Sunday Obasohan V. Thomas Omorodion & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

The Court of Appeal (Musdapher, JCA, Ejiwunmi, JCA (as he then was) and Edozie, JCA) dismissed the appellant’s appeal from the decision of the High Court of what was then the Bendel State whereby judgment was entered for the respondents in the following terms:

“(1) It is hereby declared that prior to the Land Use Act 1978, the plaintiffs and the defendant having succeeded their respective fathers in accordance with Bini native law and custom were joint owners of all that piece or parcel of Land with the building thereon situate, lying at No. 41 Akpakpava Street, Benin City within the jurisdiction of this Honourable Court.

“(2) It is hereby declared that the plaintiffs and the defendant are each entitled to a grant of statutory right of occupancy for their respective portions of No. 41 Akpakpava Street. That is, the 1st plaintiff is entitled to the fourteen rooms occupied by his father and inherited by him towards the left side of the building, the 2nd plaintiff is entitled to six rooms occupied by his father and inherited by him towards the right side of the said building and the defendant the remaining portion also occupied by his father and inherited by him.

“(3) The defendant is hereby restrained perpetually with his agents, servants or privies from interfering with the portions granted to the plaintiffs by order of this Honourable Court.”

The appellant was the defendant in an action brought against him by the respondents (then plaintiffs) in respect of premises situate at 41 Akpakpava Street, Benin City. The respondents claimed that the property was rightly acquired by their several fathers who were brothers of the full blood sometime in 1919 by grant from one Obazuaye on his marriage to one Madam Obazuaye, a sister of the full blood of their fathers. Their case was that their fathers contributed money and built the premises. On the completion of the building they moved in and settled there. Thomas Omorodion, the first respondent, claimed that his father, one of the three brothers, lived in part of the house until his death in 1957 whereon on his performance of the funeral ceremony in the house in 1959 in accordance with Benin native law and custom he, as his father’s eldest son, inherited the portion occupied by his father and was in possession until the appellant entered that portion and converted it into rooms and shops which he let out to tenants. Sometime in July 1980 the matter was reported to the Oba of Benin who ruled that the house belonged to the three deceased brothers. The appellant did not heed the ruling, whereon the 1st respondent instituted an action, suit No.B/233/80, against him in the High Court. Judgment was entered for the 1st respondent for damages for trespass. The judgment was confirmed by the Court of Appeal in appeal No. CA/B/22/85 on 26th September, 1985.

The 2nd respondent, Peter A. B. Ezelasogie, for his part claimed that his father, of whom he was the eldest surviving son, lived in the house as co-owner from 1921 until his death in 1945. Forty years later, in 1985, he too performed the funeral ceremonies that qualified him to inherit his father’s portion. The appellant’s (Sunday Obasohan’s) case, in a nutshell is that his deceased father solely acquired the premises and built there. He claimed that his father only allowed the respondents’ fathers to live there by virtue of their being his brothers. He denied that respondents were entitled to inherit any portion of the premises.

It is common ground that the respective fathers of the parties were three brothers of the full blood and that those three brothers were all dead. On a dispute having arisen as to the interest of the respondents in the premises the respondent initiated the action which gave rise to this appeal claiming, (1) a declaration that prior to the Land Use Act, 1978 they and the appellant having succeeded their respective fathers in accordance with Benin native law and custom were joint owners of the premises, (2) a declaration that they were each entitled to a grant of statutory right of occupancy to their respective portions of the premises, (3) partitioning of the premises, (4) accounts, (5) damages for trespass, and, (6) injunction. It is evident that from the terms of the judgment of the trial High Court the learned Judge did not grant all these reliefs and that some of the reliefs he granted were in modified terms.

The trial Judge being satisfied that the respondents have established their entitlement to the premises and that the appellant had prevented them from entering their portion of the premises, gave judgment in terms which earlier have been set out in this judgment He entered judgment for the respondents after considering the evidence adduced by the parties including the previous judgment in suit B/233/80.

On the appellant’s appeal to the court below from the decision of the High Court, several issues were raised, the salient of which were: (i) whether the trial Judge had properly found title of the respondents proved without resolving the issue of competing title raised by the appellant’s defence; (ii) whether in terms of the Land Use Act, 1978, the 2nd declaration made by the Judge could properly be made, (iii) whether the Judge made a proper use of the judgment in suit B/233/80 and (iv) whether there was evidence of partitioning in accordance with Bini native law and custom. Musdapher, JCA, who delivered the leading judgment of the court below addressed these issues. I state, briefly, his conclusions on some of them. On the first, he held that:

“The respondents pleaded and led evidence as to how their predecessor in title acquired the larger land including the land in dispute. The learned trial Judge also examined the competing claims of both parties and rightly, too, in my view, accepted that of the respondents. Further more, there is the evidence led by the respondents that the Oba of Benin ruled that the land in dispute was possessed by the three brothers jointly and they all lived in the portions occupied by their late fathers,”

In regard to the second question, he said:

“The pith and substance of their claims were not that the rooms that had been structurally altered, but the land upon which their fathers had erected the rooms in question.

“In any event, what the respondents claimed were merely declaration under the 1st and 2nd arms of their amended claim and clearly it is not the function of the court to order the governor civilian or military to issue the respondents with Statutory Rights of Occupancy. Having made the declarations sought in the clear terms as contained in the writ, the court becomes functus officio.