Chief J.O. Iyase & Ors V. Ugiagbe Omoragbon (1976)

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SOWEMIMO, JSC. 

It is settled traditional custom that the ownership of land in Benin is vested in the Oba of Benin and that by virtue of this, he is the only authority who can approve of the allocation of building plots to individuals. In order to carry out this customary duty, the Oba, through designated authority, divided Benin into wards and appointed committees to make recommendations to him for such allocations from prospective applicants. For the city of Benin, individuals are appointed as Committee members whereas in the villages’ the Odionweres and village elders constitute the Plot Allotment Committee.    

It is not in dispute that the appellants form the Plot Allotment Committee for Ward 23/L and the respondents Plot Allotment Committee for Ward 11/K. According to the pleadings, what the court was called upon to decide was whether Isioho village, in which the land in   PAGE| 2   dispute lies, falls within the area of jurisdiction of either Ward 23/L or 11/K. The area of jurisdiction of each ward was pleaded and evidence was led in support. It was therefore an issue of fact to be resolved on the evidence. The learned Judge heard the evidence of both parties and visited the land in dispute.

In his judgment, the learned Judge had this to say on his inspection of the site:-    “On February 19, 1972, I visited the site because the only practical question to be resolved concerned the location of the controversial plot. In the course of inspection I found that the moat is the boundary between Isioho and Eguadaiken, and Ugbowo is the village next to Isioho. The defendants pointed out a point about 50ft away from the moat – where there were three small nymphs – and I say about 200 yards from the plants the ruins of two houses. From the inspection; it was obvious to me that the plot allocated by the defendants to Iyase was actually in Isioho – a part beyond the moat as one approaches from Benin to Lagos on the Benin Lagos Road. The moat as a means of marking out a boundary is more reliable than small immature nymphs or plants.” (underlining ours)    

In Suit No.B/35/70 filed in the High Court of Justice, Mid-western State (now Bendel State) the plaintiffs, who are the respondents before us, claim against the defendants, the appellants, “jointly and severally for an injunction for trespass”. There is no doubt that on a proper consideration of the issue raised in the pleadings, the claim was inelegantly framed.

The issue for determination was as to which of the parties had the appropriate jurisdiction to allocate land in Isioho Village and that the party that has no right to do this should be restrained from doing so.    On the evidence there were some suggestions on the part of the defendants that at one time the land in dispute had been allotted to J.O. Iyase (the Chairman of Ward 23/L) who subsequently passed his right to one Aburime. No document was tendered in evidence to show that this allotment was in fact made and was approved by the Oba. There is no evidence that either J.O. Iyase, the 1st defendant, or the alleged Aburime ever took physical possession of the plot.

The case however was not fought on the basis that having made this allotment, Ward 23/L was no longer interested in the land.    The substance of the claim is that the plaintiffs sought for an injunction to restrain the defendants from allocating plots of land in Isioho village, which include the plot of land referred to in the Writ of Summons because the appropriate and competent authority is Ward 11/K and not Ward 23/L. The learned Judge, in his judgment, reviewed the law relating to injunction and applying this to the facts as found by him held as follows:-   “In this case, the plaintiffs had the exclusive right of allocating land to applicants for land in Isioho. It is true that they may not be described as owning the land in Isioho, but since they were properly constituted by the Oba of Benin to allocate land, which is approved subsequently by him, they were in possession of the land in his jurisdiction.”

The appellants being aggrieved with this judgment filed an appeal to this court. At the hearing, learned counsel for appellants contended before us that the respondents ought to have applied for the appellants to be sued in a representative capacity. In the Statement of Claim the defendants were jointly averred to be the Chairman, Secretary and members of the Plot Allotment Committee of Ward 23/L and this was admitted by the defendants. On the writ the defendants were jointly sued. In the defence filed the defendants averred that they were defending the action in the capacity in which they were jointly sued. When these facts were pointed out to learned counsel for appellants he had to abandon this contention.    The next point taken was that the plaintiffs were constituted as a Committee for taxation purposes and not for allocation of plots.

The learned counsel was unable to point out where this issue was raised in the pleadings and therefore his contention was incompetent on the pleadings. This was again not pursued and was abandoned.    As we have earlier on referred to, there were suggestions that a plot of land was allotted to 1st defendant who subsequently transferred it to one Aburime, but what effect this transaction had on the claim before the court was not made an issue on the pleadings.

As a matter of fact the alleged allotment and transfer were not established as facts before the lower court. In the result, learned counsel found difficulty in raising this issue before us as a valid ground of appeal. As a last ditch contention learned counsel submitted that the learned Judge was wrong in holding that Isioho Village, and therefore the plot of land in dispute, fell within the area of jurisdiction of the plaintiffs – Ward 11/K Plot Allotment Committee.

This was an issue to be decided on the evidence and the inspection of the site. Counsel was unable to point out how the finding of the learned Judge was not supported by his proper evaluation of the totality of the evidence before him. This point, as in the case of others, lacks any substance.    For the above reasons, we did not call on the counsel for respondents and dismissed the appeal at the hearing. The judgment of Ighodaro, J., Suit No. B/35/70 delivered on 17th May, 1972, is hereby upheld. The appellants will pay to the respondents costs of this appeal which we assess at N144.

Other Citation: (1976) LCN/2227(SC)