EKHATOR v. ELEMA & ANOR (2021)

EKHATOR v. ELEMA & ANOR

(2021)LCN/15147(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/263/2012

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

DAVID EKHATOR (FOR HIMSELF AND ON BEHALF OF EKHAGURE COMMUNITY, OKO VILLAGE AREA, OGBA, BENIN CITY) APPELANT(S)

And

1. PRINCE PEDRO ELEMA 2. PRINCE IVIE FIDELIS ELEMA RESPONDENT(S)

RATIO

BURDEN PLACED ON THE PERSON WHO ASSERTS THE AFFIRMATIVE

It is a settled principle of law that he who asserts must prove, this Court held thus in AYALA v DANIEL & ORS (2019) LPELR – 47184 (CA); “It is the law that whoever assert the affirmative must proof by credible evidence. See Sections 131, 132 and 133 of the Evidence Act, 2011. The latin maxim in this regard is “INCUMS PROBATIOQUI DICIT, NON QUI NEGAT” Meaning the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it for a negative is usually incapable of proof. See the case of SENATOR IYIOLA OMISORE & ANOR V. OGBENI RAUF ADESOJI AREGBESOLA & ORS (2015) LPELR – 24803, FAMUROTI V. AGBEKE (1991) 5 NWLR (PT. 189) AT 13.” per ONIYANGI, J.C.A. (P. 4, PARAS. A – C)See also; DASUKI v FRN & ORS (2018) LPELR – 43897 (SC); JIMOH v HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR – 46329 (SC); OSUMILI & ANOR v CNPC/BGP INTERNATIONAL (2019) CA. PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

POSITION OF THE LAW REGARDING ACQUISITION OF TITLE TO LAND UNDER BINI CUSTOMARY LAW PRIOR TO THE LAND USE ACT

… in OSAWE & ANOR v IDEHEN (2014) LPELR – 23330 (CA), the Court held thus; “The law is well settled as it relates to acquisition of title to land under Bini Customary Law prior to the Land Use Act. The procedure as follows: 1. The Oba of Benin is the only authority competent under Bini Customary Law to make allocation or grant of Bini lands in or outside Benin City; for under the self — same law, all Bini lands are communal property of the entire Bini people and the legal estate in such lands is vested and resides in the Oba as trustee for the Bini people. 2. The application for allocation of land is usually made to the appropriate Plot Allocation Committee having jurisdiction over the land in question; which Committee will send some of its members to inspect the land and ascertain its availability for grant. 3. Recommendations of the applications are then made by the relevant Plot Allocation Committee to the Oba of Benin 4. The endorsement of the Oba of his approval on the grantee’s written application, duly recommended by the relevant and appropriate Plot Allocation Committee immediately transfers to the purchaser or grantee the plot of land involved. 5. 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 for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one. 6. It is contrary to Bini customary law to unilaterally set aside an earlier approval. See OKEAYA vs. AGUEBOR (1970) 1 ALL NLR 1, AIKHIONBARE vs. OMOREGIE (1976) 12 SC 11, EVBUOMWAN vs ELEMA (1994) 6 NWLR (PT 917) 184 or (2005) LPELR (2846) 1 at 17- 18.” OGAKWU, J.C.A. (PP. 29 – 31, PARAS. F – C). See also; OGBEBOR v IHASEE (2013) LPELR – 20729 (CA); ONWUANYI v BORHA (2013) LPELR – 21970 (CA); OWIE v IGHIWI (2005) LPELR – 2846 (SC); AMAYO v ERINMWINGBOVO (2000) LPELR – 6016 (CA); ENABULELE v AGBONLAHOR (1999) LPELR – 1138 (SC). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

NATURE OF A COUNTERCLAIM

It is a trite principle of law that a Counter claim is a separate suit from the main suit, which will succeed on its own. In AMADI v AMADI (2018) LPELR – 46269 (CA), this Court held thus; “The law is well settled that, a counter claim is a separate, independent and distinct action which stands on its own and though filed along with the statement of defence does not depend on the statement of defence for sustenance or support. It is on equal footing with the main claim before the Court. See DAHIRU & ANOR V. KAMALE (2004) LPELR 11135 and MAITO & Ors V. OGUNBODEDE (2013) LPELR 20892.” per LAMIDO, J.C.A. (PP. 10 – 11, PARAS F – B). See also: OROJA & ORS v ADENIYI & ORS (2017) LPELR – 41985 (SC); IFEMESIA v ECOBANK (2018) LPELR – 46589 (CA); R-BENKAY NIGERIA LTD v CADBURY NIGERIA LTD (2012) LPELR – 7820 (SC). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

POSITION OF THE LAW REGARDING THE BURDEN OF PROOF ON HE WHO ASSERTS

The law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts he has asserted, must prove that those facts exist. The burden of first proving the existence or non — existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side. The apex Court held in SHARING CROSS EDUCATIONAL SERVICES LIMITED v UMARU ADAMU ENTERPRISES (2020) LPELR – 49567 (SC); “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist: Section 131 (1) of the Evidence Act, 2011.” per EKO, J.S.C. (PP. 7 – 8, PARAS. F – A). This Court in ETUBOM ESSIEN EKPENYONG EFIOK & ORS v ETUBOM (DR) ANTHONY ASQUO (2013) LPELR – 21400 (CA) also held; “It is trite that he who asserts must prove; and the fact that the defendant never proves or even remains silent will not discharge the burden on him. The proof required is clear, cogent evidence, directly pointing of the issues in dispute so that the plaintiff’s case is preponderantly believed and preferred. See; Archibong vs Ita (2004) 1 S.C (Pt. 1) …” per OTISI, J.C.A. (PP. 136 137, PARAS F – C). See also; Sections 131, 132 & 133 of the Evidence Act, 2011; AGBOOLA v UBA PLC & ORS (2011) LPELR – 9353 (SC); OHOCHUKWU v AG OF RIVERS STATE & ORS (2012) LPELR – 7849 (SC); MOHAMMED v WAMMAKO & ORS (2017) LPELR – 42667 (SC); UNILORIN & ORS v OBAYAN (2018) LPELR – 43910 (SC). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Edo State High Court; Auchi Judicial Division delivered by HON. JUSTICE E. F. Ikponmwen on 14th March, 2012, wherein the lower Court found that the Respondents had proved a better title, granted the relief for trespass but dismissed the claims for special and general damages and dismissed the Appellant’s counter claim.

The Respondents/Plaintiffs claimed the following at the lower Court;
a. Special damages in the sum of N22,798,861.14 (Twenty-Two million, seven hundred and ninety-eight thousand, eight hundred and sixty-one naira, fourteen kobo) being accumulated compound interest and the capital sum on the said N235,000.00 (Two hundred and thirty five thousand naira) borrowed as aforesaid.
b. N77,201,138.85 (Seventy-Seven million two hundred and one thousand, one hundred thirty-eight naira, eighty-five kobo) being damages for trespass committed by the Defendants, their agents, privies and/or servants on the said land.
c. An order of perpetual injunction restraining the defendants by

themselves, agents, servants or assigns or otherwise however from continuing with their acts of trespass and or disturbances on the portion of plaintiff’s land verged red in survey plan No. ISO/ED/D16/200 filed herewith and/or any part of the said Elema Estate as shown in the said survey plan.

The Defendants at the lower Court counterclaimed as follows;
i. A Declaration that Ekhaguere village Ward ‘A’ Benin City delineated in red survey plan No. JAA/ED/11/2000 is a separate and distinct village from Oko village Ward A, Benin City.
ii. A declaration that it is only the areas specified in the letter of authority given by the Oba of Benin to Ward Plot Allotment Committee that such Ward Allotment Committee has power to allocate land.
iii. Damages of N100,000,000.00 (One hundred million naira).
iv. Perpetual injunction restraining plaintiffs, their servants, agents or privies or any one claiming through them from trespassing into the defendants’ land shown in Survey Plan No. JA/ED/D11/2000 dated 20th day of October, 2000.

After trial, the lower Court entered judgment in favour of the Plaintiffs.

Dissatisfied with

the judgment, the Appellant filed his Amended Notice of appeal on 14th March, 2019 and Appellant’s brief on 12th May, 2017 settled by Kenneth Oladipo Longe, Esq. wherein the following issues were distilled for determination;
“1. Whether the respondents proved their title to the land in dispute in accordance with Benin Customary Law?
2. Whether the burden of proof was not on the respondents who alleged to prove that Ekhaguere village is part of Oko village?
3. Whether it was not incumbent on the respondents to prove their case by oral evidence in Court and not rely on evidence from another suit?
4. Whether the appellant did not prove their ownership of the land in dispute on at least two of the methods enunciated by the Supreme Court in IDUNDUN v OKUMAGBA (1976) 9 – 10 SC 227?”

The Respondents also filed their brief on 17th January, 2020 but deemed 2nd June, 2020 settled by C. O. Ugwor Esq., E. O. Efemuai Esq. of Thompson Okpoko & Partners, who postulated the following issues;
“1. Whether the learned trial Judge was right in that the respondents have proved title or better title to the land in dispute. (grounds 1, 2, 3, 4, 5,

6 and 7).
2. Whether the learned trial Judge was right in terminating the appellant’s counter claim.”

APPELLANT’S ARGUMENTS
The Appellant opted to argue issues 1, 3 & 4 together. Citing AMAYO v ERIMWINGBOVO (2006) 11 NWLR (Pt. 992) P. 699 or (2006) 5 SC Pt. 1; AKHIONBARE v OMOREGIE (1976) 12 SC 11 AT 27 it is the submission of the Appellant that by the state of the pleadings, title to the land in dispute is put in issue and in order to succeed the respondents must show a better title than the defendants. That the Respondents only thrust judgments of Court they obtained against Oko village from the High Court to the Supreme Court and claimed that Ekhaguere village is part of Oko village without more, even though they admitted that the Appellants are in possession. REG. TRUSTEES, APOLOSTIC CHURCH v OLOWOLENI (1990) 6 NWLR (PT. 158) 514 at 55 F- G.

The Appellant contends that title having been put in issue, the Respondents must prove their title according to Benin customary law. They must prove that Ekhaguere village is part of Oko village and within the area of jurisdiction of Ward “A” plot allotment committee. That the Plaintiffs

pleaded and tendered exhibits A1, A2 and A, G, G1 and G2 to show that they took Oko village to Court and got judgment against them.

Counsel further contends that they (Ekhaguere) are an autonomous entity and that they are not part of Oko village. The Appellants led evidence to show how their fore fathers established their village and the Respondents did not fault their evidence.

The Appellant submits that all facts may be proved before the Court by oral evidence and a Court can only use documents properly tendered before it for purpose for which they are admitted. ISHOLA v UBN LTD (2005) 17 WRN 1 AT 17, Section 125 of the Evidence Act, 2011. That although, the Appellants pleaded that the plaintiff’s title documents were forgeries in paragraph 39 of their 4th further amended statement of defence, they did not lead evidence in respect of same and they are deemed abandoned. OMOBORIOWO v AJASIN (1984) 7 SC 206 AT 207;Section 167 (d) of the Evidence Act, 2011.

Counsel cited OKEAYA v AGUEBOR (1970) 1 ALL NLR 1 @ 9 – 10; AGBONIFO v AIWEREOBA (1988) 1 NWLR (Pt. 70) 27 @ 340; ARASE v ARASE (1981) 5 SC at 58 in submitting that the lower Court did not

follow the known and established principles of Benin Customary Law of land tenure. That the lower Court did not take into consideration that the authority of each ward plot allotment committee is limited to a particular area and that it is for the respondents to prove that Ekhaguere village falls within Ward A Plot Allotment Committee area.ENABULELE v AGBONLAHOR (1999) 3 S.C 43 @ 49.

It is the contention of the Appellant that showing valid title document is not the same as proving valid title. ARASE v ARASE (SUPRA); AGBONIFO’S CASE (SUPRA); UHUNMWAGHO v OKOJIE (1982) 9 SC 101 @ 106 – 107.

That the Appellant’s counter claimed and contended that their ancestors founded their village in accordance with Benin Customary Law and led evidence in support, naming all their past ancestors from the founder of the village to the present head, the Respondents did not lead any contrary evidence.

The Appellant submits that it is settled law that there are five ways of proving ownership of land. That a party who relies on traditional history must plead facts in support thereof and lead systematic evidence in support of his pleadings. He relied on MAKINDE v AKINWALE

(2000) FWLR 25, 1562 AT 1580; EZE v ATASIE (2000) 6 SC (PT. 1) 214 AT 228.

Counsel contends that the learned Judge was in error when she held that the Appellant failed to prove that their ancestors founded Ekhaguere village when the Appellant led cogent evidence of the origin of their ownership of Ekhaguere village shown in Exhibit P, their survey plan and further led evidence showing a chain of devolution of the land through successive ancestors without leaving any unexplained gaps through the 2nd Defendant.OFORLETE v THE STATE (2000) 7 SC (PT 1) 80 AT 100; BABA v NCA TRAINING CENTRE ZARIA (1991) 5 NWLR (PT. 192).
UDOFE v AQUAISUA (1973) 1 SC 119 AT 130; ADEPOJO v OKE (1999) 3 NWLR (PT. 594) were referred to in submitting that the Appellants showed by Exhibit P, the land to which their claim relates. That where survey plan is tendered without objection, the defendant cannot claim that boundary is not proved. That from the Respondents’ pleadings they did not challenge the correctness of Exhibit P but only deemed it irrelevant and the learned Judge was wrong to hold that the Appellants did not prove their boundaries.

On issue 2, citing the

heading of the 5th further amended statement of claim, paragraph 2 of the 5th further Amended statement of claim, paragraph 2 of their 4th Amended statement of defence, the evidence of the 2nd Plaintiff at page 36, the Appellant submits that by the pleadings and evidence of the respondents, it is the respondents who are alleging that the Appellants are part of Oko village, who have the burden to prove their assertion. He relied on KWASALBA NIG LTD v OKONKWO (1992) 1 NWLR (PT. 218) 407 AT 417; ONIFADE v OYEDEMI (1999) 5 NWLR (PT. 601); UBN v OSEZUAH (1997) 2 NWLR (PT. 485) 28 AT 42; UBN v ISHOLA (2001) 15 NWLR (PT. 735) 47 @ 81; ATTORNEY – GENERAL OF ANAMBRA v ATT – GENERAL OF THE FED & ORS (2005) 5 SC (PT. 1) 73; Sections 131 & 132 of the Act, 2011.

It is the further submission of the Appellants that the lower Court erred when she shifted the burden of proof from the Respondents who alleged to the Appellants. That it is clear from the evidence of the 2nd Plaintiff that the Respondents did not discharge the onus on them to prove their assertion.

RESPONDENTS ARGUMENTS
On issue 1, the Respondents submit that the 2nd Plaintiff led evidence of

the mode of acquiring a grant under Bini Customary law which is judicially recognized by the Courts; OKEAYA v AGUEBOR (1970) 1 ANCRI AT 8 – 9; BELLO v EWEKA (1981) 1 SC. 101.

That the Plaintiffs led uncontroverted evidence that the land in dispute being part of Benin Kingdom was vested as trustee in Oba Akenzua II who was the Oba of Benin when the 2nd Plaintiff’s father acquired the land. He also led evidence that the land in dispute was under the jurisdiction of Ward A Plot Allotment Committee duly appointed by Oba Akenzua II and in sumary the Respondents reproduced in details the evidence they led in proving that the land in dispute falls within the lands (Oko Village) allotted by the Ward A Plot Allotment Committee.

On Exhibit K which is the inspection report, the Respondents submit that it is a document of over 20 years and so enjoys the presumption in Section 155 of the Evidence Act, 2011 which presumption was rebutted by the Appellant. The Appellant however failed to lead any evidence to prove their allegation of forgery as pleaded paragraph 9 of their 4th Amended statement of Defence; AKINKUGBE v EWULUM HOLDINGS (2008) ALL FWLR PT. 42, 1269. That the lower Court rightly observed that

there is no evidence that the Oba’s approval was forged or set aside by a Court of law, rather it was judicially recognised in Exhibits G, G1 and G2 in Suit No. B/70/81 (Appeal No. SC.7/1992).

The Respondents concedes that the judgment in Exhibits G, G1 and G2 were obtained against Oko Community, but submit that the fact still remains that the judgments were tied to the particular piece of land shown in Exhibit D, the litigation plan used in the case and tallies with the land in dispute in this case measuring 17.9 hectares which falls squarely into the area adjudged in favour of the Respondents in Exhibit G, G1 and G2. UDEZE v CHIDEBE (1990) 1 NWLR PT. 125 141. That the law is settled that the names by which the parties refer to the land in dispute is immaterial whether it is called Oko land or Ekhaguere village as DW2 called it is immaterial.

It is the contention of the Respondents that there is evidence to show that the land in dispute and/or Ekhaguere community is part of Oko community. That Exhibit L is the writ of summons in Suit No. B/474/88 then pending at the Edo State High Court and Exhibit L1 is the litigation plan of Oko community in that

case, if Ekhaguere was different from Oko community, the natural thing is that the Appellants would have applied to be joined to Suit. And Exhibit M also shows that the land being claimed by Oko community in Exhibit L, the natural inference is that they are one and the same people.

Reproducing the evidence of DW2 at pages 56 — 57, it is the contention of the Respondents that their claim at the lower Court was for Ekhaguere village but for a piece of land measuring 17.9 hectares which was then under the jurisdiction of the Ward Plot Allotment committee.

That the Appellant do not know the land in dispute, no evidence was led to show that the late Oba of Benin had no powers to grant the 17.9 hectares grant to the Respondent and no evidence was led to show that the 17.9 hectares in dispute was not under the jurisdiction of the Ward A Plot Allotment Committee of Oko Community.

On issue 2, the Respondents humbly submit that the learned trial Judge was right in dismissing the Appellant’s Counter Claim. That the Appellant led no evidence in proof of his counter claim, the alleged letter of authority given by the Oba of Benin to Ward Plot

Allotment Committee was not tendered in evidence, no evidence was led to show that there existed Ekhaguere village Ward A Benin City Plot Allotment Committee is separate and distinct from Oko Village Ward A Benin City Plot Allotment Committee.

It is the further submission of the Respondents that the Appellants did not state what they are claiming N100,000,000.00 for. That the law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Sections 131, 132 & 133 of the Evidence Act, 2011 was cited in aid.

That it was therefore the duty of the Appellant to establish the allegations at paragraphs 4 (i) and (ii) at page 24 of record, having failed to do so the lower Court was right in dismissing the counter claim of the Appellants. BULET INTERNATIONAL (NIG.) LTD. v OLANIYI (2018) ALL FWLR PT. 94 500 AT 529 – 530 was cited in aid.

RESOLUTION
I have read the issues formulated by parties and find that; they are similar on the areas of complaint but I shall adopt the Respondents’ issues because they are apt and cover

all the grounds for this appeal.

ISSUE 1
The focal point in this issue and more so in this appeal is hinged on who proved a better title to the land in dispute.
On the one hand, the Respondents traced the root of their title to a grant of land under Bini Customary law which was obtained by the 2nd Plaintiff’s father who wrote applications to the Oba Akenzua II (the Oba of Benin 1963/1964); Exhibits A, A1 and A2 as their root of title. And the land in dispute was under the jurisdiction of Ward A Plot Allotment Committee duly appointed by the Oba Akenzua II. The 2nd Plaintiff’s father took immediate possession of the land by surveying the property; Exhibit F. The land in dispute is said to be within Ugiokhuen Village and Oko Village area. The Respondents also tendered a survey plan; Exhibit B which gives the area in dispute as measuring 17.39 hectares.

The Respondents also relied on Exhibit G, G1 and G2 which are judgments of the Supreme Court, they also tendered the plan used in the above judgments; Exhibit D.

While the Appellant(s) on the other hand relied on traditional evidence; that their ancestors founded their village in

accordance with Benin Customary Law and gave oral evidence naming all their past ancestors from the founder of the village to the present head. They also led evidence that they have been in possession, had carried out farming activities, built a school on it and carried out a survey plan; Exhibit P which describes the land in dispute as the entire Ekhaguere Village measuring 41.4042 hectares.

Another important poser that works hand-in-hand with the former is; whether the burden of establishing that the Appellant/Defendants (Ekhaguere Village/Community) are autonomous falls on the Respondents/Plaintiffs or on the Appellant/Defendants?

The Respondents/Plaintiffs in their 5th Further Amended Statement of Claim stated thus;
3. The land which forms the subject matter of this action is situate at Oko village and is well known(sic) to the parties herein. The said land now in dispute is part of a larger portion of the late Oba Akenzua II in Oko village, the Ohen – Ugiokhuen and Elders of Ugiokhuen village and the plot allotment committee of WARD A Benin city in 1963 and 1964. Plaintiffs shall at the trial found on the three approved

applications obtained by their late father in respect of the land at the trial of this action which said applications are attached to Deed of Conveyance dated 10/4/74 and registered as No. 15 at page 15 in Volume 229 of the Lands Registry in the office at Benin City. Plaintiffs will rely on the said Deed and applications.
4. Before the said grant, the said Ohenoko and Elders of Oko village and WARD A Plot Allotment Committee sent a delegation including their report to the Ward that the land was free from all encumbrances, the said Ohen – Oko and Elders of the village, Ohen and Elders of Ugiokhuen village and Ward A Plot Allotment Committee recommended the said Chief Felix Owen Elema’s application to the said late Oba Akenzue II who approved same. Plaintiffs added that the fathers of the original 1st to the 4th Defendants were members of the said Ward A Plot Allotment Committee and signed the said approval.
5. Plaintiffs aver that the said parcels of land were granted to their late father, late Chief Felix Owen Elema, took steps to produce composite plans of the parcels of land granted him. Accordingly, survey plan No. OM/1690 dated 26th July, 1965 which

embodies the bulk of the land was produced. Plaintiffs shall at the trial found on survey plan No. OM/1690 and Deed of Conveyance registered as No. 22 at page 22 in volume 253 of the Lands Registry in the office at Benin City containing same.
5b. Before Plaintiff’s father could complete the surveys of land granted him, Plaintiff’s father died. Consequently, his administrators including Plaintiffs herein completed the survey by producing plan No. MWC/609/77 dated 24th, 1977. The said Plan prepared by a licensed surveyor is attached to power of attorney dated 18th October, 1979 and registered as No. 16 at page 16 in volume 708 of the Lands Registry in the office at Benin City. Plaintiffs may rely on the plan and power of attorney..

See pages 6— 7 of the Record.
The Respondents further led evidence during trial through PW2 testified that;
“2nd Plaintiff: … The land in dispute form part of the estate of the late Felix Owen Elema. The land lies and situates in Oko village area. My late father acquired the land under Benin Customary Law and it was granted by the late Oba of Benin, Akenzua II. He acquired it

through Ward A Plot Allotment Committee in charge of that area about 196, through Ohen Oko and elders of Oko village community including father of the defendants. The land was inspected by the Ohen Oko elders of Oko community, Ohen Ugiokhuen and elders of Ugiokhuen village, Ward A Plot Allotment Committee Benin City and found free from encumbrances. The fathers of the defendants who were part of the Oko community, Ekhaguere community went also to inspect the land. Ekhaguere community was part of Ward A Plot Allotment Committee. My late father made three applications to the Oba of Benin, Akenzua II to acquire land. After the inspection, the application was sent to the Oba’s palace for the Oba’s approval. The Oba approved the allocation. My father employed the service of a land surveyor, late O. E. Omoregie to do the property survey. He produced property survey plan No. M 1690 of 26/7/65. I can identify the 3 Oba’s approval contained in exhibit A, we used the 3 Oba’s approval in litigation in suit No. B/7/70/81. The suit was in our favour i.e., in Jonathan Elema & Ors v. William Evboumwan & Ors. For themselves and on behalf of Oko village. We also

used the Oba’s approval in suit No. B./105/8 in Sunday Ekema & Anor V. Reuben Iserhenrhien for himself and Iriri and Ugiokhuen community which suit terminated in our favour. Suit No. B/70/81 ended in the Supreme Court in suit No. SC/7/92 and it was unanimously decided in our favour. We have the original copies of the Oba’s approval but I do not have them in Court. I have retrieved them from the Supreme Court now. I have a copy of plan No. OM 7690. The plan was lodged with the surveyor general, I can identify the certified true copy of plan No. OM 1690. It is produced and I identify it.
Court: Plan No. OM 1690 is admitted in evidence as exhibit and marked as exhibit F.
2nd Plaintiff continues: Exhibit F does not contain the entire land acquired by my late father. The area not covered by exhibit F was subsequently surveyed. I can identify the survey plan. I see exhibit A1, it is a reconveyance. I have the conveyance containing the plan of the land surveyed by us. It is plan No. 60977, it is documentation of his landed properties, i.e., the conveyance had not been completed. We did the registration of his grant(sic) from the Oba of Benin as

administrators of his estate. On the 10th of April, 1974, the administrators conveyed the properties in plan OM 1690 to me as secretary of the estate and same was registered as No. 15 at page 15 in volume 229 in the office of the land Registry, Benin City. On 10/10/74, I re-conveyed the property to the administrators of the estate and same was registered at No. 22, page 22 in volume 253 in the office of land registry, Benin City, I can identify the said documents registered. They are in exhibit A1 and A2. Suit No. B/70/81. We filed a plan in suit No. B/70/81. I can identify the plan. It is produced. I identify it as the litigation survey plan filed and served. It is exhibit D in this suit. I can identify the judgment in suit No. B/70/81 in the High Court, Court of Appeal, Benin and the Supreme Court. They are produced and I identify them.”
See pages 36 — 38 of the Record.

From the above reproduced pleadings and evidence, the Respondents/Plaintiffs lay claim to the land in dispute on the potency of the Oba of Benin approvals (Exhibit A, A1 and A2) and the past judgments of the Plaintiffs and Oko village (Exhibits G, G1 and G2).

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The Appellant/Defendants on the other hand asserted in paragraphs 3 – 5 of his 4th Further Amended Statement of Claim thus;
3. The Defendants deny paragraphs of the 5th Further Amended Statement of Claim and say that the land in dispute is in Ekhaguere Village and Ekhaguere Village is not part of Oko Village and Ugiokhuen Village and therefore nobody from those Villages can come into Ekhaguere Village to give land to the Plaintiffs’ late father without the owners of the village knowing.
4. In further answer to paragraph 3, the Defendants aver that Ekhaguere Village existed before the Plaintiffs’ great grand father was born and the ruins of the village with their shrines are still here.
5. The Defendants deny paragraph 4 of the 5th Amended Statement of Claim and say that since the Plaintiffs’ father did not apply for land in Ekhaguere Village, persons from Ekhaguere could not have gone with their father to inspect the land. The defendants will lead evidence to show that Ekhaguere village was never in Ward ‘A’ Plot Allotment Committee area of authority Benin City in 1963 and 1964 or at anytime neither has it ever been under

Ohenoko and elders of Oko Village, the Ohen — Ugiokhuen and elder of Ugiokheun Village and the Plot Allotment Committee of Ward ‘A’ Benin City.
See pages 14 — 15 of the Record.

From the above reproduced pleadings, the Appellant asserted that the land in dispute is not part of Oko village and Ugiokheun village and did not fall under the jurisdiction of Ward A Allotment Committee.

It is a settled principle of law that he who asserts must prove, this Court held thus in AYALA v DANIEL & ORS (2019) LPELR – 47184 (CA);
“It is the law that whoever assert the affirmative must proof by credible evidence. See Sections 131, 132 and 133 of the Evidence Act, 2011. The latin maxim in this regard is “INCUMS PROBATIOQUI DICIT, NON QUI NEGAT” Meaning the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it for a negative is usually incapable of proof. See the case of SENATOR IYIOLA OMISORE & ANOR V. OGBENI RAUF ADESOJI AREGBESOLA & ORS (2015) LPELR – 24803, FAMUROTI V. AGBEKE (1991) 5 NWLR (PT. 189) AT 13.”
per ONIYANGI, J.C.A. (P. 4, PARAS. A – C)
See

also; DASUKI v FRN & ORS (2018) LPELR – 43897 (SC); JIMOH v HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR – 46329 (SC); OSUMILI & ANOR v CNPC/BGP INTERNATIONAL (2019) CA.

It therefore behoved on the Appellant/Defendants to prove that Ekhaguere village is not part of Oko and Ugiokhuen villages for the purpose of land allocation and show their root family title and how they are the owners of the land.

Furthermore, inOSAWE & ANOR v IDEHEN (2014) LPELR – 23330 (CA), the Court held thus;
“The law is well settled as it relates to acquisition of title to land under Bini Customary Law prior to the Land Use Act. The procedure as follows: 1. The Oba of Benin is the only authority competent under Bini Customary Law to make allocation or grant of Bini lands in or outside Benin City; for under the self — same law, all Bini lands are communal property of the entire Bini people and the legal estate in such lands is vested and resides in the Oba as trustee for the Bini people. 2. The application for allocation of land is usually made to the appropriate Plot Allocation Committee having jurisdiction over the land in question;

which Committee will send some of its members to inspect the land and ascertain its availability for grant. 3. Recommendations of the applications are then made by the relevant Plot Allocation Committee to the Oba of Benin 4. The endorsement of the Oba of his approval on the grantee’s written application, duly recommended by the relevant and appropriate Plot Allocation Committee immediately transfers to the purchaser or grantee the plot of land involved. 5. 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 for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one. 6. It is contrary to Bini customary law to unilaterally set aside an earlier approval. See OKEAYA vs. AGUEBOR (1970) 1 ALL NLR 1, AIKHIONBARE vs. OMOREGIE (1976) 12 SC 11, EVBUOMWAN vs ELEMA (1994) 6 NWLR (PT 917) 184 or (2005) LPELR (2846) 1 at 17- 18.”
OGAKWU, J.C.A. (PP. 29 – 31, PARAS. F – C).
See also; OGBEBOR v IHASEE (2013) LPELR – 20729 (CA); ONWUANYI v BORHA (2013) LPELR – 21970 (CA); OWIE v IGHIWI (2005) LPELR

– 2846 (SC); AMAYO v ERINMWINGBOVO (2000) LPELR – 6016 (CA); ENABULELE v AGBONLAHOR (1999) LPELR – 1138 (SC).

I align myself with the reasoning and decision of the lower Court where it held thus;
“…It is trite that whosoever asserts must prove and so the onus is on the defendants to prove that Ekhaguere village is not part of Oko and Ugiokhuen villages for the purpose of land allocation. In my view, the best way they would have proved this would have been the production of any land allocation approval by the Oba of Benin in their favour at that period in time when Plaintiffs claimed their father was allocated the area by the Oba. The defendants pleaded erroneously that they are owners of the village in the said paragraph 3. In the case in Exhibit G1, Dahiru Musdapher J.C.A. (as he then was) stated at pages 20 and 21 as follows: – Under Benin Customary Law, a native or native communities are not the legal owners of the land and lands cannot be owned until and unless there is a grant from the Oba of Benin. See Bello V Eweka (1981) 1 SC 101. In other words, the appellants can only be the “owners” of the land in dispute when there was a grant to

them by the Oba of Benin. In the instant case, Chief Elema wanted large parcels of land in the Oko Village area. At the relevant time, there was no Plot Allotment Committee established for the village area. The cardinal issue was whether the Oba of Benin had granted the land in dispute to Chief Elema. If the Oba of Benin, Chief Elema had acquired a valid Customary title to the land in dispute per Dahiru Musdapher J.C.A. in William Evbuomwan & 3 ors V Jonathan EZema & 2 ors (1989) (as reported) CA/B/175/86 of 11th July, 1989 at pp 20 & 21.
The evidence of possession of the land by the defendants cannot sustain their title to the land in dispute in view of the superior evidence of the Plaintiffs as to the mode of acquisition. The Survey of the land which I find in Exhibit F is an act of ownership by the Plaintiff’s predecessor in title since 1965. Although, the defendants tried to lead some recent evidence of their autonomy, it cannot match the Oba’s approval…”
See page 99, line 20 — page 100, line — 22 of the Record.

I do not believe the existence of Ekhaguere Village/Community is not the bone contention or whether or not

they are part of Oko village, it may appear so on the surface but the real/main issue is the title to 17.39 hectares which area is verged red in Exhibit B (survey plan No. ISO/ED/D16/2000) and put in dispute by the Respondents.

Therefore, the Appellants/Defendants reliance on their supposed long-term possession of the land in dispute and acts of ownership carried out on the land as proof of title may not favour them in this instant case.

They also contended that they are not part of Oko village and the judgments in Exhibits G, G1 and G2 do not apply to them.
Exhibits G, G1 & G2 are not for the purpose of res judicata but to prove that the Plaintiffs are legally in possession, therefore, the arguments of them not being parties to the suits does not hold water. They are part of Oko village, Section 174 Evidence Act, 2011 provides thus;
(i) If a judgment is not pleaded by way of estoppels, it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was or might have been decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue in any subsequent proceeding.
(2) Such

judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.
See also:UKAEGBU v UGOJI (1991) 6 NWLR PART 196.

Furthermore, Exhibits G, G1 and G2 dealt with the land in dispute and the allocation grants were held to be valid and the survey plans produced in suits No. B/70/81; B/105/83 and No. SC/7/92 were unanimously decided in the favour of the Respondents.

On the contention of the Appellant/Defendants that the police investigated their claim that they are not part of Oko village and found that they are not part of Oko village is not supported by the evidence of the DW4 at pages 65 – 66 of the record, I have perused the evidence of DW4 and the above position was not stated by the Defendants’ witness, he only stated that the land claimed by Chief Elema consist of old houses and moat and warned both parties to desist from fighting to avoid bloodshed. It can be concluded as was rightly done by the lower Court that:
“The plaintiffs have shown by documentary proof the area of their land and the traditional history of the existence

of Ekhaguere village which is oral cannot jettison that evidence. There is no documentary proof of the exact area of Ekhaguere village. Some persons may have settled in that area which they called Ekhaguere but my finding is that it has to be outside the defined area granted the Oba of Benin to the predecessor in title of the Plaintiff shown in the Oba’s approval tendered by the Plaintiffs which is the legal title, covered by Exhibits A, A1 and A2. Even by Exhibit P, the Defendant’s surveyor in key 2 and showed the plaintiffs’ land. The Oba’s approval is not in doubt…”
See page 104 of the Record.

Following from the above, I hold that the Respondents were able to prove their case on the preponderance of evidence and balance of probabilities, the pleadings and evidence in this case tilts in favour of the Respondents.
I resolve issue 1 in favour of the Respondents.

ISSUE 2
It is a trite principle of law that a Counter claim is a separate suit from the main suit, which will succeed on its own.
In AMADI v AMADI (2018) LPELR – 46269 (CA), this Court held thus;
“The law is well settled that, a counter claim is a

separate, independent and distinct action which stands on its own and though filed along with the statement of defence does not depend on the statement of defence for sustenance or support. It is on equal footing with the main claim before the Court. See DAHIRU & ANOR V. KAMALE (2004) LPELR 11135 and MAITO & Ors V. OGUNBODEDE (2013) LPELR 20892.”
per LAMIDO, J.C.A. (PP. 10 – 11, PARAS F – B).
See also: OROJA & ORS v ADENIYI & ORS (2017) LPELR – 41985 (SC); IFEMESIA v ECOBANK (2018) LPELR – 46589 (CA); R-BENKAY NIGERIA LTD v CADBURY NIGERIA LTD (2012) LPELR – 7820 (SC).

The Appellant led no evidence in proof of his counter claim at the lower Court. The alleged letter of authority by the Oba of Benin Ward Plot Allotment Committee was not tendered in the Evidence. There is no evidence from the investigation carried out as asserted by the Appellant/Defendants stating that Ekhaguere Village/Community is distinct from Oko village, not even the evidence of DW4 neither was there any evidence to show that there existed Ekhauguere village, Ward A Benin City Plot Allotment Committee is separate and distinct from Oko Village Ward A Benin

City Plot Allotment Committee.

From the claims of the Appellant/Defendants, they claimed for damages in the tune of N100,000,000.00 (One hundred million naira).

or even remains silent will not discharge the burden on him. The proof required is clear, cogent evidence, directly pointing of the issues in dispute so that the plaintiff’s case is preponderantly believed and preferred. See; Archibong vs Ita (2004) 1 S.C (Pt. 1) …”
per OTISI, J.C.A. (PP. 136 137, PARAS F – C).
See also; Sections 131, 132 & 133 of the Evidence Act, 2011; AGBOOLA v UBA PLC & ORS (2011) LPELR – 9353 (SC); OHOCHUKWU v AG OF RIVERS STATE & ORS (2012) LPELR – 7849 (SC); MOHAMMED v WAMMAKO & ORS (2017) LPELR – 42667 (SC); UNILORIN & ORS v OBAYAN (2018) LPELR – 43910 (SC).

The lower Court was right in dismissing the counter claim of the Defendants/Appellant when it held thus;
“As for the counter claim in paragraph 4 of the defendant’s 4th Amended Further Statement of defence, I find from the facts adduced in this case that there is no basis for this Court to make the declaration sought in paragraphs 43 (i) (ii) and they are accordingly dismissed. The claim of N100,000 damages (sic) is not shown for what purpose. The claim is vague and un-supported by the evidence. The Defendants are adjudged

trespassers unto the land shown in plan No. ISO/ED/D16/2000 which part of Elema estate and therefore the defendants counter — claim for perpetual injunction against the Plaintiffs who have proved better title to the land cannot be made. In the circumstance, I hold that the counter claim of the defendants is totally lacking in merit and it is accordingly dismissed.”
See pages 105 — 106 of the Record.

Flowing from above and the reasoning in issue 1, I resolve this is issue against the Appellant.

Having resolved the issues herein against the Appellants, this appeal lacks merit and is hereby dismissed.

The decision of the Edo State High Court, Auchi Judicial Division delivered by HON. JUSTICE E. F. IKPONMWEN on 14th March, 2012 is hereby affirmed.
Cost of N200,000 is awarded in favour of the 1st Respondent.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A., which has just been delivered. I agree with my lord that the appeal is devoid of merit and I also dismiss the same for the reasons set out in the judgment. I abide by the

consequential orders made in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read in advance the judgment just delivered by learned brother ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. I agree with his reasoning and conclusion that this appeal lacks merit and deserves a dismissal. I too dismiss the appeal. I abide by the order of cost made therein.

Appearances:

E. DIGBAN For Appellant(s)

NO APPEARANCE FOR RESPONDENT. For Respondent(s)