Madam Meminotu Ibrahim V. Dr. Lasisi Osunde & Ors (2002)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

On 14/7/98 this court heard the motion which was filed on 16/1/98 in which several reliefs were set out. It granted an order consolidating the three appeals that arose from Suit No. B/154/88. The three appeals are: –

(1) Appeal against the interlocutory ruling of the Benin High Court dated 17/6/93 on the admissibility of Exhibit “IDI”;

(2) Appeal against the judgment of the substantive Suit delivered on 3/5/95; and

(3) Appeal against the ruling of 18/4/96 in which the lower court refused to stay the execution of the judgment and instead ordered the appellant to pay a certain sum of money into court.

The main appeal is based on the amended notice dated 5th May, 1999 which was filed pursuant to the motion dated 4th May, 1999 and filed on 6/5/99. The application sought to further amend the notice and grounds of appeal earlier filed on 24/7/98 and it was granted on 15/6/99.

In paragraph 27 of the amended statement of claim the plaintiff claimed against the defendants jointly and severally as follows:-

“(a) A declaration that plaintiff is owner by inheritance of all that parcel of land verged red in Plan No JAA/BD/403/88 of 11th August, 1988 filed along with this statement of claim and that she is the only person entitled to be granted a certificate of occupancy in respect of the said parcel of land.

(b) An order of perpetual injunction restraining the defendants by themselves, servants, and/or privies from doing on the land anything inconsistent with the rights and interest of the plaintiff”.

The defendants denied the claim and each of them counter-claimed against the plaintiff for the following declaratory reliefs set out in paragraph 11 of the 2nd further amended joint statement of counter-claim:

“11(a) In the premises therefore the 3rd defendant claims from the plaintiff that having succeeded to his childless elder brother late Jubrila Braimoh (Ibrahim) Goubadia in accordance with Bini Native Law and Custom is the one entitled to inherit all that parcel of land situate at Mission Road, Benin City within Benin City Judicial Division containing an area of about 1458.646 square metres and verged red in Plan No. OSA/1933/BD88 filed by the defendants in this suit, and he is therefore the person that is entitled to statutory right of occupancy in respect of the said parcel of land. The value of the land is N100.00 (b) An order for the plaintiff to render an account to the 3rd defendant in respect of the monies, rent and profits collected or received or to be collect (sic) by the plaintiff and or her agents from the part of the land verged red in Survey Plan No. OSA/1933/BD 88 filed herewith.

(c) Perpetual injunction restraining the plaintiff and her agents, servants or privies from trespassing or doing anything whatsoever unto the said land which is the portion verged red in Plan No. OSA/1933/BD88 filed herewith until after the determination of this suit.

COUNTER-CLAIM OF 1ST DEFENDANT

The 1st defendant repeats his averments in paragraphs 1 to 31 of the 2nd amended statement of defence.

The 1st defendant counter-claims from the plaintiff as follows:

1. A declaration that he is the person entitled to statutory light of occupancy to all that piece or parcel of land verged blue in Plan No. OSA/1933/BD 88 filed with the statement of defence which bounded by Survey beacons Nos. MG 1290, MG 1291, CP7, PC 7828, CP8 and MG 1293.
2. Damages of 1000.00 against the plaintiff for her trespass unto the 1st defendant’s land.
3. Perpetual injunction against the plaintiff, her servants, agents and or privies from further trespass unto the said land.

COUNTER-CLAIM BY 2ND DEFENDANT

The 2nd defendant repeats his averment in paragraphs 1 – 31 of the 2nd further amended statement of defence.

The 2nd defendant counter-claims from the plaintiff as follows:

1. A Declaration that he is the person entitled to statutory right of occupancy to all that piece or parcel of land verged yellow in Plan No. OSA/1933/BD 88 filed with the statement of defence which is bounded by Survey beacons Nos. MC 1291, CP 17, CP 4, CP5. CP6 and CP7.

An order of perpetual injunction against the plaintiff, her servants, agents and or privies from entering the said land or doing anything whatsoever over the said land”.

The facts as put forward by the plaintiff are as follows:

One Imam Ibrahim Goubadia was a Bini man and a Moslem.

He died intestate in 1934 survived by 9 children, the last of whom is the 3rd defendant. His estate was shared to his children according to Bini Customary Law. The plaintiff and the defendants derived their root of title from the same source by inheritance through their parents, and Exhibit “C3” represented the instrument by which the estate of Imam Ibrahim was distributed in 1935. Apart from the 3rd defendant who inherited directly, both the plaintiff as well as the 1st and 2nd defendants inherited through their parents. While the plaintiff inherited through her father, A.K. Ibrahim and 1st defendant through his mother Alimotu Ibrahim, the 2nd defendant’s inheritance came through his paternal grandmother, Sarah Ibrahim. The area of dispute between the plaintiff and the 3rd defendant concerns the share which was given to Jubrila, the junior brother of full blood of her father A.K. Jubrila but who was senior to the 3rd defendant but did not share the same mother with 3rd defendant. Jubrila pre-deceased A.K. Ibrahim. The plaintiff claims that as Jubrila was childless at the time of his death, his share was taken by her father and so she inherited her father’s portion of the estate as well as that of Jubrila. The 3rd defendant disagreed and staked his claim on the Bini Custom that forbids a senior brother from inheriting his junior brother but that the estate passed to the person who is next to the deceased and consequently he is the rightful person to inherit the share of Jubrila even though they belonged to different mothers.

The plaintiff said her father died in 1950 when she was still a minor and Executors were appointed to manage the estate of her father which was handed to her in 1969 when she turned 21. From 1969 when the estate was handed to her to 1984 when S.E. Lawai, the last of the Executors and father of 2nd defendant died. Plaintiff had no problem with any of the defendants. It was after the death of S.E. Lawai that the 3rd defendant started laying claims to part of the land. Meanwhile the plaintiff protested when the 2nd defendant buried his father on the land and it was almost at the same time that the 2nd and 3rd defendants started to encroach on the land. It was this state of affairs that led the plaintiff to institute an action against the three defendants claiming the reliefs I reproduced earlier.

The parties testified and called witnesses. Several exhibits were tendered. After the parties had closed their case, learned counsel addressed the court and in a reserved judgment, the plaintiff’s case was dismissed in its entirety and judgment given in favour of the defendants. The court also granted all the declaratory reliefs which the defendants asked for in their counter-claims. In particular the learned trial Judge made a finding that the 3rd defendant is the person who should inherit Jublila according to Bini Customary Law but ordered that this could take place after he had buried Jubrila according to Bini Customary Law. The learned trial Judge further ordered the plaintiff to render an account to the 3rd defendant in respect of the monies, rents and profit collected, received or to be collected by the plaintiff and or her agents from the part of the land verged red in Survey Plan No. OSA/1933/BD 88 filed by the defendants. The court held that the plaintiff failed palpably to establish her root of title and also failed to prove that she inherited the property or properties in dispute in accordance with Bini Customary law of inheritance since she testified that she inherited her deceased father’s property after the performance of the final burial ceremony in accordance with moslem rites which was consistent with her pleading in paragraph 25(b) of the amended statement of claim.

The plaintiff was dissatisfied with the entire judgment and filed a notice of appeal together with 9(nine) grounds of appeal. Later the notice of appeal was amended and the amended notice and grounds dated 24/7/98 were filed on 31/7/98. The notice and grounds were further amended in an application dated 4/5/99 and filed on 6/5/99 but the application was granted on 15/6/99. The further amended notice was filed on 22/6/99 containing 10 grounds of appeal. There is a further appeal against the refusal of the learned trial Judge to stay execution of the judgment. In the application to appeal against the ruling of 17/6/93, there is a prayer to file additional grounds of appeal which was granted. The notices of appeal against the interlocutory ruling of 17/6/93 and the refusal to stay execution of the judgment of 18/4/96 contained one ground of appeal each. So altogether there are 12 grounds of appeal in the consolidated appeal.

The plaintiff will henceforth be referred to in this judgment as the appellant while the defendants will become the respondents. A preliminary objection was raised to some of the grounds of appeal in the respondents’ brief and this prompted the appellant to file a reply brief. Because of the preliminary objection, I shall reproduce the grounds being objected to without their particulars, and they are grounds 2, 4, 6, 7, 8 and 9:-

“2. The learned trial Judge erred in law when he ignored and failed to make use of the evidence of PW5 and other plaintiff’s witnesses in these proceedings.

4. The learned trial Judge erred in law when he held:

“So Exhibit C3 in my view is at best a guide showing what was given out to the beneficiaries but with respect to land not the exact location or dimension thereof …”

6. The learned trial Judge erred in law when he held:

“As I said, Exhibit “B” is devoid of a Survey plan and since many transactions were referred to therein, certified true copies of the documents reflecting the said transactions in my view should have been attached to it (Exhibit ‘B’) to enable interested parties know the areas or dimension of the land assigned (if any)…”

7. The learned trial Judge erred in law in giving judgment to the defendants and granting the reliefs in their counter-claim.
8. The learned trial Judge erred in law when he held:

“In my view, the personal religion of a person is immaterial in the consideration of inheritance under the Bini Customary Law of inheritance. The performance of burial ceremony in accordance with a particular religious rites e.g. Moslem or Christian does not entitled (sic) any person to inheritance under the Bini Customary Law of inheritance…”

9. The learned trial Judge erred in law when he held at page 109 lines 22 – 30 of the record of proceedings as follows:-

“Now since the root of title is traceable from Exhibit ‘A’ which has been expunged supra and Exhibit ‘B’ does not state or show the area of land to which the plaintiff’s claim relates, it becomes difficult to ascertain with certainty the area of land claimed by the plaintiff. In the circumstances, Exhibit ‘G’ cannot be said to be tied to any root of title. It is trite law that a decree of declaration of title to an undefined, unidentified area of land cannot be given…”

The preliminary objection will be considered along with the issues.

The Appellant formulated 12 issues for determination and they are as follows:

1. Was exhibit “A” a registrable instrument under section 16 of the Land Instruments Registration Law, Cap. 81, Laws of Bendel State of Nigeria applicable in Edo State?
2. Was it right for the learned trial Judge to have disregarded the evidence of the plaintiff’s witnesses?
3. Did the learned trial Judge fully understand and appreciate the nature of the case brought by the plaintiff in this case?
4. Was exhibit C3 a complete blind alley which did not point to any positive direction in any material particular as regards the distribution of the estate of late Imam Goubadia?
5. Was the learned trial Judge right in treating exhibit ‘H’ as evidence before him when it was the record of aborted proceedings in the same case?
6. Assuming the learned trial Judge was right when he held that no Survey plan was attached to exhibit ‘B’ did the absence of such Survey plan rob exhibit ‘B’ of its probative value?
7. Did the defendants prove their counter-claims in the circumstances of the case and were the counter-claims not stale claims?
8. Was the manner of burial by plaintiff of his (sic) late father an issue in this case which called for a determination by the lower court?
9. Did the expunging of exhibit ‘A’ and the rejection of exhibit ‘B’ as a document without probative value make the land claimed by the plaintiff in this suit unascertainable having regard to the fact that plaintiff filed a litigation survey plan, exhibit “G”?
10. Was “1D1″ a document that could not be tendered in evidence without a notice to produce its original when the original was in the possession of a person not a party to the proceedings?
11. Did the learned trial Judge have jurisdiction to make the consequential order in his ruling of 18/4/96 refusing an application by the plaintiff for a stay of execution of his judgment dated 23/5/95?”

The respondents on their part urged the court to strike out issues 2,3,4,5,6,7,8 and 9 as being incompetent but adopted issues 1, 10, 11 and 12 in the appellant’s brief.

The preliminary objection on grounds 2, 4, 6, 7,8 and 9 of the appellant’s grounds of appeal is that they are defective as they do not disclose any grievance or complaint against the judgment of the learned trial Judge and that being so, the particulars in the grounds must fail. A defective ground of appeal is treated as if there was never any ground of appeal and so the particulars cannot be hanging on nothing. For this submission, learned counsel relied on Ogbonnaya v. Adapalm (Nig.) Ltd. (1993) 5 NWLR (Pt. 292) 147.

The reply of learned counsel to the appellant on the preliminary objection is that, all the grounds complained about by the respondents are competent in so far as the errors of law and misdirection alleged were quoted verbatim from the judgment of the lower court. He therefore urged this court to dismiss the preliminary objection.

I have already reproduced the grounds of appeal being objected to in this judgment. The objection to me is novel and quite strange.

I am familiar with objection to a ground of appeal being incompetent either because no particulars have been given or that they do not relate to the ground of appeal or the ground alleges error of law and a misdirection on facts. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Anosike Building Commercial Company v. F.C.D.A (1994) 8 NWLR (Pt. 363) 421; Nteogwuija v. Ikuru (1998) 10 NWLR (Pt.569) 267.

The argument which respondent’s counsel offered in Ogbonnaya v. Adapalm (Nig.) Ltd. supra which was accepted by Kutigi, JSC at page 156 was that the particulars of a ground of appeal cannot stand alone or argued as separate grounds of appeal as the particulars are merely supportive of the ground of appeal since the ground which complains of an error in law is the foundation of the ground of appeal. See Ojemen v. Momodu II (1983) 1 SCNLR 188; NTA v. Anigbo (1972) 5 SC 156; Osawaru v. Ezeiruka (1978) 6 – 7 SC 135 and Order 3 rule 2 of the Court of Appeal Rules, 1981 (as amended). The stand which the Supreme Court has taken is that what is important in a ground of appeal, and the test the court should apply, is whether or not the impugned ground shows clearly what the appellant is complaining about. See Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253. I have examined all the grounds on which the preliminary objection is based and I find that they are complaining against the judgment which Akhigbe, J. delivered on 3/5/95. The particulars given in respect of each of the grounds clearly relate to the particular ground in question and they are supportive of the ground. Consequently, I fully agree with the submission by appellant’s counsel that the preliminary objection is baseless and I accordingly dismiss it. I hold that the said grounds of appeal are competent.

Apart from raising objection to grounds 2, 4, 6, 7, 8 and 9 which I have held to be competent, learned counsel for the respondents also attacked issues 2, 3, 4, 5, 6, 7, 8 and 9 as being incompetent and urged this court to strike them out. An issue will be struck out if it does not relate to or covered by the ground or grounds of appeal.

See Aniekan v. Aniekan (1999) 12 NWLR (Pt.631) 491; Salihu v. Chibok (1999) 8 NWLR (Pt.615) 432; UBA PLC v. Ekene Dili Chukwu (Nig.) Ltd. (1999) 12 NWLR (Pt.629) 128 and Balogun v. Panalpina World Transport (Nig.) Ltd. (1999) 1 NWLR (Pt.585) 66.

The issues which learned counsel for respondents want struck out are based on the respective grounds of appeal and although appellant’s counsel formulated issue No.5, based on ground 5 but abandoned the said issue and it is accordingly struck out. Save for issue No.5, I find that the remaining issues 2, 3, 4, 6, 7, 8 and 9 are competent issues since they are based on the relevant grounds of appeal. I now take the issues as argued in the appeal seriatim.

ISSUE NO. 1.

Learned counsel for the appellant argued that Exhibit “A” which was tendered in evidence but later expunged at judgment stage by the learned trial Judge was not a registrable instrument. He referred to section 2 of the Land Instruments Registration Law, Cap. 81 Laws of Bendel State of Nigeria, 1976 applicable in Edo State which defines Instrument and submitted that exhibit “A” does not fall into any of the categories set out in the definition of land instrument relying on Olanrewaju v. Ogunleye (1997) 2 NWLR (Pt.485) 12. His contention is that exhibit “A” is a private document which was admitted in evidence without objection and so the issue of its admissibility cannot be re-opened by the court at whatever stage of the proceedings or on appeal since the adversary is deemed to have waived his right to object to same. Learned counsel for the respondents countered this argument by submitting that exhibit “A” is a document affecting land and since it was not registered as required by section 16 of the Land Instruments Registration Law, it cannot be pleaded nor given in evidence and as it is inadmissible document, it can be expunged from the record even at judgment stage if it was admitted in error. Learned counsel cited the case of Chief Bruno Etim & Ors. v. Chief Okon Udo Ekpe & Anoy. (1983) 3 SC 12 and argued that exhibit “A” comes under one of the exceptions enumerated in Bruno Etim v. Ekpe (supra) when opposition to admissibility of a document can be entertained after admission. He submitted that the learned trial Judge was therefore right in expunging exhibit “A” from the record at judgment stage.

I shall reproduce the contents of exhibit “A” to see if it conforms with the definition contained in section 2 of the Land Instruments Registration Law requiring registration. It is as follows:-

“LATE A.K. IBRAHIM’S PROPERTY AND HOUSE PLAN HANDING OVER.

This is to certify that we the Executors of the Estate of Late A. K. Ibrahim, Chief J. U. Egharevba and Mr. S. E. Lawal, do hereby hand-over the house Plan No. 82/48/60 and the first house Plan No. 76/43/6 of the Plot measuring 180 feet by 200 feet leased by the Mobil (Nigeria) Limited situated along Mission Road, Benin City, to A.K. Ibrahim’s daughter by name Memonotu Ibrahim.

2. The Lease Agreement with the Mobil Oil Company is under review by the Mid-West Government and will be formally handed over by the Executors when action completed.

Dated at Benin City this 15th day of May, 1969”.

Exhibit “A” was signed by the two executors, PW3, a member of the family, the appellant and a witness. Section 2 of the Land Instruments Registration Law defines an “instrument” as “a document affecting land in the State whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour (hereinafter called the grantee) any right or title to or interest in land in the State and includes:-”

I have examined exhibit “A” in the light of Section 2 of the Land Instruments Registration Law and contrary to the finding of the learned trial Judge that it falls within the meaning and intendment of an instrument affecting land under S.16 of the Land Instruments Registration Law, I do not think that exhibit “A” is a document affecting land. What the Executors handed over to the appellant were house Plans No. 82/48/60 and 76/43/6. It is paragraph 2 of exhibit “A” that makes reference to the lease agreement. If it was the lease agreement that was being handed over to the appellant, that will no doubt be a document affecting land that would require registration before it can be pleaded and tendered in evidence and be liable to be expunged if it is admitted in evidence without being registered. The case of Olanrewaju v. Ogunleye supra cited by learned counsel for the appellant supports the argument that since exhibit “A” is a private document which does not fall into any of the categories set out in the definition of land instrument and was admitted without any objection, the issue of admissibility cannot be re-opened. The exceptions which were listed in Chief Bruno Etim v. Chief Okon Udo Ekpe supra at pages 36 – 37 do not apply. In Olanrewaju’s case supra it was a “Farm Cultivation Agreement” that the appellants sought to elevate to the status of a lease which required registration but the trial court held that it was not a lease agreement. This finding was affirmed by the Court of Appeal and the Supreme Court and the appeal was dismissed.

I am therefore of the firm view that exhibit “A” was not an Instrument requiring registration and consequently it was wrongly expunged after it was admitted.

The resolution of exhibit “A” automatically leads me to the consideration of exhibit B which was taken up in Issues 4,6 and 9.

Section 2(d) of the Land Instruments Registration Law goes on to state that an Instrument includes a deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which Section 27 of the Trustee Law extends but does not include a will. The recitals in exhibit “B” state thus:

“WHEREAS:

1. A.K. Ibrahim late of Benin City died on 15th March 1950 of whom the Beneficiary is the only surviving child.
2. The Beneficiary has attained the age of twenty-one years and all necessary agreements have been reached for the Executors to convey to the Beneficiary the said A.K. Ibrahim’s property herein described which they hold in trust for the said Beneficiary”.

Exhibit “B” fits into the meaning of section 2(d) of the Land Instruments Registration Law. The appellant is the Beneficiary while the Executors are Jacob Uwadiae Egharevba and Saliu Edokpayi Lawani. The testimonium shows that what was conveyed to the Beneficiary is “all that parcel of land lying and situate along Yakubu Gowon Road (formerly Mission Road) Benin City where Mobil Oil Nigeria Limited at present have their offices and which have been subject of a lease between the Executors and S.C.O. registered as No. 11 at page 11 in volume 12 of the Land Registry in the office at Ibadan for a period of 50 years with effect from 1st January, 1949 and which lease was on 8th October, 1960 assigned to Mobil Oil Nigeria Limited by S.C.O.A. with the consent of the Executors and registered as No.4 at page 4 in volume 399 in the office at Ibadan all which premises with the abuttals therefore more particularly delineated in the Plan No. GA 22/48 annexed to the documents herein referred to and therein coloured red and bounded by beacons OA806, OA807, OA808 and OA809 to hold the same unto the Beneficiary in fee simple”.

Exhibit “B” has been duly registered as No. 31 at page 31 in volume 132 of the Lands Registry in the office at Benin. Any difficulty engendered by exhibit C3 regarding the share of A. K. Ibrahim which passed to the appellant as his only surviving child has been obviated by the proper description of the parcel of land through the description of the beacons. And notwithstanding that Plan GA. 22/48 was not tendered together with exhibit “B” the learned trial Judge could have made a consequential order requesting the Surveyor-General of Edo State to re-establish the beacons which delineated the parcel of land.

The learned trial Judge was clearly wrong when he found at page 109 of the records that it is difficult to ascertain with certainty the area of land being claimed by the plaintiff because exhibit B does not show the area of land to which the plaintiff’s claim relates.

Learned counsel for the appellant is contending that exhibit C4 deals with the house behind the area leased to Mobil and Exhibit C5 is the area leased to Mobil which is 180ft by 200ft and that is the area conveyed in exhibit “B”. Learned counsel went on to assert that there is evidence before the court that what exhibit “B” conveyed, that is 180ft by 200ft was more than the area fenced by Mobil Oil Nigeria Limited and referred to page 61 lines 8 – 10 of the record. Learned counsel further argued referring to page 44 lines 5 – 10 of the records that the respondents themselves acknowledged both in their pleadings and evidence that part of the land claimed by the appellant is occupied by Mobil Oil Nigeria Plc.

Although PW5 testified at page 61 lines 8 – 10 of the records that the property given to the plaintiff per Exhibit “B” was more than the Mobil Filling Station area. there is evidence that part of the land belonged to Jubrila who pre-deceased the appellant’s father in paragraphs 8, 12 and 13 of the amended statement of claim the plaintiff averred as follows:-

“8. Plaintiff will contend at the trial of this action that the portion of land trespassed upon by the 3rd defendant was originally shared to Jubrila Ibrahim by members of the family when late Imam Ibrahim estate was shared among his children in 1935.

12. After the death of Jubrila Ibrahim, plaintiff’s father, Abdul Karim Ibrahim inherited Jubrila’s share of their father’s estate as Abdul was Jubrila’s brother of full blood. This was in consonance with Bini Customary law.
13. The land shared to Jubrila by the family in 1935 had a common boundary with that of the plaintiff’s father, Abdul Karim Ibrahim”.

The defendants pleaded in paragraphs 3, 16, 17 ,20 and 21 of the second amended statement of defence that:-

“3. The defendants admit paragraph 24 of the statement of claim to the extent only that Mobil Oil Company was trying to survey the area verged yellow belonging to the 1st and 2nd defendants in Survey Plan No. OSA/1933/BD 88 but were chased out by the 1st and 2nd defendants because the parcel of land verged blue and green belonged to the 1st and 2nd defendants respectively. But shall put the plaintiff to the strictest proof thereof in respect of other averments in paragraph 24 of the statement of claim.

16. Evidence shall be led that Jubrila Braimoh Ibrahim Goubadia died on the 1/2/49 without any issue nor a wife. A.K. Goubadia seized the land verged red inspite of protest by the family.
17. When A. K. Ibrahim Goubadia died on 6/1/50 executors were appointed by the family to administer the estate of late A.K. Ibrahim Goubadia and that of his brother Jubrila Ibrahim Goubadia verged purple and red respectively. Evidence shall be led to show that the land shared to both late A. K. Braimoh (Ibrahim) Goubadia and late Jubrila Goubadia is where the Mobil Station is verged brown in Plan No. OSA/1933/BD 88 filed by the defendants.
18. Because Jubrila had no issue nor wife and A. K. Ibrahim son Ganiyu was a minor and was schooling, the family appointed the following persons as executors to administer their properties where Mobil Petrol Station is now situate:
19. Late S. E. Lawal;
20. Late Chief J. U. Egharevba;
21. Malam T. S. Ibrahim; and
22. Mr. J. O. Egharevba (as Secretary).
23. The Executors later then leased the property to Mobil Oil Company.
24. Evidence shall be led that the Executors sometime in 1969 erroneously handed over a document relating to the land belonging to late Jubrila and A. K. Ibrahim to the plaintiff to administer. Ever since plaintiff has been collecting all the rents from Mobil Oil Company Limited without accounting to anybody”.

Inspite of the contradictory evidence which PW5 gave on whether it was A. K. Ibrahim who was entitled to inherit Jubrila who predeceased him or 3rd defendant/respondent since the defendants averred in paragraphs 16 and 21 of the 2nd amended statement of defence that the family was aware as far back as 1949 that plaintiff’s father had seized the land belonging to Jubrila coupled with the conveyance of the share of Jubrila to the present plaintiff/appellant in 1969, the 3rd defendant could not as late as 1988 maintain any counter-claim against the plaintiff/appellant since he did not commence action within the stipulated period for section 6(2) the Limitation Law, Cap. 29, Laws of Bendel State, 1976 applicable to Edo State provides:

‘S.6(2) No action shall be brought by any other person to recover any other land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”.

There is evidence that the 3rd defendant/respondent was born in 1932. Besides the protest which members of the family raised when A. K. Ibrahim purportedly seized the portion of land which was given to Jubrila in 1949, he did nothing in 1969 when the estate was conveyed by the Executors to the plaintiff/appellant. It was 19 years later in 1988 when he tried to assert his right through inheritance. This he cannot do because the claim has become state. See Allen v. Odubeko (1997) 5 NWLR (Pt.506) 638. Since the evidence adduced was that Jubrila’s land was part of the land which was leased to Mobil Oil Nigeria Plc and based on the finding by the learned trial Judge that the 3rd defendant was entitled to inherit Jubrila and consequently made an order for the plaintiff to render account to the 3rd defendant in respect of the monies, rent and profits collected, received or to be collected by the plaintiff and or her agents from the part of the land verged red in Survey Plan No. OSA/1933/BD 88 filed by the defendants this order cannot stand. The counter-claim by the 3rd defendant/respondent ought to have failed and the order sought dismissed. I accordingly allow the appeal of the appellant against the 3rd respondent.

I make bold to say that the holding by the learned trial Judge that since the appellant in her pleadings and evidence stated that she inherited her deceased father’s property after the performance of the final burial ceremony in accordance with moslem law could not entitle her to inherit under the Bini Customary law of inheritance cannot hold true for all cases of inheritance. The several cases of inheritance under Bini Customary law on which the Supreme Court made the pronouncement have been limited to inheritance by the eldest male child. The cases did not lay down a general rule that in all cases the deceased must be buried in accordance with the Bini Customary law before any other child apart from the eldest male child can inherit his or her father’s property. See Idehen v. Idehen (1991) 6 NWLR (Pt.l98) 382; Arase v. Arase (1981) 5 SC 33; Lawal-Osula v. Lawal-Osula (1955) 9 NWLR (Pt.419) 259; Oke v. Oke (1974) 1All NLR (Pt. 1) 443; Agidigbi v. Agidigbi (1996) 6 NWLR (pt.454) 300: Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372: and Ogbahon v. Registered Trustees of Christ’s Chosen Church of God (2002) 1 NWLR (Pt.749) 675. Issues 2, 3, 7, 8 as they relate to the 3rd defendant have been answered in the resolution of issues 4, 6 and 9 in favour of the plaintiff/appellant.

Issues 2, 3, 7 and 10.

Learned counsel for the appellant argued that the 1st defendant did not establish any claim against the plaintiff. He referred to the evidence of the 1st defendant at page 68 lines 13 – 14 of the records where he stated in his evidence in chief that “the plaintiff is in possession of the remaining part of the land without my consent”.

He said that what the 1st defendant stated he inherited from his mother was 66ft by 100ft but the lower court awarded him 66ft by 200ft. He submitted that it was wrong for the learned trial Judge to have allowed the defendants to redraw the boundaries of the lands shared in exhibit 3 sixty-four years after the estate of Imam Goubadia was shared and each beneficiary put in possession.

Learned counsel’s contention is that exhibit “0” filed by the plaintiff does not show 1st defendant’s land as part of the land in dispute and the area of plaintiff’s land claimed by the 1st defendant is outside the 66ft by 100ft which 1st defendant inherited from his mother.

In respect of the 2nd defendant, learned counsel for appellant’s argument is that the 2nd defendant had nothing to say apart from the fact that he inherited the property from his father, one of the two executors who administered the estate of plaintiff’s father before the estate was handed over to the plaintiff in 1969. Although 2nd defendant pleaded certain documents in paragraph 25 of the amended statement of defence, no documents were tendered during the trial; neither did he call any independent witness to buttress his claim. He submitted that the learned trial Judge gave judgment to the defendants in their counter-claims not because they proved such claims but because he had dismissed the plaintiff’s claim.

He therefore submitted relying on Union Bank of Nigeria Plc v. Jeric Nigeria Ltd. (1998) 2 NWLR (Pt.536) 63 that a defendant’s counter-claim does not automatically succeed as a result of failure of the plaintiff’s claim and vice-versa.

Learned counsel for the respondents argued that the 2nd defendant buried his father on the land the appellant was laying claim to and there was no objection whatsoever from the appellant.

He referred to the evidence of PW4 under cross-examination and citing Edokpolor & Co. Ltd. v. Bendel Insurance Ltd. (1997) 2 NWLR (Pt.486) 131 he submitted that when the evidence of plaintiff supports the case of the defendants, the defendant can take advantage of it. He also referred to the evidence of the 1st defendant at page 69 lines 5-10 of the record and the evidence of the 2nd defendant at page 72 lines 23-25 of the record.

Mr. Stephen Ogbeide testified as PW4 and his evidence is to be found on pages 57-58 of the record. He said the plaintiff was his landlady at NO.18B, ldahosa Street Benin City from 1973 to 1985 and that nobody claimed ownership of the house throughout his stay there and that the 2nd defendant’s house also faces ldahosa Street. At the time the 2nd defendant’s father died he was still living at No. 18B, ldahosa Street. Under cross-examination PW4 said he was present when the 2nd defendant’s father was buried in a vacant land opposite No. 18B, ldahosa Street Benin City. According to him there was no fighting on the day of the burial of the 2nd defendant’s father and nobody raised protest about burying the 2nd defendant’s father where he was buried.

I agree with the submission made by learned counsel on behalf of the 2nd respondent namely the PW4’s evidence favoured the 2nd defendant. While house No. 18B, ldahosa Street belongs to the plaintiff, she cannot claim ownership of the area of land where the 2nd defendant’s father’s grave is located. There is evidence of contiguity in respect of house No. 18B, Idahos a Street, the house of the 2nd defendant and the vacant parcel of land where the 2nd defendant’s father was buried. Unlike the 2nd defendant, the 1st defendant who was born on 27th July, 1930, first noticed that his land was being trespassed upon in the late 1950 and all he could do was to complain to the father of 2nd defendant. His counter-claim like that of 3rd defendant ought to fail.

It is therefore safe to conclude that the plaintiff adduced enough evidence showing that house No. 18B, Idahosa Street belonged to her father; so also the area leased to Mobil Oil Nigeria Plc. The claim against the 1st and 3rd defendants therefore succeed. However, the plaintiff did not prove that 2nd defendant trespassed on her land when he buried his father on the vacant plot without protest. The counter-claim of the 2nd defendant against the plaintiff in respect of the portion of land where he buried his father is found proved.

Consequently, judgment shall be entered for the plaintiff in respect of the area of land on Mission Road where the Mobil Oil Nigeria Plc is located as well as house No. 18B, ldahosa Street Benin City.

The appeal against the 1st and 3rd respondents is therefore allowed.

The 1st and 3rd defendants’ counter-claims ought to have failed and are accordingly dismissed. The learned trial Judge was right in giving judgment to the 2nd defendant on his counter-claim. The appeal against the judgment in favour of the 2nd defendant on the counter-claim fails and is accordingly dismissed.

Even if the learned trial Judge had admitted Exhibit “IDI” it will still not alter my findings in this appeal as the document went to show that there was a dispute in relation to some portions of the estate which was shared out to the beneficiaries. The document is a protest by the appellant against the stand taken by Mr. Tijani Jimoh Ibrahim who had written exhibit “F” to say that the land was not measured and all that the appellant was entitled to was the land leased to Mobil Company.

The third appeal against the refusal of the learned trial Judge to stay the execution of its judgment delivered on 3/5/95 also lacks merit. It was entirely at the discretion of the trial Judge to grant the stay.

Learned counsel for the appellant did not show that the learned trial Judge exercised his discretion in refusing to stay execution of the judgment arbitrarily. Consequently, the appeal against the refusal to stay execution of the judgment has no merit and it is accordingly dismissed.

In view of the fact that the appellant succeeded in the appeal against the 1st and 3rd respondents, I hereby award the appellant costs of N4,000.00 against the 1st and 3rd respondents and in view of the fact that the counter-claim of 2nd defendant stands and that appeal is dismissed, I award the 2nd respondent N2,000.00 costs against the appellant.

The appellant is therefore entitled to the grant of a statutory certificate of occupancy in respect of house No. 18B, Idahosa Street Benin City and the parcel of land on Mission Street where Mobil Oil Nigeria Limited have their offices which is delineated in the Plan No. GA 22/48 and bounded by beacons OA806. OA807, OA808 and OA809 registered as No. 31 at page 31 in Vol. 132 of the Lands Registry in the Office at Benin.

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Other Citations: (2002)LCN/1084(CA)