Wamadi N. Ejilemele V Beleme H. E. Opara (2003)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

The proceedings leading to this appeal were first initiated on the 29th day of May, 1980 in the High Court of Justice of the Rivers State of Nigeria, Port Harcourt Judicial Division, holden at Port Harcourt. In that court, the plaintiffs, now the respondents, claimed against the defendant, now the appellant, as follows:-

“(1) A declaration that the site plan together with the conveyance purported to have been made between the senior members of Wopara family of Rumubiakani and the defendant, conveying a piece of the family property known and called OKANI-ORO land situate at Rumubiakani is obtained by fraudulent misrepresentation on the part of the defendant and is thereby null and void and of no effect whatsoever, notwithstanding that it has been registered.

(2) A declaration that the plaintiffs are the rightful owners in possession of the customary right of occupancy.

(3) N 1,000.00 damages for trespass.

(4) Perpetual injunction restraining the defendant, his servants and/or agents from staying in wrongful occupation of the said piece of land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses.

The plaintiffs’ case as pleaded and testified to at the trial is that they and the defendant are members of the Wopara family in Rumubiakani, Obio in the Rivers State of Nigeria. The Wopara family is also referred to as the Ejilemele or Rumuchorlu family. The present head of this family is P.W.1, Chief Christopher Ogbonda Ejims Wopara, Eze Izi Agwu 1 whilst Chief Joseph Ejilemele was the Owhor holder of the family until his death in January, 1987. Both PW1 and the late Chief Joseph Ejilemele, the Owhor holder of the family were the elders of the family. Chief Joseph Ejilemele died on the 23rd January, 1987 and was, while he was alive, the oldest man in their village. PW1, as head of the Wopara family, represented them in all transactions with Chief Joseph Ejilemele who was the Owhor holder and consequently the custodian of all the family property.

Both the plaintiffs and the defendant are in agreement that the land in dispute is a piece or parcel of land which belongs to the Wopara family under customary law. It is more particularly delineated in plan No. FO/18/81 and therein verged green. The entire area claimed by the plaintiffs is therein shown verged red.

Both parties claimed that the land in dispute was allocated to them in accordance with customary law by the head and elders of the family. Chief C. O. E. Wopara, Eze Izi Agwu 1, the head and paramount Chief of Wopara family at all material times and Chief Joseph Ejilemele, the Owhor holder of the family, were identified by both the plaintiffs and the defendant respectively as the head and/or elders of the Wopara family who participated in the allocation of the land in dispute to the parties. The plaintiffs claimed that the piece of land in dispute together with the area verged red was allocated to the 1st plaintiff and Oke Ejilemele, the late husband of the 2nd plaintiff, in the year 1960. After the allocation, both plaintiffs went into immediate possession thereof. Oke Ejilemele was the first person to erect his residential house on the land in dispute into which he and his entire family moved. His wife and children continued to live on the land in dispute after the death of the said Oke Ejilemele during the last Nigerian civil war. He was buried on the land in dispute and a tomb in his memory was erected over his grave in the year 1971. The plaintiffs also cultivated the land and planted various economic trees thereon. Certain portions of the land were let to Ogoni palm wine tappers as tenants by the plaintiffs and they erected temporary structures on the land in dispute.

The plaintiffs claimed that while they were away from home, the defendant without their knowledge unlawfully trespassed on the land in dispute and forcefully built a house on a portion thereof which had been allocated to them. They further claimed, that the defendant thereafter secretly made a survey plan of the land in dispute and fraudulently induced the head and elders of their family, to wit, Chief C. O. E. Wopara and Chief Joseph Ejilemele to sign a paper purportedly identifying the said defendant to the Military Authorities for the purpose of the collection of rent in respect of the defendant’s house occupied by the said Military Authorities. As a result of this fraudulent inducement, the Deed of Conveyance, exhibit A, was signed by the said elders granting the land in dispute to the defendant. Exhibit A was thereafter duly registered with the Ministry of Lands and Survey, Port Harcourt, Rivers State. The plaintiffs further alleged that the defendant, equipped with this spurious document, exhibit A, started laying false claim to the land in dispute hence this action.

The defendant, for his own part, claimed that the land in dispute is part of the land which was allocated to him under customary law by the said Wopara family in 1958 through Chief C. O. E. Wopara, Chief Joseph Ejilemele and some other elders of the family. Both himself and the plaintiffs are members of the Wopara or Ejilemele family. After the allocation, he developed the land by building houses on it and planted economic trees thereon. The defendant tendered his document of title in respect of the land in dispute, exhibit A. He claimed that the Deed of Conveyance, exhibit A, was executed before a Magistrate as Chief Joseph Wopara Ejilemele was an illiterate. He denied that P.W.1 signed exhibit A in his house at night while the said P.W.1 was eating his dinner. He also denied that the land in dispute was allocated to the plaintiffs by P.W.1 and/or the elders of the family. He admitted that the late husband of the 2nd plaintiff built a structure on the land in dispute but claimed that he, the defendant, authorised the erection of the structure. He also admitted that the tomb of the late husband of the 2nd plaintiff was erected on the land in dispute in 1972 by the 1st plaintiff. He said it was incorrect that he misrepresented the nature of exhibit A to P.W.1. He claimed that exhibit A was duly executed before a Magistrate as provided by law and not in the house of P.W.1 while the latter was eating his dinner.

At the conclusion of hearing, the learned trial Judge Olukole, J. after a careful review of the entire evidence on the 29th day of September, 1988 found for the plaintiffs. He found the evidence of P.W.1, the head of the Wopara family impressive and that it substantially supported the case of the plaintiffs. He accepted that the land in dispute was allocated by the Wopara family to the plaintiffs as joint allottees and that P.W.1 signed exhibit A as a result of the false representation of the defendant as to the true nature of the document in the house of the said P.W.1 and not before a Magistrate as alleged by the defendant. He described the evidence of the defendant and that of his witnesses as unimpressive and he proceeded consequently to decree as follows: