SAMSON IGHODARO v. DR. EFIONAYI IYAYI
(2015)LCN/7939(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of July, 2015
CA/B/80/2011
RATIO
LAND LAW: TITLE TO LAND; PRINCIPLES GOVERNING THE ACQUISITION OF VALID TITLE TO LAND IN ACCORDANCE WITH BINI CUSTOMARY LAND LAW
The principles governing the acquisition of valid title to land in accordance with Bini Customary land law has been considered and determined in a plethora of cases. The principles are 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.”
See OKEAYA-INNEH vs. AGUEBOR (supra), OWIE vs. IGHIWI (supra), EVBUOMWAN vs. ELEMA (1994) 6 NWLR (PT 353) 638 and IKHINMWIN vs. ELEMA (2014) LPELR (23322) 1 at 2425 to mention a few. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVIDENCE: BURDEN OF PROOF; THE BURDEN ON THE APPELLANT TO PROVE HIS CASE BASED ON THE STRENGTH OF HIS CASE AND NOT HE WEAKNESS OF THE DEFENCE
The Appellant had the burden of proving his case based on the strength of his case and not on the weakness of the defence. See KODILINYE vs ODU (1935) 2 WACA 336 at 337. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
SAMSON IGHODARO Appellant(s)
AND
DR. EFIONAYI IYAYI Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The tussle in this action is in respect of the piece or parcel of land said to lie and situate at ENO ERHAHON Close, Ugiokhuen Village Ward 36A Benin City. The Appellant, as Plaintiff in the Lower Court sued the Respondent as Defendant, claiming entitlement to a Statutory Right of Occupancy over the disputed land, injunction and damages. The Respondent denied the Appellant’s claim maintaining that the disputed land was in Ugbor Village and was part of the plots of land he acquired at Ugbor Village Ward 36/A Benin City. The Respondent asserted that Ugiokhuen had no separate Plot Allotment Committee, but was part of the Irhirhi/Ugiokhuen Plot Allotment Committee.
The Appellant claimed the following reliefs against the Respondent:
“(i) A DECLARATION that the Plaintiff is entitled to statutory Right of Occupancy to that piece or parcel of land lying and situate at ENO ERHAHON CLOSE Ugiokhuen Village, Ward 36A, Benin City measuring 100feet by 200feet covered by Survey Plan NO SIE/ED05/D2 prepared by Registered Surveyor Stanley Egogo dated 11/03/05 trespassed upon by the Defendant within the jurisdiction of this Honourable Court.
(ii) AN ORDER of perpetual injunction restraining the Defendant whether by himself, his servants, agents or privies or otherwise howsoever from trespassing on any part or portion of the said parcel of land measuring 100feet by 200feet lying and situate at ENO ERHAHON CLOSE Ugiokhuen Village, Ward 36A, covered by survey plan of Surveyor Stanley Egogo dated 11/03/05 covered by Litigation Survey Plan NO: SIE/EDO5/D2.
(iii) DAMAGES of N5,000,000.00 (Five Million Naira) only.”
(See page 7 of the Records)
The matter was subject to a full dressed hearing at which testimonial and documentary evidence was adduced by the parties. At the end of the plenary trial, the Lower Court in its judgment dismissed the Appellant’s case in its entirety. The scarified judgment is at pages 92-105 of the Records.
The Appellant was dissatisfied with the said judgment of the High Court of Edo State in the said Suit No. B/367/2004 between SAMSON IGHODARO vs. DR. EFIONAYI IYAYI delivered on 19th October, 2010 and he appealed against the same. The original notice of appeal was filed on 25th October, 2010. With the leave of Court, the Appellant filed additional grounds of appeal and an Amended Notice of Appeal which were deemed as properly filed on 25th April, 2012. After the appeal was entered, briefs of argument were filed and exchanged by the parties. The Appellant’s Brief of Argument is dated and filed on 30th April, 2012. The Appellant also filed a Reply Brief which is dated 31st March 2014, filed on 1st April, 2014 and deemed as properly filed and served on 11th May, 2015. The Respondent’s Brief of Argument is dated and filed on 3rd July, 2012 and deemed as properly filed and served on 30th October, 2013.
At the hearing of the appeal, Ighodalo Imadegbelo, Esq., SAN, learned Senior Counsel for the Appellant adopted the submissions in the Appellant’s Briefs and he urged the court to allow the appeal, set aside the judgment of the Lower Court and enter judgment for the Appellant as per his Statement of Claim. In the same vein, E. F. Osifo, Esq., of Counsel for the Respondent adopted the submissions in the Respondent’s Brief and he urged the Court to dismiss the appeal and affirm the decision of the Lower Court.
The Appellant distilled two issues for determination in his brief of argument as follows:
“1. Whether or not the learned trial judge was right in holding that the Plaintiff did not prove his title to the land in dispute.
2. Whether or not the learned trial judge was right in failing to properly evaluate Exhibits D1, D2 and D3 which bear a false facade.”
The Respondent on his part formulated three issues for determination as follows:
“1. Whether having regard to the issues captured in paragraphs 3, 4, 5, 6, 7 and 17 of the appellant’s Statement of Claim and paragraphs 3, 4, 5, 7, 16 and 16A of the respondent’s Further Amended Statement of Defence, the apparent failure of the appellant to prove his case on its own strength and the absence of a Counter Claim by the respondent, the learned trial Judge was not right when he dismissed the appellant’s case without considering the defence.
2. Whether the learned trial Judge was not right when, in writing his judgment, he considered and utilized Exhibit “D” attached to the Further and Better Affidavit filed by the appellant on 17th January, 2005 which forms part of the record of the Court.
3. Whether the learned trial Judge was not right when he held that he found no merit in the appellant’s case and dismissed same.”
In arriving at the conclusion that the Appellant did not prove his case, the Lower Court held that the Ugiokhuen Plot Allotment Committee, which the Appellant claimed recommended his application for land to the Oba of Benin for approval, was not the appropriate Committee and therefore no valid title over the disputed land vested on the Appellant under Bini customary land law. (See page 104 of the Records).
In arriving at its decision, the Lower Court also relied on a document attached to a Further and Better Affidavit filed by the Appellant in respect of an interlocutory application showing that the Plot Allotment Committee was the Irhirhi/Ugiokhuen Plot Allotment Committee. The Appellant challenges the use made of the said document attached to the Further and Better Affidavit by the Lower Court especially as the document was never tendered in evidence in the case.
In the light of the ratio decidendi of the Lower Court, it seems to me that the issues for determination have to be concise in order to conduce to clarity for the proper determination of the appeal. See MUSA SHA (JNR) vs. DA RAP KWAN (2000) 5 SCNJ 101 at 127. In keeping with the settled legal position that a court can re-formulate issues formulated by parties in order to give it precision and clarity: UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846 – 1847; I will shortly distil issues which I consider apposite, the said issues will not only be distensible as to encompass the issues formulated by the parties and their arguments thereon but would in fact be cumulative with them. See SANUSI vs. AMOYEGUN (1992) 4 NWLR (PT 237) 327 at 550 – 551 and NEKA B.B.B. MANUFACTURING LTD vs. A.C.B LTD (2004) 17 NSCQR 240 at 250 – 251. In this wise, the issues that I find apt and on the basis of which I will consider the submissions of learned Counsel and resolve this appeal are:
1. Whether the Lower Court was right to have used the document attached to the Further and Better Affidavit, which document was never tendered in evidence in the case.
2. Whether on the preponderance of evidence or balance of probabilities, the Lower Court rightly dismissed the Appellant’s case.
ISSUE NUMBER ONE
Whether the Lower Court was right to have used the document attached to the Further and Better Affidavit, which document was never tendered in evidence in the case.
SUBMISSIONS OF THE APPELLANT
The submissions of the Appellant on this issue span from paragraphs 4.11 to 4.15 on pages 13-16 of the Appellant’s Brief and paragraph 4.19 on page 18 of the said Appellant’s Brief. The Appellant made further submissions, which were largely repetitive of what was contained in the Appellant’s Brief, in paragraphs 1.02-1.04 on pages 3-4 of the Appellant’s Reply Brief and paragraph 1.07 on pages 10-11 of the Appellant’s Reply Brief. In a nutshell, the contention of the Appellant is that the Lower Court was wrong to have relied on the document attached to the Further and Better Affidavit as the same was never pleaded and no witness was confronted with the document nor was it tendered in evidence. It was opined that the power of a court to look at documents in the case file not tendered as exhibits does not extend to the Court relying on facts in an affidavit which do not highlight facts already established by the evidence of the parties and that the issue was only raised in the final address of counsel. The cases of ALLIED BANK (NIG) LTD vs. AKUBUEZE (1997) 6 NWLR (PT 409) 374 at 403, AGBONIFO vs. AIWERIOBA (1988) 1 NSCC 237 at 248, AGBAISI vs. EBIKOREFE (1997) 4 NWLR (PT 502) 630 at 649, NASCO MGT SERVICE LTD vs. AMAKU TRANS LTD (2003) 2 NWLR (PT 804) 290 at 334 and 335, HASHIDU vs. GOJE (2003) 15 NWLR (PT 843) 352 at 382-383 and BURAIMOH vs. BAMGBOSE (1989) 3 NWLR (PT 109) 352 at 365 were referred to.
SUBMISSIONS OF THE RESPONDENT
The Respondent in paragraph 2.08 et sequentia of the Respondent’s Brief spanning from pages 6 – 14 submits that the Respondent put the legitimacy and appropriateness of Ugiokhuen Plot Allocation Committee Ward 36/A in issue in the pleadings and that evidence was adduced on that through the DW1 and DW2. It was posited that material facts are pleaded and not the evidence by which the facts are to be established. It was contended that the Appellant having used the Further and Better Affidavit in the process of adjudication on his application for interlocutory injunction cannot now denounce the Lower Court for utilizing the same in the process of judgment. The Respondent maintained that the Lower Court had a right to look at the document in the file which was not tendered as an Exhibit. The cases of AGBAISI vs. EBIKOREFE (supra) at 648D, UZODINMA vs. IZUNASO (NO. 2) (2011) 17 NWLR (PT 1275) 30 at 75F-H, A-G ANAMBRA STATE vs. OKEKE (2002) 12 NWLR (PT 782) 575 at 603-605, IPINLAYE vs. OLUKOTUN (1996) 6 NWLR (PT 453) 148 at 166A-B and THANNI vs. SAIBU (1977) 2 SC 89 at 114 were relied upon.
RESOLUTION OF THE ISSUE
At page 102 of the Records, the Lower Court in the chafed judgment stated as follows:
“The crucial issue raised by the defence in respect of the plaintiff’s acquisition relates to the fact that the application for the plot is made to the appropriate plot allotment committee having jurisdiction over the land which recommends to the Oba and that the Oba’s approval of an application duly recommended by the relevant and appropriate plot allotment committee confers title on the grantee. It is therefore the duty of the Plaintiff to establish compliance with the procedure.”
In resolving this “crucial issue” the Lower Court held as follows at pages 103-104 of the Records:
“I have before now referred to the fact that the plaintiff was asked whether he applied for, received and filed in court a copy of the document by which the Oba appointed the members of the committee that recommended his application for approval which questions he answered in the affirmative. It is therefore clear to me that the question of that document was not raised for the first time in the address of the defence counsel. It is my view that the plaintiff had by his answers to those questions acknowledged that document as forming part of the proceedings in this case especially as it pertinent to a live issue in the case. It will therefore be a regation [sic] of justice to shut out such a document which has sufficiently passed through the litigation process. See OYEWOLE VS AKANDE (2009) 15 NWLR PT. 1163 PG. 119 AT. 148. I therefore reproduce the document referred to which is filed as exhibit D attached to the plaintiff’s further affidavit in the interest of justice. It is as follows:-
‘THE PALACE,
BENIN CITY,
12th January, 1995
JONATHAN UMWENI of
Irhirhi-Ogiokhuen Village Area,
Benin City
I have pleasure in appointing you as a member of Building Plot Allotment Committee for Irhirhi-Ugiokhuen Viallage[sic] Area, Benin City.
This letter cancels any leter [sic] of appointment as a member of Building Plot Allotment Committee for any Ward or Area in Benin City you have or may have received from me previously.
(SGD),
OBA OF BENIN”
On the face of the document which is signed by the Oba of Benin, it appoints one Jonathan Umweni as a member of the Irhirhi-Oghiokhuen plot allotment committee. In view of the admission of the plaintiff that he obtained and filed the document as one showing the appointment of members of the committee that recommended his application to the Oba, it is clear to me that exhibit A which was signed and recommended to the Oba by the members of the Ughiokhuen plot allotment committee is not from the appropriate committee and, as the authorities stand, vests no valid title on the plaintiff under Bini Customary land law. The effect of the foregoing is that the plaintiff having knocked the bottom out of his own case it will serve no useful purpose to consider his claim to ownership of the land any further nor to advert to the case of the defendant who has no counter claim.”
It is this reliance by the Lower Court on the document attached to the Further and Better Affidavit filed by the Appellant in support of his application for interlocutory injunction that forms the fulcrum of the complaint of the Appellant in this regard. It is pertinent to properly conualise the said Further and Better Affidavit and the exhibit attached thereto for a limpid appreciation of what is at stake.
After the Appellant instituted the action, he filed an application for interlocutory injunction to restrain the Respondent from trespassing onto the disputed land pending the determination of the suit. See pages 3-3E of the Records. In reaction to this application, the Respondent filed a counter affidavit, where inter alia, he deposed in paragraph 5a that Ugiokhuen Village had no constituted Plot Allotment Committee, the Appellant having claimed that the Ugiokhuen Plot Allotment Committee recommended his application for the disputed land to the Oba of Benin for approval. See pages 3F-3M of the Records. In response to the Counter Affidavit, the Appellant filed the Further and Better Affidavit in support of the motion where in paragraph 6(iii), it was deposed that “Ugiokhuen Ward 36A Plot Allotment Committee had been existing before 1965 as shown in Exhibit “D” (See pages 3N – 3P of the Records). The said Exhibit ‘D’ which was attached referred to Irhirhi-Ugiokhuen Plot Allotment Committee. On the strength of the affidavits which was filed, the Lower Court granted the order of interlocutory injunction sought. (See page 32 of the Records). So the Further and Better Affidavit had undergone the process of litigation or adjudication by the court and was not in respect of a process that was abandoned. See A-G ANAMBRA STATE vs. OKEKE (supra).
In paragraph 5 of the 5th Further Amended Statement of Defence the Respondent averred as follows:
“5. Ugiokhuen Village or community never existed as a single entity for purpose of Plot Allotment prior to 1978 when the Lands Use Act was promulgated. The people of Ugiokhuen are historically under Irhirhi community or village from where they migrated. So for purpose of land allocation, what the Oba of Benin constituted was Irhirhi/Ugiokhuen Plot Allotment Committee, Ward 36/A. The Defendant shall contend at the trial that the purported Oba’s Approval of the Plaintiff dated 9th January, 1975 did not emanated from the lawful authority duly constituted to allocate plot at the material time. The Defendant shall found on the judgment of High Court Benin in Suit No. B/581/96: Erebor vs. Ovenseri delivered by Hon. Justice C.O. Idahosa on 16th August, 2002.”
(See page 27 of the Records).
The Appellant joined issues in this regard in paragraph 4 of the Amended Reply to the Amended Statement of Defence where he averred that:
“4. The Plaintiff avers that in Reply to paragraphs 4 and 5 of the Statement of Defence the Ugiokhuen Village Area had plot allotment committee and their applications for land were duly signed by His Royal Highness Oba Akenzua II without any objection or reservation till date.”
(See page 33 of the Records).
So at the close of pleadings, the parties were at issue on whether there was an Ugiokhuen Plot Allotment Committee or whether the Plot Allotment Committee with jurisdiction in the area was the Irhirhi/Ugiokhuen Plot Allotment Committee. In the course of adduction of evidence, the Respondent cross-examined the Appellant’s witness (PW1) in this regard and elicited the following answer:
“It is true that I know Irhirhi community. It is true that initially the committee was known as Irhirhi-Ugiojhuen committee but later there was a break up to Irhirhi and Ugiokhuen separately but still under ward 36A. I do not know when Irhirhi Ugiokhuen committee was formed. Although the Irhirhi Ugiokhuen plot allotment committee had jurisdiction over both Irhirhi and Ugiokhuen the committee was yet working at Irhirhi and had not get to Uguokhuen or done any allocation there fore the break up. It is true that I was not a member of the Irhirhi Ugiokhuen plot allotment committee. It is true I was not one of those signing approvals for the Irhirhi Ugiokhuen plot allotment committee as I was not a member of same. I do not know whether the Ugiokhuen plot allotment committee of which I was a member was formed by disgruntled members of Ugiokhuen community.”
(See page 38 of the Records).
Furthermore, in cross-examination of the Appellant who testified as PW3, the following answer was elicited from the Appellant:
“It is true that after this case started, I requested for and got a copy of the letter by which the Obe [sic] appointed the members of the Plot Allotment Committee who gave me the land. The letter was filed in the early stage of this case.”
(See page 51 of the Records).
By the above testimony of the Appellant, reference was made to the document, Exhibit “D”, attached to the Further and Better Affidavit of the Appellant which is at page 3N of the Records.
On this same vexed issue of the existence of Ugiokhuen Plot Allotment Committee as pleaded by the parties, the DW1 testified as follows:
“I know Iriri community. There is a historical relationship between Iriri and Ugiokhuen. The Oba joined them together under one plot allotment committee in 1961. It is not true that the land belongs to Ughiokhuen. It is situate between 1st Ugbor Road and 2nd Ugbor Road. There was never a plot allotment committee known as Ugiokhuen plot allotment committee. I am farmiliar [sic] with the Bini custom for allocating land. If a plot allotment committee makes an allocation in an area which is not within its domain then the allotment is not valid under Bini native law and custom.”
(See page 61 of the Records).
The DW2 equally testified thus:
“I do not know of any land committed [sic] for Ugiokhuen they were working together with the Iriri Committee.”
(See page 67 of the Records).
So contrary to the submissions of the Appellant, material facts on the matter were pleaded and evidence adduced thereon. Therefore on the state of the pleadings and the evidence, the issue of whether the appropriate plot allotment committee having jurisdiction over the land recommended the application to the Oba of Benin for approval was indeed a “crucial issue” as stated by the Lower Court.
It is trite law that a Court can refer to processes in the case file in order to arrive at a just decision: see MHAMBE vs. SHIDI (1994) 2 NWLR (PT 326) 321, FUMUDOH vs. ABORO (1991) 9 NWLR (PT 214) 210 and AGBAISI vs. EBIKOROFE (supra) at 648. The only qualification is that a court has no power to take and rely on facts disclosed in an affidavit in respect of an application which is abandoned:NASCO MGT SERVICE LTD vs. AMAKU TRANS LTD (supra) at 334F – 335A. As already demonstrated in this judgment, the Further and Better Affidavit was not in respect of an application which was abandoned. The said process was fully utilized by the Appellant in obtaining the order for interlocutory injunction. In the circumstances, the Lower Court was right to have used the document attached to the Further and Better Affidavit in the manner it did, in order to arrive at a just decision. Accordingly, this issue is resolved against the Appellant.
ISSUE NUMBER TWO
Whether on the preponderance of evidence or balance of probabilities, the Lower Court rightly dismissed the Appellants case.
As a prolegomenon, it is important to state that the decision of the Lower Court turned on the fact that the Appellant did not prove that the Ugiokhuen Plot Allotment Committee is the appropriate Committee to recommend approval of land in the Area to the Oba of Benin and therefore no valid title over the disputed land was vested in the Appellant under Bini Customary land law. See page 104 of the Records. It is against the background of this ratio decidendi that the submissions of counsel on this issue will be considered.
SUBMISSIONS OF THE APPELLANT
The Appellant submits that it is the duty of the plaintiff in a civil matter to adduce evidence to establish his case on the balance of probabilities and that once a prima facie case is shown by the plaintiff in a land matter, the balance of convenience will be in his favour unless the defendant tilts the balance. The cases of AROMIRE vs. AWOYEMI (1972) 2 SC 1 and NGENE vs. IGBO (1991) 7 NWLR (PT 203) 358 at 368 were referred to. The principles governing acquisition of title to land under Bini Customary Land Law as set out in the case of EKIOMADO vs. AGUEBOR (1970) ANCL 1 at 8-9 were set out and it was submitted that the evidence adduced by the Appellant satisfied the principles of acquisition of land under Bini Customary land Law as there was credible evidence from PW1 that Ugiokhuen Plot Allotment Committee separated from Irhirhi-Ugiokhuen Plot Allotment Committee and existed as a separate entity after the breakup.
It was submitted that the Respondent did not plead when the Ugbor Plot Allotment Committee which he claims allotted the disputed land to his vendor was set up by the Oba of Benin and the Area or extent of Ugbor Plot Allotment Committee and that this knocked the bottom off the Respondent’s purported allocation. The case of AROYEGBE vs. OGBEIDE (1988) NSCC Vol. 19 491 at 509 was referred to. It was further submitted that the Respondent failed to prove the signatures in the Oba’s approval relied by him and that no member of Ugbor Plot Allotment Committee was called to identify the signatures. It was further contended that Exhibit D3, the document of title relied upon by the Respondent had a false facade having been signed in 1974 in Bendel State of Nigeria whereas Bendel State was not created until 1976, thus making the legal value of the said Exhibit D3 zero. The case of NWAOBA vs. IHEBIE (1990) 2 NWLR (PT 134) 589 at 595 – 596 was relied upon.
The Appellant posited that full weight ought to be given to the Oba’s approval, Exhibit A, as no contrary evidence was adduced to controvert the fact that it was issued upon fulfilment of the laid down procedure as required by Benin Native Law and Customary Law. It was submitted that the judgment of the Lower Court was against the weight of the evidence adduced as the Respondent failed to prove the Oba’s approval by calling the appropriate officer of Ugbor Plot Allotment Committee to authenticate the approval. The Appellant contended that while it was correct that he was to succeed on the strength of his case and not on the weakness of the defence, he could rely on the evidence of the Respondent which supports his case. The cases of IROAGBARA vs. UFOMADU (2008) 11 NWLR (PT 1153) 587 at 603 and ADEHAMBO vs. OLOWOSAGO (1985) 3 NWLR (PT 11) 207 were cited in support.
SUBMISSIONS OF THE RESPONDENT
The Respondent submits that a claim of valid title can only be established if the claimant is able to show conjunctively that the Plot Allotment Committee that recommended his application to the Oba was the appropriate Plot Allotment Committee and that the Oba approved the application. The cases of OKEAYA-INNEH vs. AGUEBOR (1970) ALL NLR (Vol. I) at 3 – 4 and OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 189 were referred to. It was posited that the Lower Court rightly held that the Ugiokhuen Plot Allotment Committee had no capacity and authority to recommend the Appellant’s application for land for approval. It was stated that Exhibit D to the Further and Better Affidavit of the Appellant shows that what the Oba constituted was Irhirhi-Ugiokhuen Plot Allotment Committee and not Ugiokhuen Plot Allotment Committee, thus making Exhibit A which was issued by Ugiokhuen Plot Allotment Committee invalid. The Respondent maintained that where the Committee that recommends an application to the Oba has no jurisdiction, it is immaterial that the Oba signed the application. The case of UDIH vs. IDEMUDIA (1998) 4 NWLR (PT 545) 231 at 240 and 246 – 247 was relied upon.
It was further submitted that the Appellant had the burden of succeeding on the strength of his case and not rely on the weakness of the defence especially as there was no counterclaim. The case of ELEGUSHI vs. OSENI (2003) 14 NWLR (PT 345) 348 at 368 was cited in support. It was contended that on the totality of the evidence the Lower Court rightly found that there was no merit in the Appellant’s suit and that an appellate Court will not interfere where the trial court unquestionably evaluates the evidence and justifiably appraises the facts.
RESOLUTION OF THE ISSUE
In dismissing the Appellant’s case, the Lower Court held as follows at page 104 of the records:
“On the face of the document which is signed by the Oba of Benin, it appoints one Jonathan Umweni as a member of the Irhirhi-Oghiokhuen plot allotment committee. In view of the admission of the plaintiff that he obtained and filed the document as one showing the appointment of members of the committee that recommended his application to the Oba, it is clear to me that exhibit A which was signed and recommended to the Oba by the members of the Ughiokhuen plot allotment committee is not from the appropriate committee and, as the authorities stand, vests no valid title on the plaintiff under Bini customary land law. The effect of the foregoing is that the plaintiff having knocked the bottom out of his own case it will serve no useful purpose to consider his claim to ownership of the land any further nor to advert to the case of the defendant who has no counter claim. See ELEGBUSHI vs. OSENI (2005) 14 NWLR PT.945 PG.348 AT 368 and IROAGBARA VS UFOMADU (2009) 11 NWLR PT.1158 PG.587 AT.699.”
The Appellant laid claim to ownership of the disputed land on the basis of acquisition of the same under Bini Customary Land Law. The principles governing the acquisition of valid title to land in accordance with Bini Customary land law has been considered and determined in a plethora of cases. The principles are 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.”
See OKEAYA-INNEH vs. AGUEBOR (supra), OWIE vs. IGHIWI (supra), EVBUOMWAN vs. ELEMA (1994) 6 NWLR (PT 353) 638 and IKHINMWIN vs. ELEMA (2014) LPELR (23322) 1 at 2425 to mention a few.
Of particular note in the said principles and pertinent to the circumstances of this matter is that the Oba of Benin appointed Ward Allotment Committees and that the Oba of Benin would, as a rule, accord his approval in writing to a recommended application. In my consideration of issue number one, I resolved that the Lower Court rightly used the document attached to the Further and Better Affidavit filed by the Appellant and which was in the case file, even though it was not tendered in evidence, in order to arrive at a just decision. The said document shows the appropriate Plot Allotment Committee to be the Irhirhi-Ugiokhuen Plot Allotment committee. In essence, on the evidence, the Plot Allotment Committee with jurisdiction in the area is the Irhirhi-Ugiokhuen Plot Allotment Committee and not the Ugiokhuen Plot Allotment Committee. In UDIH vs. IDEMUDIA (supra) at 240, the apex court (per Ogwuegbu, JSC) held as follows:
“It is an essential requirement of Bini Customary law for a person to acquire a legal estate in any given Bini communal land, he must show that his application was recommended to the Oba for approval by the appropriate Ward Plot Allotment Committee having jurisdiction over the area in which the land is situate and such acquisition or transfer is effected on the endorsement by the Oba, of his approval on the purchaser’s application duly recommended by the appropriate Plot Allotment Committee. See Aigbe vs. Edokpolor (1977) 2 SC 1 at 13 and Awoyegbe and vs. Ogbeide (1988) 1 NWLR (Pt. 73) 695 (1988) 1 NSCC 491 at 508. The defendant in paragraphs 4, 5 and 6 of her statement of defence, in reply to paragraph 4 of the statement of claim challenged the right of Ward 33E Plot Allotment Committee to recommend approval to the Oba. It was therefore not enough for the plaintiff who had the burden to prove his title to tender the Oba’s approval and to say that Ward 33E Plot Allotment Committee recommended his application. He must go further to prove that it was the said Ward 33E Plot Allotment Committee that had jurisdiction over the land granted to him.”
The Appellant submitted that the existence of Ugiokhuen Plot Allotment Committee as a separate entity from the Irhirhi-Ugiokhuen Plot Allotment Committee was established by the testimony of the PW1. At the risk of prolixity, I will set out the testimony of the PW1 on this at page 38 of the Records. He testified as follows under cross examination:
“It is true that I know the procedure by which plot allotment committees were constituted. I do not know that the Oba gives letters to members of plot allotment committee personally as evidence of their appointment. It is true that it is the chairman who is the head of the committee who is usually given a letter by the Oba. The Chairman of my committee is now late. He is late Pa Efese Obanor – the Ohen of Ugiokhuen. It is true that I know Irhirhi community. It is true that initially the committee was known as Irhirhi-Ugiojhuen committee but later there was a break up to Irhirhi and Ugiokhuen separately but still under ward 36A. I do not know when Irhirhi Ugiokhuen committee was formed. Although the Irhirhi Ugiokhuen plot allotment committee had jurisdiction over both Irhirhi and Ugiokhuen the committee was yet working at Irhirhi and had not get to Uguokhuen or done any allocation there fore the break up. It is true that I was not a member of the Irhirhi Ugiokhuen plot allotment committee. It is true I was not one of those signing approvals for the Irhirhi Ugiokhuen plot allotment committee as I was not a member of same. I do not know whether the Ugiokhuen plot allotment committee of which I was a member was formed by disgruntled members of Ugiokhuen community.”
Now, apparent in the acquisition of land under Bini Customary Land Law is that the Plot Allotment Committees were set up and the members appointed by the Oba of Benin. Exhibit D to the Further and Better Affidavit of the Appellant shows that the Irhirhi-Ugiokhuen Plot Allotment Committee was appointed by the Oba of Benin. There is nothing in the testimony of the PW1 reproduced above to the effect that the Oba appointed the Ugiokhuen Plot Allotment Committee. The testimony is that there was a “break up to Irhirhi and Ugiokhuen separately”. Though he did not state that the Ugiokhuen Plot Allotment Committee was appointed by the Oba of Benin, he also did not know if the Ugiokhuen Plot Allotment Committee was formed by disgruntled members of Ugiokhuen Community. Instructively, the PW1 was never a member of the Irhirhi-Ugiokhuen Plot Allotment Committee and he never stated that the Oba of Benin appointed him as a member of the Ugiokhuen Plot Allotment Committee. I am therefore unable to agree with the Appellant that the testimony of the PW1 established the existence of the Ugiokhuen Plot Allotment Committee appointed by the Oba of Benin and having jurisdiction to recommend application for land in the area to the Oba for approval. The findings of the Lower Court that the Ugiokhuen Plot Allotment Committee is not the appropriate Committee is unassailable.
The Appellant forcefully submitted that full weight ought to be given to the Oba’s approval Exhibit A. I reiterate that under the principles governing the acquisition of valid title to land in accordance with Bini Customary Land Law, “the Oba of Benin would, as a rule, accord his approval in writing to a recommended application”. Therefore it would not appear that the mere production of the Oba’s approval would suffice to prove valid acquisition of title under Bini Customary Land Law. In the words of Onu, JSC in UDIH vs. IDEMUDIA (supra) at 246H-247A:
“The appellant’s failure or inability to show that the land in dispute is within the territory assigned to Ward 33/E Plot Allotment Committee and therefore the competent committee to recommend to the Oba of Benin in respect of the land simply means that the appellant has in the two courts below not proved his title to the land in dispute. Surely, the mere production of document on which the Oba’s purported approval was signified is not sufficient in law.”
The Appellant had the burden of proving his case based on the strength of his case and not on the weakness of the defence. See KODILINYE vs ODU (1935) 2 WACA 336 at 337. This is especially so as the Respondent did not counterclaim. There is also nothing in the case of the Respondent which supports the Appellant’s case particularly with respect to the root of title claimed by the Appellant, id est, application recommended for approval by the Ugiokhuen Plot Allotment Committee. In holding that the bottom was knocked out of the Appellant’s case, the Lower Court rightly found that the Appellant did not make out any prima facie case as to his title to the disputed land. In ELEGUSHI vs. OSENI (supra) at 368, the apex court held as follows:
“However, since the plaintiffs failed to make out a prima facie case against the defendants at the trial on their claim of ownership and title to the land in dispute, the defendants have no need to answer them on their defective defence, moreso when they (defendants) did not counterclaim against them. See the case of Mogaji vs. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393,wherein this court held that where pleadings of the parties raise the issue of who the original owners of the lands were, the plaintiffs in the matter have a very heavy burden to discharge, and they can only succeed on the strength of their own case and not on the weakness of the defence. Since the plaintiffs failed to discharge this burden, the quo warranto of their claim (that is ownership) was not established and I so hold.”
I kowtow and affirm as found by the Lower Court that the Appellant did not prove that any valid title over the disputed land vested in him. The weakness of the defence or even the non-existence of a defence would in the circumstances be of no consequence as the Appellant failed to make out a prima facie case. The Respondent not having filed a counterclaim, the heavy burden of proving title to the disputed land rested squarely on the Appellant. There was no duty on the Respondent to prove his title. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT.383) 152 at 160G-163E and 165D-F and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT.7721) 1458 at 1477C-D. The concatenation of the foregoing is that this issue number two must be resolved in favour of the Respondent. The Lower Court rightly dismissed the Appellant’s case, the Appellant having failed to prove his case on the balance of probabilities and preponderance of evidence.
The issues for determination having been resolved against the Appellant, it only remains to put a wrap on this judgment by stating that the appeal is devoid of merit and it is hereby dismissed. The judgment of the Lower Court in Suit No.B/367/2004 between SAMSON IGHODARO vs. DR. EFIONAYI IYAYI delivered on 19th October, 2010 is hereby affirmed. The Respondent is entitled to the costs of this appeal which I assess and fix at N50,000.00.
PHILOMENA MBUA EKPE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned Brother U.A. OGAKWU, JCA. The parties in this action were engaged in a skirmish over a piece or parcel of land at ENO ERHAHON CLOSE, Ugiokhuen Village Ward 36A, Benin City.
The gravamen of the disagreement between the parties is whether or not the Appellant proved by valid title to the said piece of land by the documents he tendered at the lower court.
I have carefully perused the submissions of both learned counsel in that regard. My learned Brother has admirably dealt with the two salient issues couched from the various issues distilled by both parties from the grounds of appeal. I have also gone through the decision of the lower court with a fine tooth comb which dismissed the Appellant’s case. I throw my weight behind the reasoning and conclusions of my learned Brother in the lead judgment that the appeal has no iota of merit. It fails in its entirety and is also hereby dismissed by me. The judgment of the Lower Court delivered on the 19th day of October, 2010 is hereby affirmed. I abide by my Lord’s order as to costs of N50,000.00 naira in favour of the Respondent.
HAMMA AKAWU BARKA, J.C.A.: I read in draft the judgment just delivered by my Lord UGOCHUKWU ANTHONY OGAKWU, JCA.
Having perused the records and the submissions made in the appeal, I am satisfied that the issues raised therein were sufficiently and brilliantly resolved in the lead judgment, and I have no intention of saying anything further. I too would dismiss the appeal as wanting in merit thus affirming the decision of the Lower Court in suit No. B/367/2004 delivered on the 19/10/2010.
Furthermore, that the respondents are entitled to the costs of N50,000.00 assessed.
Appearances
Ighodalo Imadegbelo Esq., SAN (with U. Egbon, Esq., I. Imadegbelo, Esq., and U. Osara, Esq.)For Appellant
AND
E. F. Osifo, Esq.For Respondent
