Stephen Onowhosa & Ors. V. Peter Ikede Odiuzou & Anor. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

This is an appeal against the decision of the Court of Appeal, Benin Division affirming the judgment of Oki, J. sitting in the High Court of former Bendel State, Ughelli Judicial Division in suit. No. UHC/40/75. He granted all the reliefs claimed by the plaintiffs. The plaintiffs claimed the following:

“(a) A declaration that plaintiffs and defendants as members of Uwhruwe family of Bethel Oyede in Isoko Division are Joint Owners of the Uwhruwe family land shown in plaintiffs’ survey plan No. MWC/88/76 and known and called Okpailoho land at Bethel town, Oyede Isoko Division of the Bendel State of Nigeria:

(b) A declaration that the plaintiffs’ Eromahwe branch or sub-family, as one of the three branches or sub-families which make up the family, is entitled to one third share of the said Uwhruwe family’s Okopailoho land;

(c) An order of injunction restraining the defendants by themselves, their agents, relations and servants from interfering with plaintiffs’ right to work and or farm on the said Okpailoho land pending the partition of the said land;

(d) An order that the said Ikpailoho land be partitioned permanently among the said Eromahwe, Ewokobe and Onoromate branches of the family and or in the alternative, any other order of relief which this honourable court may deem fit, just and equitable in the circumstance.”

Before pleadings were filed, the 5th and 6th defendants applied to the trial court by way of motion for an order joining them as co-defendants in the suit. The application was opposed by the plaintiffs and after hearing arguments from the parties the learned trial Judge granted their prayer and they were accordingly joined as 5th and 6th defendants on 15th March, 1976. Pleadings were ordered, filed and exchanged. The six defendants filed a joint statement of defence. From the pleadings filed, it is a common ground that the land in dispute is called Ikpailogho which was founded by a man called Uwhruwe and after the death of Uwhruwe who was the original founder the land passed on to his descendants from generation to generation as their joint property up to today. The descendants of Uwhruwe constitute what is today known as the family of Uwhruwe of Bethel Oyede.

While the plaintiffs asserted that there are three children, Eromawhe, Ekwukobe and Onoromate and that they descended from Eromawhe branch and are therefore entitled to one of the three branches that make up Uwhruwe family of Bethel Oyede. The 2nd and 3rd defendants averred in the joint statement of defence that they belong to the Ogu branch of Uwhruwe family and not Ewukobe branch as alleged by the plaintiffs. The 3rd and 4th defendants also claimed to belong to Osiawhoro branch of Uwhruwe family and not Onoramate as the plaintiffs tagged them. The 2nd to 4th defendants stated that the 5th and 6th defendants are descendants of one Emagho who was a brother of Uwhruwe and that they were recognised as a branch of Uwhruwe family and entitled to the enjoyment of the land in dispute.

The defendants maintained in their pleadings and evidence that the plaintiffs are not membes of Uwhruwe family. They asserted that the plaintiffs are strangers who were permitted by Uwhruwe family to live in Bethel, Oyede when the Christians were being persecuted and are in no way related to Uwhruwe family. Each side pleaded and led evidence of his genealogy.

At the close of pleadings the main issue before the learned trial Judge was whether the plaintiffs are members of Uwhruwe family as they claimed. At the hearing, the plaintiffs led evidence to show their descent from Uwhruwe and transactions in respect of the land in dispute.

After taking evidence and the addresses of counsel, the learned trial Judge found for the plaintiffs and granted all the reliefs they claimed. Aggrieved by the decision, the defendants appealed to the Court of Appeal, Benin Division and their appeal was dismissed. They have now appealed to this court filing eight grounds of appeal;

“(i) Was the traditional evidence given in this case properly and adequately evaluated

(ii) Having held;

(a) that the principles enunciated in Ekpo v. Ita N.L.R. 68 did not apply in this case since title to Ikpailoho land was not in issue;