Daniel E.idehen V. David Ehigie Osemwenkhae (1997)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C.

In his writ of summons filed in Benin High Court of the defunct Bendel State, the plaintiff claimed as follows:-

“1. A declaration that, being vested with the Customary and traditional title to a piece of land in Benin City within the jurisdiction of this Court, he is entitled to a Certificate of Occupancy in accordance with the Land Use Decree 1978.

2. A sum of N100.00 being damages in that about the year 1975 the defendant broke and entered into the said land which measures 70 feet by 150 feet and covered by plot approved paper dated 20th December, 1972.
3. An injunction restraining both the defendant, his servants, agents and assigns from further trespass. The value of the said land being N100.00.”

The claims were denied by the defendant, and pleadings were ordered, filed and exchanged. The case proceeded to trial. The plaintiff gave evidence and called two witnesses who justified in support of his case. The defendant also gave evidence and called two witnesses in support of his case. At the end of the hearing, the learned trial judge delivered a reserved judgment in which he found in favour of the plaintiff as follows:-

1. A declaration that the plaintiff is entitled to a certificate of occupancy over a piece of land in the New Layout in Ward 40A Oregbemi measuring 70′ x 150′ and bounded by beacon numbers 38. 24 and 37 on the Benin/Agbor Road opposite Airewele High School;
2. A sum of N 100.00 as damages for trespass in that the defendant in about 1975 broke and entered the said land measuring 70′ x 150′ and covered by plot approval paper dated 20th December, 1972;
3. An injunction restraining both the defendant, his servants, agents and assigns from further trespass.”

Dissatisfied with the judgment of the trial court, the defendant appealed to the Court of Appeal, Benin Division, at the end of which the appeal was allowed with the following conclusion:-

“In conclusion, I must hold that, on the record, the plaintiff had not discharged the onus on him to prove, with certainty , the land he was laying claim to. This appeal, therefore, succeeds and it is hereby allowed. The judgment of the court below including the order for costs given in this matter on 30/3/82 is set aside. Plaintiffs claims are dismissed in toto.”

Aggrieved by the Court of Appeal decision, the plaintiff has appealed to this court.

The facts of the plaintiffs case as contained in his Statement of Claim can be stated thus:-

The land in dispute was allocated to the plaintiffs father by Ward 40A Allotment Committee in 1972. It is a plot of land measured seventy feet by one hundred and fifty feet (70ft x 150ft) situate at Oregbemi opposite Airewele Grammar School, Benin City, demarcated by beacons Nos. 38-24-37. On the G allocation of the plot his father was issued with allocation paper Exhibit I, signed

by Oba of Benin in line with Benin native law and custom. On the death of the plaintiffs father intestate all his estates, movable and real, were vested in his children. When his late father acquired the plot of land he paid compensation to one Madam Dorah for the rubber trees on it for which she issued him with a receipt Exhibit 2.

Some time in May, 1972,the defendant without a claim of right trespassed onto the land and started a building thereon, utilizing the building materials that were stored on the land by their late father. The defendant has persisted in his trespass and has refused to give up. The plaintiff being the eldest son of deceased father, filed this case for and on behalf of himself and the other children of the deceased to recover the land.

I shall refer to the appellant and the respondent in this judgment as plaintiff and defendant.

The plaintiff and the defendant in compliance with Order 6 rule/5(1) (a)and (2) of the Supreme Court Rules, 1985 [as amended] filed and exchanged briefs of argument.

In the brief filed by the plaintiff the following four issues have been formulated for determination by this court:

“(1) Whether or not a Survey Plan is an absolute requirement in every land matter with particular reference to Bini Customary Mode of land ownership,

(2) If a Survey Plan is not an absolute necessity in every land case, then whether or not the Court of Appeal wrongly reversed the judgment of the learned trial judge in the circumstances;

(3) Having regard to the evidence before the trial Court that both parties and their witnesses knew the land in dispute, whether the Court of Appeal was wrong in reversing the said judgment on ground that the description of the land was scanty.

(4) Whether or not the Court of Appeal should have made an order of retrial or non-suit in the face of the plaintiff/appellant’s proof of title (Exhibit” I “) as against the defendant/respondent who had nothing in form of title to the land in dispute.

The defendant formulated only one issue in his brief. It reads:-

“Whether or not the land claimed by the plaintiff/appellant and in respect of which judgment was entered in his favour was certain having regard to the pleadings and the evidence.”

On the date the appeal came up for hearing neither the appellant nor his counsel was present in Court. Since appellant’s brief had been filed his appeal was treated as having been argued vide Order 6 rule 8(6) of the Supreme Court Rules, 1985 [as Amended].

The solitary issue framed by the defendant is covered by issue 3 of the plaintiffs brief. Both issues 1 and 2 can conveniently be taken together with issue 3 since all of them are related to facts.

It was the submission of learned counsel for the plaintiff that by producing Exhibit I and the further evidence adduced in support of his pleading, the plot of land, the subject matter of this litigation had been sufficiently proved with certainty as to its identity, location and size, It is further submitted that the land in dispute was well known to the parties and in the circumstance, a survey plan as regards the identity of the land was unnecessary, Learned Counsel referred to the following pieces of evidence:-

(a) Exhibit 1 which is the application for and the grant of lease of the plot by Ward 40A to the O. Idehen (now deceased) and father of the plaintiff.

(b) The size of the plot which is 70ft by 150ft.

(c) Its demarcation by beacons Nos, 34, 24 and 37.

(d) Its location – Oregbemi opposite Airewele Grammar School.

(e) It was shown to the allottee – the plaintiffs father by PW1.

(f) That Exhibit ‘I’ was signed by Oba of Benin.

and submitted that the identity of the land was sufficiently proved since the evidence referred to was not controverted by the defendant Nwabuoku v. Ottih (1961) 2 SCNLR 232, (1961) All NLR (Pt.2) 487 at 488; Olujinle v. Adeagba (1988) 2 NWLR (Pt.75) 238 and Umar v. Bayero University, Kano (1988) 4 NWLR (Pt. 86) 85.

Learned counsel made the alternative submission that in case this court agrees with Court of Appeal that the parcel of land has not been sufficiently described he urges that, in the circumstances of the case, the provision of S .22 of the Supreme Court Act, 1960 be invoked and order a retrial. In support of this submission he cited and relied on Dada v. Ogunremi (1967) NMLR 181 and Arabe v. Asanlu (1980) 5-7 SC 78.

In reply to the submissions of the plaintiff learned counsel for the defendant contended that a survey plan is not an absolute necessity in every land matter, but such a survey plan is necessary where the identity of the land is made an issue. He submitted that in the case in hand the identity of the parcel of land in dispute was made an issue and the plaintiff had failed to prove it. He referred to the evidence adduced by the plaintiff and submitted that the beacons mentioned were not related to the land claimed by him. He contended that only where the identity of the land was proved with certainty can a declaration related to it be made. He cited and relied on Baruwa v. Ogunshola and ors. 4 WACA 159; Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299 (1985) 3 SC 28 and hosts of others decided cases.

Now having stated in a nutshell the argument advanced by learned counsel in their respective brief, I shall proceed to consider the evidence adduced by the plaintiff in proof of his case as regards the identity of the land in dispute.

In paragraphs 3, 4 and 8 of the Statement of Claim, the plaintiff pleaded as follows:

3. That among such real properties left behind is a piece of building plot recommended for him by Ward 40A Oregbeni Plot Allotment Committee and approved by the Oba of Benin Akenzua II.
4. That this property was acquired on the 24th of October, 1972 and approved by the Oba of Benin Akenzua II on the 20th of December, 1972.

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8. That the said building plot is situate at Oregbemi opposite Airewele Grammar School, Benin City and measures, as per Ward approved paper, seventy feet by one hundred and fifty feet with bounding Ward beacons Nos. 38-24-37 within the jurisdiction of this Court.”

The averments in paragraphs 3, 4 and 8 of the Statement of Claim were traversed in paragraphs 4, 10 and 11 of the Statement of Defence in which it was averred thus:

“4. The defendant denies paragraphs 3, 4, 5 and 6 of the Statement of Claim and avers that if the plaintiff had any approval from the Oba of Benin, that approval has no nexus with the land where the defendant has his building which he completed in 1979 December. The building operation started in 1977 after defendant had surveyed the piece of land in Property Survey Plan No. B/GA 2036/77.”

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The defendant shall contend at the trial that under the Bini customary laws, Plot Allotment Committee can only allot vacant lands and not piece of land long owned and possessed by individuals under the Bini Customary laws.

11. The defendant denies paragraph 8 of the Statement of Claim and avers that the beacon numbers mentioned in paragraph 8 of the Statement of Claim have never been and could not have had any nexus with defendant’s land.”

Mr. Daniel Idehen, the plaintiff, on the ownership and identity of the land in dispute said in his evidence in-chief:

“The land in dispute is part of the property left behind. My father acquired the property from Ward 40A Oregbeni PAC. He had an approval from the Ward over the said land. This is the approval. Counsel seeks In lender it. Defence Counsel has no objection. Approval tendered, admitted and marked Exhibit 1.

In 1979 I met the defendant erecting a house on the land. I said nothing In him but I went In the Plot Allotment Committee and they told me certain things. As I did not want to take the law into my hands I had to come to court.”

When cross-examined he said:

“My father had several pieces of land at Oregbeni. He had approval for all of them. I don’t know when he acquired all the pieces of land. After his burial I got the approval papers. I got Exhibit 1 from his box. My father did not survey the land covered by Exhibit 1. I know the land covered by Exhibit 1.”

P.W. 1, Gabriel Ogunsuyi, who was also the Secretary of Ward 40A Oregbeni Plot Allotment Committee gave the following evidence on the ownership and identity of the land in dispute:

“In 1972 a piece of land was allocated to late Ohomina Idehen on the right when going to Agbor. The land measurement was 70′ x 150′ with beacon Nos. 38, 24 and 37.

There were no buildings when the land was allocated. But there were rubber trees. There are now buildings on the land. The defendant erected the buildings.”

Under cross-examination he stated:

“Chairman and Secretary don’t go to the bush. The applicant was a pointer that was why I went to the bush with Mr. Igbinovia. I acted as a pointer only on this occasion. We approved up to seven plots for late Ohomina in the whole village.”

P.W.2 Osifo Igharo who was the last witness for the plaintiff also testified as follows:-

“I know the plaintiff. I know the father he is dead. When the father was alive he bought rubber crops from me. I sold the rubber for N100. I gave him a receipt was written by my son but I signed it.

The land on which the rubbers were grown was allocated to the plaintiffs father by the Plot Allotment Committee.”

When cross-examined P.W.2 further said:

“I know the plaintiff I sold rubber to him. I gave him a receipt when he paid for the rubber trees. I described the land in the receipt…..The land was allocated first before he paid for the rubber trees….. The dimension is in the survey plan which I own. I survey plan which I own. I surveyed the rubber plantation. Government acquired the land. The Plot Allotment Committee demarcated the land into plots after I had surveyed it. I don’t know the name but the name is on the plan. He put beacons on the land…..I paid the surveyor N40.”

This is the total sum of the evidence adduced by the plaintiff in proof of his case. In order to appreciate the judgments of the trial court and the Court of Appeal respectively, it is pertinent to set out the relevant facts as contained in Exhibits 1 and 2 relied on by the plaintiff in proof of the case.

‘Exhibit 1

Thro: The Plot Allotment Committee,

C Ward 40A Oregbeni,

Benin City.

To: His Highness Akenzue II C.M.G.

The Oba of Benin,

Benin City.

His Highness

Application for Building Plot

I have the honour most respectfully to apply for a piece of land measuring 70 seventy fact by 150 one hundred and fifty feet in the new layout in the above ward 40A. It is intended for building and sundry purposes. This plot has been inspected by the above Ward 40A Oregbeni and certified free from dispute of all kind.

The beacons Nos, are 38 – 24 – 37

I am,

Your Highness,

….

Applicant

Your Highness,

The above application is recommended for your approval. The allocation of this plot docs NOT entitle the applicant to claim ownership of the permanent crops therein. The Non-Native applicant takes only a lease of the allotted plot as prescribed by Bini Customary Land Law.

We are,

Yours Highness’s Servants,

Chairman, Ward…. Secretary, Ward…….

1. …….. 7……..

2 ……. 8……..

3 ……… 9……..

4 ………. 10………

5 ……… 11………

6 ……… 12 ……..

Approved. 20/12/72

Exhibit 2

On the 27th day of February, 19761 Mister Ohonmina Idehen paid Madam Dorah Osifo the sum of one hundred Naira (N100) for the Rubber trees (about 25 trees) with Beacons Nos. 38, 24, 37 which are on my plot at opposite Arewele High School, Benin City.

The above statement was drawn up in the presence of Mr. Osifo and Madam D. Osifo the recipient (sic) and Master Emmanuel Idehen, Miss Elizabeth Idehen and Madam O. Idehen the payer.

……. ………

Received by Payer

………. ……….

Witness Witness

…………

Writer”

The point upon which the judgment of the trial court revolves is the identity of the land in dispute.

The learned trial judge in the course of the review of the plaintiff’s evidence observed and stated, “Looking at the entire case, it seems as if the land the plaintiff is claiming is not the same as the land being defended by the defendant The plaintiff says that his land measures 70′ x 150′, the defendant says that his measures 100′ x 200′; the plaintiff says that his land is on the right on the Benin/Agbor road, the defendant says that his land is behind Airewele Grammar School; the plaintiff says that his land was a rubber plantation but the defendant said that his was an Igiogbe and before that a plain land.”

There is no dispute that from Exhibit 1 the plot measuring 70ft by 150ft at Ward 40A Oregbeni was applied for by the plaintiffs father, O. Idehen on 24th October, 1972. The allocation by the Allotment Committee of Ward 40A was made on 7th December, 1972 and same was approved by the Oba of Benin, from the face of the Exhibit 1, on 20th December, 1972. The beacons Nos. 38-24-37 related to the plot allocated were inserted in Exhibit 1.

This is all that Exhibit 1 showed. It did not state with sufficient particularity the location of the plot in Oregbeni Ward. However the plaintiff in paragraph 8 of Statement of Claim (supra) pleaded the location of the land as “situate at Oregbeni opposite Airewele Grammar School, Benin City.” The plaintiff did not lead evidence in proof of this averment. P.W.1 who acted as a pointer when the land was allocated to the plaintiffs father, did not say any thing either on the location of the land as pleaded in paragraph 8 supra. His evidence shows that he identified the plot of land to the plaintiff’s father and not to the plaintiff. The plaintiff did not say in his evidence who identified the land to him or how he was able to know its location since there was no survey plan attached to Exhibit 1. All he said was that after the death of his father he found Exhibit 1 in his (father’s) box and went to the allotment committee which confirmed to him that the plot shown in Exhibit 1 was allotted to his father.

As regards Exhibit 2 which was admitted in evidence by consent, P.W. 2 said in his evidence that he sold the rubber trees to the plaintiff’s father. This is contrary to what was pleaded in paragraph II of the Statement of Claim in which it was averred that one Madam Dorah Osifo and not Osifo Igharo sold the rubber trees to the plaintiff’s father. This contradiction was not explained. Also not explained was the contradiction between what was pleaded in paragraph 8 to wit “Airewele Grammar School” and “Airewele High School” contained in Exhibit 2. Is Airewele Grammar School” the same – thing as Airewele High School

With all the lapses in the plaintiffs case, can any tribunal come to a reasonable conclusion that there was definitive description of the plot of land, its location and certainty The answer must obviously be in the negative having regard to the evidence adduced by the plaintiff.

The fact that the defendant said in his evidence that he knew the land in dispute does not in my view amount to an admission that it is the same land referred to in Exhibit 1, the exact location and certainty of which remains vague.

In a case involving declaration of tide to land the onus is on the plaintiff to establish the title he is claiming. He cannot rely on the weakness of the defendant’s case See Kodilinye v. Mbanefo Odu 2 WACA 336.

If the learned trial judge had properly considered and evaluated the evidence adduced, he would not have come to the conclusion that the identity of the land in dispute is clear and unambiguous and that it had been proved with definitive certainty to dispense with a survey plan. See Baruwa v. Ogunshola 4 WACA 159 and Kwadzo v. Adjei 10 WACA 274.

The plaintiff could have only related the beacons in Exhibit 1 to a survey plan if one was produced and tendered, since there is no evidence that the physical location and identity of the said land was known to him. The survey plan made by P.W.2 and relating to the land in dispute could have been used by the plaintiff to prove the location and identity of the land.

I agree with the unanimous decision of the Court of Appeal after a reconsideration and re-evaluation of the evidence (as per Ogundare JCA as he then was) wherein he stated in the lead judgment:

“In my respectful view, taking the evidence of the plaintiff and his witness together it cannot be said that the evidence of the two of them could pass the acid test laid down by the West African Court of Appeal in Kwadzo v. Adjei (supra). The defendant having put in issue the identity of the land plaintiff was claiming it behoved the latter to establish same with certainty. The learned trial judge found that on the writ of summon – and I dare add, and the statement of claim -the description of the land plaintiff was claiming was scanty and the land unascertainable. The learned judge had earlier observed that “looking at the entire case it seems as if the land the plaintiff is claiming is not the same as the land being defended by the defendant.” In spite of this observation and his finding about the “scantiness and unascertainability” of the land in the writ of summons, he nevertheless concluded that these defects were cured by evidence. With respect to the learned judge, I cannot agree with him. The correct position, in my humble view, is that the evidence led by the plaintiff and his witness was equally caught in the same web of “scantiness and unascertainability.”

In conclusion, I must hold that, on the record, the plaintiff had not discharged the onus on him to prove, with certainty, the land he was laying claim to. This appeal, therefore, succeeds and it is hereby allowed. The judgment of the court below including the order for costs given in this matter on 30/3/82 is set aside. Plaintiff’s claims are dismissed in toto.”

Having regard to my observations on the plaintiff’s evidence, I am of the view that this is not a proper case to order a retrial. The plaintiff failed to prove his case and the correct order of its dismissal was made.

The appeal fails and it is dismissed. The judgment of the Court of Appeal is hereby affirmed with N1,000.00 costs to the respondent.

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SC.74/1990