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Sapele is not your land, Okpe leaders tell Itsekiri, others

11IN THE HIGH COURT OF JUSTICE: DELTA STATE OF NIGERIA

IN THE SAPELE JUDICIAL DIVISION

HOLDEN AT SAPELE

 

BEFORE THE HONOURABLE JUSTICE R. A. I. OGBOINE: JUDGE

FRIDAY THE 5TH DAY OF NOVEMEBER 1976

SUIT NO. S/8/74

 

 

BETWEEN:

UKPE IBODO …………………………………………… PLAINTIFF

AND

IGUSI ENAROFIA ………………………………………. DEFENDANT

AND BETWEEN:

1.      IGUASI ENAROFIA            )        …………………….. PLAINTIFFS

2.      CHIEF CHANAI OGOLO   )

AND

1.      UKPE IBODO             )        …………………….. DEFENDANTS

2.      FRANCIS OGISI                  )

SUIT NO. S/12/74

 

CHIEF B. O.N. OMORUWA (AGBETTOR with him) for the Plaintiffs

CHIEF J. A. ORORHO for the defendants

 

JUDGMENT

The Plaintiffs in suit No S/8/74 who acts for himself and on behalf of the family of ABOIYIGBE, Ofori claimed against the defendants for himself and on behalf of ENAROFIA family of Okuivbisi the following reliefs, namely,

 

“1.     A declaration of title to all that piece or parcel of land known as and call OFORI lying and situate in the neigbourhood of the Plaintiff’s village Ofori in the Western Urhobo Division within the Jurisdiction of this Honourable Court. Annual value of the said piece or parcel of land N200.00

 

“2.     Perpetual injunction restraining the defendant, his servants, agents and or privies from trespassing and or further trespassing on the Plaintiff’s piece or parcel of land as aforesaid”

 

The Plaintiffs in S/12/74 who are acting for themselves and on behalf of OBIRIVBO FAMILY of Ovbori 1 and 2, Ejeba, Ogribo and Okwoisi villages have brought their action against 1st defendant as a representative of ABOIGBE Family of Ofori and 2nd defendant personally, and the claim is as follows:

 

 

 

“1.     The plaintiffs claim from the 1st defendant only a declaration of Title to the parcel of land commonly called Ovbori land situated along Ovbori village on the Sapele-Eku road within the area of the Sapele judicial division to be delineated in a plan to be filed in this suit.

The plaintiffs have obtained several judgments in respect of this land and only claim that the declaration be now tied to a plan. The value of the land is N20.

 

2       As against their 1ST AND 2ND defendants jointly and severally N10,000.00 damages for trespass when the defendants in 1970 entered upon the plaintiffs land and destroyed plaintiffs’ peoples’ crops and palm trees on the said land.

 

3.    An order of Perpetual Injunction to restrain the defendants and their agents from further acts of trespass on the plaintiffs’ said land called Ovbori land.

 

Pleadings were ordered, filed, and delivered in both suits, and all the parties also filed survey plans showing the parcels of land claimed by each party in each case. By an order of this court made on 14th April 1975, both cases were consolidated and were tried as one action.

As a result of the consolidation, the plaintiffs and the defendants in Suit No S/8/1974 became the plaintiffs and defendants in the consolidated cases. What may also be mentioned is the number of amendments to the pleadings which were sought and obtained by both parties. Both parties gave evidence and produced witnesses in support of their respective claims.

 

The plaintiffs opened their case with the evidence of their surveyor, Johnson Ogedengbe (PW1) of Benin City; the plan prepared by him was admitted in evidence and marked Exh. ‘A’.

In his own evidence, the plaintiff, UKPE IBODO, stated that ABOIYIGBE was his grandfather who originally owned the land in dispute. At the present time, he is the head of that family and has brought this action on behalf of the entire ABOIYIOGBE family. He knew OKOTIE, who was the eldest son of ABOIYIGBE, and on his death, one Akiye became the family head and when Akiye died, headship of the family went to his own father. It was on the death of his father, IBODO that he came to be the head of ABOIYIGBE family of Ofori.

 

The grandmother of the first defendant was a woman by name ENAROFIA. His grandfather, ABOIYIGBE, bought the land many years ago before the advent of Europeans in this part of the country.  The land was sold to ABOIYIGB by one OKPAKO who was a brother to ENAROFIA; although he did not know the amount for which Okpako sold it to Aboiyigbe. Anybody who wanted part of the land for farming or who wanted to collect palm kernels from the bush would go to his head of his family to do so and there was always payment of customary tributes for the use of the land or palm bush. He mentioned one Akudiowa Tonwe as one of those they gave land to plant rubber over thirty years ago. He tapped the rubber trees before he died, and on his death, his children have continued to tap the rubber tress. They allowed Isoko people to establish camps on the land for the purpose of collecting palm-nuts and they paid tributes yearly. On the whole they had about seven such camps on the land.

 

He disowned 2nd defendant as a member of their family. Originally, 2nd defendant was a native of Okuetolor, although he now lives at Ofori village, after he had been driven away by his people for causing trouble and confusion in the village. The plaintiff said the 2nd defendant came to his father to beg for a place to stay at Ofori, and his father granted 2nd defendant permission to remain in the village on payment of annual rent, as he wanted to trade in the place. He later planted rubber on the land.

 

After some time there was many litigation between Okotie (of Aboiyigbe’s family) and ENAROFIA. They sued Okotie that they wanted the land back and that they were many litigations in respect of said land. At that stage of the proceedings, both Counsels agreed that the certified copies of the cases pleaded in paragraph 5 of plaintiffs’ statement of claim should be and were admitted in evidence and marked Exhibits B to H, and later in this judgment, the different cases will be fully considered.

He repeated his evidence that Okpako who sold the land to his grandfather ABOIYIGBE, and ENAROFIA were brother and sister of full blood and that their father was a man by name IREN. The Land originally belonged to IREN, and on his death it was sold by his eldest Okpako, to his grandfather. He said he knew one Olokpa Okpako who was the son of Okpako who sold the land to his grandfather. The 1st plaintiff further stated that the portion of the land they sold to the 2ndplaintiff (FRANCIS OGISI) was part of the land bought by his grandfather. He also remembered the fact that apart from the persons previously mentioned by him, there were other members of ABOIYIGBE family who owned rubber plantations in the land.

 

Under cross examination by Chief Ororho, Counsel for defendants, UKPE IBODO (1st plaintiff) denied the suggestion that his father went from Elume to Ofori to settle. He said his father went to Ofori from Orerokpe. He did not know whether Okpako was a native of Okegberode. He did not know that in 1914 OKOTIE took an action against NAROFIA for driving him out of the land, nor had he any knowledge that OKPAKO was asked to refund the money with which OKOTIE’S father ABOIYIGBE bought the land to OKOTIE and that OKPAKO deposited the money into court. He said the 2nd defendant was paying an annual rent of about N4O to his father before his father died about fifteen years ago. Although, the second defendant refused to pay tribute to him after the death of his father, he knew that 2nd defendant was not related to 1st defendant and that 2nd defendant did not occupy the land as of right.

 

OKOLIGBO was a member of 1st defendant’s family, and was ENAROFIA’S son. He denied the suggestion that although Ovwori (Ofori) Nos 1 and 2 are within the land in dispute, those living in those villages are 1st defendants people. The place was founded by OKOTIE and it is only his descendants who live in these villages. The 2nd defendant lives in Ofori no. 2 village.

 

ORITSEMUEYIWA OKEME (2nd PW) of Arhagba stated that the paternal grandmother of the 2nd defendant  (Chief  CHANAI OGOLO) by name Dimigho, was a sister of full blood, of  Odjegba’s father, or of OKEME ,who was his own grandfather. He knew nothing about 2nd defendant’s father. The place called Ejeba belonged to his grandfather ODJEGBA, and that the traditional history of the place was that it was bought by their grandfather from ENAROFIA’S family in the early times. There was a dispute about the land between his father Okeme, and AKIYE, son of ABOIYIGBE, and in order to settle the matter, members of the native court went on the land and shared it between the two families. The boundary is marked by Ejeba village and giving evidence of the location of the land, the witnesses stated that as one goes from Amukpe to Agbor, on getting to Ejeba village and while facing the waterside, the land on the right belongs to OKEME ODJEGBA family while the land on the left belongs to AKIYE ABOIYIGBE. THE 1STDefendants family owns the land behind and that OKEME family had no boundary with the defendants to the left side of the road.

 

KOGO ETI (3rd PW) who described himself as the spokesman of Amukpe community testified that Amukpe land is communal in the sense that the land is jointly owned by all Amukpe people. Their land is in boundary with that of 1stplaintiff’s family and that boundary is marked by ORHIOMU stream. ABOIYIGBE’S family is the owner of the land after the stream.

 

Next to give evidence was BENEDICT ODUOYE TONWE (4TH PW) who stated that when his father was alive, he bought a piece of land at mile post NO. 10, on Sapele –Agbor road at a place called Adawarien, to cultivate rubber. He said that the land was bought from the father of the plaintiff over 30 years ago, and that the arrangement was for his father to pay 11 pounds (N22) yearly. In 1938 the whole area was brushed by labourers employed by his father. Rubber and palm trees were planted on the land. A solid camp was constructed on the land and some years later the rubber and palm trees were tapped and palm nuts were collected from the palm trees. His father had two rubber plantations on the land; one at Adawarien and the other at Ejeba which formed the boundary with OKEME’S land. At one time, 2nd defendant and his people went on the rubber plantation at Ejeba to tap the rubber trees, and when they knew of it, they got 2nd defendant and his people arrested by the police for entering their plantation without their permission. They were warned to desist from going into the plantation, and since then, nobody interfered with them.

It was a mile square of land his father was given at mile 10 Post by the left side facing Agbor and it extended up to Ethiope River. The second plantation is at mile 13 pillar post and that extended up to the boundary with OKEME family. His father, who is now dead, owned a village at Adawarien and occasionally stayed there for periods of 4 to 6 months. He denied being challenged for going into the rubber plantation and said that on the contrary — – was his brother, while Tonwe who saw 2nd defendant in the bush got him arrested and was prosecuted, although they were discharged.

 

ALABI AKPOFUNURE (5th PW) deposed that he and 1st plaintiff are descendants of ABOIYIGBE, and that about 13 years ago, 2nd plaintiff(FRANCIS OGISI) came to ask for land, and he was given land. The 2nd plaintiff paid compensation to him for his rubber trees on the land; although, he was allowed to continue with the tapping of the rubber trees in the plantation until such a time as the 2nd plaintiff may wish to use the land. He owned the rubber tree for which he was paid compensation by 2nd plaintiff. The land on which he planted the rubber trees belonged to his grandfather, ABOIYIGBE, and that the land was bought by him from 1st defendant’s ancestor.

 

In answer to cross-examination, this witness further stated that ENAROFIA lived at Okuoisi village and not at Ofori, and that before ABOIYIGBE bought the land the defendants were not at Ofori village. The 2nd defendant lives at Ofori NO.2 with his family and Ofori NO.1. Eti and Agbakara lived there with their families, and they are all members of 1st defendants’ family. The 2nd defendant came there from Okuetolor after being permitted by AKIYE to live there on payment of annual rent after he had been driven from Okuetolor. AKIYE was collecting N40 annually from 2nd defendant. On the death of AKIYE, 2nd defendant was paying the annual rent to one IBODO, who was his father’s elder brother, and since IBODO died, 1stplaintiff had been in charge of the land, although 2nd defendant has refused to pay rent for about seven years. The 2nd defendant was also paying N60.00 a year for the land in which he planted rubber trees.

 

Next to give evidence was DAMAYON ESABERHUE (6th PW) who is a palm- nut-collector, living at Omoyubu camp, which is situated between Ofori and Adawarien villages. He is Isoko. He said he was given permission by 1st plaintiff to collect palm-nuts in the bush, and had been on the land for about 28 years. He went there with some other Isoko palm-nut collectors who later left the place, but he was joined by some others also from Isoko area. Some came there after he had been there for about 4 to 6 years while others came to the bush after he was there for 15 years. At the time of his evidence he said here were about 24 Isoko palm-nut collectors on the land in dispute, collecting palm-nuts. He claimed to be their leader and said he was the first customary tenant who collected palm nuts on the land.

 

They pay five kerosene tins of oil as tribute to plaintiff and his family yearly, and he was in charge of going round the other Isoko tenants to collects the tributes for 1stplaintiff.

The other witness who gave evidence for the plaintiffs was Buraimoh Musa (8thPW), a Police sub-Inspector attached to Divisional Crime Branch, Sapele, he appeared to tender a letter written by B. O. Erivona, a legal practitioner in Sapele to the Police. The letter was admitted in evidence and marked Exh. J.

 

After he had tendered Exh J., Peter Akpofunre (9th PW) of Adewarin village gave evidence and emphasized the fact that 2nd defendant was their customary tenant, and that he was a native of Okuatolor. He is of the same family with 1st plaintiff and he was one of those who took the surveyor round the land in dispute. A great part of his evidence was taken up with the description of the features and boundaries of the land. He also monitored the customary tenants they had on the land. He maintained that the land belonged to Aboiyigbe family of which he was one.

Before Chief Omoruwa closed his case for the plaintiffs, he sought leave of the court to tender two documents, the first which was the proceedings and judgement in suit No B/53/35 Koligbo V Akiye Okotie was admitted in evidence and marked Exh. K and the letter of transfer of suit No 303/52 Eguase and Olokpa V Okpe and Gabari was marked Exh L.

The defence was opened by the tendering of a number of proceedings and judgements with the consent of plaintiffs’ counsel. Thie were marked Exh M to W and they will also be fully discussed later in this judgement.

 

The defendant’s plan was tendered by Gabriel Eriyaerrmu (1st PW) a Licenced Surveyor; the plan was marked Exh. X.

 

The 2nd defendant (Chief Chanai Ogolo) gave evidence and stated that he lived at Ovwori (Ofori) village. He is the eldest traditional Chief in Okpe clan. The 1stdefendant in his relation, and that he and 1st defendant are defending this action (Suit No. S/8/74) on behalf of OBIRIGBO family and on behalf of the same family, they are also claiming the land in dispute in suit No S/12/74. He said that members of Obirigbo occupy Ovwori Nos. 1 and 2, Ogiribo and Okwoisi villages. Ejeba village forms their boundary with Asagba village.

 

His grandfather, Itoje was a son of Obirivbo who founded the land in dispute when he migrated from Orerokpe after the assassination of the Orodje of Okpe, Esezi 1. He came to the land with his family and he belonged to Orhue ruling house in Okpe clan. Among his children who came with him were Iren (m), Odia (f), Itoje (m) and others. On his death, his land was inherited by his children who planted cash crops on the land and collected palm kernel from the bush. Later, they also planted kola nut, rubber and cocoa trees on the land. They have about eight camps on the land and all the features were shown to their surveyor. The camps are occupied by Isoko tenants who are collecting palm nuts in their bush.

 

He had heard of Okpako of Okegborode. His mother Okokor brought him with her to marry Iren, and Okpako was a step son of Iren, who was one of the children of Obirivbo. He was a gambler and adulterer, and after paying damages for adultery, he became a debtor. On the death of Iren, one Okotie who was the son of Abeiyigbe came to Ovwori and claimed that the entire Ovwori land was sold to his father. Okotie and further said that it was Okpako who sold the land to Aboiyigbe, and their answer to him was that Okpako did not own land there and that he (Okotie) should not step on their land. Okotie then took an action against Narofia, daughter of Iren in Sapele Native Court, about 1914. During the case, Okpapko gave evidence and he was asked to refund the money to Okotie. Okpako admitted selling the land and said that the land he sold to Aboiyigbe started from Orioun stream up to Esoyibo covering a distance of about one mile along Amukpe-Abraka road. The land continues up to Ethiope River which marked their boundary with Jesse people.

 

The plaintiff’s village is now called Adawarien, although it used to be known as Ekuojiji, and that it is situated in the centre of the land. Okpako said he took six pounds from Aboiyigbe and gave him the land. Okpako explained that he was in financial difficulty hence he went to Aboiyigbe to take the money. They drove him away from Ovwori and asked him to go to his mother’s place at Okegberode where he remained unit he died. Okpako had a son by name Olokpa who is now dead; he lived at Ukegborode and not Ovwor. He did not know whether Olokpa was survived by any child.

 

Giving evidence on Okpe native law and custom, Chief Chanai stated that according to Okpe native law and custom, the first person to clear a virgin forest is the Owner of the land. He remained there with his family and goes round the land and his boundaries extend to such parts of the land that are occupied by other families. On his death, the land is inherited by his children and they enjoy it in common. Okpako was a stranger on their land, not being a member of the family, he could not sell their family land to any one. He stated that he owns rubber plantations and other crops on the land, so too are his children and that he had never paid rent to anyone nor the plaintiffs.

 

Ukutserun was the father of Aboiyigbe, he was a native of Ughelli who went to Elume to settle. On leaving Adagbrassa-Elume, Aboiyigbe went to Ugbeku – Amukpe to settle where he subsequently died, he did nothing on the land in dispute. The 1st plaintiff’s family came to live with Ojuji at Adawaran, but they were not allowed to farm on the land hence the case between him and Ukudiowa Tonwe, father of 4th PW. He said that there were several other cases about this land and they always won. They took the action (suit No. 8/12/74) against the plaintiff as the 2nd plaintiff (Francis Ogisi) had  trespassed on their land by felling palm  and rubber trees and uprooting cassava farms on the land.

 

When cross-examined about his case against one Akporeze of Ekuetolor in 1929 (Exh ‘H’), he remembered saying in that case that the father of Ogolo (his father) was from Asagba, Ovwori, Ejeba and Ogiribo are villages under Asagba. Enarofia was a native of Ekuoisi and it was not true that she went there to marry. As Okpako was a stranger, Okpe  native law and  custom did not permit him to alienate or sell any land in their area. The evidence of 1st defendant, Iguasi Enarofia was only designed to judgment what was left unsaid by 2nd defendant, Chief Channai Ogolo. He is a direct descendant of Obirivbu who founded Ovbwori land. Enarofia was the eldest child of Iren and that he was her son. He repeated the evidence that Obrivbo left Orerokpe when the Orodje, Esezi 1 was assassinated and that he was the founder of the land in dispute, having been the first person to settle there and cleared it of its virgin forest. He also described the boundaries of this land, and like 2nd defendant he named all those others who succeeded him carried out various acts of possession on the land.

 

On the death of Ogirivbo, his son took charge of the land, and when Odia died, Iren because the head of the family. He was followed by Enarofia, and throughout their period nobody challenged them.

 

It was during the time of Enarofia that trouble arose over the land, Okotie was Aboiyigbe’s son. He summoned Enarofia to the Native Court at Sapele for the land pledge to him by Okpako, who was Iren’s step son, and by Okpe custom, Okpako did not own land, and as such he was unable to sell or pledge the land, although it was alleged that he pledge part of the land in dispute to Aboiyigbe. In the Sapele Native Court, Okotie said that the land was pledge to him for 6 pounds (N12), but the case ended in favour of Enarofia. On appeal to Chief Dore’s Court, Okpako admitted two important issues, firstly that he actually pledge the land to Okotie, and secondly, that the land did not belong to him. He was then ordered to redeem the land and Okpako deposited the money with court which Okotie refused to collect.

 

Thereafter, Enarofia and her people were ordered to recover possession of their land. Okotie’s appeal to the District officer failed. The first defendant concluded his evidence by stating his property on the land, and these included rubber and cocoa and kola nut trees.

 

In cross examination, Chief Omoruwa, counsel for the plaintiffs put to 1stdefendant a number of facts admitted by him in previous proceedings which are now at variance with his present proceedings, but he denied them, (see particularly EXh. F.) he claimed 2nd defendant as his relation.

 

Johnson Efejotor (2nd DW) lives at Ejeba village and he is the chairman of Arhagba community. According to him, Arhagba land is communally owned by the people. He said that they are in boundary with the defendants on one side of their land, they have no boundary with the 1st plaintiff. He denied the suggestion by Chief Omoruwa that Odjegba bought Ejeba from Enarofia. Odjgba was Ugwere’s son and his grandfather, Ede was also a son of Ogwere. The boundary between Arhagba and Ekuovwisi is a stream called Eze-Izide, but it is on Arhagba side of the land.

 

The defendants produced Ukorunu Ganani (DW3) to give evidence of traditional history that he is a member of defendants’ family and they are all descendants of Obirivbo (Obirivwo). He belongs to Odia line

 

He said 2nd defendant belongs to Itoje line, and they all farm the land jointly as it was never shared on the death of the founder Obirivbo. Like the 1st and 2nddefendants who had testified before him, he gave evidence on the boundaries of the land and also mentioned the uses to which they have always put the land. He also claimed to have rubber plantations on the land. His account of Okpako being a step son of Iren also agree with what the defendants had earlier said and that being a step son, he was not entitled, under Okpe Native Law and Custom to share in the Estate of his step father. Okpako had a child by name Olokpa, but he did not know whether Olokpa was survived by any  by any male Issue. The land which Okpako pledge to Okotie had been redeemed.

 

Etierhere (4th DW) lives at Ofori and is a palm – nut collector. He is of the same family with the defendants, being from Iren branch of Obirivwo’s children. He has a rubber plantation and a camp on the land, and these were shown to Surveyor whom they employed to survey the land for them. They collect palm nuts from the bush and have never been disturbed by anyone nor have the plaintiffs be known to challenge them in their rights of user.

 

Timothy Aragba (5DW) who is an Isoko palm nut collector has been on the land with the permission of the defendants for about 21 years and he pays his annual tributes or rent to them and the tribute is 10 kerosene tins of oil every year. He had never been challenged since  he got there and began to collect palm nuts from Ovwori bush. The camp where he lives was personally built by him and has always lived there.

The last witness who testified for the defendants was Paul Olokpa (6th DW) who said he knew the defendants. He said his father came from Okegborode in Elume area. His grand father was Okpako who lived and died at Okegborode. He was informed by his father that his grand father, Okpako lived somewhere in Ofori area before returning to Okegborode to settle. His father was Ozue.

 

At this stage, I may observe that the production of this witness appear  rather strange as the impression given by the defendants when testifying was that they had no knowledge whether Olokpa was survived by any child: if this witness existed., they would have known.

This is a consolidated action; the plaintiffs in suit No S/8/74 are claiming a declaration of this and an order of permanent injunction against the defendants who are the plaintiffs in suit No. S/12/74 wherein their claim is for a declaration of title, damages for trespass and an order of injunction. It may here be noted that the plaintiffs in Suit No. S/12/74 who are the defendants  in the consolidated cases have brought their action against the plaintiffs in the cross action, suit No. S/8/74 on the ground that 2nd plaintiffs, Francis Ogisi, had entered upon their land without their permission and that he had destroyed their rubber trees and cassava farms. Both parties therefore have the responsibility of proving their claim.

 

The one common feature in the case is the identity of the land which is not so much disputed, so too are the boundary on each direction of the land. The serious questions are whether (1) the land was pledge or sold by Okpako to Okotie, (2) Okpako had a power to deal with the land and (3) the land has been redeemed by the defendant’s family. These issues are not simple to determine, having regard to the proceedings which had previously arisen between the parties about the same parcel of land which is very large and extensive as shown in the survey plans, Exhibits A and X tendered by the plaintiffs and defendants respectively.

 

The 1st plaintiff’s same is that the dispute land was sold to his grandfather, Aboiyigbe by Okpako who was Enarofia’s brother of full blood, their father’s name was Iren. The land originally belonged to Iren and on his death it was sold by his eldest son, Okpako to Aboiyigbe. The plaintiff further contends that 2nd defendant was not, a member of 1st defendant’s family, and that he was driven from Okuetolor village and he came to 1st plaintiff’s family to seek for land. The defendants, on the other hand maintain that the land was founded by Obirivbo who left Orerokpe when the Orodje of Okpe, Esezi 1 was assassinated, that he had three children, Otoje, Odia and Iren who was the father of Enarofia, that a woman by name Okobor came to marry Iren which her son, Okpako whom she had for another man at Okegborode and that Okpako was only a step son of Iren. He could not, under Okpe native law and custom, deal with Iren family. It was also admitted that although Okpako pledge the land to Aboiyigbe, it had since been redeemed and that the transaction was not a sale at all. On these issues of traditional history the evidence of 1st plaintiff was supported by Alabi Akpofunre who is a descendant of Aboiyegbe and the version of the defendants found support by 2nd defendant Ukorunu (3rd DW) and Eti Eghere (4th DW) who claimed to have a camp and rubber plantation on the land in dispute.

That apart we shall now consider the several proceedings and judgments tendered in evidence by both parties. Exh “B” was an action between Narofia and Okotie (suit No12/1924) in the Province Court, Holden at sapele she had claimed damages for trespass on her land but the court found, after examining previous judgements that the real point before the court was whether the land sold by Okpako had been redeemed but it appears that the court could not make any definite finding on this important issue. There was evidence that an order was made for to recover the sum of 6 pounds which was the amount paid by his father Aboiyigbe to Okpako, but the evidence did not show that he actually claimed the money. The only point of substance in Exh. ‘B’ was the admission by Okpako (at page4) that he sold the palm bush, thinking that his father owned it jointly with Narofia’s father. It is my opinion that Exhibit B did not throw sufficient light on the matter for examination, which is whether or not the land was redeemed.

In Exhibit C Akuje of Ofori claimed against Okiligbo of Okwoisi the sum of 10 pounds in the Judicial council of Odogun holden at Orerokpe ( Suit No 165/36 the sum of pounds or one puncheon of oil rent due to defendant on plaintiffs palm bush collected by defendant at Ofori since 3 mounts ago. Akiye claimed the entire area of Ofori and Okuowisi land and that it was bought by his father Aboiyigbe. The  defendant maintained that the land had been partitioned and that where they collected palm nut was  their position of the land. There were two judgements. The first judgement was in favour of the plaintiffs but the majority judgement insisted that the palm bush should be inspected after this had been done, the  native court dismissed the action saying that where defendant and his people entered and collected palm nut belonged to defendant and his people entered and collected palm nut belong to defendant mother Narofia. The court found in clear terms that the land originally belonged to Narofia and that the other side which belong to Okeme was sold to him by Nerofia’S familywhile the side in possession of plaintiff family was pledge by Okpako of Narofia family to Okotie.  Okwoisi side was not sold to anyone and that it belonged to Narofia (defendant Mother) After that Judgments had been read on 27/1/37 the case was re-opened after an appeal to the magistrate and the land was then inspected by the judicial council of Odogun. There were again two judgment but the majority of the member s found that part of the land was sold to Akiye father and it was in respect of that portion Okologbo was asked to pay puncheon of oil or 10 pounds to Akiye. Previously my impression of Exh. C is that it showed that the land whish was allegedly sold or pledged to Aboiyigbe by Okpako had not been redeemed although the area which was claimed by Aboiyigbe famiy went beyond what was actually the subject of transaction between Aboiyegbe and Okpako in Exh. D suit No 3/51 but in  Okpe No 1 Natiye Court case No 196/50 Olokpa Ukpako and Iguasi Enarofia (for themlves and on behalf of the people of Okuovbisi V Ibodo and Igabari ( m) for  themselves and on behalf of the people of Okuojiji-Ofori, the plaintiffs Olokpa, Okpako and Eguasi sued Ibodo and Igabari for a declaration of title to all that piece or parcel of land known as Ofori and order of injunction. But as they failed to appear in court, their action was struck out on 21/11/50, wherefore they appealed to Western Urhobo native Court of appeal. After hearing evidence and inspecting the land, the Native Court of appeal dismissed the claim and entered a judgment for declaration of title in favour of the defendants. On a further appeal to the Magistrate Court, the learned Magistrate, Mr. E.A. Franklin non suited the plaintiffs and set aside the declaration of title granted  to defendants as they did not claim for it.

Exh. F was also a clam for a declaration of title and an order of injunction to Ofori land by Iguasi and Olokpa of Okoisi against Okpe and Gabari. The defendants did not appear and the plaintiffs obtained judgment by default of their non-appearance. But the judgment in that case, suit No. 303/51 was set aside by the Assistant district officer on 15/7/52 on application by the  defendants that they did not receive any hearing notice about the case. The case was ordered to be re-heard de novo. (See Exhibit “P1”)

In 1957, Ukane Ibodo acting for him and on behalf of Aboigbe family raised an action in Warri High Court (Suit No. W/39/57 – Exh. “G”) claiming against Iguasi Enarofia and 15 others the sum of N291.41 being value of palm oil payable by the defendants to him for seven years. Ekeruche dismissed the claim as the plaintiff’s claim for rent.

 

 

Included areas of land which were found to belong to the defendants in that case and that his claim did not relate to the portions for which he had previously had judgments in his favour.

Exh K (Suit No. B/53/35 Koligbo for Norofia V. Akiye Okotie in the Judicial Council of Odogun-Orerokpe) was a claim by Koligbo for recovery or possession of palm land situate at Ofori which was alleged to be in the wrongful occupation of the defendants, his servants or workmen and which he had refused to surrender to plaintiff. The plaintiff stated that the land belonged to his grandfather, Obirivo although he was aware that Okpako pledged it to Aboiyigbe. He however added that it had been redeemed. Plaintiff’s case was however, dismissed as being res-judicate. Similarly the claim by Okotie against Narofia in Suit No. 1068/1915 (Exh. 0) was dismissed by Chief Dore Numa as “This case has been decided over 3 times and no use of plaintiff brings it up again”.

But in Exh. “M” (Suit No. 490: Okorotie of Ofori vs. Ilafia of Amuge), which was a claim to recover his palm tree land, Okpako gave evidence and said that he sold the land and that he did so as the land belonged to his father. The Native Court of Sapele on 21/4/14 entered judgment for the defendant and further said, that on 15th entered 1905, “the court ordered 6 pounds value of 20 bags to be received and to pay Plaintiff, Okotie who is to give up the palm trees land to Ilafia as ordered of the court”. It was further noted that Okotie refused to take the money, where upon the matter was reported to District Officer, Mr. Manfield who also instructed Okotie to take the money but refused the order given by the District Officer; who then ordered that the money should be returned to Okpako and that Okotie should forfeit both land and money. When the case was re-opened on 12/5/1914, Chief Dore, President of the Court ordered that 3 pounds should be passed into court fund and Ilafia should have the use of her land.

And for disobeying the order of the court by bringing up the same case that had been decided in court, Okotie was convicted for contempt and sentenced to fine of 2 pounds or 1 month I.H.L. (See Exhibit “H”). The order was made on 10/06/15, and Okotie’s excuse that he did so because he was not satisfied with the earlier judgment was rejected.

Another case of interest was suit NO. NW/66/1953. Iguasi and Olokpa v. Ukpe and Gabari. It came before Magistrate J.N. Odogwu who in striking out the action on grounds of res judicate further went on to remark that the previous  judgments tendered in the case conferred judgment on Iguasi and Olokpa who acted for themselves and on behalf of their people. In this judgment (Exh. O) The learned Magistrate reproduced part of the judgment in the earlier case wherein it was stated as follows:

“For as from Ojoba to Orivwen belongs to the Plaintiffs.

This case had long ago been decided by Late Chief Dore.

And lastly by the judge of the Supreme Court. If the defendant Knows and believes the land to be his own, he would have appealed but he failed to do so. On these facts, we believe the land to be his own he would have appealed, but he failed to do so. On these facts, we believe the  evidence of the plaintiffs that the land belongs to them. The defendant is to stop from collecting any rents of oil and rubber from plaintiffs “Labourers on the land. Defendant to pay 10 pounds 10 shillings costs in Default in 2 weeks:.

In Suit No. S/8/74, the plaintiffs who are claiming on behalf of ABOIYIGBE family are asking for a declaration of title and an order of permanent injunction on the ground that their father, Aboiyigbe bought the land from Okpako, son of Iren. The several judgments which have been admitted in evidence clearly establish the fact that the transaction between Okpako and Aboiyigbe was a pledge and not an out sale of the land and secondly, that there were subsisting orders of the courts which authorized Okotie, son of Aboiyigbe to have a refund of the sum of 6 pounds for which the land was pledged and to release the land to Enarofia. If Okotie refused to accept the money as indeed, he did not mean that the land remained the property of his family. His rights, interests and title to the land are extinguished when the courts ordered that the money should be refunded to him.

The courts having treated the transaction as a customary pledge, the land is redeemable no matter how long it took the family of Enarofia to produce the mortgage-debt. Secondly, having admitted that the land was originally the property of the defendants the onus is on the Plaintiffs to show now the land eventually passed to them. The way they have done this is by saying that it was sold by Okpako, but since that transaction was not accepted by the courts, the basis of their claim ceases to exist. They cannot therefore claim a declaration of title or seek an order of injunction against the defendants.

The defendants who are the plaintiffs in Suit No S/12/74 are claiming a declaration of title, damages for trespass and an order of injunction against the plaintiffs who are the defendants in that case. The injunction is in respect of the area verged yellow in the survey plan Exhibit “X”. I must however remark that the evidence by the defendants that Okpako was not a son Iren was not borne out by Exhibits “D” and “F” where he joined Iguasi Enarofia in claiming a declaration of  title to the land in dispute and in Exhibit “N” Okpako gave evidence and claimed that the land he  sold was the poverty of his father.

The plaintiffs in defending the claim in S/12/74 produced Benedict Tonwe (4th PW) who gave evidence that his father had maintained rubber plantations on the land for several years without disturbance and that it was the plaintiffs who gave his father the land. One Damayon Enaberhere (6th PE) who described himself as a customary  tenant stated  that he had been on the land over 28 years and that he brought other Isoko palm nut collectors to the land. I believe the evidence of these two witnesses and hold that the father of Benedict Tonwe (4th PW) and Damayon Esaberhue (6th PW) were placed on the land by the plaintiffs many, many years ago, and until now, they were not disturbed by the defendants. When one looks at the entire case, one will understand why both parties have used the land freely before now as  each party was claiming the land with complete disregard to legal orders made by the courts binding the land and the parties.

The evidence further reveals that the 1stplaintiff and his family have used the land extensively and it is not my wish to have any order of injunction made against them, nor have I been given any satisfactory evidence for awarding damages for trespass. With regard to the claim for a declaration of title, I accept their evidence that the land was founded by their ancestor OBIRIVBO (OBARIFO) and that when part of it was pledged by Okpako to Agboiyigba they succeeded in redeeming it from Okotie, son of Aboiyigbe.

The result of these findings is that the plaintiffs claim in suit No. S/8/87 is hereby dismissed in its entirety and the declaration

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