omorose was then living at Idunmwunehegie at mile 8 Ehor Road. I first met the defendant Isiuhe at Benin City. Later on, he moved to Idunmwungha village. The building put up by the plaintiff is still there. The house was first made of bamboo and later on it was set up or filled up with mud wall. After it had been filled with mud wall the bamboo sticks were removed. The defendant is living in the house now. When the brother had quarrelled with the defendant, the defendant came to beg the plaintiff to, allow him to live in the house and to make use of his well.”

In answers to questions asked under cross-examination the 2nd PW still maintained that he was the one who showed the land in dispute to the plaintiff and that to his own knowledge, the defendant did not ask for a piece of land from the Enogie.

In his defence, the defendant claimed to have built on the land in dispute about 25 years ago but said it was given to him by the villagers who included Orumwense the present Enogie, and Iyi-Ewuare the Odionwere. Nobody had challenged his title to the land. He had no knowledge that the land in dispute had been allocated to the plaintiff. He denied that he was ever questioned by the plaintiff about the land. Under cross-examination, the defendant admitted that he knew Ojugo (2nd PW), that he was the chairman of the school committee and that he was also a tax collector. The defendant also admitted that when he first came to the village many years ago Orumwense the father of the present Enogie was then the Enogie while Iyi-Ewuare was the Odionwere. One of the witnesses called by the defendant was Eguavoen Orumwense (1st DW) the present Enogie of the village and son of Orumwense, the former Enogie who was one of the elders who the plaintiff said granted him the land in dispute. This witness said he was the one who allocated the said land to the defendant.

He said he was not aware that the plaintiff had approached his father for a piece of land and that if the land in dispute had been allocated to the plaintiff he would have made enquiries from the village elders. He denied that the plaintiff complained to him about the allocation to the defendant. In answering questions put to him about the plaintiff, this witness testified further as follows:

“The plaintiff was living in our village. He was living in Usiomefo Okonedo’s house. Usiemefo Okonedo bought the house from one Ehigiator Asemota. By the time Okonedo bought the house, the plaintiff was there. I know the plaintiff very well. He knew my father. He was friendly with my father.”