Vincent I. Bello V. Magnus A. Eweka (1981)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

In the High Court of Bendel State, holden at Benin City, the Plaintiff had, in a writ of summons, claimed-

“(a)   A declaration of title of ownership in fee simple of all that piece or parcel of land at Ward A Benin City demarcated by beacons Nos. 220-221, 236-237 and by pillars or blocks No. 2817, 2820 MT MB928 and edged RED on Plan No. M/GA 535/73 dated 20th day of November, 1973 and attached to a Deed of Conveyance dated 25th day of November, 1974, registered as No. 32 at page 32 in volume 262 of the Lands Registry in the office at Benin City

(b)N1,000.00 damages for trespass committed by the defendant upon the said piece or parcel of land.

(c)An order of perpetual injunction to restrain the defendant his servants and or agents from further re- entering the said land and committing further acts of trespass thereon”.

The learned trial Judge, Akpata, J., ordered pleadings, and they were accordingly settled. The case proceeded to trial, and the learned trial Judge, in a considered judgment, gave judgment for the plaintiff. Before making reference to the relevant portions of the judgment, I would like to set out some paragraphs of the pleadings, especially those that were referred to in, and which I consider relevant for consideration of, this appeal before us.

Both parties pleaded that title was originally in a common vendor. The plaintiff averred in his  statement of claim-

“6.    By an agreement dated 20th December, 1972, Sunday Orhue Edokpaye (deceased) agreed to sell and did sell the land in dispute to one Alfred Usiobaifo Eweka (the predecessor-in-title of the plaintiff) for N1,600.00 and thereafter the documents relating to the land passed between them and Alfred Usiobaifo Eweka was put in possession thereof.” (Underlining mine)

This paragraph, the defendant unequivocally admitted in paragraph 4 of the Statement of Defence. Be it noted that the operative words in the above paragraph are those underlined. Paragraphs 11, 12 and 13 of the Statement of Defence are also of importance for the defendant’s acknowledgement of this  common vendor to both parties, was pleaded specifically therein. The defendant averred that-

“11.  ……… he will at the trial rely on the doctrine of priority in so far as the transaction in respect of the said land is concerned either between Alfred Usiobaifo Eweka, the common vendor to plaintiff and defendant or/and in respect of respective Customary Grants from the Oba of Benin Akenzua II, C.M.G. the Traditional Trustee of all Communal land in Benin City in respect of the said land in dispute to the plaintiff and the defendant respectively.”

“12.  ……… apart from the  fact that he obtained prior title, right, interest and possession from the common vendor Alfred Usiobaifo Eweka to the said land in dispute, it is also Bini Custom (sic) that a prior grant from the Oba in respect of the same parcel of land. These customary facts will be established by evidence at trial and relied upon.”
“13.  He will rely “in his defence on the Doctrine of the Priority in respect of the land in dispute both at Law and  by Bini Native Law and Custom.” He “will produce letter or its copy of KSO/108/75 of 17/3/75 and rely on same”.

As the land in dispute is situated in Benin City, the nature of the Benin land tenure was, as such, in evidence, and the facts of the case, as they appertain to that tenure were averred in the plaintiff’s statement of claim as follows:

“4.    The land in dispute was formerly part of Benin Communal land vested in the Oba of Benin as trustee by virtue of Bini customary law, and also with power to allocate any part thereof to any applicant on application through the Ward Allocation Committee.

5.      By an application dated 28th August, 1961 and made by one Sunday Orhue Edokpaye (deceased) through the Ward “A” Allocation Committee to the Oba Akenzua II, the Oba of Benin the said Sunday Orhue Edokpaye (deceased) got the said land allocated (sic) by him by the Oba on the 2nd September, 1961 and took possession thereof.”

There is also paragraph 6, which I have already set out supra , and which states the facts leading to how, under the Benin native law and custom, dealing with land tenure, the title to the land came to be in the plaintiff’s predecessor-in-title.

Then also were paragraphs 7, 8, 9 and 10 of the statement of claim to wit-

“7.By virtue of a purchase receipt dated 17th day of October, 1973, Alfred Usiobaifo Eweka otherwise known as Evbanikaro Usiobaifo Eweka sold the property in dispute to the Plaintiff for N2,000.00 and put him possession thereof and also handed over to the Plaintiff all the documents relating to the land in dispute which were in his possession.

8.The Plaintiff thereupon built a shed on the land in dispute.

9.On the 5th of November, 1973, the Plaintiff applied through the Ward “A” Allocation Committee Benin City to the Oba Akenzua II the Oba of Benin for a grant of the land in dispute to him.

10.    The Plaintiff’s application aforesaid was approved by the Oba Akenzua II in writing on the 1st day of July, 1974 after which the Deed of Conveyance aforesaid was executed by the Oba in favour of Plaintiff.”

which relate how under that tenure, the land came to the title of the plaintiff.

F+or his own part, the Defendant, after admitting paragraph 6 of the plaintiff’s statement of claim as has already been stated, set out in paragraphs 7, 8, 9 and 10 of his statements of defence that –

“7.The Defendant was there and then vested with the land and being in possession with the documents of title in respect of the said land exercised all rights of ownership over same.

8.The Defendant who was at the material time of this transaction being transferred from Benin City to Lagos later instructed Alfred Usiobaifo Eweka to help him take the documents to the Ward “A” Plot Allotment Committee, Benin City and to obtain approval from the Oba of Benin Akenzua II, C.M.G. through Ward “A” Committee in respect of the said same land. The Defendant retained a copy of the document of title.

9.In pursuance of the above (i.e 8) the Defendant obtained a customary approval in respect of the said land on 15/10/73. The said customary approval will be produced and relied upon at the trial.

10.The Defendant later surveyed the said parcel of land on 7/11/73 and thereafter got the land conveyed to him by his Highness Akenzua II, C.M.G., Oba of Benin. The said Deed of Conveyance will be produced and relied upon at the trial.”

These then were the facts relied upon by the defendant in his pleadings as to how he came to be entitled, under the Benin land tenure, to the land in dispute.
The learned trial Judge, after evaluating the evidence, in a considered judgment, held-

“In the instant case, the plaintiff applied to the Oba through the Ward Allocation Committee by an application dated 5th November, 1973. The application was recommended by the Committee on 8th January, 1974 following the inspection of the parcel of land. It was approved by the Oba of Benin on 1st July, 1974. The photocopy of the  approval relating to the land in dispute is Exhibit D. I am satisfied that the Plaintiff misplaced the original of Exhibit D.

It is, therefore, my view that the plaintiff did all that was necessary to obtain a good title. If however, the defendant obtained a prior and equally good title, the plaintiff’s case is bound to fail because the doctrine of “first in time, first in law” would operate in the defendant’s favour.”

He then examined the defendant’s case to see as he put it,

“whether the defendant established a prior and good title to the land in dispute.’

and held-

“It is evident that neither of the receipts Exhibit K and L refers to the Ward in which the land is situated. The size of the land is also not specified and the beacon numbers are palpably missing. I am however satisfied from the description of the land that it situates in Ward “A”. In effect, these receipts could refer to any parcel of land behind Airforce Barrack other than the land in dispute. It must be borne in mind that the defendant’s land is adjacent to the land in dispute. The receipts may also refer to his land as no evidence was led to show when and from whom it was acquired.

The only evidence before me that it was the land in dispute that was sold to the defendant is the ipse dixit of the defendant.”

He further contended that there was no evidence, as there should be, that the Ward Council or Plot Allocation Committee members visited the land after the defendant had purchased from the common vendor. As a result of this, therefore, the learned trial Judge was of the view that the land was, on 14th August, 1973, when that Committee “purported to recommend the land in dispute for approval in favour of the defendant,” still the bona fide property of Usiobaifo Eweka the common vendor and also, so it was, up till the time he, Usiobaifo Eweka, sold the land to the plaintiff on 17th  October, 1973. And this was how the learned trial Judge resolved the issue joined by the parties as regards the question, raised in the pleadings and the evidence, of who had prior title to the land in dispute.

It was against this judgment that the defendant, Magnus Eweka, appealed to the Federal Court of Appeal, hereinafter referred to as the Court of Appeal. In a considered judgment, the learned Justices of the Court of Appeal dealt with the claim of the defendant to prior ownership of the land and held-

“In the instant case, as the original owners of the land were admitted and are common to both parties the onus was upon the plaintiff to trace his title to Usiobaifo Eweka. As it is so, we cannot understand how the learned Judge without satisfying himself that the plaintiff had discharged this onus incumbent upon him immediately turned to examine whether the defendant had proved his title. Nor indeed how the learned Judge could have come to the conclusion that it was for the defendant to call Usiobaifo Eweka, the agreed original owner, when it was the plaintiff who was bound to fail if he was not called.”

As regards the question, raised by the plaintiff, of the  concession by the defendant, in the pleadings, that the common vendor, Usiobaifo Eweka, sold the land in dispute to the plaintiff and as a result of which the plaintiff would no longer need to prove his title to the land, their Lordships of the Court of Appeal considered paragraphs 11, 12 and 13 of the statement of Defence, which I have already set out in this judgment, took the view that the learned trial Judge was in error to have held that the pleading of the defendant or submissions by his counsel were admissions to be used against the defendant entitling the plaintiff to dispense with the need to call Usiobaifo Eweka as a witness to prove that he, Usiobaifo Eweka sold the land in dispute to the plaintiff. After a further consideration of the matter, the learned Justices held-

“If the learned Judge had accorded equal consideration to the defendant’s case as he did to the plaintiff’s he would inevitably have come to the conclusion from Exhibits K, L, M and M1 and the oral testimony of the defendant and his witness that the defendant bought the land in dispute from Usiobaifo Eweka and had from the Oba of Benin an approval of the grant on 15/10/73 before Usiobaifo Eweka purported to sell the land in dispute…………. to the plaintiff.”

The Court of Appeal allowed the appeal and dismissed the plaintiff’s case.

Now, my Lords, the plaintiff, who hereinafter would be referred to as the appellant, being dissatisfied with the judgment of the Court of Appeal has appealed to this court on several grounds of appeal. As the briefs filed by both learned counsel for the appellant and the learned counsel for the respondent have brought out very succinctly the issues involved in the appeal before us, I do not consider it necessary to set out in this judgment, the grounds of appeal. I will, however, deal with the issues, which in fact have been reduced to a narrow compass, in an able presentation, in the briefs filed by both learned counsel and also by the oral submissions made by them in this court.

The  main issue around which every submission revolves is –
ONUS OF PROOF:-  It was the contention of Mr. G. O. K.Ajayi, learned counsel for the appellant, as also, it was in the Court of Appeal, that having regard to the admission by the respondent in his Statement of Defence, that both the appellant (the plaintiff in the High Court) and the respondent (the defendant) had a common vendor, the defendant and thereby conceded that the appellant bought the land from Usiobaifo Eweka and the onus has thereby shifted unto the defendant to prove that he, the defendant, obtained a prior and equally good title to the same land. Learned counsel contended, and this submission was in line with the decision of the learned trial Judge, that though the defendant got the approval of the Oba of Benin before the appellant did, that, by itself alone, would not give the defendant title as against the appellant.
Dr. Mudiaga Odje, learned counsel for the respondent’s submission was that the onus always lies on a plaintiff to establish his title and in pursuance thereof he would have to rely on the strength of his own case. The issue here is one of priority of purchase from a common vendor. Counsel directed our attention to Exhibits K, L, M and M1 which were tendered in the  case, and also to the decisions of this court in Atiti Gold v. Beatrice Osaseren (1970)1 All NLR 125  at page 134 and D.M. Aigbe v Bishop John Edekpolor (1977) 2 S.C.1, p.11. et seq.
I shall refer to these decisions presently. But, meanwhile, to appreciate the judgments of the trial court and the Court of Appeal, it would be necessary to set out the facts as represented by the exhibits referred to above and some other exhibits relevant to this decision.
Exhibits K and L are receipts made out by the vendor, Usiobaifo Eweka, for the purchase price paid by the defendant/ respondent for the land. While exhibit “K” shows that the respondent paid the sum of N1,000.00 on 26th June, 1973 as part payment “for a piece of land behind G.R.A Benin, also behind Airport Barracks.” Exhibit L shows a final payment of N600.00 made on 10th September, 1973 for the same land.
And so, if one were to rule on those two exhibits, it means, prima facie, the respondent had completed payment for the purchase of the land by 10th September, 1973.

Exhibit M is the conveyance of the land by the Oba of Benin to the respondent. Though the conveyance was executed on 20th February, 1975, thereto, however, is attached Exhibit M1, which is the approval of the Oba of Benin to the transaction and which approval had been given as far back as 15th October, 1973. The approval was on the recommendation of the Plot Allotment Committee.

Now, to examine the documents dealing with the title of the appellant.
Exhibit A  shows  that on the 17th October, 1973, two days after the Oba of Benin had already given approval to the transaction of the sale of the property to the respondent, the appellant paid a sum of N2,000.00 as purchase price to Usiobaifo Eweka, that is, the same vendor of the respondent’s land, for ‘plot of land situate at Jamide Avenue in Ward A, Benin City, behind the Airforce Barrack and near the Benin Airport.” The approval of the Oba  of Benin to the transaction was given, as Exhibit D shows, on 1st July, 1974.

The sale to the appellant on 17th October, 1973 is the more astonishing when one realises that the same Usiobaifo Eweka that collected N2,000.00 from the appellant on 17th October, 1973, had five weeks earlier, completed the sale of the land to the respondent. But that would be if it was the same piece of land that was sold to the two parties for this was one of the things strenuously contended by the appellant.

So, subject to what I would say later on the identity of the land in dispute, that is, the land purchased by the appellant and the respondent being the same, it is obvious from the exhibits which I have set down above that if it was the same land Usiobaifo Eweka sold to the two parties, the exhibits indicate clearly priority in favour of the respondent, not only as regards purchase, but also the approval by the Oba of Benin.

It has been established, for a very long time now, that in a case seeking declaration of title to land, the onus lies on the plaintiff to establish the title which he claims, and he would in that process, have to rely on the strength of his own case and not on the weakness of the defendant’s case. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336. In that case, the West African Court of Appeal as per Webber, CJ., (Sierra Leone), in a judgment with which Kingdom, CJ (Nigeria) and Butler-Lloyd, J., concurred, refused to apply the rule of non-suit, which would normally apply where satisfactory evidence has not been given entitling the plaintiff or the defendant to the judgment of the court, to a case of declaration of title. The court said-

“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The Plaintiff must rely on the  strength of his own and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”

I am of the firm view that this statement of the law is as valid today as it was in 1935 when the West African Court of Appeal declared it. See also the observations of this court as per Nnamani, JSC., in Aiyedoun T. Jules v Raimi Ajani 1980 5-7 S.C. 96 see p. 108 where the learned Justice of the Supreme Court reviewed Kodilinye v Odu 2 WACA 336; Akunwata Nwagbogu v Chief M.O Ibeziako (1972)Vol. 2 Part 1 E.C.S.L.R. 335 and Atuanya v Onyejekwe & Anor (1975) 3 S.C. 161.

And so, my Lords, the question to ask is what proof has the appellant, as the plaintiff in the trial court, adduced in this case to warrant declaration of title in his favour There are, as I have already pointed out, Exhibits A & D which show that he bought the land in dispute five weeks after the respondent had concluded the transaction of purchase from the common vendor and two days after, he had in fact got the approval for this transaction from the Oba of Benin.

I agree, however, with Mr. G.O.K. Ajayi that the respondent, by the pleadings, had conceded that the appellant bought the land from Usiobaifo Eweka and, as a result thereof, the appellant would no longer need to call the vendor to prove this. Indeed, I take the view that the Court of Appeal was in error when they held otherwise. A statement, oral or written, made by a party to civil proceedings and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement. See Seismograph Service (Nigeria) Ltd. v. Chief Keke Ogbenekwe Eyuafe (1976) 9-10 S.C. 135 as at p. 146.

But this admission which excuses the appellant from proving his purchase of the land from the common vendor is not the end of the matter. It is my considered view, my Lords, that in a case where pleadings have been settled (as in the instant case,), the trial court, in consideration of such a case would first set out the issues as have been joined by the parties on the pleadings, then consider the evidence adduced by both parties in support of such issues as joined and the consideration of the evidence shall be in line with the decision of this court in A.R. Mogaji & Ors v Madam Rabiatu Odofin & Anor (1978) 4.S.C. 91 at p. 94 where Fatayi-Williams, JSC., (as he then was), in delivering the judgment of the court, and after explaining the decision of the court in Aromire & Ors v Awoyemi (1972) 1 All NLR 101 , said –

“………before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together.”

In short, a trial judge in a civil case before him sets out the issues joined by the parties in the pleadings, assembles the evidence adduced by either side on the issues so joined, weighs that evidence in the imaginary scale and finds out which evidence outweighs the other, by the quality or the probative value of the testimony of the witnesses and the documents.

The issues joined in this case were not limited to acquisition of title by the appellant from the vendor simpliciter. If that had been the case, that issue had been resolved by the confession of the respondent in his Statement of Defence, and learned counsel, Mr. G.O.K. Ajayi would have been right in his submission. The issues joined by those pleadings were to the effect that though the appellant needed not prove any longer that he purchased the land from Usiobaifo Eweka, there is the competing interest by both parties of priority of purchase from the same vendor.

In short, what comes out from the admission by the respondent is that though both parties bought from a common vendor, the respondent claims to be the prior purchaser and this being the case, would prevent the appellant from having the declaration sought.

With respect to Mr. G.O. K. Ajayi who made the point so strenuously, in establishing proof of his title to the land in dispute in this claim for declaration of title, the appellant, as plaintiff, could not be limited to proof simpliciter, that he bought from the vendor (which fact indeed had been admitted by the respondent) and expect that to be a satisfactory discharge of the onus on him in his claim for declaration of title, when the issue is one of competing interest between the two parties. He has to show further, at least, prima facie, before he could be entitled to the declaration sought, that his purchase was also prior to that of the respondent who has specifically joined issue with him on the question of priority of purchase. To my mind, until he does this, the onus on him has not been discharged.

This is the more important as this is a declaratory action, and declaratory judgments are limited by the discretion of the court.

“In my opinion” said Lord Sterndale M.R., “the power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion” See Hanson v Radcliffe Urban Council (1922) 2 Ch. 490 at p.507.

Infact, whether or not the point is taken by the defendant, the court is still not bound to make a declaration once it does not consider it a proper case, in its discretion, to make one. See Markwald v Attorney General (1920) 1 Ch. 348. In the instant case, the respondent took the point in his pleading, adduced documentary evidence as I will show presently. See also Wallersteiner v. Moir (1974) 3 All E.R. 217 as per Buckley, LJ., where the learned Lord Justice said –

“It has always been my experience and I believe it to be a practice of long standing that  the court does not make declarations of right either on admissions or in default of pleading…………but only if the court was satisfied by evidence.”
It is  my view that it would be a wrong exercise of discretion on the part of a court, which is aware of the issues of competing interest joined by the parties, to close its eyes, against those issues and award declaration to a plaintiff who had adduced no evidence in regard thereto. Indeed, to shift the onus unto the defendant at that stage would be awarding declaration not on the strength of the plaintiff’s case but on the weakness of the defendant’s case.

Before coming to a conclusion on this issue of onus of proof, I would like to deal with the question of the identity of the land in dispute. Mr. Ajayi’s contention was that the learned trial Judge was justified in not finding the land alleged bought by the appellant identical with the one purchased by the respondent. I have already set out that portion of the judgment of the learned trial Judge, supra. His view was that the only evidence before him in regard thereto was the ipse dixit of the respondent. The issue of the identity of the land in dispute becomes very strong especially as I have taken the view that the Court of Appeal was in error in their view that the appellant had a duty, notwithstanding the concession of the respondent, to prove his purchase from the common vendor, and the pivot upon which the judgment of the trial court revolves is the identity of the land in dispute.

Firstly, and in this, I agree with the learned Justices of the Court of Appeal, that if the learned trial Judge had properly considered the respondent’s case, he would inevitably have come to the conclusion that not only did the respondent buy the land in dispute from Usiobaifo Eweka, he had in fact got an approval for the transaction from the Oba of Benin before the purported sale by the same vendor to the appellant. Apart from Exhibits K,L,M and M1 which I have set out supra, there was the uncontradicted evidence of the respondent that he bought the land from Usiobaifo Eweka much earlier than the appellant, and his witness that he got approval to the transaction before even the purchase by the appellant. The respondent said in his evidence –

“About 11/5/73 Victor Evbonikoro Usiobaifo Eweka approached me and requested me to purchase a piece of land which was adjacent to mine at Ward A Elema quarters. We both decided to go to Aluyi’s chambers to help us correct the document which he produced. On examining the document Barrister Aluyi now Justice Aluyi, advised myself and E.U. Eweka that we should proceed to the Ward Allotment Committee to arrange for change of ownership because there was no Deed of Conveyance between the late Sunday Orhue and E.U. Eweka. No survey plans in either of their names. Barrister Aluyi recommended that I should purchase the land saying that it was genuine. He handed over all the documents to me.

On 26/6/73 I made a part/payment of N1,000.00 to E.U. Eweka for which he gave me a receipt. I then made another payment on 10/9/73 for N600.00 making a total of  N1,600.00 for the piece of land……………

I then proceeded with E.U Eweka to the Chairman and Secretary of the Plot Allotment Committee. I told them I was applying for a change of ownership in respect of the land I had bought from E.U. Eweka. I was given an application form which was dated 26/6/73 and I applied through the Ward to His Highness the Oba of Benin.”

This, the learned trial Judge dismissed with so much simplicity because it is the ipse dixit of the respondent. With respect, there is no rule of law that is against the admissibility of the ipse dixit of a party to a case. As regards the probative value of the evidence, it was in this case uncontradicted and therefore, goes in absolutely unchallenged. The respondent’s witness confirmed the Oba of Benin’s signature on Exhibit M1 – the approval by the Oba.

Then secondly, there are Exhibit G (letter by the appellant’s solicitor to the respondent) and Exhibit H (reply by the respondent’s solicitor to Exhibit G) which was also pleaded by the respondent. This exchange of correspondence shows that the parties could not be in any doubt whatsoever about the identity of the land in dispute. Exhibit G states clearly the description of the land as later inserted in the claim of the appellant.

In Exhibit H, the respondent’s solicitor stated

“It is our considered view that the parcel of land referred to in your said letter is the bona fide property of our client.” (Underlining mine)

My Lords, in view of all these, I have come to the respectful conclusion that the appellant failed to discharge the onus on him to entitle him to the declaration sought and their Lordships of the Court of Appeal were right in allowing the appeal on that ground.
The other issues raised by the appellant in this appeal though it also revolves round the issue of onus of proof deals with the nature of the estate in the property after the approval of the Oba of Benin. The contention of Mr. G.O.K. Ajayi is that in a case where there is the question of priority in obtaining the Oba’s approval to the transaction, the question is always which of the parties had made a good title to the land and not which of them first obtained the Oba’s approval. He relied on the judgment of this court in Atiti Gold v Beatrice Osaseren (1970) 1 All NLR 125. While conceding that the respondent got the approval of the Oba first, learned counsel contended that, that alone would not give the respondent the title. What makes the appellant’s  title superior, submitted Mr. Ajayi, are the defects in the respondent’s title.

Though I have already dealt in this judgment with these alleged defects which he enumerated as –

(a)the identity of the land the respondent bought,

(b)proof of purchase being limited only to Exhibits K & L,

(c)admission by the respondent in his pleadings that the appellant purchased the land from Usiobaifo Eweka.

the issue as to the nature of the estate conferred on a party, after obtaining the Oba’s approval to a transaction of purchase of land under the Benin land tenure, is so important that I think I should deal with the matter here especially as both learned counsel relied on two different decisions of this court in support of their respective submissions. Dr. Mudiaga Odje submitted that the case Atiti Gold (supra) is in-applicable to the instant case and relied on the case of Mrs. Aigbe v Bishop Edokpolor (1977) 2 S.C.1 for the proposition that compensation to a vendor (which Atiti Gold deals with) does not derogate from the title, vested in a grantee by the Oba of Benin’s approval.

In short, while Mr. Ajayi relied on the Atiti Gold’s  case to support his proposition that even though the respondent obtained the approval of the Oba of Benin to the transaction of sale first, the defect in his title as stated above would make his title inferior to that of the appellant, Dr. Odje’s contention was that on the authority of Aigbe’s case (supra) the appellant’s case was discredited by the respondent’s evidence.
Now, in Atiti Gold v. Beatrice Osaseren (supra), this court approved the requirements of customary law for obtaining valid titles to native lands in Benin as set out by Idigbe, CJ., (Mid-West State as he the  was), from whose court the appeal came to the Supreme Court in that case. The requirements as set out by the learned Chief Justice are as follows –

“A native may occupy land (i.e any land not already in previous occupation of any individual) for farming purposes, and although such an ‘occupier’ is usually loosely referred to as an ‘owner’ he is not under Bini custom the legal owner until he has got the approval of the Oba of Benin to ‘own’ that land: this is because basically all land in Benin is owned by the community for whom the Oba of Benin holds the same in trust and, it is the Oba of Benin who can transfer to any individual the ownership of such land and until so transferred the occupier may continue to hold it for purposes of farming only. When therefore any one wants or wishes to own such land for purposes other than farming, i.e of true ownership, that person must apply to the Oba through the Plot Allotment Committee for ownership of it. It appears from the evidence that the procedure for obtaining complete ownership of such land by a non- occupier is this: the applicant must first negotiate with the occupier( usually farmer) to buy the occupier’s interest (i.e. his crops) in the land and having settled with the occupier, he must then apply to the Plot Allotment Committee who should  satisfy that negotiation for transfer or purchase of the crops thereon has been settled thereafter.” (Underlining mine)

These requirements, as set out by the learned Chief Justice of the Mid-West State, were not disturbed by the decision of this court in Aigbe v Bishop Edokpolor (supra) nor by any other decision. However, and this is important, the effect of non-payment of compensation for crops or other interests before the Oba endorses his approval, following the recommendation of a Plot Allotment Committee, or elders of the village, as the case may be, on the application of a purchaser was explained in the Aigbe case (supra) by Idigbe, JSC., at pp. 7 and 8 ibid as follows –

“We pause to observe that the significance of payment of compensation to owners of economic trees and crops on land in Benin City under settled and accepted principles of Bini Customary Laws and also as agreed by the parties hereto is that under Bini custom it is a pre-condition to the unfettered use (not ownership) of land by a purchaser that he should pay monetary compensation to the owner of such crops and trees; transfer of legal estate in the land (i.e ownership thereof) to the purchaser is made once the Oba endorses his approval following recommendation of a Plot Allotment Committee or Elders of a village on the application of a purchaser.”

The problem in the Atiti Gold case was whether the vendor had interest on the entire land,  in dispute. In the instant case there is not that problem. Usiobaifo Eweka is the common vendor and once the identity of the land is settled, there is no dispute thereafter as to the extent of his interest. When Usiobaifo Eweka completed the transaction of sale to the respondent therefore, on 10th September, 1973 (Exhibits K and L refer), the respondent purchased Usiobaifo’s interest in that land. The respondent did not at that stage have a legal estate to the land . He only had unfettered USE of the land. He had not become under the Bini custom, legal owner. However, when on 15th October 1973, (Exhibit M1 refers), he obtained, through the Plot Allotment Committee, the approval of the Oba of Benin, he became the legal owner of the estate. This was the effect of the decision of this court in Atiti Gold v. Osaseren (supra), and also in Aigbe v. Edokpolor (supra).

As from that date of approval by the Oba of Benin, there was no longer any interest left in Usiobaifo Eweka to sell and his action on 17th October, 1973 whereby  he obtained N2,000.00 from the appellant, was in pursuance of a null transaction. As Idigbe, JSC., (delivering the judgment of this court), said in Aigbe v. Edokpolor (supra) –

“Transfer of legal estate in the land (i.e ownership thereof) to the purchaser is made once the Oba endorses his approval following the recommendation of a Plot Committee…………………………………..” 9p. 8 (ibid)

For all these reasons therefore, it is my view that the appellant has failed in this appeal and the appeal should be dismissed. I therefore order-

1.That the appeal be dismissed and the judgment of the Court of Appeal be affirmed.

2.That the appellant pays the respondent costs assessed at N300.00.

M. BELLO, J.S.C.: I have read earlier the judgment now delivered by my learned brother, Eso, JSC. I entirely concur.

A. O. OBASEKI, J.S.C.: I have been privileged to read long before now the draft of the judgment just delivered by my learned brother, Eso, JSC. I agree entirely with it.

My concurrence in the view that the appellant failed to discharge the onus of proof to entitle him to the declaration of title sought leads me to lay further emphasis on the need, even if out of abundance of caution, to lead evidence effectually to discharge the onus of proof on all issues raised in cases dealing with claims of declaration of title to land. It is true as was contended before us by the appellant’s counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted, but where the court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA 336 at 337. In that case, i.e Kodilinye v. Mbanefo Odu  2 WACA 336 at 337, Webber, CJ., Sierra Leone, delivering the judgment of the court said:

“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title.”

See also Akinola & Ors. v. Oluwo & 2 Ors. (1962) WNLR 135 at 134.

From the arguments and submissions put before us by appellant’s counsel, it appears the appellant was led into a false sense of security by the plea of confession and avoidance raised in the Statement of Defence and use of the term “common vendor” which featured in paragraphs 11 and 12 of the Statement of Defence.

The declaration sought by the appellant can be granted only where justice to the appellant requires it. The justice of the case can only require it if the necessary judicial process has been scrupulously observed and complied with by all parties concerned.

The Rules of Supreme Court of England RSC Order 19 R7(1) under which a plaintiff can move the High Court for judgment in default of pleading was recently examined in the case of Wallersteiner v. Moir (1974) 3 All ER 217 a case already cited by my learned brother Kayode Eso, JSC., and the Court of Appeal was unanimous in their view that the court does not make declarations of right either on admission or in default of defence without hearing evidence. In his own comments, Lord Denning, MR., at page 232 said:

“I turn to the counter-claim………………He had not served any defence to the counter-claim. According to RSC Ord. 19 R7 (1) ‘on the hearing of the  application the court shall give such judgment as the plaintiff appears entitled to on his statement of claim.’ Likewise with ‘a counter-claim’. See RSC Ord. 19 R8. Although the word ‘shall’ is used in that rule, it is clear from the authorities that it is not imperative but directory. The court will not  enter a judgment which it would afterwards set aside  on proper grounds being  shown.  See Graves v. Terry (1882) 9 QBD 170 ; Gibbings v. Strong (1884) 26 Ch D 66 .” (Underlining is mine)

Buckley, LJ., in like manner said at p. 251:

“I  wish to add a few words about the form of the order made by the learned Judge…..There was little or no discussion about its form. Following the prayer in the counter-claim, it contains a large number of declarations including declarations that Dr. Wallersteiner has been guilty of fraud. I am more familiar with the practice in the Chancery Division than in any other division of the High Court but it is probably in the Chancery Division that more use is made of declaratory relief than elsewhere. It has always been my experience, and I believe it to be a practice of long standing that the court does not make declarations of right either on admissions or in default of pleadings. A statement on the subject of respectable antiquity is to be found in Williams v. Powell (1894) WN 141  where Kekewick,  J., whose views on the practice of the Chancery Division have always been regarded with much respect said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence.” (Underlining is mine)

Scarman, L J., who was also on the panel in a similar vein at page 252, commented:

“In effect, Geoffrey Lane, J., in Chambers gave Mr. Moir judgment for all the relief he was seeking, the ground being default of Dr. Wallersteiner in pleading to the  counter-claim. The relief thus obtained included not only money judgment but declarations of fraud, misfeasance and breach of trust ……. In my opinion, the judge went too far. RSC Ord 19 declares the consequence of a default of  pleading ……………………………Generally, speaking, the court should leave until after trial the decision whether or not to grant declaratory relief, and, if so in what terms.” See Williams v. Powell (1894) WN 141

In my  view the grounds of appeal have not been substantiated and I agree with my learned brother that the decision of the Federal Court of Appeal be affirmed.

The appeal fails and is hereby dismissed with costs to the respondent fixed at N300.00 (Three Hundred NAIRA).

A. N. ANIAGOLU, J.S.C.: I entirely agree with the judgment of my learned brother, Kayode Eso, JSC. In this appeal, the draft of which I have had the privilege of reading. In the result, I dismiss the appeal and affirm the judgment of the Federal Court of Appeal with costs to the respondent, against the appellant, assessed at N300.00

A. NNAMANI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, my Lord Eso, JSC. I agree entirely with his reasoning and the conclusions reached. The appellant has certainly not discharged the burden of proof cast on him having regard to the nature of the suit he instituted. I also share the view that the legal estate in the land in dispute had been transferred to the respondent on the 15th October, 1973 and this was prior to the purported purchase by the appellant. This appeal thereof ought to fail and it is accordingly dismissed. I am in agreement with the orders proposed in the judgments of my Lords Eso and Bello, JJSC.

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SC.90/1979