The Justice Jackson Judgment on Sapele Land Case

Urhobo Historical Society
Itsekiri Land Claims in Sapele and the Jackson Judgement

In the Protectorate of Nigeria

In The High Court of the Warri Judicial Division

                                                                      Suit No. W/37/1941


Chief Ayomano and Edwin Omarin on behalf of themselves and the Chiefs and people of Sapele.    ……       Plaintiffs


Ginuwa II, His Highness The Olu for himself and as representing the Itsekiri people of Sapele.……Defendants


The plaintiffs claim, on behalf of themselves and of the Chiefs and the people of the Okpe Clan, as against the defendant, for himself and as representing the Itsekiri people of Sapele, a declaration of title to all that area of land now known as the Township of Sapele, as shown in the plan approved by the Governor, exhibited in Court and marked as No. I.

Pleadings were filed.  In these pleadings, and during the course of the proceedings, the plaintiffs refer to Sapele as URUAPELE, and described themselves as URUBOS, the defendants they described variously as JEKRI or ITSEKIRI.  On the other hand the defendants call themselves ITSEKIRIS and refer to the plaintiffs as SOBOS, whilst calling the land in dispute SAPELE.  In all legislations these tribes are described as being SOBOS and JEKRIS respectively.  In prior litigation as reported in the Law Reports they have always been referred to as SOBOS and JEKRIS.  Elderly men who gave evidence for the plaintiffs referred naturally to their people as SOBOS and the town as SAPELE, later correcting themselves on the same breath.  MR. I. PALMER, a Yoruba, who has lived in Sapele since 1898 tells me that he always heard the names SOBOS and JEKRIS until quite recently.  As prior litigation will be referred to, in this judgment, and, to avoid any confusion I propose to refer to these tribes by the names under which the legislation recognizes them, namely as SOBOS and JEKRIS.

It is said that, by tradition, the Sobos migrated from the ancestral home of the Yoruba’s at IFE and traveling via Benin and Okperisi founded a town known as OREROKPE.  Chief Omarin testifies that from this mother town the various families went out, in all directions, founding other villages, among which was SAPELE, but retained their allegiance to the mother town of the OKPES to where each village would subscribe each year to the OREROKPE festivals.  I am told that the name of the town Sapele (URUAPELE)        is derived from the name of the juju belonging to the family who were the original settlers in that place, and that these settlers we re a part of the Clan, centered at OREROKPE, and who know themselves as the OKPE Clan.  A Clan is described to me as being in the nature of an extended family, each member related, in some degree, by a blood tie with the common ancestor.  The people were farmers, and, they settled upon this land and farmed for their living.

From that period of tradition there is a void in history, as it occurs in all countries where a national tradition is built up partly from folklore and later from history derived from the memories of old men and women.  The [items of] evidence of events within living memory are those connected [with]:—

(a)  the domestic life of the community from the past 80 years;

(b)  the arrival of the European Mercantile Firms;

(c)   the Nanna Expedition of 1894, and later

(d)  the growth and the development of the Township under the aegis of the Government of Nigeria subsequent to the acquisition of this land by Government in 1908.

The evidence dates from the earliest times of living memory, and the evidence of Amune Aparo (4th witness) I accept as being an entirely reliable account.  He was a very old gentleman of not less than 80 years of age who, until his conversion to Christianity, was the juju priest of the juju known as “Sapele”.  He tells me that the main Sobo village was situated originally where the prison yard is today, and that where the firm of Messrs Mclvers Ltd is today, was a hamlet founded by one OGODO, who lived there with his family until the Firm came, and who leased the land from OGODO, who then removed to the site where his descendants still live, just outside the Township along side the main Sapele-Warri motor road.  [According to] this witness, the whole area now claimed was farmed by these Sobos.  He personally knew the fathers of the present plaintiffs who, among others, farmed these lands.  He tells me that from his earliest days he can remember JEKRIS visiting Sapele—coming there with goods for barter, exchanging their goods for the farm produce of the SOBOS, and returning in their canoes from where they came.

It appears, from the evidence, that European Mercantile Firms established themselves at Sapele before Government established their offices there, and that, when they came, in exchange for “dashes” of gin, tobacco and clothes the SOBOS gave them permission to settle and to erect buildings on the shore.  That is the plaintiffs’ evidence.  The defendants offer no evidence whatsoever of the conditions under which they originally settled there.  Their arrival appears to have been practically contemporaneous with an event, which was one of considerable significance in this area, and which is known locally as the “Nanna War”, hostilities lasting for about 5 months in that year 1894. 

There is no dispute between Chief of the Jekri tribe, who ruled the Jekris for a brief period during an interregnum from 1848 to 1936, during which period the Jekris ceased to possess their hereditary ruler known to them as the “OLU”, the position which the defendant occupies today.  The status of the OLU was judicially defined in the case of Omagbemi v. Dore Numa N.L. R. Vol. 5 p. 17.  “That monarchy was overthrown and the Jekris themselves directed how and by whom their country was to be ruled.

Nanna followed Chanomi as the accredited head of the Jekri nation.  He was clearly a man held in the greatest respect by JEKRIS and SOBOS alike.  The causes of this “Nanna War” have been described variously to me, but, I do not think it would be unfair to the memory of Nanna to describe it as being due to his reactionary spirit and his opposition to the abolition of the slave trade, in which he had a considerable interest as a possessor of slaves, and his realisation that its abolition would ultimately tend to destroy that monopoly of trade which he had enjoyed upon the rivers through mediary of these slaves.  The British Government overcame his opposition by force of arms and he was deported.  The evidence shows that Dore Numa succeeded Nanna and, I am again quoting from the case of Omagbemi v. Dore, where the findings of fact necessary to found a decision in the case, bind the defendants:

“Sir, R. Moore appointed him (i.e. Dore) paramount Chief of the Jekris, but in appointing him Paramount Chief and spokesman of all the Jekris he was officially recognised as the head of the Jekri nation and the man with whom the Government would negotiate in all matter connected with the Jekri nation and their land.”

I have interpolated these matters at this stage as the status of Dore as recognised by Government is of importance later when interpreting a deed put in evidence.

The evidence shows that after the overthrow of Nanna at his town EBROHIMI a large number of Jekris ran for refuge to Sapele and there obtained the permission of the Sobos to settle, giving customary “dashes” for the grant of that privilege.

This was in 1894.  Some time later, the date is unknown, the firm of Messrs Mclevers Ltd arrived and obtained the permission of OGODO to settle.  The son of OGODO gave evidence, namely OTOTO OGODO, that each year the Firm paid the sum of £20 rent to his father, and that since his father’s death, and, to this very day they pay  to him £20 each year.

The evidence shows that during these years following 1894,  the men whose authority was recognised by the Sobos as being their Chiefs were OFOTOKU, who was the oldest and regarded as the senior, the fathers of the present plaintiffs and OGODO, who was described to me as being a man both of wealth and of powerful personality.

Mr. I. Palmer, who was formerly a Diplomatic Agent employed by the Royal Niger Company, and, who is 83 years old, tells me that when he retired from the service he proposed settling down in Sapele as a trader, and went there for that purpose in 1899.  He tells me that the vice Counsul directed him to the District Commissioner who was then living at Sapele and that a Yoruba man, named Ogugbene, then, introduced him to OFOTOKU, who was recognised then as being the head Chief, and who then lived on the site now occupied by the market.

OFOTOKU showed him the piece of land, which he might occupy, the site occupied by Mr. Palmer today.  OFOTOKU did not wish to receive rent, and, as Mr. Palmer tells me, in those days, the people were only too glad to welcome and accommodate any who brought trade, but that, upon the advice of his Solicitor, he paid, and has since paid to OFOTOKU and his successors a sum of £5 each year as rent, a rent which he still pays today.  He tells me that at no time has he paid one penny rent to Government, who are now the lessees of the land, and his position appears to be analogous to the one occupied by Messrs.  Mclvers Ltd.  This witness testified that later he assisted the Bishop to acquire the site, upon which St. Luke’s Church now stands, for the Church Missionary Society and that, in doing so, he introduced the Bishop to OFOTOKU and to the late Omarin, the father of the present plaintiff, as being the persons entitled by custom to deal with the land.  This was prior to the lease to Government of the land in 1908.

There is also evidence to show that further WEST, just beyond and adjacent to the Township boundary there, the Baptist Mission sought and obtained from the plaintiffs permission to settle and to build a Church and School.  Mr. Mbanefo objected that this evidence was not relevant, as the land acquired by the Baptist Mission was outside the area claimed.  I ruled that this evidence was both admissible and relevant for the following reasons.  There has been no suggestion that the Township boundary formed a natural boundary between two separate holdings.  The evidence of the defendants themselves suggests that the plaintiffs farmed far inland, and upon the evidence before me I am satisfied that a unity of character exists between the area in dispute and the area within which the Baptist Mission is built, as to lead to the fair inference that both are subject to the same rights, and constitute in fact but parts of an entire property.

There is, further, the evidence of a letter, written on the 11th June, 1907 and exhibited in Court as No. 5, which Chief William Moore, a witness called by the defendants, admits is in the hand writing of his old schoolmaster, Ikuke Etotoma, who was a Jekri, who occupied land opposite to the site described on the plan as Renner’s compound.  This letter certifies that this piece of land was given to Ikuke by Chief Omarin for the purposes of building.  This is a declaration by a deceased person, who is a predecessor in title to the present defendants, and which declaration, in the nature of the defence now set up, is admissible in evidence as an admission against proprietary interest.

Now, what is the evidence of the defendants as regards this period of time between 1809 and 1908?  In effect the only evidence is that during the whole of that period Jekris have lived on this land.  That fact is not disputed by the evidence of witnesses called by the plaintiffs, and to whose evidence I have attached credence.  The defendants admit that on no occasion, during this period, or during any other period has rent been either demanded or obtained from the Sobos at any time.  The evidence of the defendants is entirely silent upon the manner and the terms upon which the European Mercantile Firms first established themselves.  I have heard bombastic claims to Royal privilege and overlordship over the Sobos, but not one title of evidence has been advanced in support of such a claim.  I should have expected, at least, to have heard some evidence that a Jekri exercised some degree of authority as a Chief in this area.  There is not a murmur of any such evidence — other than a suggestion that the last 9 lines of a letter written by Omarin on behalf of the elders of Sapele and exhibited by the defendants as Exb.  ‘A’ means — that the OLU controlled the land.  In my view such an interpretation goes wholly beyond the bounds of reason.  Omarin the writer tells me it means what it says, to wit, that the Sobos formerly traded with the Ijaws, but finding the Jekris better clients, they transferred their custom to the Jekris and that to prevent the Ijaws victimizing them in any way, the OLU sent a “Captain” (a man versed in the ways of war) to protect the OLU’s traders there.  In other words it is admitted that to protect the trade between the Jekris and the Sobos and to prevent interference by the Ijaws, the OLU sent a  “Captain” who may be described I think fairly accurately as possessing the functions rather of policeman than of a soldier.

Now on the 3rd December, 1908, the Governor of the Colony of Southern Nigeria acquired a lease of this land for a term of 99 years at an annual rental of £100 from “Chief Dore Numa of Benin River, Trader, acting for and on behalf of the Chiefs and people of Sapele”. 

Apart from the traditional history adduced by the defendants the above is I think a fair summary of the events evidencing acts of ownership both by the plaintiffs and the defendants prior to the lease.  I do not propose to comment upon that fantastic story of tradition, which I feel must have emanated largely from the fertile brain of that self-styled historian, Chief William Moore, other than to say that it appeared to afford a considerable amount of amusement to the Sobos in Court, and I must confess to myself.  As a background, or a frame to the picture of events within living memory, it appears to have no relation whatsoever.

The plaintiffs tell me that Chief Dore Numa they regarded as their friend, until certain events occurred in 1932.  They tell me that he was a Trader and a Political Agent who had considerable influence with the Officers of the Government of that day, and that when Government negotiated for a lease of this land, they authorised Chief Dore to complete the negotiations and to sign the deed on their behalf purely as a friend.  They tell me that they were highly satisfied with the result and that for his assistance to them in this matter permitted him to take each year £30 at first, and later, £40 of the £100 rent given to them by Government.  The evidence called by the plaintiffs shows that until 1932 the relations between them and Dore remained cordial, but ceased then, when Dore claimed Sapele land to be his, and ordered the Jekris living there and around to pay no more rent to the Sobos; a claim which the defendants assert to this day, and which ultimately compelled the plaintiffs to come to this Court to rebut.  Dore died in the same year, and the evidence before me is quite clear, that, short of taking action in the Courts, the plaintiffs by petition and by complaint to the Local Administrative Officers of the Government, protested at the Jekris claims to overlordship, requested that the rents should not be paid into the Olu Trust Fund, as had been done just prior, and subsequently to Dore’s death, and claimed the whole rents.  The evidence of the Resident, Major Bowen, shows that everything that tact and patience demanded was done to obtain a settlement between these closely intermarried tribes.  Reasoning appears to have been fruitless and as Major Bowen tells me, “I told both parties that I was tired of them and that they could go to Court if they wanted to.  This was a year ago.”

The defendants in paragraph 5 of their statement of defence say that “Chief Dore Numa leased the Sapele Township in his own authority as the representative of the OLU of ITSEKIRI who has ever been the rightful owner of the land for the Itsekiri people.”

Chief William Moore tells me that he saw Dore sign this deed in the office at Sapele in 1908 where he had, that year, been employed by the Government as a clerk.  Chief Omarin said he knew when Dore signed the lease, but there is no evidence that he witnessed its signature.

Mr. Palmer asserted in very certain terms that the deed was executed in a manner described very eloquently by him as being done on the “Q.T.” His allegation that it was signed at OLOGBO I place no reliance upon, as this was hearsay evidence derived from a conversation with Dore, and it was apparently rather a conversation by noods and winks, than of words.

Nowhere in the Deed can I find any record of the locality in which it was signed.  The “Oath for proof of an instrument” sworn by Mr. H. M. Douglas, the then Senior District Commissioner, was made at Warri on the 11th November 1908 and it affirms that, on that same day, the Deed was not only signed by Dore but was read over and interpreted to him at the time of its execution and that he appeared to understand its provisions.

Now Chief William Moore told me that the deed was explained to Dore before he signed it, but that he cannot remember what the explanation was.  He can remember Jekri Chiefs being present, but cannot remember if any Sobo Chiefs were there.  At that time no motor road connected Sapele and Warri which today is a road 31 miles long.  In those days, I am told the journey was made by foot or by cycle.  It may be true, but it seems difficult to credit, that if the deed was in fact signed at Sapele why the oath of proof did not say so.  The matter is not one of much importance either way, and, the only evidenctiary value of that deed is as to the interpretation of the status of the parties named therein and of the capacity in which they conveyed.

At that time the Government of Southern Nigeria, as I have mentioned before, had recognised Chief Dore officially as the paramount Chief of the Jekris with whom they would negotiate in all matters connected with the Jekri and their land.  There is evidence that all Chiefs whether Jekri or Sobo were appointed upon Dore’s recommendation, and provided the Sobos did so authorise, and the plaintiffs tell me they did, there could be no possible objection to Dore signing such a deed on their behalf provided that the lessee (the Government) were satisfied that Dore possessed that authority.  Now, if the land, at that time, was Jekri land why, in the Deed, is Dore not referred to by his officially recognised title as the Paramount Chief of the Jekris.  The lease was acquired under the provisions of the public Lands Ordinance (Chapter CXII Laws of the Colony of Southern Nigeria, 1908 Vol. II p. 1196) and Dore would possess all the attributes of a “Head Chief”.  Why not so described him if he purported to convey Jekri lands as their Head Chief?

Who were the “Chiefs and people of Sapele” at that time?  I have already found, as a fact, that the only persons who exercised any authority upon the land, as Chiefs prior to 1908 were Sobos and were not Jekris.  The plaintiffs tell me that Dore conveyed to the Government in his private capacity as their agent for this purpose.  The deed sets out “Chief Dore Numa of Benin River, Trader, acting for and on behalf of the Chiefs and people of Sapele.”

The evidence before me satisfies me that when Chief Dore Numa did convey this land to Government for a term of years he did so upon the authority of the Chiefs and people of Sapele, who were members of the Okpe Clan who were residing in that area and around it, now known as the Sapele Township.

If any further evidence was required to establish the truth of the plaintiffs’ allegation it is to be found in the evidence of Chief William Moore himself.  He tells me that he and others petitioned in 1930 against Dore for keeping these rents himself, and that is precisely what the plaintiffs intended Dore should do with the money, as they tell me, and apparently it was exactly what he did with it.

The only arguments advance by Counsel for the defendants were firstly that the Okpe Clan as a whole is not entitled to any declaration of title as sought as only individuals of that Clan have been proved to possess any interest in that land, and that secondly, the plaintiffs have accepted benefits from his lease for 34 years and have permitted the defendants to take rent for that period, as owners and that their acquiescence now stops them from setting up their present claim.

In regard to the first argument, the Okpe Clan, indisputably, occupied the land in dispute as farm land known as Sapele or Uruapele.  The greater contains the less and the plaintiffs Omarin and Ayomano are undoubtedly blood descendants of the founders of the original village known as Sapele.

As regards acquiescence, the argument of learned Counsel entirely begs the question.  The plaintiffs have in no matters other than that which they allege and which they have proved to be the true facts, namely that as owners of the land, who had authorised Dore to convey on their behalf, they have permitted him to retain as a personal prerequisite the sum of £40 out of the £100 rent paid by the Government, in recognition of his personal services.  These services terminated on his death and there is ample evidence that since his death the plaintiffs have claimed the whole rent, and have actively opposed the manner in which it was dealt with through the Olu Trust Fund.

The plaintiffs have been forced into Court by the denial by Dore, and later by his successors in title, of their ownership of the land, and I can find no substance in the defendants’ claim in their defence either as to ownership or as to overlordship.  They might well be described as impudent claims.

I don not wish to give expression to any further opinion, as to the merits of this case, that might be construed so as to retard a full and free reconciliation between the parties, who are members of separate tribes who appear to find their only common denomination in the fact of close intermarriage, a fact which should be a potent factor in arriving at an amicable settlement of their differences.

I do grant to the plaintiffs Ayomano and Omarin, and to those members of the Okpe Clan who are the blood descendants of the founders of the settlement now known as Sapele lands, a declaration of title that they are the owners of that land now commonly known as the Sapele Township.

The plaintiffs are entitled to the full costs of this action which I assess at £150.

(Sgd.) J. Jackson
A. J. at Warri.

Certified true copy.

                                    (Sgd.) E. Bamgboye


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