William Evbuomwan Vs Jonathan Elema (1994)
LawGlobal-Hub Lead Judgment Report
ADIO, J.S.C.
The respondents’ claim in an action filed by them against the appellants in the Benin Judicial Division of the High Court of the defunct Bendel State of Nigeria was as follows:-
“1. A declaration that the demarcation of building plots made by the defendants on the parcel of land subject of customary grant by the Oba of Benin, Akenzua II, dated 26th November, 1963 in favour of Chief Felix Owen Elema measuring 5,000 feet by 556 feet by 4780 feet by 3130 feet and by 3000 feet within Oko village area, the said land delineated in survey plan No. OM1670 in conveyance registered as No.22 at page 22 in volume 253 of the lands Registry embracing the said land in dispute in physical possession of the plaintiffs within Benin Judicial Division is ultra vires, illegal, unconstitutional, null and void. The said land will be particularly delineated in a survey plan to be filed in this action.
- An order of perpetual injunction restraining the defendants, their servants and/or agents from further entering upon any part of the said parcel of land.
- N100,000.00 (One Hundred Thousand Naira) being general damages against the defendants for acts of trespass already committed in the said parcel of land.”
Pleadings were duly filed and exchanged. The evidence led was that the respondents were the administrators and the beneficiaries of the estate of one Chief Felix Owen Elema who was their late father. Chief Elema was a traditional Chief. He acquired in his lifetime some parcels of land in accordance with Benin customary law, including the land in dispute, which was in Oko village area. He was in possession of the land in dispute up to the time that he died on the 14th February 1986. The respondents were granted letters of administration of his estate. What prompted the respondents to bring this action against the appellants was that sometime the appellants began to demarcate the land in dispute into plots with a view to allocating the plots of land to members of their community.
According to them, the land in dispute was their (appellants’) community land and that it was not granted to the late Chief Elema in accordance with the Bini customary law. They also took the view that the Oba of Benin was misled in granting the land in dispute to the late chief.
The learned trial Judge after evaluating the totality of the evidence before him and due consideration of the submissions of the learned counsel to the parties, entered judgment for the respondents. It was the view of the learned trial Judge that the identity and extent of the land in dispute were established. He held that the late chief acquired a valid title to the land in dispute under the Bini customary law and that he was in possession of it at all material times. He also found that the respondents had power to institute the action. Dissatisfied with the judgment, the appellants appealed to the Court of Appeal. The court below dismissed the appellants’ appeal. It affirmed the finding of the learned trial Judge that the late chief acquired a valid title to the land in dispute under the Bini customary law and that the respondents were competent to institute this action against the appellants.
It also affirmed the finding of the learned trial Judge that the identity and the extent of the land in dispute were established. Dissatisfied with the judgment, the appellants had lodged a further appeal to this court.
The appellants and the respondents. in accordance with the rules of this court, duly filed and exchanged briefs. The appellants identified three issues for determination, based on their grounds of appeal in their brief. In addition, they indicated in their brief their intention to apply for leave to introduce new points not hitherto taken. The new points were argued in their brief. The respondents did not formulate any issues in their brief, for determination. They adopted the issues
identified for determination in the appellants’ brief which were as follows:-
“(1) Whether the respondents were competent to sue in this case or, in other words, whether they possessed locus standi or standing to sue.
(2) Whether the respondents established clearly the area and extent of the land put in dispute by them.
(3) If the answer to issue 2 above is in the affirmative, whether the Court of Appeal was right in upholding the decision of the trial court to the effect that the late Chief Felix Owen Elema had valid title at all material times to the land in dispute according to Bini customary law.”
Musdapher, J.CA. who read the lead judgment of the court below, after making reference to the finding of the learned trial Judge on the question raised under the first issue, said inter alia as follows:-
“In my view, the capacity of the respondents to sue as the administrators of the estate of their father of which they were the beneficiaries was beyond any doubt. Even if by Exhibit D, the estate was conveyed to him as the secretary of the trustees and the beneficiaries and not to him personally or beneficially ………………………………………………….Exhibit D did not clearly or in any manner divest the respondents from their control or ownership of the land in dispute. It merely for the ease of administrative purposes allowed the third respondent to deal with the land for and on behalf of all the respondents ………………………… In any event, there was contained in Exhibit C, a deed, reconveying the land in dispute to the respondents.”
The appellants pointed out that the respondents brought the action in their capacity as the administrators of the estate of the deceased who was their father. It was submitted that the deed, Exhibit “D”, which the respondents executed in favour of the 3rd respondent completely divested the respondents of their title as administrators of the deceased’s estate. According to the submission made on behalf of the appellants, Exhibit “D” was the instrument transferring the respondents’ representative title to the estate to the 3rd respondent in fee simple. With reference to Exhibit “C”, which the learned Justice of the court of Appeal described as a deed of reconveyance which the 3rd respondent executed in favour of the respondents, it was pointed out, rightly in my view, that the deed of reconveyance in question was not at any time tendered as an exhibit. I have examined the record of proceedings and the exhibit in question and I have found that what was tendered, admitted and marked as Exhibit “C” was a survey plan attached to the deed of reconveyance. The deed of reconveyance itself was not tendered and admitted as an exhibit. Finally, it was submitted on behalf of the appellants, that on the facts and the circumstances of this case, the respondents after divesting themselves of their title to the deceased’s estate, had no legal title to the aforesaid estate which included the land in dispute so as to enable them to institute the present action. The appellants cited Adesanya v. President of the Federal Republic of Nigeria (1981) 5 S.C. 112; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; and Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; (1989) 2 SCNJ 95.
The contention of the respondents was that they did not, by executing Exhibit “D” in favour’ of their secretary, 3rd respondent, divest themselves of their right or interest, in the estate of the deceased which included the land in dispute. Exhibit “D” was executed in favour of the 3rd respondent as the secretary of the administrators of the deceased’s estate that he was. It was further submitted that there was nothing in Exhibit “D” which made the 3rd respondent a limited owner of the deceased’s property. Rather, Exhibit “D” made the 3rd respondent a trustee of the property for the administrators. Finally, it was submitted that the basis for holding that the respondents did not divest themselves of their interest or title to the deceased’s property as a result of their executing Exhibit “D” in favour of the 3rd respondent, was the construction of Exhibit “D” itself. For that reason, with or without the reference made to Exhibit “C”, there was nothing in Exhibit “D” warranting the divesting of the interest or title of the respondents.
There is substance in the submissions made for the respondents. Apart from the fact that the 3rd respondent himself testified that he never had the impression that, by executing Exhibit “0” in his favour, the respondents divested themselves of their interest or title to the deceased’s property, a careful reading of the provision of Exhibit “D” showed- that there was nothing in it divesting the respondents (administrators of the deceased’s property or estate) of their title to, right or interest in the estate. The respondents, as administrators of the estate of the deceased and the 3rd respondent as secretary of the administrators did not agree that the title, right or interest of the administrators should be transferred to or vested in the 3rd respondent. It is quite clear from the provision of paragraph 4 of the recital in Exhibit “D” that what the administrators of the deceased’s estate (the respondents) and the 3rd respondent intended, by executing Exhibit “D” in favour of the 3rd respondent, was that the third respondent should hold the deceased’s estate or property on behalf of the respondents, as personal representatives or as administrators of the deceased’s estate. Paragraph 4 of the recital in Exhibit “D” is as follows:-
“(4) The Personal Representatives have agreed to convey the said property to Friday Elema who is Secretary of the Estate to hold same on behalf of the Personal Representatives.”
The pertinent question is: whether on the basis of or relying on Exhibit “D” the 3rd respondent could purport to transfer the right, interest or title to the deceased’s estate to any body other than the respondents on behalf of whom he was holding the property or whether he could validly refuse to transfer the estate back to them if they requested him to do so. If parties enter into an agreement they are bound by its terms. One cannot legally or properly read into the agreement the terms on which the parties have not agreed. See Abdullahi Baba v. Nigerian Civil Aviation, Zaria & Anor. (1991) 5 NWLR (Pt. 192) 388. What was not in Exhibit “D” could not be imported into it. For that reason, the respondents were competent to bring this action.
The next question is whether the respondents clearly established the identity and extent of the land in dispute. The finding of the learned trial Judge, which the court below affirmed, was that the respondents established the identity and extent of the land in dispute. It was argued for the appellants, in this connection, that the identity of the land in dispute was a matter on which the parties joined issue yet the respondents did not file an accurate survey plan of the land in dispute notwithstanding their averment and undertaking vide paragraph 26(a) of their Statement of Claim. It was, therefore, contended that the failure of the respondents to keep to their undertaking was a matter of serious import with respect to practice and procedure as well as administration of justice generally because the respondents’ failure was not only evidence of bad faith but was indeed real embarrassment and prejudice to the conduct of a proper defence to the action. Elias v. Omo-bare, (1982) 5 S.C. 25 was cited in support. For the respondent, it was argued that all that the appellants did, in their pleading, was a denial generally of the relevant averment in the respondents’ statement of claim and that was not enough. In my view, if the appellants did not agree with the description or particulars of the identity of the land in dispute given in the statement of claim, nothing prevented them from giving, in their own pleading, the description or particulars of the land in dispute considered by them to be accurate. In dealing with this aspect of the matter, the respondents pointed out that they, inter alia, filed Exhibits “C” and “D” which showed the identity and extent of the parcels of land granted to the deceased by the Oba of Benin. Further, they filed a litigation plan, Exhibit “B”, in which they showed the portion(s) thereof on which the appellants trespassed. It was, therefore, contended that the oral evidence of their surveyor in relation to Exhibit “B” together with the relevant documents tendered by them were enough to satisfy the necessary requirement in relation to proof of the identity and extent of the land in dispute. I think that the appellants were placing an undue importance on the filing of a survey plan pursuant to an alleged undertaking, in the pleading, to file one. The filing of a survey plan pursuant to an undertaking in the pleading alone is not conclusive on the question of there being sufficient evidence before the court in relation to the identity or extent of the land in dispute. Also, if the parties did not join issue on the identity or extent of the land in dispute, a superfluous B undertaking in the pleading to file a survey plan which undertaking was eventually not fulfilled could not warrant the dismissal of the plaintiff’s claim on that ground alone. So, what is important and very crucial is the availability before the court of sufficient evidence, whether oral and/or documentary, concerning the identity and extent of the land in dispute. In any case, the respondents filed a motion asking for an extension of the time within which they were to file their Statement of Claim and survey plan. The application was granted. Pursuant to the order of the court granting the application, the respondents filed their Statement of Claim and a litigation survey plan, Exhibit “B”. It is not known or clear what description, identity or particulars of the area of the land in dispute, which the appellants wanted and did not or could not get. Above all, the order of the learned trial Judge gave the appellants the option of filing their own survey plan, if they so desired. They did not take advantage of the option given to them, and the reasonable inference is that they were satisfied with the description given by the respondents in relation to the identity and extent of the land in dispute.
With reference to the oral evidence of the P.W.1., P.W.3 and the 3rd respondent on the location or identity of the land in dispute which the appellant contended was conflicting, the court below gave consideration to the evidence of the P.W.1, P.W.3 and the 3rd respondent and came to the conclusion that the learned trial Judge was right in holding that there was no conflict. It, therefore, affirmed the findings of the learned trial Judge on the point. I have myself read the evidence given by the witnesses and I am of the firm view that the court below was justified in upholding the finding of the learned trial Judge that there was no conflict in the evidence. It was also argued that the judgment of the learned trial Judge which the court below affirmed was not tied to any survey plan. It is sufficient, in this connection, to state that the declaration granted was in relation to the parcel of land in the litigation plan, Exhibit “B”. The contention of the appellants in relation to the foregoing aspects of this matter was untenable and could not be supported. It is now necessary for me to consider some questions, other than the crucial question whether the deceased acquired valid title to the land in dispute under Bini customary law. The learned trial Judge and/or the court below dealt with the questions. The findings of the learned trial Judge on those of them dealt with by the learned trial judge were affirmed by the court below. There was the question whether the application which the deceased submitted for the allocation of land to him was irregular in that it was an ordinary application. The findings of the learned trial Judge was that the application was proper and in order. The court below affirmed the finding and I agree with it. There was no prescribed form on which such an application should be made. An ordinary application was, therefore, enough.
It was also contended for the appellants that it was irregular for the deceased to submit his application for allocation of land to him, through the elders or representatives of the community, to the Ward Allotment Committee that placed the application before His Highness, the Oba of Benin with its recommendation.
The finding of the learned trial Judge, affirmed by the court below on the point and with which I agree, was that while one might take the view that it was superfluous and unnecessary to route the application through the elders and/or representatives of the community, the aforesaid procedure followed by the deceased did not invalidate the application. Indeed, the extra caution taken by the deceased by going through the elders or representatives of the community knocked the bottom out of the contention of the appellants that the community was not consulted before the land was granted to the deceased.
The 1st appellant denied that he signed Exhibit “A1” and it was. for that reason, argued that the Oba of Benin was misled in approving the grant of the land, which included the land in dispute, to the deceased. The appellants led no convincing evidence on the point and the court below held that the learned trial Judge was in order in holding that it was immaterial that the 1st appellant disowned his signature. In any case, the head of the village community signed Exhibit “A”.
It was alleged that the deceased was granted land for industrial purpose and since he failed to use it for the purpose for which it was granted, the land had long reverted. Ajao v. Ikolaha (1972) 1All NLR (Pt. 2) 46 was cited. It was also alleged that substantial portions of the land had been alienated to third parties for purposes other than industrial ones. The person or authority to whom the land reverted was not named and names of the third parties to whom the deceased had alienated substantial portions of the land for purposes other than industrial ones were not given. The land would revert only if the grantee uses the land for purposes other than for which it was granted if such use was without the consent of the grantor.
There was no clear evidence that the deceased was using the land for a purpose other than the one for which it was granted and if it was so used there was no evidence that it was without the consent of the grantor.
Further, the allegation was that the respondents were in possession of the land, which included the land in dispute and that the appellants were demarcating the land in dispute into plots and allocating the plots to people in the community. The respondents, therefore, claimed damages for trespass and injunction. If the land reverted, at all, because of something that the deceased allegedly did, it would revert to the grantor, the Oba of Benin, and not to the appellants or to their community. If, as has been found, the land in dispute was in possession of the respondents it was trespass for which the respondents could claim damages when the appellants went to the land in dispute and started to demarcate and allot it to members of the community because trespass consists of an unjustifiable intrusion or interference upon land in possession of another. See Ogunhiyi v. Adewumi. (1988) 5 NWLR (Pt. 93) 215 at p. 221. Once it can be shown, as it was in this case, that a person is in exclusive possession of land, he can bring an action for damages for trespass against any other person, other than the true owner or a person with better title, in respect of any interference with his possession. Amakor v. Ohiefuna (1974) 3 S.C. 67. Assuming that the appellant was right in their contention that the land had reverted, that would not have been a good defence to the claim for damages for trespass as the reversion would not have been to the appellants but to the grantor, the Oba of Benin, a third party. In an action for damages for trespass, a defendant may not set up a jus tertii. He may set up a title in himself, or that he acted on the authority of the real owner. See Amakor’s case, supra. So, even if the land in dispute had reverted to the grantor that would not have helped the appellants’ position because an original trespasser, as against everyone but the true owner can, if he is in exclusive possession of the land in dispute, maintain an action in trespass against a later trespasser whose possession would clearly be adverse to that of the original trespasser. See Ayinde v. Salawu, (1989) 3 NWLR (Pt.109) 297.
There was also the contention that as the respondents pleaded Edict No.6 of 1977, the Boundary Dispute (Determination) Edict, 1977, they must be deemed to have conceded that the land in dispute was not within the jurisdiction of Ward “A” Allotment Committee. The submission for the respondents was that the Edict was irrelevant to their case. The question was whether the land, including the land in dispute, was within the jurisdiction of the Ward “A” Allotment Committee and the question was resolved in favour of the respondents. In my view, in any case, there was evidence, which was uncontradicted that there was no Ward Allotment Committee constituted for the area at the material time. It was, for that reason, that the Oba of Benin directed that Ward A Allotment Committee should take necessary action and that some elders in the community should join the Ward A Allotment Committee in dealing with the matter.
Next is the question raised under the third issue which was whether if the answer to the second issue was in the affirmative, the Court of Appeal was right in upholding the decision of the trial court to the effect that the late Chief Felix Owen Elema had valid title at all material times to the land in dispute according to the Bini customary law. There was evidence before the learned trial Judge that the deceased submitted an application Exhibits ‘A’ & ‘AI’ to the Ward “A” Allotment Committee for the allocation to him of the land which included the land in dispute; that pursuant to the application some members of the committee inspected the land to which the application related to ascertain the dimension of the land and to find out if it was free from dispute; that the Committee was satisfied about the exact location of the land and that it was dispute free; that the committee endorsed the application accordingly and recommended the application to the Oba of Benin for approval; and that the Oba of Benin approved the application and granted the land to the deceased. The recommendation and the approval of the Oba are all reflected on the application. The learned trial Judge accepted the evidence and held that the deceased acquired a valid title to the land, which included the land in dispute, under the Bini customary law. The court below having been satisfied about the various steps, mentioned above, taken by the deceased and the appropriate authorities in relation to the acquisition of valid title to the land, which included the land in dispute, in accordance with Bini law, stated, inter alia, as follows:-
“I am in total agreement with the learned counsel for the respondents, that on the pleadings and the evidence adduced, the learned trial Judge was justified in holding that Chief Elema had acquired a valid title under the Bini customary law of the land in dispute around Oko Village area. The evidence is overwhelming and it was abundant, that Chief Elema immediately went into possession and caused the land to be surveyed. The learned trial Judge believed the evidence of the grant of the land in dispute to Chief Elema and that he was before his death in actual possession.”
The question of what are the principles governing the acquisition of valid title to land in accordance with Bini customary law has been considered and determined by this court in many cases. See Okeaya v.Aguehor, (1970) 1 All NLR 1 at pp. 9 & 10; Awoyeghe v. Ogheide, (1988) 1NWLR (Pt. 73) 695; Aghomfo v. Aiwereoha, (1988) 1NWLR (Pt. 70) 325; and Finnih v. Imade, (1992) 1 NWLR (Pt 219) 511. In Okeaya’s case, supra, the principles of customary law were said to be as follows:-
“(a) all lands in Benin Division are vested in the Oba of Benin who is thus trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof;
(b) in respect of Benin City itself; the Oba of Benin had by 1961 appointed Ward Allotment Committees in respect of 12 wards into which the City had been divided shortly before this for the purpose of plot allocation;
(c) whereas any grantee of land in Benin City before 1961 might not be able to produce the approval in respect thereof reduced by the Oba of Benin into writing, such a grantee after this period must be able to produce such evidence;
(d) One of the several functions of a Ward Plot Allotment Committee is to recommend plot applications to the Oba of Benin for approval;
(e) an Applicant for land in Benin City as from 1961 has to direct his application in writing to the Ward Plot Allotment Committee of his choice;
(f) the Ward Plot Allotment Committee upon receipt of the application would delegate some of their members to carry out an inspection of the land acquired within the area of their ward and they in turn would report back to the committee on their inspection “the purpose of the inspection’ being “to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has not been previously granted to someone;’
(g) upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is ‘dispute free’, the Ward Plot Allotment Committee would endorse the application with the above facts and forward it to the Oba of Benin as recommended;
(h) the Oba of Benin would, as a rule, accord his approval in writing to a recommended application and an applicant whose application is approved by the Oba of Benin becomes the beneficial owner of the land as approved for him;
(i) an approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one;
(j) it is contrary to Benin custom to set aside an approval made in error upon an ex parte application by one of the affected parties. In other words, to set aside an approval made in error, the two parties affected by the conflicting grants must be present before the Oba at the same time and his decision must be communicated to them after an open hearing at the Oba’s palace. Such decision must also be communicated to the Ward Allotment Committee from which the two conflicting recommendations had emanated.”
Having regard to the evidence before the learned trial Judge, which he accepted and on the basis of which he made the relevant findings, that were upheld by the court below, it can reasonably and justifiably be said that the conclusion of the learned trial Judge that the deceased had acquired a valid title under Bini customary law to the land in dispute which the court below said was justified can be sustained.
The aforesaid findings included the findings: that the deceased forwarded his application for allocation of land to the Ward Allotment Committee; that the Ward Allotment Committee through some of its members inspected the land to ascertain its location and dimension and to determine whether it was not subject of any dispute; that the committee, in view of the favourable report on the aforesaid matters, after endorsing the application accordingly, recommended it to the Oba of Benin for approval; and that the Oba of Benin approved the application of the deceased. The court below was, therefore, right in upholding the decision of the learned trial Judge to the effect that the deceased (Chief Felix Owen Elema) had valid title at all material times to the land in dispute according to Bini customary law.
The appeal does not succeed. The judgment of the court below is affirmed and the appeal is dismissed with N1,000.00 costs to the respondents.
Other Citation: (1994) LCN/2627(SC)
