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S.C. 592/1964.

4TH APRIL, 1966.

3PLR/1966/57  (SC)



SIR VANE ROBERT BAIRAMIAN, J.S.C. (Presided and Read the Judgment of the Court)




JOHNSON EYEBOKE EMUEYAN (For himself and on behalf of the people of Okwodiete)



IVBIGHRE OF UWAGBA (For himself and on behalf of the people of Uwagba)



H.A. Lardner – for the Appellants

G.M. Boyo – for the Respondents



INJUNCTION – Absence of plan in claim therefor – Effect of.

LAND LAW – Injunction – Claim therefor – Absence of a plan – Effect of.

PRACTICE AND PROCEDURE – Non-suit – When to order.



BAIRAMIAN, J.S.C. (Delivering the Judgment of the Court):

Both parties have appealed from the judgment given by Ekeruche, J. in Warri Suit W/13211955. In the above title the plaintiffs are named first (they are the people of Okwodiete) and the defendants second (they are the people of Uwagba).

The plaintiffs claimed a declaration of title to an area of land known as Ovueyen (the area in dispute is delineated pink on plan GA41A/51, Exh. 5), damages for trespass, and an injunction. Their claim for a declaration was dismissed; they were non-suited on the two other claims, so that they could come again in case the defendants, who according to the judgment are the tenants of the plaintiffs, should go in for excesses.
The plaintiffs’ case was that their ancestor Odiete bought the land from one Eherhoma or Ohaloma of Ugolo, and that Odiete allowed Agarin, the defendants’ ancestor, to settle on a portion of the land, hence the settlement of Uwagba. The defendants’ case was that the land belonged to Agarin, who allowed Odiete to settle on a portion of the land. The defendants appealed at bottom because of the finding that they were the plaintiffs’ tenants, but, although their learned Counsel tried to show that the three Native Court cases of 1941 in the plaintiffs’ favour did not relate to tribute of oil in respect of the land in dispute, we are in no doubt that they did, and we think that the finding that the defendants are the tenants of the plaintiffs is sound.

Learned Counsel for the defendants was constrained to concede that if that was so, he could not resist a declaration of title in the plaintiffs’ favour. The learned Judge dismissed the claim for a declaration because

(a)     there was no evidence on the title Eherhoma had and no evidence on the title Odiete got from him;

(b)     there was no averment in the claim or the evidence regarding the nature of the title that the plaintiffs wanted the court to declare; and

(c)     the evidence of the purchase from Eherhoma was merely that of the plaintiff and one of his witnesses, and the purchase was not adequately proved.

To us it is, with respect, plain that the plaintiff claimed that the Okwodietes are owners and the declaration they sought was the title as owners according to native law and custom; also that they meant all along that Odiete bought the land out and out from Eherhoma, the previous owner. The learned Judge having found that Odiete gave Agarin the place to settle on and that the defendant’s people of Uwagba paid tribute in oil, ought to have been satisfied that Odiete’s people were the owners and entitled to the declaration: on the evidence Odiete and Agarin were respectively grandfathers of the parties; for a very great number of years Odiete’s people have behaved as the owners; there is no suggestion that the latter pay tribute to anyone, and indeed the Native Court judgment in exh. 3 – Suit 56/41 between Olomu of Okwodiete and Egba of Uwagba – states that &from the origin the palm bush of Uwagba belongs to Odiete”; so that as between the parties at any rate Odiete’s people are entitled to their declaration. It will not prevent anyone who is not bound by the present proceedings from claiming the land, and we can see no reason why the plaintiffs’ claim for a declaration of title should have been dismissed.

As to the non-suit on the other two claims, we think the learned Judge was right. It is not possible to give an injunction which cannot be tied to a plan so that the defendants may know where they stand; but it is only fair to let the plaintiffs apply again for an injunction on a plan which shows the limits beyond which the defendants ought not to range, and also to sue in trespass or otherwise if necessary. Now that it is adjudicated finally that the defendants are the tenants of the Okwodietes, they will know how custom regulates their relation to the Okwodietes and their respective rights and save further litigation.
The appeal of the defendants in Suit Warri No. 132/1955 from the High Court decision of 27 November, 1963, is dismissed; the appeal of the plaintiffs is allowed and the High Court decision is varied to grant the plaintiffs a declaration of title in native law and custom against the defendants to the area of land called Ovueyan delineated in pink on the plan No. GA41A/51; the defendants shall pay sixty guineas as costs of appeal, and one hundred and ten guineas as costs in the High Court, and shall refund the costs ordered by the High Court if they have received them.

AJEGBO, J.S.C.: I concur.

COKER, J.S.C.: I concur.

Plaintiffs’ Appeal allowed. Defendants’ Appeal dismissed.


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