NGWO & ANOR V. ONYEJENA & ORS

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260

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

NGWO & ANOR V. ONYEJENA & ORS

1.

OKONJI NGWO & ANOR.

(representing the Ogbeilo

Family of Asaba)

2.

ENURA NWODEI & Anor.

(representing the people of

Odanta, Ibusa)

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APPELLANTS

V

OBI OKOCHA ONYEJENA & Ors.

(representing the ldumugbe

Family of Asaba

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RESPONDENTS

SUIT NO. FSC 153/1963

SUPREME COURT OF NIGERIA

BAIRAMIAN,

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J.S.C.

ONYEAMA,

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J.S.C.

AJEGBO,

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J.S.C.

9th November, 1964.

Native Law and Custom - Land in Asaba (Mid-West) - Control by Head of

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Senior branch of Family - and his right to tribute

Tort - Trespass - Suit by person in possession - Defendant with no better title

or right.

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ISSUES:

1.

Does the senior branch of a family have control over the family land under

Asaba Customary Law, and is it entitled to tribute from the other family branches.

2.

Whether mere possession is sufficient to maintain trespass against a defendant

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with no better title or right.

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FACTS:

The Plaintiffs were the Idumugbes, they and the Ogbeilos descended from a

common ancestor, one Onaje. The Plaintiffs alleged that Onaje distributed his

lands among his children, while the Ogbeilos denying the distribution alleged that

when Onaje died, the eldest son took charge and the other sons could farm on

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payment of yams to him. The Ogbeilos descended from the eldest son, and the

Idumugbes from another one. The trial judge found that there had been no dis-

tribution, but the lands were inherited under Asaba Customary Law by the brothers,

and each farmed a piece which passed on to his descendants, and that thus the

Idumugbes had been in exclusive possession of the Akwulo piece until the Ogbei-

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los trespassed on it. He granted the plaintiffs damages for trespass and an injunc-

tion but refused them a declaration of title. In so doing the Judge overlooked

evidence on a suit of 1931 brought in the Provincial Court by the Ogbeilos against

the Plaintiffs about the land in dispute, in which the Plaintiffs were ordered to pay

yams as tribute to the Ogbeilo Head in accordance with custom in acknow-

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ledgement of his control of ownership. On appeal the Ogbeilos invoked that judg-

ment, arguing that their head could not be excluded from the land. The Judge

found that the Odantas of Ibusa had no title to the land.

On appeal they argued against that finding.

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