Ogiesoba Otubu & Ors V. B. A. A. Oguobadia (1984)

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IRIKEFE, Ag. C.J.N. 

The sole issue on which this case depended was whether the areas of land put in issue by the parties had been properly conveyed in accordance with Bini customary law. This issue was resolved in favour of the respondent herein by two concurrent findings firstly of the trial court and thereafter by the Court of Appeal.

On the occasion when this matter last came up, we had to strike out grounds 2, 3 and 5 of the grounds of appeal as leave either of the Court of Appeal or of this court had not been obtained to canvass the said grounds. The appellants were thus left with grounds 1, 4 and 6. Both parties herein filed briefs. Grounds 1, 4 and 6 aforesaid cannot in any way impugn the solid findings recorded against the appellants by the two lower courts.

This morning, the appellants were granted leave to argue an additional ground of appeal. This ground questions the validity of the judgment of the High Court on the ground that it was delivered 11 months after counsel had addressed that court. Learned counsel appearing for the appellants says his authority for this assertion is section 258 of the 1979 Constitution of the Federal Republic of Nigeria. His submission is clearly misconceived as the judgment being challenged was delivered on 21/10/76 some three years before the cited constitutional provision came into being!!!

In my view, after a thorough scrutiny of the record and the briefs filed, it would be idle to argue that this appeal had any iota of merit. Accordingly the appeal fails and it is hereby dismissed with N300 costs in favour of the respondent.

ESO, J.S.C.: We have not called on the respondent. This is an appeal from the decision of the Court of Appeal. It has no merit whatsoever. The High Court that heard the case nisi prius made a meticulous finding of facts. After that the Court of Appeal made another meticulous finding. So, there have been two concurrent decisions on the issue of facts against the appellant. This Court except the decision is obviously perverse, does not interfer with concurrent findings of fact of two courts below.

On the law, the claim of the appellant was for the avoidance of the conveyance granting the land in dispute to the respondent. The appellant was never a party to that conveyance. This was transfer of land in respect of which the approval of the Oba of Benin was required. The Oba not only gave his approval on the recommendation of the Allotment Committee, he was in fact on record the grantor.

In Arasi v. Arasi 1981 5 S.C. 33, this Court has held that such approval would perfect a transfer. Yet the Oba had not been joined in the action seeking to vacate the conveyance which bears not only his approval but in regard to which he was principal actor. In other words, he was not to be heard before his action of granting the land was declared void.

The appellant has also complained that the trial court failed to give the judgment within time prescribed by the Constitution. Learned counsel has informed us he relied on the Constitution of the Federal Republic of Nigeria 1979 s.258. But that Constitution came into being in September 1979 whereas the judgment complained of was delivered by Ogbobine J. on 25th August 1976. I cannot conceive how the 1979 Constitution can affect an act done three years earlier. Learned counsel however saw the point during this argument.

On the whole the appeal is without total merit and it is hereby dismissed with N300.00 Costs.

KARIBI-WHYTE, J.S.C.: This appeal is against the judgment of the Court of Appeal, Division at Benin City. On 15/12/80, the Court of Appeal set aside the judgment of the High Court, which dismissed the plaintiff/appellant’s claim, seeking to set aside the conveyances between the defendant and the Oba of Benin, with respect to land in Igue-Iheya Village in Ward 11/K. Plaintiffs have brought the action on their behalf and as representing members of Igue-Iheya Village. The main contention of the plaintiffs is that these parcels of land were not properly acquired because their consent which was essential to its validity was not obtained. The plaintiffs referred to

1. A deed of conveyance dated 11.6.68 and registered as NO.15 at page 15 in Volume 60 of the Lands Registry Office in Benin City and
2. A deed of conveyance dated 19.11.73 and registered as No. 13 at p. 13 in Volume 214 of the Lands Registry in the office at Benin City.

Paragraphs 9, 10, 11, 12, 16 and 23 of the statement of claim contain the main averments relied upon by the plaintiffs. Paragraph 12 averred that

“The plaintiffs state that whereas there is a Plot Allotment Committee appointed to allocate plot in the area over which it has jurisdiction (sic). The Oba of Benin can only grant or refuse grant of any land within the said area on the express recommendation of the Plot Allotment Committee being usually through application papers for a grant of land of building plot duly completed by a prospective applicant for a plot of land intended to be acquired. This fact will be established at the trial of this action.”

Paragraphs 4, 5, 6 of the statement of defence joined issues with paragraphs 9, 10, 11, 12, 16, 22 and 23 of the statement of claim. The defendant went further to aver in paragraphs 7, 8, 9, 10, 11, 12 and 13 the facts relied upon for the validity of the conveyances. In his findings of fact, which were accepted in the Court of Appeal, the learned trial judge found that the conveyances sought to be set aside by the plaintiffs, were made by the Oba of Benin, with the express consent of the plaintiffs (See p. 86 lines 24 to p.87 lines 112). He also found that the conveyances were made in accordance with Bini native law and custom and that the practice of allocation of land with the consent of members of Plot Allotment Committee of the Ward was complied with.

In the Court of Appeal, appellants sought to challenge this finding and failed, the court holding that learned trial judge was correct on the evidence before him to come to such conclusions.

On appeal before this Court, grounds 2, 3, 5 and 6 were struck out. An additional ground of appeal, identical with ground 7 in the Court of Appeal was filed. This ground complained about excessive delay between the completion of hearing and the delivery of judgment suggesting that this delay affected the evaluation of the evidence. In respect of this ground counsel for the appellant referred to S.258(3) of the Constitution 1979, which came into force on 1.10.79. The judgment complained against was delivered on the 21st May, 1976. Obviously this judgment was not affected by the provisions of the Constitution. Besides, it is only where by the complexity of the case, the number of witnesses and the prolixity of their evidence, the evaluation of the evidence may be affected by the lapse of time, is lapse of time considered relevant whether justice has been done to the parties. – See Ekeri & ors. v. Kinisede & ors. (1976) 6 E.C.S.L.R. 399 Kakarah v. Imonikhe (1974) 4 S.C. 151. There is no suggestion that this was the situation in this case.

Ground 1 which has survived complains that dismissal of the claim on the non-joinder of the Oba of Benin was an error in law. Plaintiffs are not in any way disputing that the conveyance was between the Oba of Benin and the defendant. They do not claim that the conveyance confers on them any interest. Thus the transaction is between the Oba of Benin and the defendant. Thus to set aside the transaction, it is important to bring all the parties before the court. It is not merely a procedural issue. The title to land in Benin can only be conveyed by the Oba of Benin by virtue of Bini customary law. There have been concurrent findings of fact on the issue of the consent to the conveyances challenged by the plaintiffs. The learned trial judge after hearing found that plaintiffs gave their consent to the execution of the deeds before the Oba of Benin. The Court of Appeal saw no reason on the evidence to come to a different finding. On the nature of this appeal, it was not necessary to call on Mr. Asemota, counsel for the respondent to reply.

The appeal lacks merit and is dismissed with N300 as costs to the respondents.

KAWU, J.S.C.: There is no substance in the additional ground of appeal as the provisions of S.258(1) of the 1979 Constitution cannot be applied to the judgment of the High Court which was delivered in 1976. I see no substance in this appeal which is hereby dismissed. The concurrent findings of facts of the two lower courts are hereby affirmed. I award N300.00 costs to the respondent.

OPUTA, J.S.C.: I agree with the judgment just read by my learned brother and presiding Acting Chief Justice Irikefe, J.S.C. and his reasons. I am not calling on counsel for the respondent to reply. The case is quite simple and straightfor ward. From the evidence which was believed, especially the evidence of DW. 1, 2, and 3, the conveyances now complained of were made by the Oba of Benin after consultation with the elders of the village i.e. the present appellants. There is no dispute and it is conceded on both sides that the Oba of Benin is the acknowledged and undisputed legal owner of the lands he conveyed. The appellants are on the land with his permission and suffrance. The appellants were not parties to the conveyances and one wonders whether they even have a locus standi to bring this action. Secondly, the conveyances tendered in the trial court are prima facie evidence that respondent is the present owner until the contrary is proved. The appellants have not proved this contrary.

Thirdly, there are, in this case, concurrent findings of fact by the trial court and by the Court of Appeal. In such a case, this court will not unless exceptional circumstances are alleged and proved. None has been alleged here and none has been proved. The appeal lacks merit and ought to be dismissed. It is hereby dismissed.

The judgments of the trial court and the Court of Appeal are hereby both upheld. There will be N300.00 costs against the appellant.

Appeal dismissed.

SC.9/1984