H.N.O. Awoyegbe & Anor V. Chief J. E. Ogbeide (1988)

LawGlobal-Hub Lead Judgment Report

B. CRAIG, J.S.C.

This is yet another case in the growing list of cases which has been accepted as establishing the customary law on land tenure amongst the Binis in Bendel State.

Some two decades ago, it was decided in the case of K.S. Okeanya v. Madam E. Aguebor (1970) 1 All N.L.R.1 that the customary laws governing the acquisition of land in Benin are as follows:-

“1. All lands in Benin Division are vested in the Oba of Benin who holds such lands as trustee on behalf of the people of Benin.

2. In pursuance of the powers vested in him, the Oba divides the land into Wards and appoints Ward Allotment Committees whose duty it is to supervise the allocation of plots in their respective Wards.
3. Any person desirous of owning land would direct his application in writing to the Ward Allocation Committee in charge of the area where the land is located.
4. When the application has been studied and processed, the Committee would delegate some of their members to inspect the land within their area of jurisdiction and “ascertain the plot to be granted with certainty” with a view to finding out “if it is free from dispute” and whether or not “it has previously been granted to some one else.”
5. Upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is “dispute free”, the Committee would endorse the application with the above facts and forward it to the Oba of Benin for approval.
6. The Oba would, as a rule, accord his approval to an application thus recommended, and thereafter, the applicant becomes the beneficial owner of the approved plot.
7. An approval once given remains valid until it is revoked by the Oba.
8. If the evidence is subsequently produced of a prior approval for the same plot of land, then the second approval will be set aside by the Oba.
9. It is contrary to Benin custom to set aside an approval made in error upon an ex-parte application by one of the affected parties.”

Op. cit. at pp. 8 – 10.

Since then, other cases have confirmed that judicial notice can be taken of this custom.

See: Atiti Gold v. B Osaseren (1970) 1 All N.L.R. 132

O. Aikhionban & Ors. v. U. Omoregie & Ors. (1976) 12 S.C. 11 at p.28

Mrs. Aigbe v. Bishop J. Edekpolor (1977) 2 S.C. 1

I. Arase v. P. Arase (1981) 5 S.C. 33

V. Bello v. Magnus Eweka (1981) 1 S.C. 101.

In the instant case, the plaintiff was allotted a plot of land in the manner described above. His application, Exhibit ‘B’ for land in Ward H.17 was recommended for approval by the appropriate Ward Committee, and on 29th January, 1964 the Oba of Benin gave his approval to the allotment. The Oba later conveyed the land to him by a Deed of Conveyance Exh.C dated 11th November 1969.

Some years later, the Defendants were alleged to have trespassed on the land, and the plaintiffs challenged them. In their reply, they claimed that sometime in 1974 they too had applied to the Oba in the customary manner, for allocation of plots of land to them at Etete Village. The Oba approved of the allotment (Exs. G & J) and later executed the Deeds of Conveyance Exs. H & J respectively in their favour.

They further claimed that the plaintiff’s plot, was not located in Ward H17 as his papers portrayed but in Etete Village Settlement. When the matter could not be resolved, the plaintiff sued the Defendants, inter alia for:

“1. A declaration of title to that parcel of land lying and situate in Ward 17H Benin City which parcel of land was customarily granted to the Plaintiff by the Oba of Benin on 29th January, 1964 and subsequently conveyed to him by a document dated 11th day of November, 1969 and registered as No. 25 at page 25 in volume 79 of the Lands Registry in the office at Benin City.

The Plaintiff will later file a plea of the said parcel of land for the purpose of this action. The value of the land is about N600 (Six Hundred Naira).

2. General Damages of N3,000 for trespass …..3. Perpetual Injunction against the Defendants,

…

Pleadings were ordered and exchanged and in his statement of claim, the Appellant (who will hereafter be referred to as the Plaintiff) pleaded the following relevant matters:

“4. The Plaintiff has at all times material to this action been the owner of a piece or parcel of land lying and situate at Ward 17H Benin City the particulars of which are shown in:

(i) the application for Building plot submitted through the Plot Allotment Committee of Ward 17/H (which has jurisdiction over the area at the time of the allocation) to His Highness the Oba of Benin who granted the same in favour of the Plaintiff under Bini Native Law and Custom on 29/1/64. The Plaintiff shall at the trial rely on the said Approved Application which is also annexed to a deed of Conveyance subsequently executed by the Oba over the same land and referred to hereunder.

(ii) . ..

(iii) . ..

“11. The Plaintiff avers that the land in dispute forms part of communal land in Benin over which the Oba of Benin is the Sale Traditional Trustee and which the Oba can validly grant to any person.

12. The Plaintiff avers that where a piece of land is erroneously granted to two or more persons by His Highness the Oba of Benin, the Custom recognises the rule of priority of interest in favour of the first person to get grant from the Oba as only vacant communal land can validly be granted by the Oba.
13. The Plaintiff will also rely on M.S. LN.72 of 1974 Boundary dispute (Determination) Notice dated 4th September, 1974 in support of his claim.”

In reply, the Respondents (Defendants herein) pleaded as follows:-

“4. The Defendants deny paragraphs 4, 5, 6 and 7 of the Statement of Claim and will put the Plaintiff to the strictest proof of the allegations contained therein.

7. The Defendants admit paragraph II of the Statement of Claim but are not in a position to admit paragraph 12 of the Statement of Claim.
8. The Defendants also state that the land in dispute is in Etete Village and that it falls within the jurisdiction of the Plot Allotment Committee for Etete Village area for allocation purposes.
9. The Defendants state also that the land in dispute is far away from Ward 17H whose jurisdiction is restricted to an area within the Benin moat. The land in dispute is outside the Benin moat and is not even adjacent to Ward 17/H in that Idunmwunivbiotor Village (Ward 37B) lies and is situate in between Ward 17H and Etete Village Area.
10. That under Bini native law and custom, a plot allotment committee has no jurisdiction to submit recommendation to the Oba of Benin for the allocation of plots in an area outside its jurisdiction.
11. That even granted that M.S. LN.72 of 1974 boundary dispute (Determination) Notice dated 4th September 1974 and Edict No. 6 of 1977 create an exception to paragraph II above in respect of land already allocated, this exception does not even apply to this case since the land in dispute was never allocated by Ward 17/H to the Plaintiff or to any other person.
12. The area which Ward 17/H is excess of its jurisdiction, allocated and to which the said Edict No 6 of 1977 applies falls far short of the area in dispute. The Defendants shall be relying on the approval layout Plan for Ward 17/H to show that Ward 17/H did not allocate land as far as the area where the land in dispute is situate.”

On the pleadings as they stood, it would be seen that some of the material issues which had to be decided by the trial Court were:-

(i) The exact location of the disputed plot – i.e. whether the plot is within Ward 17H as claimed by the Plaintiff or within the Etete Village area as contended by the Defendant.

(ii) Following (i) above, the Court would also have to decide which Plot Allotment Committee had jurisdiction to recommend the plot for approval by the Oba of Benin.

(iii) If the plot was wrongly allotted to the Plaintiff by Ward 17H, what is the effect of Edict No. 6/1977 – (Boundary Dispute (Determination) Edict 1977) on the said allotment

On the 1st and 2nd issues above, both parties called evidence to show that the plot was located within the jurisdiction of their respective Plot Allotment Committees.

The Plaintiff called two members of Ward 17H Allotment Committee who said that their committee was set up by the Oba in 1961 and that the plot allotted was within Ward 17H.

In particular D. I. Amadasun (P.W.3) stated:

“I was one of those sent by the Committee to show him the land. The land is at the back of G.R.A. while going to Etete….At the time we gave the land to the Plaintiff, Etete has no plot Allotment Committee The plot we gave to the plaintiff was not previously allocated to any person.”

When cross-examined, he stated that Ward H.17 has boundaries with Ward A, Ward H and Etete (which was not a Ward at the time) but he denied that they had allocated land belonging to Etete. He said: “Powerline was the boundary, that was where we allocated land up to.”

A. O. Obasuyi (P.WA) and Chairman of the Ward 17H Allotment Committee also testified and confirmed the evidence of P.W.3. He stated further:

“At the time we recommended the application of the Plaintiff, there were two layout Plans of the Ward – 17H, prepared by the Ministry of Lands & Housing…One of these plans is called perimeter survey and the land given to the Plaintiff is within the perimeter survey.

I am a Benin man born in 1913 and conversant with Benin Custom on land allocation….. If the Oba erroneously grants one piece of land to two or more persons, the first grant will stand and take priority over the second grant.”

When cross-examined, he admitted that it would be wrong for one Ward to go out of its jurisdiction to allocate land in another Ward. He then stated that at a stage, some allocation Committees were re-allocating plots which had been allotted to other persons, so the State Governor (Col. S. O. Ogbemudia) instituted an enquiry and ordered that nobody should allocate any more land in that area until the Oba had looked into the matter and heard from Ward 17H, Ward A and Ward 18H.

The Defendants also adduced evidence in relation to the three issues enunciated above.

They both related how they got their respective plots allotted to them by the Etete Plot Allotment Committee in 1974 and 1975. It was thick forest at the time, and there was no evidence that it had been allocated to anyone. In any case the land in dispute is not within Ward 17H. It is in Etete Village.

With regard to the principal issues in the case they called 3 witnesses: The first was Chief Omoredion (D.W.3) – a member of the Etete Plot Allocation Committee. He confirmed the allotment made to the Defendants and denied that Ward 17H had jurisdiction to allocate land in Etete. He also denied that Ward 17H was adjacent to Etete and asserted that Ward 37 B was in between the two Wards. In this respect, he stated that the Powerline was not the boundary between Etete Ward and Ward 17H.

When cross-examined he admitted that at a time, there were two factions of Etete Plot Allotment Committee. The matter went to Court and he won the case. He was not aware that an appeal was pending on the case. He denied that his own Plot Allotment Committee came into existence only in 1974.

The other two witnesses who gave evidence on the identity of the plot in dispute were Government officials. One was a Town Planner in the Ministry of Lands (D.W.5) and he had merely been called to tender Ex. L- a Layout Plan of Ward 17H. He stated that he could not show the area in dispute in Ex. L. When cross-examined, he said that he had not seen a plan of the land in dispute, but the defendants showed him the site in dispute.

He admitted that certain words were written on the Plan in ink but he did now know who wrote them; he did not write Adesuwa Grammar School in ink on the Layout.

The second official was a Senior Technical Officer in the Ministry of Works (D.W.6) Around 1960, he prepared the layout Plan of Ward 17H which was then a virgin area. He said that he knew the area in dispute and that it was not within Exhibit L.

When cross-examined, he too stated that he had not seen a survey plan of the land in dispute, but that he was taken to the site the day before he came to give evidence.

At the close of the case for the Defence, the Defence Counsel moved the court to visit the locus in quo, because, according to him,:

“The survey plan filed by the Plaintiff in this case, is completely wrong with the physical situation of the area in dispute, the area purportedly trespassed upon by the Defendants as represented on the Plaintiffs plan, are completely different from the actual portion of the land of the Defendants. Aghimien said he was not objecting to the application.”

The trial judge granted the application and visited the site on the 19th October 1982. Unfortunately, after the visit, the learned judge did not make a record of what he saw, nor did he state whether anybody gave evidence on the site and what that person said. He also did not state whether any prominent features were shown to him or whether any of the names which had been mentioned in court (e.g. “Powerlines”, Ward 37B, Anglican Girls Grammar School- mentioned by D.W.2, Adesuwa Grammar School, etc.) were pointed out to him.

The trial judge merely adjourned the case for addresses and thereafter, for judgment.

I have dealt at some length with this particular point, because a decision as to the exact location of the plot in dispute is crucial to a just decision of this case.

This court has held in Arase v. Arase (1981) 5 S.C. 33, that where there is competing title to the land, the question to be asked is who has made a good title, and not who first obtained the Oba’s approval This means that if Ward 17H had allocated land to the plaintiff in an area where they had no jurisdiction to do so, it would not help the plaintiff to say that he got the Oba’s approval first. ..

In his Judgment, the trial Judge made a careful review of all the evidence led and held that the land in dispute was within Etete Village area, and that Ward 17H was not the appropriate authority to allot the plot or recommend its allocation to the Oba for approval.

In coming to that conclusion the trial Judge relied on his visit ‘to the locus in quo. This is what he said:

The Court visited the locus in quo, and observed that Adesuwa College, which is the end of the area of jurisdiction of Ward 17H towards Etete Village direction, as indicated in Exhibit L (the layout plan of Ward 17H), is far from the land in dispute…..There is no evidence whatsoever that the Plot Allotment Committee of Ward 17H had authority or permission of the Oba of Benin to allocate parcels of land in Etete Village or area of jurisdiction of Etete Plot Allotment Committee…… It is my view that since the Plaintiff did not route his application (Ex. N) to the Oba through the appropriate Ward, he did not obtain good title to the land in dispute.”

The learned judge therefore dismissed the Plaintiff’s case. In doing so, he regrettably failed to consider what effect Edict No.6 of 1977 would have on the Plaintiff’s allotment.

The Plaintiff was dissatisfied with that judgment and appealed to the Court of Appeal Benin on several grounds. That court after hearing both counsel, held, inter alia that it was wrong for the trial judge to rely on his own observation of what he had seen at the locus in quo to determine the case when no evidence was led in support of that observation.

The lower court also held that the effect of Edict No.6 of 1977 was to validate any irregularity in any allocation made by Ward 17H, and that being so, it held that the allotment made by that Ward was valid and the plaintiff got a good title.

The Defendants were dissatisfied with that judgment and have appealed to this court on 18 grounds of appeal, but it is unnecessary to set out those grounds because at the hearing of the appeal, their counsel formulated three issues which he wanted this court to decide.

In my view, those issues, with which the defendants’ counsel agreed, adequately covered the grounds of appeal filed. The issues formulated areas follows:-

“1. Whether the Court of Appeal was right in disregarding Ex. L which is the Layout Plan admitted as covering the area of jurisdiction of Ward 17H Allocation Committee.

2. Whether the Court of Appeal was right in holding that Ex. F (The Boundary Dispute Determination Edict 1977) was of general application re-validating all allocations in Benin-City made by Ward 17H Allocation Committee before Ex. F was promulgated.
3. Whether the justices of the Court of Appeal were right in granting title to the Respondent when there was evidence on record that 3rd party interests (i.e. Mr. Onuwaje) who were not parties to the action, would be affected.”

In presenting his arguments on the 1st issue, Mr. Sola Rhodes submitted that the lower court was wrong to disregard the Layout Plan Ex. L especially as the trial court had found as a fact that the disputed plot was far from that layout.

Counsel argued that that finding should not have been reversed without clear proof that it was wrong, and he relied on the well known case of Woluchem v. Gudi (1981) 5 S.C. 291 at 326.

The point made by counsel seems to me to be the crux of the whole case. It is true that the trial judge had made that finding of fact, but he did so on his own observation of what he saw at the locus in quo. He said at p. 136 that when he visited the site, he found that Adesuwa College was “the end of the area of jurisdiction of Ward 17H” and that it “is far from the land in dispute.” Now, nobody had given evidence that Adesuwa College was the end of Ward 17H. On the contrary, the evidence given by Amadasun P.W.3 was that “Powerline was the boundary, – that was where we allocated land up to.”

The 2nd Defendant also testified that “Ward 17H stopped at Anglican Girls Grammar School” – See page 84 line 13.

Unfortunately, the trial judge did not make any findings on which of these two versions he accepted, rather he treated his observation of what he saw as if it were evidence before him. This is contrary to the mandatory provisions of section 76 of the Evidence Act.

The relevant provision is as follows:

“76. Oral evidence must, in all cases whatever, be direct –

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;

(b) ……

(c) ……

(d) ….

PROVIDED that-

(i) …..

(ii) if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect………….any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute.

In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject-matter of the said inspection may be, and the proceedings shall continue at the place until the court further adjourns back to its original place of sitting.. or the court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired being given in court afterwards…” (Italics mine).

The import of the words underlined is that the court does not cease to be a court merely because it is sitting in some other place other than its normal habitat. This means that any material statement made in the course of the visit must be recorded and the opposing party given the opportunity of testing that statement, if need be, by cross-examination.

In the case of Chief A. Nwizuk v. Chief Waribo Eneyok & Anor. (1953) 14 W.A.C.A. 354 it was held that the absence of a record of the inspection is not necessarily fatal to the case and that statements by the judge in a solemn judgment should be accepted as a correct account of what occurred. See also, Musa Naji v. Mallam S. Shaft (1956) N.M.L.R. 33.

In the instant case however, the statement made by the trial judge in his “solemn” judgment was not a correct account of what occurred, because no witness had given that evidence.

In effect what the trial judge had done was to treat his view of the locus as “findings” in the case. In this respect, I am of the view that he erred in law and the Court of Appeal was right to uphold the appeal before it on this ground.

Perhaps it is necessary once again to invite attention to the timely warning of the West African Court of Appeal in the case of A. Ejidike and Anor. v. Christopher Obiora (1951) 13 W.A.C.A. 270 at 274.

In that case, Sir John Verity Ag. President of the Court stated:

“in all cases in which a visit is paid by the court to the locus in quo in a civil action (and likewise in a criminal case) the judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based upon his personal observations of which there is no evidence upon the record. When there is conflicting evidence as to physical facts, I have no doubt that he may use his own observations to resolve the conflict, but I do not think it is open to him to substitute the result of his own observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any testimony on oath as to the existence of the facts he has observed. Should he do so he would in my view, be usurping the position of the witnesses…”

The 2nd and 3rd issues appear to be inter-related and I shall deal with them together. It is to be noted that if the plaintiff succeeds on the issue No.2, a consideration of the 3rd issue becomes superfluous and unnecessary.

The Appellant’s Counsel, Mr. Rhodes, has referred us to Exhibit F, [The Boundary Dispute (Determination) Notice 1974] and submitted that the Notice related to the dispute between the Wards mentioned in preamble i.e. 36A/37B, 17H and A1. According to counsel, the Etete Ward was not a party to the dispute (it was not even referred to in the Notice) and could not therefore be bound by the findings of the Commission.

It is necessary to explain that Exhibit F was issued by the Executive Council of the Mid-Western State of Nigeria as a result of the “Report of an Inquiry into the Boundary dispute between Wards 36A137B and Ward 17H and A1 in Benin West Division.” (See the preamble) The Report itself was not published, but the findings and recommendations made were embodied in Exhibit F as Government Notice No. MSLN 72 of 1974.

It is true that Etete Ward was not mentioned in Ex. F, but later, an Edict was promulgated revoking Ex. F, and embodying the contents of Ex. F in the Edict.

The question to consider is whether that Edict is of general application or whether it is restricted to the four disputing Wards (i.e. 36A, 37B, 17H and A1)

The short answer to counsel’s submission is that in so far as the Report of the Enquiry was published as a Legal Notice (Ex.F), the Defendants would probably be right to say that they were not bound by the findings and/or recommendations therein. But Ex. F has been revoked, and replaced with an Edict. In my view, a State Law is of general application – it binds every body in the State, unless it expressly provides to the contrary. No such contrary intention is expressed in the Edict. Indeed, a close examination of the Edict shows that the Law refers to other Wards apart from those mentioned in the preamble. For instance, sections 2(1)(d), (e) and (k) refer to Wards 18H and 33E; this in itself shows that the Edict was not meant to be restrictive. But if there is any doubt as to the intention of the Law, section 2(1)(m)dispels that doubt. It reads:

“In the interest of peace and order, all allotments of plots erroneously made by the Plot Allotment Committees for Wards 18H, 17H and Al before the date of commencement of this Edict and which have received the approval of His Highness, the Oba of Benin, shall be deemed to have been validly made to those concerned.”(Italics mine).

In my view, the effect of the above enactment is to remove any defect in any allotment made by those 3 Wards or in other words, to validate the title of the applicants concerned, if it is defective in any way. In the instant case, Ex. B shows that the plaintiffs allotment was made in 1963 and approved by the Oba on the 19th January 1964; and in those circumstance the plaintiffs title to the land is confirmed; now, if for any reason the application contains any error, that error is removed and the grant is validated.

In this respect, I bear in mind that when the Defendants applied for land, the Oba approved the application and added “if no dispute.” As the Justices of the Court of Appeal observed, the Oba did not give an absolute approval; rather he gave a “conditional approval.” In effect this means that if there ever was a dispute as to the allotment, the approval given would be regarded as withdrawn or as not having been given at all.

The evidence shows that at the time that the Defendants applied, there was a dispute about the allotment made by Ward 17H, which in turn affected the plot in dispute.

This fact would, in the circumstances of the limited grant made to the Defendant result in nullifying the approval already given by the Oba and render the allotment invalid. See Okeanya’s case supra.

Whichever way one looks at it, – whether from the view point of the application, Exhibit B, or from the enabling Edict No. 6 of 1977 the irresistible conclusion is that, in law, the plaintiff obtained a better title to the land than the defendants.

The Justices of the lower court were of this view and I hold that they were right.

In concluding this judgment, I must draw attention to a portion of the decision of the lower court, where in allowing the appeal, that Court (per Omo-Ebo, J.C.A.) had made an order in the following terms:

“I am of the opinion that this appeal deserves to succeed…In exercise of the wide powers conferred on this court by section 16 of the Court of Appeal Act 1976, I hereby set aside, annul and declare null and void the judgment of the High Court, Benin City delivered on 11th February 1983 in Suit No. B/116/77…”

(Italics mine).

The defendant/appellants have submitted in their Brief that it was wrong to make an order declaring the judgment of the High Court a nullity when it was not. I agree with counsel’ observation in this respect. In the circumstances of this appeal, it is enough if the decision of the trial court is set aside simpliciter, and judgment entered for the plaintiff. To this extent, the judgment of the lower court is amended by deleting the words “annul and declared null and void” at page 211 of the Record of Appeal.

In the result, the appeal fails and it is dismissed. The judgment of the Court of Appeal is affirmed and it is ordered that the judgment of trial court together with the order for costs is hereby set aside.

There will be judgment in favour of the plaintiff as ordered by the Court of Appeal. The plaintiff is entitled to costs which are fixed at N500.00.A.

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SC.195/1986