Rufus Isaac V. John Odigie Imasuen (2006)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A
This is an appeal against the judgment of the High Court of Justice, Edo state of Nigeria in the Benin Judicial division, Holden at Benin City, delivered on the 1st March, 1994 in Suit No. B/1/84, John Odigie Imasuen Versus Rufus Isaac. The Plaintiff (hereinafter referred to as the RESPONDENT) had, by the endorsement in paragraph 21 of his further amended statement of claim dated 29th June, 1988, claimed against the defendant (hereinafter referred to as the APPELLANT) the following reliefs:-
- Declaration of title to statutory right of occupancy to the said parcel of land, which is more particularly, delineated and verged PINK in the said Plan No. ISO/BD/1091/86 of 29/7/86 filed with this further amended statement of claim situate and lying at and being in Ward 37B, Orikpa Village Area, Benin City.
- N50, 000.00 being damages for trespass in that on or about January, 1979, the defendant by himself, servants or agents broke and entered on to the plaintiff’s said parcel of land without plaintiff’s permission or authority and carried on building operations, on the land.
- Perpetual injunction restraining the defendant his servants or agents from committing further acts of trespass on the said land.”
Pleadings in terms of further amended statement of claim and further amended statement of defence were filed and exchanged between the parties. Both sides called evidence in proof of the averments in their respective pleadings. At the end of the case and sequel to the taking of the addresses of counsel, in a considered judgment delivered on the 1st of March, 1994, the trial judge found for the plaintiff/respondent.
In so doing, the learned trial held inter alia:
“This case as the learned defence counsel rightly said rests on who has a better title to the land.
Is it the defendant or the plaintiff?
The plaintiff in this case has established in evidence that the land in dispute was given to him in 1973 by Ward 37B. His evidence was buttressed by evidence of PW3 – Christopher Obanor the Assistant secretary/Land Pointer to the Oriokpen Plot Allotment Committee. But the defendant claimed to have got from DW1 (Mrs. Amadasun) who got from Agbomareniye Elema.
But the root of title of Agbomareniye Elema is Exh D2 dated 15/1/62 approved by the Oba of Benin on 24/4/62.
There is no documentary evidence of the transfer of the land from Elema original owner to Mrs. Amadasun who transferred (sic) to defendant. This creates a lacuna in his root of title.
There is a break in the chain or link between original and owner and Mrs. Amadasun. This being so the root of title of defendant is spurious.
Moreover, no member of Ward “A” gave evidence to support the case of the defendant to say that the land in Exhibit D2 was allocated to Agbomareniye Elema who transferred to Mrs. E. Amadasun (D.W.1). Even if there was such evidence of transfer to Mrs. Amadasun by Agbomareniye Elema, it is not enough as DW3 (Sunday Elema) said that he knew when Mrs Amadasun was transferring the land to defendant. The deed of conveyance Exh. D3 did not help matters because the transfer dated 26/2/74 referred to in Exhibit D3 is not before the Court. There is therefore no evidence that Agbomareniye transferred to Mrs. E. Elema Amadasun……………. I agree with the learned counsel for the plaintiff that at the material time when the Land Use Act came into effect the land was vested in the plaintiff, the defendant or person who transferred to him having not got title to the land. …………….
The learned defence Counsel made the point that even if the land was in Ward 37B, the Boundary Dispute Determination Law validated title of defendant. It is my view that the Boundary Dispute determination Law is inapplicable in this case because the defendant has not proved that he took from any of the wards over which Edict of 1977 was promulgated.
I believe that the land is in Ward 37B and not Ward “A” if Agbonmareniye Elema sold to Mrs Amadasun (D/W1), which is not proved, it was certainly not, the land in dispute.
The plaintiff has successfully proved trespass on his land. It was in evidence that the defendant built a house on the land. The plaintiff is therefore entitled to damages for the trespass. He is also entitled to injunction sought.”
Being dissatisfied with the said judgment the defendant/appellant by way of a Notice of Appeal dated and filed on 8th of March 1994 with only one ground of Appeal incorporated therein. By leave of court granted on the 24th of April 2002, the appellant filed two additional grounds of appeal.
Distilled from the afore-mentioned three grounds of appeal is only one issue which as set out in the appellant’s brief of argument deemed to have been properly filed on 31st May, 2004 is in the following terms: –
“Whether the respondent was entitled to the declaration of title sought at the lower court.”
The respondent also identified one issue for determination as contained in his brief of argument deemed to have been properly filed on the 13th of February, 2006, it is as follows: –
“Whether on the evidence led by the plaintiff (Respondent) he had proved his case on balance of probabilities to entitle him to the declaration of title he sought and which was granted by the learned trial Judge.”
I hasten to say that the two issues identified each by the appellant and the respondent are, materially similar. When this appeal came before us on the 30th of March 2006, Chief Adogah, learned counsel for the appellant referred to relied on, and adopted his client’s brief of argument deemed properly filed on 31st May 2004 and urged us to allow the appeal. For his part as well, Mr. Dike, learned counsel for the respondent, referred to, relied on and adopted his client’s brief of argument deemed to have been properly filed on the 13th of February, 2006 and urged this court to dismiss the appeal.
Both parties through their pleadings and in their respective briefs of argument assert that Bini lands are communally owned and that the legal estate in same is vested in the Oba of Benin as the trustee of the people; they are further ad idem that the Oba of Benin is the only competent authority who makes grants or allocation of lands to the people. On the surface, it appears that the interests of the respondent and the appellant in the land in dispute, which they both concede belongs to the Oba of Benin as a trustee, are competing. The law, therefore, is that where, as in this case, it is common ground between the parties that the radical title to a disputed land belongs to a common vendor, unless either side can trace his root of title to that of the established or common vendor, he cannot succeed. And where both adverse claimants trace their title to that of the established owner; their interests will, prima facie, rank in order of their creation based on the Maxim: QUI PRIOR EST TEMPORE POTIOR EST JURE – when translated simply means – he who is first in time has the strongest claim in law. It has always been accepted as a sound principle of law that what is first is truer and what is first in time is better in law. See KARI v. GANARAM & ORS (1997) 2 NWLR (PT.488) 380, and (2) ADEBO v. SAKI ESTATES LTD & ANOR (1999) 7 NWLR (PT.612) 525. But, can it be said, on the face of the evidence before the court below that both parties traced their alleged respective titles to that of the established owner – the OBA OF BENIN” I shall answer this all – important question ANON. Before then, I wish to recall that having said supra, based on the pleadings that both parties claim their title to the land in dispute through the Oba of Benin – the trustee of all lands in the Bini Kingdom, the concept of transfer of land under Benin Customary Law must be explained. Let me quickly say that a transfer of a valid legal title of land under Benin Customary Law is SUI GENERIS (of its own kind or class). It must be noted that the general principles of land law are of little avail in cases of competing claims to title to land in Benin City. Due proof of full compliance with the preliminary steps leading to the Oba’s approval as well as the approval itself are of utmost importance. See FINNIH v. IMADE (1992) 1 N. W. L. R (PT.219) 511. Since all lands are vested in the Oba as trustee of the people, the most any individual can obtain is therefore a “possessory title” See UWAGBOE & ANOR v. EVBUOMWAN (1959) 4 F.S.C. 91.
For a valid transfer, an applicant for the grant of land under Benin Customary Law must prove the grant by the Oba of Benin.
If the application for the grant is successful, what such an applicant gets is not a freehold because the owner’s right of transfer of his interest therein is subject to the limitation that he must obtain the consent of the OBA. See (1) ARASE v. ARASE (1981) 5 S.C. 33 and (2) PASTOR ADEGBOYEGA v. IGINOSUN (1969) 1 ALL N.L.R. 1. It therefore seems to me that a claim for title to land based on Benin Customary Law, ex hypothesis an award thereof ought to be “for a declaration” under Benin Customary Law, since, as I have said, a valid transfer of a valid legal title of land thereunder is SUI GENERIS.
I now hasten to discuss the principles governing acquisition of a valid legal estate under Benin Customary Law. It is an essential requirement of Benin Customary Law that for a person to acquire a valid legal estate in any given Benin Communal land, he must show that his application was recommended to the Oba for approval by the appropriate Ward Plot Allotment Committee having jurisdiction over the area in which the land is situate. The acquisition or transfer, known to law, is effected on the endorsement by the Oba of his approval on the purchaser’s application duly recommended by the appropriate Plot Allotment Committee. It therefore follows that it is not enough for a plaintiff or anybody who has the burden top rove his title to a piece of land subject to Benin Customary Law to tender the Oba’s approval and opine that a particular ward Plot allotment Committee recommended his application. He must go further to prove that the said Ward Plot Allotment Committee has jurisdiction over the land granted to him. This observation is reinforced by the decision of the Supreme Court in UDIH v. UDEMUDIA (1998) 3 S.C. N.J. 36 where at pages 43 to 44 OGWUEGBU J.S.C. reasoned: –
“It is an essential requirement of Bini Customary Law that for a person to acquire a legal estate in any given Bini Communal land, he must show that his application was recommended to the Oba for approval by the appropriate Ward Plot Allotment Committee having jurisdiction over the area in which the land situate and such acquisition or transfer is effected on the endorsement by the Oba. Of his approval on the purchaser’s application duly recommended by the appropriate Plot Allotment Committee..
It was therefore not enough for the plaintiff who had the burden to prove his; title to tender the Oba’s approval and to say that Ward 33E Plot Allotment Committee recommended his application. He must go further to prove that it was the said Ward 33E Plot Allotment Committee that had jurisdiction over the land granted to him.”
Flowing from the above is the fact that all lands in Benin City are vested in the Oba of Benin who is the trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof; so therefore for anyone to claim any land in Benin City he must trace his title to the Oba of Benin. See OKEAYA v. AGUEBOR (1970) 1 ALL N.L.R. 1, where the Supreme Court accorded approval at pages 8 to 10 of the judgment to the contents of a booklet entitled “BENIN CUSTOM AND LAW REGARDING LAND BURIAL RITES and INHERITANCE” written by one Hawdon Omoregbe Uwaifo who testified on this issue in the court of first instance where the hearing of the case originated. The same Court, the apex court, gave approval to the principles set out supra as regards acquisition of a valid legal estate in Bini Communal Land in its decision in AIGBE v. EDEKPOLOR (1977) 2 S.C. 1.
By its constant judicial usage, the Supreme Court said, that the custom of plot allotment in Benin City has come to be regarded and treated as notorious custom, which could be judicially noticed under Section 14(2) of the evidence Act and applied without further proof. See AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (PT.70) 325. Perhaps I should further say that a registered conveyance of land subject of grant under Benin Customary Law does not of itself confer valid title for the vendor has no right to or any valid interest which he could transfer at the material time, since under Benin Customary Law, there is no system of registration of title. Before the promulgation of the Land Use Act, title to land in Benin was provable not from the grant or conveyance of the land by any other person but from the date of the approval of a grant by the Oba of Benin. For the simple reason, as I have said, that all lands in Benin Division were vested in the Oba. See FINNIH VS. IMADE (1992) 1 N.S.C.C. (PT.1) VOL. 23 PAGES 56. Going by the pleadings of the parties, their transactions pre-dated the promulgation of the Land Use Decree, which came into being in 1978.
Back to the all-important question, which I posed supra as to whether, the parties here traced their title to the Oba of Benin.
The answer to this question is deducible from their respective pleadings and the evidence led in proof of the averments therein.
The plaintiff’s case from his pleadings is that by his application dated 7/11/73 applied through the Elders/Plot Allotment Committee Oriokpa Village Benin City, District Ward 37B, Benin City for allocation to him of parcel of land now in dispute. The Oba of Benin duly gave his approval to the application. In proof of this averment, the plaintiff in his testimony in chief said: –
“In 1973 I asked for a piece of land in Oriokpa Village………… I went to the Plot Allotment Committee after inspecting the area I want there with the Committee and gave them Kola and drinking they gave me a form which I filled. It was sent to the Palace and it was approved by the Oba in 1974. The dimension of the land was 200 by 100.”
The Oba’ s approval was tendered as Exhibit p2. He also testified that he paid compensation to the owner of the rubber trees on the said land. Continuing his evidence on the adjoined date, he further said under examination -in chief: –
“I now say that the dimension of the land is 100 by 200. I made a mistake yesterday………..It was ward 37B Plot Allotment Committee who had power to allocate land there. Ward A has no power to allocate land there. In January 1979 I met defendant there. He was preparing the place to lay foundation. I challenged him saying I am (sic) required the land 6 years. I reported him to the Palace. The Palace sent for him. He refused to answer. I then took him to court.”
When cross-examined, he said: –
“It is not true that Oba Akenzua conveyed the land to Mrs. Amadasun after Mrs. Amadasun got an approval.
Agbomareniye Elema denied transferring the land to Mrs. Amadasun………….
If the land was owned by anyone I would not have acquired it.”
PW3 – Christopher Obanor, a trader and Assistant Secretary Land who pointed the land to the Plaintiff/respondent testified thus: –
“I know the plaintiff came to apply for a piece of land measuring 100 by 200 feet through the then elders and Oriokpa Plot Allotment Committee which was Ward 37B. The application was to His Highness, the Oba of Benin. As the Assistant Secretary Land Pointer I was asked to take him to the plot, which I did. I then reported back to the Committee and his application were (sic) sent for Oba’s approval. It was approved. The land is at Oriokpe Ward 37B …………………..
The land had not been given out before it was given to the plaintiff…………..
The Oriokpe Committee had the authority to recommend (sic) the application; it was Oriokpe Committee that allocated to them. I know Ward A.
The Ward has no power to allocate plot in that area, it is not to my knowledge that allocation of plot was made to one Elema in that area.”
Under cross-examination he said: –
“I did not know that the Oba of Benin conveyed the land in question to Mrs. Esther Amadasun……………
I was a member of the Ward Committee. I did not sign Ex p2. I do not sign my Plot Allotment Committee has authority in that area.”
He identified Exhibit p2 as the certificate of Approval by the Oba of Benin given to the respondent: PW1 – Godwin Oghoyafedo, a farmer and the owner of the rubber on the dispute land testified confirming that the plaintiff/respondent paid him compensation for his rubber on the land allocated to the plaintiff/respondent. His evidence in this regard was not shaken.
The 6th P/W – one Chief Ojo Udobor, the Esasopyeni of Benin, in corroborating the testimony of the plaintiff/respondent that he reported to the Palace the trespass he noticed in the land said: –
“In 1982, plaintiff came to complain to the Oba of (sic) the Oba of Benin that the land given to him by Oriokpa was encroached upon. The Oba delegated myself and Chief Ogbaretin to investigate the matter, we carried out the assignment as we did not know the defendant’s house we went to the sister to look for him, we met a contractor and told him to tell the defendant to came to the Palace. The contractor was digging the ground and the land was still bushy.
The defendant later came to the Palace and we gave him a date to report so that we can examine their documents and investigate. When Plaintiff came the defendant did not come.”
Although, he was cross-examined the crucial testimonies he gave were not controverted nor contradicted.
In his own defence, the defendant/appellant testifying under examination-in-chief said inter alia: –
“I do not know plaintiff. I am an Ora man. I am from Eweni, Owan East Local Government, and know the land in dispute; it is where I live at 3, Patrick Ehime Street. It is Ward A. Its far back as 1978 I approached one Mrs. Amadasun who owned 200 by 400 feet in that ward. She showed me a deed of conveyance to establish her ownership………………..
She showed me the survey plan of the place. She sold 100 by 100 feet out of the original 200 by 400 feet to me. There was then a deed of transfer between me and Mrs. Amadasun. I started building in late 1978. I moved in on December, 1980. The plaintiff in person did not challenge me but there were things who were embarrassing people around.”
Under cross-examination, he said: –
“I did not find out from the ward whether it was given to Mrs. Amadasun since I saw the conveyance ID1……..
The Plaintiff did not challenge me in January, 1979……………………
I was not invited to the Palace. If I had got an invitation I would have been there even by virtue of my profession.”
DW1 – Esther Amadasun, the vendor of the defendant/appellant in her evidence said: –
“I know the defendant. I transferred a piece of land to him from my portion of 200 ft by 400 ft. I transferred 100 ft by 100 ft………………….
In 1974, the land was transferred to me by one Mr. Agbonmareniye Elema. I saw his approval when the land was transferred to me.
The Oba conveyed the land to me, I can recognise the conveyance.”
When cross-examined, she said: –
“The land in dispute in (sic) not in Ward 37B, otherwise Oriokpa A. The land Oriokpa and Ward A are not the same.
Agbonmareniye Elema transferred 200ft by 400ft to me in the presence of his late brother Jonathan and Honourable Sunday Elema, it was the one I surveyed that the Oba transferred to me, I gave everything to my lawyer who prepared it and sent it (conveyance) to the Oba.
DW2 – Wilson Aluya the director of lands testified to the effect that the appellant sent in application for Certificate of Occupancy in respect of the land in dispute for processing. His Ministry caused the application for advertisement in TRIBUNE newspaper. And after waiting for the required period and when no objection against the application was forth coming. The land was described even in the advertisement by the Nigerian Tribune as being in Ward A instead of Ward 37B, DW3 – one Prince Sunday Elema, the last witness called by the defendant/appellant testified to the effect that Agbonmareniye Elema sold the land to Mrs. Esther Amadasun who later transferred it to the defendant/appellant; to him, the land is in Ward A.
It is clear from the evidence led by the plaintiff/respondent that he strictly complied with the principles governing acquisition of a valid legal estate under Benin Customary Law; he traced his title to that of the overall authority – the Oba of Benin to which his application was presented by the appropriated Ward Plot Allotment Committee. I pause here to say that the trial judge had rightly, in my view, made a finding from the evidence before him that the land in dispute was in Ward 37B and not in Ward A.
There is also the unchallenged evidence that the Oba of Benin, in accordance with the demands of the customary law of the land here, gave his approval to the application of the plaintiff/respondent. The approval once given remains valid until it is set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land. There is no evidence in that direction let alone the Oba acting on it and consequently setting it aside. On the other hand, there is nothing in the totality of the evidence to the effect that any application was made to the Oba of Benin for the allocation of the same land to the defendant/appellant. Indeed, the defendant/appellant claimed to have bought the land from one Mrs. Amadasun – DW1 who relied on Ex D1 – a deed of conveyance by which she claimed that the Oba of Benin conveyed the land to her; of course, to her the land she bought is in Ward A and Ward 37B1.
She claimed that she had earlier bought a larger portion of land, which embraces the one she transferred to the defendant/appellant from one Agbonmareniye Elema. There is nothing on record to show that Agbonmareniye Elema made any application through the appropriate Committee for onward transmission to the Oba of Benin for his approval from the allocation of land to him. Of course, no approval was or could have been given by the Oba. True, it is that Mrs. Amadasun tendered a deed of conveyance. EX D1 in respect of the land, the law in respect of the land under the Benin Customary Law prior to the promulgation of the Land Use Act in 1978, is that a registered conveyance of land subject of grant under Benin Customary Law does not confer valid title if the vendor, as in this case, has no right or any valid interest which he could transfer at the material time, he having not obtained the consent of the OBA OF BENIN and there being no system of registration of title under Benin Customary Law. See FINNIH v. IMADE (1992) 1 N.S.C.C. 56. For the umpteenth time, I will like to say that under Bini Communal Land Matter, only the Oba of Benin upon the recommendation by the appropriate Plot Allotment Committee can transfer any legal estate in any Bini Communal Land to a purchaser. See AIGBE v. EDOKPOLOR (1977) N.S.C.C. 44 and the case of ARASE referred to supra.
The effect of all I have been saying is that while the plaintiff/respondent traced his title to that of the established owner, the defendant/appellant failed to do so. Therefore, there are no legally competing interests in the land in dispute between the plaintiff/respondent and the defendant/appellant. So the question whether the interests of the parties will, prima facie, rank in order of their creation based on the maxim I have referred to supra does not arise. The law remains static that once a plaintiff traces his title to one whose title to ownership of land has been established, the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. See MOSALEWA THOMAS v. PRESTON HOLDER 12 WACA 78.
That, the defendant/appellant can never do in the instant case having, from his pleadings, admitted the title in Bini Communal land is, by 1aw, vested in the Oba of Benin.
Consequently, the only issue raised by the appellant through his brief of argument is answered in the affirmative. While I also answer the only issue identified in the brief of the respondent for consideration by this court, in the affirmative. Let me further say that any relief for declaration of title to statutory right of occupancy to land in Benin must be subject to Benin Customary Land Law.
In the final analysis, it is my judgment that this appeal is unmeritorious, and it is hereby dismissed. The judgment of the court below is hereby affirmed subject to what I have just said about the Benin Customary Land Law. The plaintiff/respondent is entitled to the cost of this appeal, which I assess in his favour at N7, 500.00 against the appellant.
Other Citations: (2006)LCN/1951(CA)
