² The Itsekiris are sometimes referred to in some textbooks and cases as Jekris.

³ Okere is a district in Warri town.

⁴ Ijalla is about 4 miles (as the crow flies) from Okere where the land in dispute is situated. See the map at p. 213 of Bradbury, The Benin Kingdom and the Edo-speaking Peoples of South Western Nigeria together with a section on the Itsekiri, London, International African Institute, 1957.

⁵ The learned trial judge noted that there was conflict in the plaintiffs’ evidence as to the exact title conferred on Ogitsi. One witness said it was “Ogievoro” and another said it was “Olaraja”.

⁶ Whatever the title is.

⁷ Apparently, an offspring of Ogitsi.

^{page 108 note 1} Okpari is a town in Eastern Urhobo Division of the Delta Province. It is about 15 miles (as the crow flies) from Okere: see map, World Series, NB 31, prepared by the Army Map Service.

^{page 108 note 2} Meaning “Urhobo quarters”.

^{page 108 note 3} Itsekiri terms for two categories of strangers.

^{page 108 note 4} The first plaintiff in this case, Chief Uku, now deceased, was the son of the earlier Chief Uku.

^{page 108 note 5} The defendants in this case.

^{page 108 note 6} Another quarter in Warri on the left of the Cemetery Road.

^{page 108 note 7} See n. 1 above.

^{page 109 note 1} Ode-Itsekiri, an Itsekiri town, is about four miles (as the crow flies) from Warri: see the map referred to at p. 107, n. 4 above.

^{page 109 note 2} The Ishans are a section of the Edo-speaking peoples: see Bradbury, The Benin Kingdom and the Edo-speaking Peoples of South Western Nigeria, at p. 61.

^{page 109 note 3} Earlier Idundun. The present first plaintiff is the son of the earlier Idundun.

^{page 109 note 4} Idama is one of the three founding ancestors of the defendants referred to at p. 108 above.

^{page 110 note 1} Cap. 24 of the Laws of Western Nigeria, 1959.

^{page 110 note 2} See Park, A. E. W., The sources of Nigerian law, Lagos, African Universities Press; London, Sweet & Maxwell, 1963, chapter 5.Google Scholar

^{page 110 note 3} Cap. 62 of the Laws of Nigeria, 1959. See also the Editorial at [1965] J.A.L. pp. 82 to 85 and the statutory definitions of various jurisdictions set out thereunder.

^{page 110 note 4} Ibid., s. 2. Although the expression “custom” is thus defined, the following sections of the Act refer to these expressions which appear to mean the same thing: s. 45 (communal tradition); s. 56 (native law or custom); s. 58 (native law and custom); s. 61 (general custom or right). The latter is defined as “customs or rights common to any considerable class of persons”.

^{page 110 note 5} See A. E. W. Park, op. cit., where these provisions are fully discussed.

^{page 110 note 6} Akuru v. Olubadan-in-Council (1954) 14 W.A.C.A. 523, per DeComarmond, AG. C.J.

^{page 111 note 1} See Halsbury's Laws of England, 3rd ed., p. 160. Any material difference or differences will be noted in the course of this discussion.

^{page 111 note 2} See also Akuru v. Olubadan-in-Council, above.

^{page 111 note 3} See s. 14 of the Evidence Act, where evidence as to customs generally is admissible.

^{page 111 note 4} See A. St. J. J. Hannigan, “Native custom, its similarity to English conventional custom and its mode of proof”, [1958]J.A.L. 101.

^{page 111 note 5} Mercer v. Denne [1904] 2 Ch. 534. See per Farwell, J., at p. 556, where the learned judge stated the presumption as follows: “Not only ought the Courts to be slow to draw an inference of fact which would defeat a right that has been exercised during so long a period as the present unless such inference is irresistible but it ought to presume everything that is reasonable to presume in favour of such a right.” [emphasis supplied]; see also Goodman v. Saltash Corporation (1882)7 App. Cas.633.

^{page 111 note 6} At p. 25, Col. 11 of the Daily Times of Nigeria report.

^{page 111 note 7} Ibid., at p. 25, col. 1.

^{page 111 note 8} See p. 107, n. 4, above; see also pp. 121 ff. below. Quaere: what a kingdom that did not extend to cover Okere, about 4 miles from Ijalla!

^{page 111 note 9} At p. 17, Col. 11 of the Report.

^{page 112 note 1} See the defendants’ evidence at p. 108 above.

^{page 112 note 2}

^{page 112 note 3} A generation is usually computed at 30 years: see Shorter Oxford English Dictionary, definition II, 3.

^{page 112 note 4} See per Farwell, J., in Mercer v. Denne [1904] 2 Ch. 534 at p. 555. The defendants can also discharge the onus by showing that plaintiffs’ custom or tradition did not extend to the area in dispute.

^{page 112 note 5} See, for example, s. 34 (1) of the High Court Law of Northern Nigeria, cap. 49 of the Laws of Northern Nigeria, 1963; s. 12 (1) of the High Court Law of Western Nigeria, cap. 44 of 1959. See also A. E. W. Park, Sources of Nigerian law (supra); Edet v. Essien (1932) 11 N.L.R, 47; Laromeke v. Nekegho (1958) 3 W.A.L.R. 306.

^{page 112 note 6} See Bastard v. Smith (1838), 2 Moo. B.R. 129, at p. 135; Johnson v. Clark [1908] 1 Ch. 303. at p. 311 per PARKER, J.

^{page 112 note 7} At p. 18, Col. I of the Report.

^{page 112 note 8} (1954)14W.A.C.A.523.

^{page 112 note 9} Five “principles of law” were stated at p. 18, Col. 1 of the Report in a detached form without being specifically applied to the case.

^{page 113 note 1} At p. 525.

^{page 113 note 2} See per LordCranworth in Marquis of Salisbury v. Gladstone (1861) 9 H.L.C. 692, at p. 701, cited in Johnson v. Clark [1908] 1 Ch. 303, at p. 309 by Parker, J.

^{page 113 note 3} See, per Parker, J., in Johnson v. Clark (supra), at p. 309 where the learned judge said: “On the other hand, it seems clear that a custom possible in law, because it is reasonable and otherwise fulfils the requisites of a good custom, may be established by very slender evidence.”

^{page 113 note 4} See Omagbemi v. Chief Dore Numa (1923) 5 N.L.R. 17 and the more recent case of Chief Secretary to the Federation of Nigeria v. Itsekiri Communal Land Trustees (unreported: Suit No. W/41/1957) where Obaseki, J., summarized the authorities.

^{page 113 note 5} [1921] 2 A.C. 399.

^{page 113 note 6} Ibid., at pp. 404, 405 (emphasis supplied); see also T. O. Elias, Nigerian land law and custom, Routledge & Kegan Paul Ltd., London, 1951, chapter 5; Kwamena Bentsi-Enchill, “Do African systems of land tenure require a special terminology?” [1965] J.A.L. 114, and Sir Adesoji Aderemi v. Adedire [1966] N.M.L.R. 398, where the Supreme Court of Nigeria declared the land in dispute as part of the communal land of the people of Ife vested in the Oni of Ife in trust for the People of Ife.

^{page 114 note 1} At p. 26, Col. 1 of the Report.

^{page 114 note 2} (1923) 5 N.L.R. 17.

^{page 114 note 3} Referring to “Itsekiri”.

^{page 114 note 4} At p. 20. See also, W. C. Ekow Daniels, “Some principles of the law of trusts in West Africa”, [1962] J.A.L. 165, and T. O. Elias, Nigerian land law and custom (supra) at p. 117, where the learned authors cited the above case with approval. See also the consent judgment in the Supreme Court of Nigeria (as it was then known) case of Chief Dore v. Chief Olue (unreported); judgment was signed by Webber, J., on November 16, 1921.

^{page 114 note 5} See A. N. Allott, “Towards a definition of ‘Absolute Ownership’” [1961] J.A.L. 99 and the suggested definition at p. 102.

^{page 114 note 6} The learned author was here referring to the conquest of Benin in 1896 in which the Oba was deposed and banished and his subsequent re-instatement in 1916.

^{page 115 note 1} Elias, Nigerian land law and custom, p. 40.

^{page 115 note 2} See K. Bentsi-Enchill, op. cit., at p. 130.

^{page 115 note 3} See K. Bentsi-Enchill, op. cit., at pp. 121–123.

^{page 116 note 1} Elias, Nigerian land law and custom, op. cit., pp. 116–117.

^{page 116 note 2} An Itsekiri town on the Escravos River about 40 miles (as the crow flies) from Okere, Warri. See map referred to at p. 107, n. 4, above.

^{page 116 note 3} (Emphasis added.) The consent judgment dated November 16, 1921, was signed by G. Graham Paul as counsel for the plaintiff, S. L. H. Bucknor as counsel for the defendants, and A. Webber as Judge of the Supreme Court. See also W. A. Moore, History of Itsekiri. Frank Cass, 1970, pp. 127–131.

^{page 116 note 4} [1921], 2 A.C. 399 at p. 402. See, at pp. 112 ff. above.

^{page 116 note 5} [1953], 2 W.L.R. 261, at p. 262.

^{page 117 note 1} See also Elias, op. cit., at p. 142, where the learned author used the expression “partownership” in preference to “usufructuary” title.

^{page 117 note 2} The judicial task in each case where such nebulous title is claimed is not to discover the actual intention of the claimant but what each member of the microcosm is reasonably entitled to conclude from the status of the claimant as their representative. See per LordReid in McCutcheon v. David Macbrayne Ltd. [ 1964] 1 W.L.R. 125, at p. 128.

^{page 117 note 3} (1923)5 N.L.R. I7.

^{page 117 note 4} Chief Dore Numa was then acting for the Olu of Warri, as that was the period of an interregnum.

^{page 117 note 5} (1923) 5 N.L.R. 17, at p. 20 (emphasis not mine).

^{page 117 note 6} At p. 26, Col. 1 of the Report. This witness has stated the law very succinctly.

^{page 117 note 7} At p. 26, Col. 1 of the Report.

^{page 118 note 1} See Halsbury's Laws of England, 3rd edn., p. 168.

^{page 118 note 2} See Omoraka Ovie v. Onoriobokirhie [1957] W.R.N.L.R. 169 where Onyeama, AG. J., held that possession having arisen out of membership of the community in which title to the land was vested by customary law, was not inconsistent with the communal title and was not therefore adverse possession.

^{page 118 note 3} At p. 18, Col. 1 of the Report.

^{page 118 note 4} (1932) 11 N.L.R. 68, at p. 69. This case was also cited by the learned trial judge in support of the principle. See also Elias, Nigerian land law and custom, at p. 293, where the learned author quoted the principle together with its author without any comment.

^{page 118 note 5} Now Ghana.

^{page 118 note 6} See [1953] 2 W.L.R. 261, at p. 263.

^{page 118 note 7} Their Lordships then cited two cases in support, namely Nchirahene Kojo Ado v. Buoyehene Kwadwo Wusu (1938) 4 W.A.C.A. 96 and Kwamina Kuma v. Kofi Kuma (1939) 5 W.A.C.A. 4.

^{page 119 note 1} At p. 24. Col. 1 of the Report. It is not acceptable that possession founded in 1960 could tilt the scale in favour of possession claimed by the defendants of their ancestors about 200 years ago. This holding conflicts with Ovie v. Onoriobokirhie, above.

^{page 119 note 2} (1939) 5 W.A.C.A. 4, cited with approval by their Lordships in Stool of Abinabina v. Chief Kojo Enyimadu, above, at p. 365.

^{page 119 note 3} See per Onyeama, AG. J. in Ovie v. Onoriobokirhie (1957) W.R.N.L.R. 169, at p. 170.

^{page 119 note 4} See Kojo II v. Bonsie [1957], 1 W.L.R. 1223.

^{page 119 note 5} See, for example, Kojo II v. Bonsie, above, where both parties claimed that the land in dispute was awarded to their respective ancestors by the same authority for the part played by them in the Abrimoro war.

^{page 119 note 6} See Mercer v. Denne [1904] 2 Ch. 534, at p. 556, per Farwell, J.

^{page 119 note 7} See p. 107 above.

^{page 119 note 8} See, Elias, Nigerian land law and custom, above, at p. 300, Cofie v. Ashong (1956) 1 W.A.L.R. 82 and Kojo II v. Bonsie, above, at p. 1226, where LordDenning, delivering the Board's opinion, said: “If the land was originally given to Atwimahene for his part in the war, nothing since would have deprived him of it. He would not lose it by pledging it and doing nothing about the pledge for 80 years”. See also Ovie v. Onoriobokirhie, above.

^{page 120 note 1} See the definition of “custom” under s. 2 of the Nigerian Evidence Act quoted at p. 110 above.

^{page 120 note 2} See, per Parker, J. (as he then was) in Johnson v. Clark [1908] 1 Ch. 303, at p. 311 where the learned judge said: “…a custom which is for the advantage of the individual only and is prejudicial to the public, or a class of the public, is bad; for the common law, in principle, imposes obligations on the individual for the benefit of the public, and not on the public for the benefit of the individual”.

^{page 120 note 3} (1958) 3 W.A.L.R. 1.

^{page 120 note 4} See also Amodu Tijani v. The Secreary, Southern Nigeria, above, at pp. 404, 405; Eze v. Igiliegbe (1952), 12 W.A.C.A. 61, at p. 63; and Ovie v. Onoriobokirhie [1957] W.R.N.L.R. 169, at p. 170.

^{page 120 note 5} Above.

^{page 120 note 6} At p. 26, Col. 1 of the Report.

^{page 121 note 1} At p. 18, Col. 11 of the Report.

^{page 121 note 2} Ibid.

^{page 121 note 3} Above.

^{page 121 note 4} At p. 24, Col. 11 of the Report.

^{page 121 note 5} Late Chief Omatsone was one of the Olarajas (Chiefs) of Okere, as shown by the evidence of the plaintiffs and confirmed by the defendants’ evidence (see p. 110 above).

^{page 121 note 6} At p. 24, Col. 11 of the Report.

^{page 121 note 7} See, p. 117, n. 4 above.

^{page 122 note 1} At p. 23, Col. 11 of the Report.

^{page 122 note 2} (Emphasis supplied.) At p. 23 Cols. 1 and 11 of the Report. It is regrettable that the learned trial judge came to this conclusion in respect of a valid lease which is still acted upon by the parties till today. The learned trial judge would have been justified in coming to that conclusion if the first lease had been successfully challenged in a court of law.

^{page 122 note 3} Ibid. It is difficult to comprehend how the leases put forward by plaintiffs claiming allodial title in the Olu or the Trustees could again go to establish the same title in the Ogitsi family.

^{page 122 note 4} See, for example, the following catena of cases relating to parcels of land situated in Warri and far beyond Okere: Ometa v. Chief Dore Numa (1926) 11 N.L.R. 18 (decided by the Privy Council), which relates to land in Agbassa. There, the Board, in an opinion delivered by LordAtkin, held that there was ample evidence upon which the learned trial judge was entitled to find that the plaintiff people came into this country which originally belonged, to the Jekris some hundred years or so ago; Ogegede v. Chief Dore Numa (1925) 6 N.L.R. 124, which concerns the same Agbassa land; Omagbemi v. Chief Dore Numa (1923) 5 N.L.R. 17, which relates to lands known as Ogbe-Ijaw and Alder’s Town, Warri; and Chief Secretary to the Fed. of Nigeria v. Itsekiri Communal Lands Trustees (unreported Suit No. W/41/57 decided by Obaseki, J., on 20/3/70) concerning the land at Igbudu, Warri.

^{page 122 note 5} Above, at p. 117.

^{page 122 note 6} The Olu of Warri is the Prescribed Authority for Warri Division.

^{page 123 note 1} W.N.L.N. No. 95 of 1959.

^{page 123 note 2} By virtue of s. 5 (1) of the Warri Division (Itsekiri Communal Lands) Trust Instrument, 1959, W.N.L.N. No. 95 of 1959.

^{page 123 note 3} At p. 26, Col. 11 of the Report.

^{page 123 note 4} Cap. 24 of the Laws of Western Nigeria, 1959, now applicable to the Midwestern State and hereafter referred to as the Trustees Law.

^{page 123 note 5} At p. 26, Col. 11 of the Report. (Emphasis added.)

^{page 123 note 6} The latter rights will hereafter be referred to as family rights.

^{page 124 note 1} At pp. 101–109.

^{page 124 note 2} See also Bentsi-Enchill, op. cit., above. It will be observed that the three rights contained in paragraphs (a) to (c) of sub. s. (1) of s. 5 of the Trust Instrument are contained in his quotation. See also the consent judgment in Chief Dore v. Olue, quoted above at p. 114, n. 4 which also contains the rights vested in the Trustees under s. 5 (1) of the Trust Instrument.

^{page 125 note 1} At pp. 105–109.

^{page 125 note 2} Rights formerly exercisable by the chief, such as eviction for bad behaviour, the right to economic trees of strangers on eviction, the confiscation of the property of those who die in circumstances to which social taboos are attached, e.g. hanging, may now be otiose, or their exercise may be questionable under para, (e).

^{page 125 note 3} See Amodu Tijani v. The Secretary, Southern Nigeria, above, at p. 116 n. 4; Elias, above, at p. 116, and Chief Dore v. Olue, above, at p. 114 n. 4.

^{page 125 note 4} See Chief Secretary to the Federation of Nigeria v. Itsekiri Communal Lands Trustees, above, in which Obaseki, J., said: “There is judicial authority for holding that previous to the passing of the Communal Land Rights (Vesting in Trustees) Law, Cap. 24, Vol. 1 of the Laws of Western Nigeria the Olu of Warri formerly styled the Olu of Itsekiri, held the land in Warri Division known as Itsekiri land in trust for the Itsekiri Community”.