L.T. Col. Mrs. R.A.F. Finnih V. J.O. Imade (1992)

LawGlobal-Hub Lead Judgment Report

O. BABALAKIN, J.S.C.

In the Benin High Court of the then Bendel State now Edo State, the Plaintiff/Respondent took action against the Defendant/Appellant as follows:-

“(a) A declaration of statutory right of occupancy to the plaintiff’s piece of land verged green in survey plan No. ER. 2175 which is filed with the statement of claim.

(b) The sum of N60,100.00 being special damages made up as follows:

(i) value of uncompleted houses damaged by the defendant and/or agents or servants ….N56,100.00

(ii) value of building materials on the site damaged by the defendant and/or her agents or servants……4,000.00

(c) the sum of N39,000 being general damages including loss of rent at rate of N6,000 per annum each bungalow until judgment.

(d) A perpetual injunction to restrain the defendant her servants or agents from committing any further acts of trespass on the land.”

Statement of claim and defence were filed, amended and exchanged.

The plaintiff/respondent testified and called six witnesses. The defendant/respondent testified on her behalf and called one witness namely the principal Deeds Registrar in the Ministry of Land and Survey, Benin City.

After hearing evidence, the trial court dismissed the plaintiff/respondent’s claim for declaration of statutory right of occupancy to the land in dispute. He however held that the plaintiff/respondent’s claim for damages for trespass in the sum of N60,100.00 succeeded and awarded that sum to the plaintiff/respondent he dismissed the claim for perpetual injunction.

Aggrieved by that part of the judgment awarding damages to the plaintiff/respondent, the defendant/appellant appealed to the Court of Appeal. Also aggrieved by the part of the judgment which dismissed his claim for the declaration of Statutory Right of Occupancy the plaintiff/respondent cross-appealed to the Court of Appeal. At the Court of Appeal, briefs of argument were filed and exchanged and after hearing argument of the parties, the Court of Appeal allowed the plaintiff/respondent’s Cross-appeal and dismissed the defendant/appellant’s appeal.

Dissatisfied with the judgment of Court of Appeal, the defendant/appellant has further appealed to this Court.

In this Court, briefs of argument were filed and exchanged.

In the defendant/appellant’s brief of argument, the following issues are formulated for determination:

“(i) Whether it is correct for the Court of Appeal to interfere with the findings of facts of the trial judge which are amply supported by evidence on the Records

(ii) Whether the Court of Appeal is right in setting aside the judgment of the trial court granting title and possession to the defendant/appellant;

(iii) Whether the award of N60,100.00 damages to the plaintiff/respondent who was found to be a trespasser by the trial can be confirmed;

(iv) Whether the Court of appeal on its own motion can raise and apply the provision of he Boundary Dispute (Determination) Notice No. M.S.L.N. 72 of 1974 (later re-enacted as Edict No.6 of 1977) without calling on Counsel of both parties to address the Court on it

(v) Whether the Court of Appeal can revoke Exhibit ‘L’.”

In the plaintiff/respondent’s brief of argument, the following issues for determination are formulated:

“(i) Whether in the light of the quality of evidence adduced in favour of the Plaintiff/Respondent in this case could it be said that the findings of the learned trial judge which led to the dismissal of Plaintiff’s claims for declaration of Statutory Right of Occupancy, general damages for trespass and injunction were perverse to warrant the interference of the Court of Appeal.

(ii) Which of the parties has better title to the land in dispute”

(ii) What is the effect of alluding to the provisions of the Boundary Dispute (Detem1ination) Edict No.6 of 1977 Bendel State of Nigeria by the Court of Appeal suo motu and without hearing Counsel for the parties before doing so in its judgment in this case

(iv) Does the judgment of the Court of Appeal revokes exhibit “L” –

Certificate of Occupancy”

The submissions in the Appellant’s brief of argument and oral submissions of Counsel for the Defendant/appellant are that the conclusion of the Court of Appeal that tile learned trial judge was wrong in holding that the Plaintiff/Respondent was a trespasser and was never in possession is a clear error in view of the evidence on the Record.

That the evidence on record shows that the Respondent/Appellant’s grant is better and prior in time to that of the Plaintiff/Respondent and the learned trial judge was therefore right to hold that the Plaintiff/Respondent was a trespasser.

That the findings of fact made by the learned trial judge that the Plaintiff/Respondent lied when he said that the land in dispute was the one sold to him by Ojo Osunbor from ward 17H is amply supported by the evidence on record.

That the learned trial judge found that the apparent erasure on the part of the Plaintiff/Respondent must have been prompted by a desire to after the date to read 31/1/61 in exhibit “D” so that he could be regarded to have a prior possession to that of the Respondent/Appellant.

He contended that there was no appeal against the findings of fact on the above stated issues. He relied on the cases of Chief Frank Ebba v. Chief Warri Ogodo & Anor, (1984) 4 SC 84; Etewa Enang & ors. v. F.I. Adu (1981) 11& 12 SC 25 at 39 and Woluchem v. Guid (1981 ) 5 SC at PP 294 – 296,

That the conclusion of the Court of Appeal on good title of the Plaintiff/Respondent founded on Benin Customary grant by the Oba of Benin ignores the facts that the area which the rubber tree occupied was 100ft. by 200ft. and is contrary to exhibit’ B’ and the evidence of the plaintiff himself; that the evidence of the Principal Registrar that the Plaintiff/Respondent applied for Certificate of Occupancy in respect of the property was opposed to the evidence of the Plaintiff/Respondent who said he did not; and that what the Oba approved for the Plaintiff/Respondent was transfer of land in Ward ‘A’.

That there was no justification for the Court of Appeal in basing its judgment on exhibit ‘D’ which has received severe strictures and rejection from the trial judge.

That once the finding of the learned trial judge that the plaintiff/respondent is a trespasser is upheld he is not entitled to the damages awarded in his favour for the structure which he wrongfully and illegally brought upon Defendant/Appellant’s land.

He relied on the cases of Braillie & Ors. v. Offionge & Ors. 5 NLR 29; Francis v. Ibitoye 13 NLR 11; Otugbolu v. Okeluwa (1981) 6 – 7 SC 99 and Atinuke Ekpan & Anor. v. Chief A. Uyo & Anor. (1986) 5 SC 1 at 12 & 13.

That in the judgment of the Court of Appeal, the Court of Appeal suo motu raised a “very relevant” issue, the provisions of the Boundary Dispute (Determination) Notice or Edict No, 6 of 1977 and applied same thereby setting up for the plaintiff/respondent a case he neither pleaded nor raised in the trial court without calling on Counsel for the parties to address it on this point which is wrong in law in that the court failed to apply the Rule of Natural Justice by this act.

That from a close look of exhibit ‘D’ (plaintiff/respondent’s vendor’s approval application), it was not tied by survey plan to any identifiable piece of land nor was it recited or tied to exhibit’ J’ the conveyance tendered by the plaintiff/respondent and that in any event the approval obtained in it was for land in ward A and not ward 17H.

That the Court of Appeal did not give proper consideration to exhibit L the Certificate of Occupancy obtained by the defendant/appellant on the land but acted on exhibit D the plaintiff/respondent’s vendor’s approval from the Oba of Benin.

That it was an error on the part of the Court of Appeal to hold that the Military Administrator who issued exhibit ‘L’ was misled into believing that the Applicant was entitled to it or that litigation as to the ownership of the land was in court because there is no evidence whatsoever to warrant or support these observations. That above all the Court of Appeal cannot set aside the certificate of occupancy when the maker or his representative was not joined in the action.

That there was no claim by the plaintiff/respondent before the Court to revoke exhibit ‘L’ pleaded by the defendant/appellant hence its consideration by the Court of Appeal is ultra vires, null and void and should be set aside.

He urged us to allow the appeal.

In reply, Counsel for the plaintiff/respondent in the brief of argument filed on behalf of the plaintiff/respondent and orally before us submitted that ground 1 of the grounds of, appeal on which the defendant/appellant had argued had been struck out by this court on 14/3/88 as being incompetent but assuming that he was mistaken he made the following submissions on same:

That there is a strict and set procedure to be followed for acquiring land under Benin Customary Law as laid down in many decisions of the Supreme Court and the Court of Appeal and while the plaintiff/respondent with his witnesses led evidence to show that he observed and/or complied with these set procedure the defendant/appellant with her witness did not and the learned trial judge was wrong when he made the findings that:

“in the present suit the parties herein followed …….usual procedure ……

That the defendant/appellant or her predecessor – in-title did not give evidence of how she or her predecessor – in-title followed the procedure.

That under Benin Customary Law a grant of land by the Oba of Benin becomes effective from the date the Oba appends his signature of having approved the application for land see Aigbe vs. Edokpolor (1977) 2 S.C. 1 at P. 8.

That in this case the plaintiff/respondent’s predecessor in title one Osunbor’s application for land was approved by the Oba of Benin on 10/1/61 on exhibit ‘D’ and the grant made to one Omoregie the predecessor in title of the defendant/appellant was approved on 11/5/62 which is mentioned inside exhibit ‘K’. It is therefore obvious that the plaintiff/respondent derived a superior and better-title to the land in dispute than the defendant/respondent.

That in the light of the above, the Court of Appeal was therefore right to set aside the findings of the trial judge to the contrary. That the trial Court’s finding that the plaintiff/respondent was not in possession of the land in dispute and that the defendant/appellant had a better title cannot stand.

That the finding of the learned trial judge that;

“All I can say is that the apparent erasure must have been prompted by a desire to alter the date to read 31/1/61 and that exhibit ‘D’ was represented for the Oba’s signature after the portion had been erased ………..is not supported by evidence, it is an importation of the learned trial Judge.

That the Court of Appeal was therefore justified in setting aside the findings of the learned trial Judge and make its own findings.

That in a case of competing titles as in this case once the plaintiff succeeds in tracing his title to a person whose title to ownership has been established then the onus shifts on the defendant to show that her own possession is of such a nature as to oust that of an original owner. He relied on the case of Thomas v. Holder (1946) 12 WACA 78.

That the conclusion arrived at by the Court of Appeal that the plaintiff/rrespondent had established a better title to the land in dispute than the defendant/respondent and was, in possession of same to the exclusion of the defendant/appellant cannot be faulted having regard to the evidence before the Court.

That the identity of the land in dispute was certain and the parties know it.

That since the Court of Appeal now holds that the plaintiff/respondent is in possession of the land in dispute he is entitled to damages for trespass by the defendant/appellant in addition to the damages already awarded in his favour for the destruction of his uncompleted buildings and damage to other building materials on the land in dispute and the question of QUID QUID PLANTATUR SOLO SOLO CEDIT which was neither raised in the pleadings nor in evidence does not arise.

That the Court of Appeal’s reference to the Boundary Dispute (Determination) Edict No. 6 of 1977 was to show that the plaintiff/respondent was not throwing his money away when he bought the one and the same piece of land from one Omoruyi who claimed the land and asserted that he derived his title from the Oba of Benin through Ward A.

That in any event the Court of Appeal had already found that the plaintiff/respondent was in actual possession of the land in dispute and was the owner of same before making reference to the Edict and such reference did not affect that finding of fact and it was a misconception to say that the Court of Appeal made” case which the plaintiff/appellant did not make for him.

That the defendant/appellant’s submission that the Court of Appeal has revoked exhibit’ L’, the certificate of occupancy is misconceived.

The position is that the certificate of Occupancy which was issued on 22/2/79 when the case was pending in Court does not avail the defendant/appellant who Was sued on 14/4/78 for wrong done on I0/3/78 and therefore at the material time to this action the plaintiff/respondent is best entitled to apply and obtain Certificate of Occupancy. He referred to the case of Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria & Anor. (1987) 1 NWLR (Pt. 19) 284 at P. 303.

He urged us to dismiss the appeal.

In this case, at the trial court both the plaintiff/respondent and the defendant/appellant based their respective cases on Benin tenure on land law. The plaintiff/respondent in his further amended statement of claim, pleaded as follows:-

“3. The plaintiff says that he is the absolute owner of the piece of land measuring about 200 feet by 200 feet and lying situate at Oghosa/Yemi-Eweka Street. Ward 17/H, Benin-City.

4. The plaintiff says that the said piece of land was duly transferred to him by Mr. Ojo Osunbor of No. 11, Omoruyi Street, Benin-City on the 17th day of October, 1968 as per the Transfer and Purchase receipt dated 17th October, 1968 which shall be founded upon at the trial of this action.
5. The plaintiff says that before he bought the land, the said Mr. Ojo Osunbor showed and gave him the plaintiff his application for the land which was duly approved by the Oba of Benin in accordance with the Bini Customary Law which shall be relied upon at the trial.
6. The plaintiff says that before he purchased the land he, Messrs. D.I. Amadasun and David Iyamu who were members of the Ward Committee were taken to it by Mr. Ojo Osunbor where they were shown the Ward’s Beacons on the land. There, they found that the Beacons on the land agreed with those on his approved application in respect of the land.

7, the plaintiff says that in order to make assurance doubly sure that the land in question was that of Mr. Ojo Osunbor and that it was free from dispute he contacted some members of the plot Allotment Committee of Ward 17/H including the Secretary and the Chairman, Messrs. Igbinovia and Obayi respectively who assured him that it was Mr. Osunbor’s land.”

The defendant/appellant also pleaded as follows:-

“4. The defendant vehemently denies paragraphs 3-8 of the Statement of Claim in so far as the piece of land referred to therein is the defendants parcel of land now in dispute. The defendant will put the plaintiff to the strictest proof of the allegations contained in these paragraphs.” xxxxxxx xxxxx

10. On her part the defendant avers that a grant of a parcel of land with dimensions of about 200 feet by 200 feet demarcated by Ward beacons 160/H and 161/H. being the parcel of land now in dispute, was made through Ward 17/H plot allotment Committee, to one Agbonavbare ‘Omoregie in 1962 by His Highness, Akenzua II, the Oba of Benin, in his capacity as trustee and therefore legal owner of all communal lands in Benin, of which the land in dispute formed part. The defendant shall be relying on the application dated 10/5/1961 of the said Agbonavbare Omoregie.
11. The defendant shall lead evidence of the customary mode of acquisition of land in Benin.
12. The defendant avers further that in 1969 the said Agbonavbare Omoregie sold the said parcel of land now in dispute to her. The written Receipt/Agreement later drawn up in evidence of the said sale shall be relied upon at the hearing of this action. This transaction was witnessed by the then Secretary of Ward 17/H, the late Mr. O. Omokaro who confirmed that the land belonged to said Agbonavbare Omoregie.”

The trial court was aware of this and stated at Pages 147 – 148 of the printed record of proceedings thus:-

“First. I will set out the procedure for obtaining land in Benin for building purposes which the courts in this state and particularly this High Court takes Judicial notice of. In this connection I rely on the case of Vincent Esamegho vs. Aibangbee Ikhinwin suit B/18/66 decided by Irikefe J. (as he then was) on 17th may, 1968. In that case his Lordship said, inter alia;

“All land in Benin Division is vested in the Oba of Benin as trustee for the beneficiaries, the Benin people. A Bini desiring land on which plot Allotment Committee in which the land, is situated. The Committee carries out an inspection of the site in order to ascertain its location and in order also to be able to recommend to the Oba whether the plot desired should be granted to the applicant, it being free of dispute.

Upon receipt of such recommendation, the Oba approves the grant of the land shown in the application to the applicant who thus becomes beneficial owner thereof in accordance with Bini custom. The Oba signifies his approval by writing “Approved” in the body of the application, followed by his signature and the date.”………The above facts are so notorious and so regularly canvassed by parties in every contest over Benin land that any Court in Benin Division is bound to take Judicial notice of them.”

There are a few decisions of this and other courts of record which confirmed the effectiveness of certain Benin customs in relation to land. Some of them are:

1. K.S. Okeaya v. e. Aguebor (1970) 1 All N.L.R. 1/8-9.
2. Atiti Gold vs. B. Oseseren (1970) 1 All NLR 132.
3. D.M. Aigbe vs. Bishop J. Edokpolor (1977) 2 S.C. 1/7-8.
4. I. Arase vs. P. Arase (1981) 5 S.C. 33
5. V. Bello vs. M. Eweka (1981) 1 S.C. 101
6. Ogbeide Aikhionbare – Ohen-Eriaria of Evboriaria & Ors. vs. Uyiekpen (Omoregie Enogie of Evbuoba-Ohen Village & Ors. (1976) 12 S.C. 11/28.
7. O. Uhumanghe vs. F. Okogie (1982) 9 S./C. 101
8. S. Agbonifo vs. I. Aiwereoba & Anor. (1988) 1 N.W.L.R. (Pt. 70) 325.
9. Omoregie vs. Idugiemwanye (1985) 2 N.W.L.R. (Pt.5) P. 41.
10. Mbachu vs. N. Oshodi & Anor. (1977) 3 F.C.A. 110.

In particular, the decisions that:-

“(a) If a party claiming title to Benin land can show that his predecessor in title claimed such title through the Oba of Benin of otherwise traces his title through the Oba of Benin he has established his title. See case of Omoregie vs. Idugiemwanye (1985) 2 NWLR (Pt. 5) P. 41.

(b) That under Benin Customary Law a grant of land by the Oba of Benin becomes effective from the date he appends his signature of having approved the application for land. See the case of Aigbe v. Edokpolor (1977) 2 S.C. 1 at P.8.

The learned trial Judge was aware of the purport of all these decisions hence he stated at page 148 lines 2 – 3 of the printed record of proceedings that:

“In the present suit the parties herein followed the above usual procedure.”

In the light of the above, I will now examine the evidence adduced by the parties in this case to see which of the parties proved his or her title to the land in dispute granted under Benin Custom. The competing claims as between plaintiff/respondent and the defendant/appellant in respect of the land in dispute fall to be decided as between a grant made to Ojo Osunbor as per his application for grant dated 10/1/61 and approved by the Oba of Benin on 31/1/61 as per Exhibit “D” and the grant made to A. Omoregie as per his application for grant dated 10/5/61 and approved by the Oba of Benin on 11/5/62 as indicated inside Exhibit “K” they being the predecessors-in-title of the two parties to this suit respectively.

As shown in exhibit “D” the grant to Ojo Osunbor from whom plaintiff/respondent derived his title is earlier in time to that of A. Omoregie from whom the defendant/appellant derived her title.

On the decided authorities referred to above under Benin Customary Law, the earlier grant is superior to and better title than a later grant where both relate to one and same piece or parcel of land.

The plaintiff/respondent gave evidence and called six witnesses including his predecessor-in-title one Osunbor who gave evidence of how he acquired the land in dispute as situated in Ward 17H as well as on the issuance of exhibit D.

The Court of Appeal found that the identity of the land in dispute was established with complete certainty.

The plaintiff/respondent also called one D. lmadasun and E. Igbinovia plot allocation pointer and former secretary of Ward 17H respectively as witnesses. He also tendered receipt for N2.400.00k he paid to one Omoruyi who claimed to own the land in dispute as the one earlier allocated to him by ward A and as covered by Oba of Benin’s approval marked exhibit “H’ and made in his favour.

The defendant/appellant gave evidence but did not call Omoregie (her predecessor-in title) as witness. She called one Iyobhebhe from the Ministry of Lands who tendered the deed of conveyance Exhibit ‘K’ which she got from Omoregiehe her predecessor-in-title. In effect no witness gave evidence for her about custom of grant of the land under Benin Custom which she pleaded and undertook to lead evidence about.

If the learned trial Judge had carefully analyzed the above evidence and related it to grant of land under Benin Land tenure he should nave arrived at the same conclusion which the Court of Appeal arrived at after a careful examination of totality of evidence led namely, that the plaintiff/respondent had a bettor title to the land in dispute than the defendant/appellant and was in possession of same. It is true that the Court of Appeal will be reluctant to upset the findings of fact of a trial court but where as in this case the learned trial court draws wrong conclusions from the totality of the evidence before it, the Court of Appeal will and in fact has a duty to reverse the wrong conclusions and make findings that the facts before it demand.

A careful examination of the facts of this case before the trial court shows that the decision arrived at by the learned trial Judge is at variance with the evidence before him.

I wish to emphasize that where the trial court has drawn the wrong inference from primary facts the appellate court can reject the inference and make what it considers to be the right inference supported by evidence. See the case of Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 290.

This is what the Court of Appeal has done in this case and I hold that the Court is in order in doing so in the circumstances this case.

The next question for determination posed by the defendant/appellant is whether the award of N60,100.00k damages to the plaintiff/respondent who was found to be a trespasser by the trial Court can be confirmed. My answer to this question is certainly Yes. The trial Court which held that the plaintiff/respondent was trespasser on the defendant/appellant’s land awarded this amount of N60,100.00k in favour of the plaintiff/respondent as damages as value of plaintiff/respondent’s houses and building, materials destroyed on the land in dispute.

On a calm review of the evidence led by both parties, the Court of Appeal rightly reverted the erroneous finding of the trial court and held that in fact it was the defendant/appellant who was and still is a trespasser.

Now in view of this finding, if the plaintiff/respondent was entitled to these damages when he was alleged to be a trespasser afortiori he is very much entitled to it when it is now found that he is no longer a trespasser but the person in possession of the land in dispute on which the destruction of the building and building materials belonging to him was done.

The Court of Appeal in its Judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No. M.S.L.N. 72 of 1974 later reenacted as Edict No.6 of 1977 section 2.(1) of which provides as follows:-

“(m) In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committees for Wards 18H, 17H and A1 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.”

This is inter-alia to show that the plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00k from one Omoniyi who claimed the land and asserted that he derived his title from the Oba of Benin through claimed the land and asserted that he derived his title from the Oba of Benin through ward ‘A’ because at one time the plot Allotment Committee Ward ‘A’ asserted their right over the area where the land in dispute is situated. The other purpose of the Edict was to c!ear one and for all the confusion that has arisen about grants relating to ward A and ward 17H.

The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.

By this reference it cannot be construed to mean that the Court or Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by counsel for the defendant/appellant. It must be understood that the Court of Appeal is entitled to take judicial notice of this Edict by virtue of Section 73 of the Evidence Act, and there was no need for Court of Appeal to call on both Counsel to address it before doing so. The answer to issue No. 4 formulated by the defendant/appellant is YES.

“Section 73(1) (a) of Evidence Act provides:

73(1) The Court shall take Judicial notice of the following facts:- ,

(a) All laws of enactments and any subsidiary legislation made there- under having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria”

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The last issue for determination formulated in this appeal by the defendant/appellant is:

“(V) Whether the Court of Appeal can revoke exhibit “L”

Exhibit “L” is the Certificate of Occupancy held by the defendant/appellant in respect of the land in dispute.

This issue is loosely put. Of course the Court of Appeal can revoke any Certificate of Occupancy including exhibit “L” if a case is properly made for its revocation. In the con of this case however can it he said that the court of Appeal revoked exhibit “L””

To answer this question I here-under reproduce the comments of the Court of Appeal on Exhibit “L “. It is at page 276 (line 24 to page 277 line 33) of the printed record of proceedings:-

“I have considered this submission and the reply thereto by counsel to the defendant and upon reading the provisions of section 90(3) and (4) of the Evidence Act. I am of the opinion that a Document like a Certificate of Occupancy is not the type of document sought to be rendered inadmissible under the provisions of that law. Strictly, the defendant is not the maker or author of the said document. It was in fact made by the then Military Governor of Bendel State (Brigadier Abubakar Waziri) in favour of the defendant who had applied for it. The Governor believed she was entitled to it hence its issuance by him to her in respect of the land in dispute. I dare say that if the governor knew that she (the defendant) was not entitled to it or that litigation as to ownership of the land was pending in court, he (the Military Governor) would not have issued it (Exhibit “L”). The position now is that the Certificate of Occupancy is and remains valid and effective and is admissible in law as documentary evidence until legal steps are taken to have it revoked and it, is formally revoked by an order of a court of competent jurisdiction on the ground that the Military Governor of was initially misled into granting it. What I have just said is by the way for as far as this case is concerned, the Certificate of Occupancy – Exhibit “L” issued on 22/2/79 does not avail the defend am who was sued on 14/4/78 by the plaintiff for destroying his buildings and building materials on 10/3/78. It is not the law that a Certificate of Occupancy has retrospective effect: at best it operates; if properly and validly issued, from the date of issue to a person-who is entitled to it.

In my opinion Exhibit “L” is, strictly in law, irrelevant as far as this suit is concerned.”

From the above comments all the Court of Appeal did was to express an opinion that Exhibit “L” is irrelevant as far as this suit is concerned. I hold that this opinion is in order.

It is observed that on 14/3/88 this Court struck out grounds 1 and 7 of the grounds of appeal in this case but yet in its brief of argument filed on behalf of the defendant/appellant dHled6/11/87 and filed in this court on 29/9/88 counsel for the defendant/appellant proferred argument on the said grounds I and 7 (sec P. 2 and P.7 of the brief).

Counsel for the plaintiff/respondent objected to argument on ground 1 at p.3 of the plaintiff/respondent’s brief. This objection is well taken.

I have however commented on the totality of this case because most of the grounds of appeal are interwoven.

Another reason for doing so is my desire to put all matters in this case beyond peradventure.

Counsel must however comply strictly with orders of Court made during the hearing of cases.

It must also be noted that once issues for determination are formulated all arguments in the brief of argument in that case must be with reference to those issues for determination and not with reference to the grounds of appeal as was done in the defendant/appellant’s brief in this case.

Finally, this appeal lack merit and is dismissed. I award N1,000.00 k costs in favour of the plaintiff/respondent.A. G. KARIBI-WHYTE, J.S.C: I have read the judgment of my learned brother Babalakin J.S.C.,in this appeal, I agree with the reasoning therein and the conclusion that this appeal should be dismissed. I also will dismiss the appeal. I however, wish to make some contribution in amplification of that aspect of the reasoning which deals with the criticism that the court below applied the provisions of the Boundary Dispute (Determination) Notice No. MSLN.72 of 1974 later re-enacted as Edict No.6 of 1977, without giving the parties the opportunity of addressing it on its provisions.

The fourth issue for determination in this appeal is

“whether the Court of Appeal on its own motion can raise and apply the provision of the Boundary Dispute (Determination) Notice No. MSLN.72 of 1974 (later re-enacted as Edict No. 6 of 1977) without calling on Counsel of both parties to address the court on it

Appellant’s counsel is not disputing that the court below in resolving the dispute disclosed by the findings of facts on the pleadings of the parties, relied on an applicable law. The complaint was that the law applied was not cited to it by the parties, and that it did not afford the parties an opportunity of addressing the Court on the law relied upon. It was raised by the Court suo motu. It was not an issue pleaded by the parties.

A resort to the pleadings is necessary for a clear understanding of the issue and why the court below resorted to applying the law complained of. I start with the statement of claim of the Plaintiff.

“3. The plaintiff says that he is the absolute owner of the piece of land measuring about 200 feet by 200 feet and lying situate at Oghosa/Yemi-Eweka Street, Ward 17/H., Benin City.

4. The plaintiff says that the said piece of land was duly transferred to him by Mr. Ojo Osunbor of No.11 Omoruyi Street, Benin City on the 17th day of October, 1968, as per the Transfer and Purchase receipt dated 17th October, 1968, which shall be founded upon at the trial of this action.
5. The plaintiff says that before he bought the land, the said Mr. Ojo Osunbor showed and gave him the plaintiff his application for the land which was duly approved by the Oba of Benin in accordance with Bini Customary law which shall be relied upon at the trial.

6 The plaintiff says that before he purchased the land he, Messrs. D.I. Amadasun and David Iyamu who were members of the Ward Committee were taken to it by Mr. Ojo Osunbor where they were shown the Ward’s Beacons on the land. There, they found that the Beacons on the land agreed with those on his approved application in respect of the land.

7. The plaintiff says that in order to make assurance doubly sure that the land in question was that of Mr. Ojo Osunbor and that it was free from dispute he contacted some members of the plot Allotment Committee of Ward 17/H, including the secretary and chairman, Messrs. Ighinovia and Obayi respectively who assured him that it was Mr. Osunbor’s land.”

On the part of the Defendant, it was pleaded as follows –

“4. The defendant vehemently denies paragraphs 3 – 8 of the statement of claim in so far as the piece of land referred to therein is the defendants parcel of land in dispute. The defendant will put the plaintiff to the strictest proof of the allegations contained in these paragraphs”

10. On her part the defendant avers that a grant of parcel of land with dimensions of about 200 feet by 200 feel demarcated by Ward beacons 160 ft. and 161/H, being the parcel of land now in dispute, was made through Ward 17/H plot Allotment Committee, to one Agbonavbare Omeregie in 1962 by His Highness, Akenzua II, the Oba of Benin, in his capacity as trustee and therefore legal owner of all communal lands in Benin, of which the land in dispute formed part. The defendants shall be relying on the application dated 10/5/1961 of the said Agbonavbare Omoregie.
11. The defendant shall lead evidence of the customary made of acquisition of land in Benin.
12. The defendant avers further that in 1969 the said Agbonavbare Omoregie sold the said parcel of land now in dispute to her. The written Receipt/Agreement later drawn up in evidence of the said sale shall be relied upon at the hearing of this action. This transaction was witnessed by the then Secretary of Ward 17/H, the late Mr. O. Omokaro who confirmed that the land belonged to the said Agbonavbare Omoregie.

It is important to appreciate that both plaintiff and Defendant are claiming the same parcel of land measuring about 200 feet by 200 feet. The competing claims of the parties is between the grant made to Osunbor in 1961 and that made to Omoregie in 1962, being the predecessors-in-title of the two parties. As proof of their respective titles, parties relied on the following four documents –

1. Exhibit “D: of Osunbor, the application dated 10/1/61 made to Ward 17/H for a grant duly recommended to the Oba of Benin about 17/1/61 and in respect of which approval was given on 31/1/61. Osunbor transferred his grant to the plaintiff on or about 17/10/68 – Exhibit “A”.
2. Exhibit “K” conveyance executed by A. ‘Omoregie on 14/8/72, in favour of Defendant transferring the land in dispute to her; Omoregie’s application was dated 10/5/61 to Ward 17H for a grant of land which was recommended to the Oba of Benin on 6/3/62 who gave his approval on 11/5/62. Omoregie purported to transfer this grant to the Defendant per conveyance Exhibit K.

3.Exhibit “H”, an application dated 5/6/63 by Omoruyi to Ward A for a grant; signed on 7/6/63 and sent by the Secretary to Oba of Benin who signified his Approval and signed the Application on 14/8/63 Omoruyi transferred the grant for N2,400 on 4/4/75 to the plaintiff who discovered that the land Omoruyi transferred to him lay strictly within Ward 17/H area and not Ward A area.

4. Exhibit J, conveyance executed by the Oba of Benin himself on 23/3/78 granting the land in dispute to the plaintiff who stamped and registered same in the Ministry of Lands Benin City. – The recitals include reference to Exhibit H (Application and approval of Omoruyi) and exhibit G (transfer of the land by Omoruyi to Plaintiff for N2,400).

The substance of the contention of learned Counsel to the Appellant is that the piece of land claimed by the Plaintiff was in Ward A – which is different from the land in issue which was in Ward 17H. In support of this contention he relied on Exhibit J, the land sold to Plaintiff by Omoruyi which was registered in respect of land in Ward “A”. Learned Counsel also relied on the finding of the learned trial Judge that Plaintiff lied when he said that the land in dispute was the one sold to him by Ojo Osunbor from Ward 17H. He also relied on the finding that the approval Plaintiff obtained from the Oba of Benin in Exhibit J. was in respect of land in Ward “A” instead of 17H. In the opinion of the learned trial Judge, what the Oba approved for the Plaintiff was transfer of land in Ward “A”. According to the findings of the trial Judge, Ward A is distinct and separate from Ward 17H.

Learned Counsel to the Appellant’s main criticism of the judgment of the court below on this ground is that by applying a law not cited to the court by the parties, the court below has raised an issue which the parties did not raise themselves either at the trial or during the hearing of the appeal. It was submitted that application of the Boundary Dispute (Determination) Notice or Edict No.6 of 1977 by the Court below was neither pleaded, nor raised in the brief of argument of Counsel, and not even in oral argument. It was contended that the Court below has violated the audi alteram partem rule in not giving counsel opportunity to advance arguments on it.

I have set out above the pleadings relied upon by the Court of trial in making its findings of facts. It is well settled that every pleading must state facts and not law. A party is not expected to plead conclusions of law or mixed fact and law. However, conclusions of law can be drawn from material facts pleaded. It is also unnecessary to set out in a pleading content of a public statute. The court below did not raise the issue whether the approval of Allotment in respect of Wards 17H and A1 have been validly made to those concerned. The court was only trying to correct the error of the trial Judge that the parties were not referring to the same piece of land. The court below was trying to show that the statutory provision had corrected the various descriptions at different times of the same area by the relevant administrations.

Parties having joined issues as to the ownership of the land in dispute and having pleaded the facts they relied upon which involved the validity of the allotments in Wards, A1 the question of the law applicable may be cited to the court by learned Counsel, or may come from the industry or research of the Judge.

It is accepted that in our adversary system of the administration of Justice, where the Judge is at all times expected to play the role of an unbiased umpire, he cannot raise any issues of facts suo motu, and proceed to decide the matter on such issues without hearing the parties – See Kuti v. Balogun (1978) I LRN. 353, Atanda & anor. v. Lakanrni (1974) 1 All NLR, (Pt.l) 168, Odiase & dnor v. Agho & ors (1972) 1 All NLR. (Pt.1) 170. The judgment must be confined to the issues of facts raised by the parties, – See Ochonrna v. Unosi (1965) NMLR.321 I am not aware of the extension of this principle to the application of the law relevant to the determination of the issue before the Court. In my opinion as long as the issues on which the judgment is based are findings of facts arising from the pleadings and evidence before the Court, the fact that the court has in the determination of the issues applied principles of law not cited by learned counsel, will not affect the decision. This has always been the accepted law.

The principle of audi alteram partern applies when a party is denied hearing in presenting his case. It does not apply to situations where the parties have been given every opportunity to present their case and have done so. The day should never come when the scope of the jurisdiction of the Judge to decide a matter is to be circumscribed by the legal erudition of learned counsel. It is strange to say that the judge cannot apply principles not referred to by counsel. The day such a principle of law is accepted the true demise of the independence of the Judge in deciding cases before him is assured. The oath of the Judge is to do Justice according to law and to all manner of people, without fear or favour, affection or ill will.

The application of the Boundary Dispute (Determination) Notice of Edict No. 6 of 1977, is one of law, the provisions of which the Court ex necessitate is required to take judicial notice. The law was not being applied to new facts or new situations. These are facts accepted by the parties. It was therefore not necessary to draw attention of Counsel to its application. The fact that learned Counsel did not refer to the law is clearly irrelevant. The law applied was not an issue of fact which should be placed before the court for further consideration. The relevance of the law to the issue before the court is incontestable; and has not been disputed.

The law which is a validating Edict, provides as follows

section 2(1)(m)

“In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committees for Wards 18H, 17H, and A1 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.”

Hence all Allotments to Wards 17H and A1, which are in issue in the instant appeal, which have received the approval of the Oba of Benin, even if erroneously made shall be deemed to have been validly made to those concerned.

Learned Counsel is in error that the court below, suo motu introduced issues not pleaded by the parties, I shall therefore answer the fourth issue for determination in the affirmative.

For the reasons given in this Judgment and the much fuller reasons in the judgment of my learned brother Babalakin, J.S.C., this appeal fails.

I abide by the costs awarded in the Judgment of my learned brother Babalakin, J.S.C.

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SC.160/1987