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AGHOHOWA v. BALTIC GROUP LTD (2022)

AGHOHOWA v. BALTIC GROUP LTD

(2022)LCN/16107(CA) 

In the Court of Appeal

(BENIN JUDICIAL DIVISION)

On Tuesday, August 23, 2022

CA/B/329/2016

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

CHIEF OSADEBAMWEN AGHOHOWA (The Enogie Of Oghede For Himself And On Behalf Of Oghede Community) APPELANT(S)

And

BALTIC GROUP LIMITED RESPONDENT(S)

 

RATIO

WHETHER OR NOT A CLAIM IN TRESPASS IS DEPENDENT ON PROOF OF TITLE TO LAND

I would also draw attention to the position of the law that a claim in trespass is not dependent on proof of title to land. See Ezukwu vs. Ukachukwu (2004) 17 NWLR Part 902 page 227 per Edozie, JSC, where it was held that “It is a correct statement of law that a claim in trespass is not dependent on proof of title to land. A plaintiff who fails to prove title may not necessarily fail in his action for trespass. If he establishes by evidence acts of exclusive possession, his claims for damages for trespass and an order of injunction may be granted. See Oluwi v. Eniola (1967) NMLR 339 at 340, Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24 at 39-40, Ajero v. Ugorji (1999) 10 NWLR (Pt. 621) 1 at 11, Amakor v. Obiefuna (1974) 1 All NLR 119 at 126.
This principle was stated in detail by Oguntade, JSC., in Balogun vs Akanji (2005) LPELR-722(SC)
“…the claim for trespass is not dependent on the success of a claim for declaration of title. Both are quite separate and independent of each other. See Oluwi v. Eniola (1967) N.M.L.R. 339. In Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169 at 187, this Court per Iguh, J.S.C. discussed the position of the law on the point thus – “Turning now to the main question for determination, it is beyond dispute that the Court below in allowing the respondents’ appeal before it and dismissing the appellants’ claims in their entirety was mainly concerned with proof in respect of their claim for a declaration of title to the land in dispute and never, for one moment, gave any consideration whatsoever to the appellants’ claims for damages for trespass and perpetual injunction.
PER ORJI-ABADUA, J.C.A

WHETHER OR NOT TRESPASS IS A TORT AGAINST POSSESSION

It is trite law that trespass is essentially a tort against possession and only a person in possession of a land in dispute at all material times can maintain an action in damages for trespass. See Olagbemiro v. Ajagungbade III (1990) 3 NWLR (pt. 136) 37, Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661 et. Accordingly, possession alone is sufficient to maintain an action in trespass although for such possession to found an action in trespass, it must be clear and exclusive. And even where a plaintiff has established sufficient acts of exclusive possession, the mere fact that his claim for title has failed does not mean that his claim for trespass to the same land must necessarily fail. See Adegbite v. Ogunfaolu and Another (1990) 21 NSCC (Pt. 65), (1990) 4 NWLR (Pt. 146) 578, George Oluwi v. Daniel Eniola (1967) NMLR 339, (1967) NSCC 248 etc. This was lucidly explained in the judgment of this Court in Osafile v. Odi (1994) 2 NWLR (pt. 325) 125 where Uwais, J.S.C., as he then was, stated the principles as follows- ‘It is settled law that a plaintiff can succeed in a claim for damages for trespass and injunction even where his claim for a declaration of title fails. So long as a claim in damages for trespass is quite separated and independent of the claim for declaration of title, the incidents of which may be entirely different, and the plaintiff establishes not only his actual possession of the land in dispute but that the defendant is neither the owner of nor has he a better title to the said land than the plaintiff, and that the said defendant trespassed on the land, failure of the claim for declaration of title will not necessarily lead to the dismissal of the claims in respect of trespass and injunction. In such circumstances, the plaintiff will be entitled to succeed in his claim in trespass and/or perpetual injunction depending on the essential ingredients of those reliefs he has established. Even where a plaintiff’s title is defective and the defendant’s title is also defective but the plaintiff is in possession of the land, he can still maintain an action in trespass against the defendants. See Alhaji Adeshoye v. Shiwoniku (1952) 12 WACA 86.” PER ORJI-ABADUA, J.C.A

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellant was the Defendant in the action commenced by the Respondent in Suit No. B/149/2010 before the Edo State High Court on 22/2/2010. The Respondent was given an extension of time to file its Statement of Claim out of time. Then on 22/11/2012, the Respondent filed its Statement of Claim and claimed against the Appellant thus:
1) A declaration that the Claimant is the one entitled to apply for and be granted Certificate of Occupancy in respect of all that piece or parcel of land situate at Uholor Village Area, Benin City having a total area of 2.832 hectares and demarcated by Survey Beacons No. PC 7222, PC 7223, PC 7224 and PC 7225 on Survey Plan No 150/BD/1664/85 dated December, 1985.
(2) An order of perpetual injunction restraining the Defendant, his servants, agents and/or privies from further trespass on the Claimant’s land.
(3) The sum of N12,600,000 (twelve million six hundred thousand naira) being special damages for the 300 palm trees cut down by the Defendant.
​(4) The sum of N5 million as general damages for the act of trespass committed by the Defendant on the Claimant’s land.”

The Defendant filed his 1st Amended Statement of Defence/counter-claim and then counter-claimed against the Plaintiff thus:
“1. A declaration that at all material times before and since the Land Use Act of 1978, the defendant’s (now Claimant’s) community are individually and collectively holders or occupiers of the land in dispute under Bini Native Law and Customs, of all that parcel of land in dispute as stated and shown in the defendant (now Claimant) Statement of Defence/Counter-Claim particularly the litigation survey Plan No. JAA/ED/D13/12 and therefore entitled to Statutory Right of Occupancy.
2. N2,000,000.00 (Two Million Naira) being damages against the Claimant (now Defendant) for his acts of trespass on the land and
3. A perpetual injunction to restrain the Claimant(now Defendant), its servants or agents and privies from continued acts of trespass on the land.”

At the hearing, witnesses were presented by the parties and on the 22nd December, 2015, the lower Court delivered its judgment and found the defendant liable for trespass. In respect of the special damages claimed by the Claimant, it held that there must be some supportive evidence besides the ipse dixit of the Claimant of the number of palms trees planted on the land and the details of its yields and life span. A mere ipse dixit is not a proof of special damages. This head of claim thus fails. With respect to the claim for general damages, it found that the Claimant is located on the land, property of Uholor who allowed him on the land and that the Defendant trespassed on the said land. It then awarded the sum of N3 million to the Claimant against the defendant. In summary, the lower Court entered judgment in favour of the Claimant as follows:
“(1) I declare that if the Claimant is able to regularize his documentation he is the one entitled to apply for and be granted a Certificate of Occupancy in respect of all that piece or parcel of land situate at Uholor village Area Benin having a total area of 832 hectares and demarcated by survey beacons No. PC 7222, PC 7223, PC 7224 and PC7225 on Survey Plan No. ISO/ED/1664/85 dated 4th December, 1985.
(2) An order of perpetual injunction is hereby issued restraining the Defendant, his servants, privies and or agents from further trespass on the land.
(3) I award the Claimant N3,000,000 as general damages.
The claim for special damages is hereby dismissed.
The Counter Claim of the Defendant is also hereby dismissed in its entirety as lacking in merit.”

Being peeved about the judgment, the Defendant filed its Notice of Appeal on the 22nd March, 2016 which was predicated on six grounds of appeal. The record of appeal was transmitted to this Court but unfortunately, I could not detect the date on which it was so transmitted as no date was endorsed thereon by the Registry of this Court. Though I later came across a Motion filed on 12/7/17 for extension of time to transmit record of appeal out of time and for an order deeming the record of appeal already transmitted as properly compiled and transmitted which was granted by this Court on 12/4/2019 implying that the record was apparently deemed on that 22/4/2019.

However, on 25/9/2019, the Respondent filed a Motion on Notice for leave to cross-appeal against the said judgment of the Edo State High Court, leave to cross-appeal against part of the judgment of the Edo State High Court delivered on 22/12/2015, an order deeming the proposed Notice of Cross-Appeal as properly filed and served and for leave to use the record of appeal in Appeal No. CA/B/329/2016 as the record of appeal in the proposed cross-appeal. The Notice of Cross-Appeal was filed on 23/11/2020 and it complained of Part of the decision which was hinged on one ground of cross-appeal, that is to say:
“Ground One:
The learned trial Judge erred on points of facts by stating at page 34 of the judgment thus:
“The grantor in Exhibit 3 had no authority or capacity they purportedly did in Exhibit 3. An application should have been made to the Oba of Benin City through the relevant Plot Allotment Committee who will in his wisdom approve it.”

The Appellant filed his Brief of Argument on 24/4/2019. The Respondent’s Brief was filed on 7/12/2021 and was deemed as duly filed and served on 28/2/2022. The Appellant’s Reply Brief was filed on 19/5/2022 but was deemed as properly filed and served on 30/5/2022.

In respect of the cross-appeal, the Cross-Appellant’s Brief of Argument was filed on 7/12/2021 but was deemed as having been appropriately filed and served on 28/2/2022 while the Cross-Respondent’s Brief was filed on 19/5/2022 out of time and the same was regularized on 30/5/22.

In the substantive appeal, the Appellant projected four issues for determination herein. They are as follows:
“1. Whether the claim ought not to be dismissed where a party failed to prove the root of title pleaded and relied on. This is distilled from grounds iv and v of the grounds of Appeal.
2. Whether a Declarative judgment can be made subject to regularization of title over the subject matter. This is distilled from ground ii of the grounds of appeal.
3. Whether Exhibit 5 which is a letter addressed to the Enogie of Uholor could be said to have resolved boundary dispute between Uholor and Oghede Community.
4. Whether Exhibit 7 which was tendered by the Defendant ought not to be considered by the trial Judge for the purpose for which defendant tendered and relied on it?”

The Respondent then distilled a lone issue for determination in this appeal thus:
“(A) “Which of the two Communities, Uholor or Oghede has jurisdiction to allocate the land in dispute” see page 16 of the judgment reproduced as page 298 of the records of proceeding.”

Submitting in respect of issue 1 which posed the question “Whether the claim ought not to be dismissed where a party failed to prove the root of title pleaded and relied on”, the Appellant’s learned Counsel, J. O. Momoh, Esq., in the brief settled by her, firstly made reference to the Supreme Court case of Oyadare vs. Keji (2005) 123 LRCN 17 at 20 wherein it was held that “Where a plaintiff fails to prove the root of title he pleaded and relied on, as in the instant case, his claim must be dismissed”. He then adverted to the fact that the Respondent pleaded its root of title in paragraph 3 of its Statement of Claim as Oba’s Approval which was admitted in evidence as Exhibit 3 and which the lower Court found in its judgment was issued without authority or capacity, and, consequently held that “the grant not having been approved by the Oba of Benin cannot be said to have been properly made”. Counsel then contended that by the finding, the claim ought to have been dismissed and the Court should not have proceeded to consider the acts of possession which should have been viewed as acts of trespass.

He further referenced the cases of Dabo vs. Abdullahi (2005)125 LRCN 742 at 748, Udenze vs. Nwosu (2008) 154 LRCN 110 at 122, Adebayo vs. Ighodalo (1996) 38 LRCN 747 at 750 and Oyadare vs. Keji (2005) 123 LRCN 17 at 20 and submitted that where the radical title pleaded is not proved, it is not permissible to support a non-existent root of title with acts of possession. It is not permitted to substitute a root of titled that has failed with acts of possession which could have derived from that root. He said that as established by the Supreme Court, where the pleaded title to land has not been proved as in this case, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass. He then submitted that it was erroneous in law for the lower Court to have granted possession to the Respondent as it did having found that the grantor has no authority or capacity to do so. He then urged that this issue be resolved in favour of the Appellant.

With respect to issue no. 2, that is, “Whether a Declarative judgment can be made subject to regularization of title over the subject matter”, Counsel submitted that a declarative judgment is the form of judgment which should be granted only in circumstances in which the Court is of the opinion that the party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion in his favour. He placed reliance on the cases of Obawole vs. Coker (1994) 18B LRCN 168 at 171 where the Supreme Court further elucidated that “A declaration of title will only be made when the Court is fully assured firstly, as to the precise nature of title in respect of which a declaration is sought and secondly, that there is evidence by which the Court is satisfied that a title of the nature claimed has been established”. He further referred to the lower Court’s observation at page 316 of the record of appeal that “the grantors in Exhibit “3” had no authority or capacity to make the grant they purportedly did in Exhibit “3”, that an application should have been made to the Oba of Benin City through the relevant Plot Allotment-Committee who will then recommend the application to the Oba who, in his wisdom, will approve it. “Counsel then contended that the declaratory order made by the lower Court at page 322 of the record of appeal was erroneously made as the order the lower Court ought to have made was that of dismissal of the suit. He further cited Ogolo vs. Ogolo (2004) 115 LRCN 3099 at 3101 where the Court reiterated the principle that such a relief (Declaratory Relief) is a discretionary remedy which will be refused where the plaintiff fails to establish his alleged entitlement to the satisfaction of the Court. He further persuaded that the judgment of the lower Court be set aside.

Arguing in respect of issue no. 3, that is, “Whether Exhibit “5” which is a letter addressed to the Enogie of Uholor could be said to have resolved boundary dispute between Uholor and Oghede Communities”, learned Counsel made reference to the evidence of PW5 under cross-examination where he said that Exhibit 5 was written on the demand of the addressees. Counsel said that Exhibit 5 was never served on the Appellant which accentuates PW5’s testimony that other copies of the letter, Exhibit 5, are in their office. He said that the Appellant denied knowledge of Exhibit 5. He further referred to the evidence of the Respondent represented by one Engr. Felix Obanor, the Executive Director of the Respondent, under cross-examination, where he said that it was in February, 2009 that the cause of action arose. Counsel then submitted that Exhibit 5 was made in anticipation of this case and that it is a correspondence between the Ministry of Local Government and Chieftaincy Affairs, Benin City, Edo State and HRH, Jackson O. Igbinoghene, the Edogie of Uholor and not a decision on the boundary dispute between Uholor and Oghede Communities. It was then submitted that since the lower Court failed to consider the evidence of PW5 and the Respondent under cross-examination before concluding that Exhibit 5 resolved the boundary dispute between Uholor and Oghede Communities, this Court should set aside the judgment of the lower Court and allow this appeal.

With respect to issue no. 4, which is, Whether Exhibit “7” which was tendered by the Defendant (now Appellant) ought not to be considered by the trial judge for the purpose for which the Defendant (now Appellant) tendered and relied on same”, it was submitted that the findings of the lower Court in respect thereof is against the weight of evidence before it, in that, no exhibit was tendered by the Respondent to establish any case of trespass unto the land in dispute against the Appellant. Counsel argued that it was the Appellant who tendered Exhibit 7 to prove that the trespass complained of by the Respondent was committed by some of the unknown persons to the Appellant whom the Respondent transferred the land in dispute to. He referred to paragraphs 16 and 17 of the 1st Amended Statement of Defence/Counter-Claim where the Respondent pleaded the pictures it later refused to tender. He referred to the opinion of the Court at page 319 of the record where it said that Exhibit 7 is a picture of a fallen palm tree. He reiterated the argument that the Respondent did not tender any picture to show the trespass as held by the lower Court. He further submitted that the purpose for which Exhibit 7 was tendered by the Respondent was not considered by the lower Court, that is, whether or not there were pegs and ropes tied which were obvious from the picture. He then urged that the appeal be allowed and the judgment of the lower Court set aside.

In the Respondent’s Brief of Argument, and dealing with the lone issue propounded by the Respondent, learned Counsel for the Respondent, A. I. Uhunmwagho, Esq., asserted that this is very straightforward case based on the pleaded and admitted facts. He explained that it is not a land dispute between two individuals but a dispute between two communities, namely Uholor and Oghede. He stated that Uholor Community proved to the satisfaction of the lower Court that the land was within its territorial jurisdiction and could therefore allocate same to the Claimant under Benin Native Law and Custom, which vested jurisdiction on Enogie to grant land in their areas of jurisdiction. He claimed that it was in consequence of the traditional decision previously handed down by the Oba of Benin that the State Government took its decision as to the boundaries between the two communities which was tendered in evidence as Exhibit 5 by CW5, a Civil Servant in the Ministry of Local Government and Chieftaincy Affairs. He contended that the Respondent proved its root of title contrary to the contention of the Appellant, as the Oba of Benin did not need to approve the allotment because the land is not located within the Benin City and that there were no Plot Allotment Committees in the rural areas. He submitted that the Claimant proved its title and the lower Court acknowledged that Uholor Community under the headship of CW2, granted the land to the Claimant. He then cited the case of Amayo vs. Erhunmwunse (2006) Vol.26 NSCOR 1455 at 1450 where the Supreme Court held that: ”In any event, question in land claim has always been which party has good title to the land and not which one has Oba’s Approval”. Counsel further referenced the case of Atiti Gold vs. Beatrice Osaseren (1990) ALL N.L.R. 125. He stressed that the Respondent obtained its title to the land in dispute from Uholor community adjudged to have jurisdiction over the land in dispute. He further stated that the Respondent took a step further by submitting his application to the Oba of Benin even when the Oba has not appointed a Plot Allotment Committee for the village. He said that the Oba’s approval is contained in Exhibit 3. Learned Counsel then invited this Court to dismiss this appeal.

In the Appellant’s Reply Brief, it was submitted that the contention of the Respondent that the land in dispute is not situated within the Benin City is a fallacy. He said that it is borne out in the evidence before the lower Court that the land in dispute in this case is situated at Uholor in Benin City.

With regard to the contention that it is a land in dispute between two communities, the Appellant’s Counsel submitted that Uholor community is not a party to this suit and the fact that Enogie of Uholor testified in the suit did not transform the suit to a communal one, did not translate Uholor community to become the Claimant in the suit. He said it was wrong for the Respondent to have argued that the Oba of Benin did not need to give his approval because the land is not within Benin City. He asserted that the land is at Uholor village area, Oredo Local Government, Benin City. He reiterated his argument on lack of approval by the Oba of Benin as found by the lower Court and further urged that the appeal be allowed.

Considering the substantive appeal, the first issue is “Whether the claim ought not to be dismissed where a party failed to prove the root of title pleaded and relied on. This is distilled from grounds iv and v of the grounds of Appeal. The question now is: “What did the Respondent plead as its root of title. This is ascertainable from paragraph 3 of the Respondent’s Statement of Claim where it was averred as follows: “3. The Claimant through its representative in 1977 approached the Enogie Uholor Community for the grant to it of a parcel of land measuring 500ft by 600ft and having a total area of 2.832 hectares in accordance with Bini Native Law and Customs and the grant was made with the approval of the Oba of Benin. A copy of the Oba’s approval shall be relied upon at the trial.”

By the above paragraph, the Respondent obviously pleaded that the land in dispute was granted to it in accordance with Bini Native Law and Customs by the Enogie of Uholor and the people of Uholor Community with the Oba’s Approval. It follows therefore, that for the Respondent to succeed in establishing its title over the land, it must be proved that it was granted in accordance with Bini Native Law and Customs with the Oba’s Approval having been obtained. I will now examine the evidence led by the Respondent before the lower Court.

CW1, the Surveyor, said at paragraph 3 of his witness statement on oath that the land in dispute situates along Benin/Ekewan Road, in Uholor Ward 38C, Uholor Village Area, Benin City. CW2, HRH Jackson Owie Igbinoghene, at paragraphs 3 and 8 of his witness statement on oath, also acknowledged that the land in dispute situates along Benin/Ekewan Road, in Uholor Ward 38C, Uholor Village Area, Benin City. He said that the land was granted to the Claimant by the Oba of Benin when the defendant’s father was the Enogie of Oghede. The father of the defendant did not raise any eyebrow in 1977 and until he died many years after. See also his assertions at paragraphs 10-14 of his witness statement on oath. At paragraph 18, he confirmed his signature on the Claimant’s application for Industrial Land dated 10/12/77. The application was recommended to the Oba of Benin by his father and other members of the community on the 15th December, 1977. CW5, a Director in the Ministry of Local Government and Chieftaincy Affairs, Benin City also said he had the consent, knowledge and authority of the Claimant to depose to the affidavit in connection with the land in dispute that situates along Benin/Ekewan Road, in Uholor Ward 38C, Uholor Village Area, Benin City.

Then CW3, Engr. Felix Obanor, the Executive Director Administration of the Claimant’s Company, said at paragraphs 4, 5 and 6 of his witness statement on oath, that the Claimant company applied for a parcel of land from Uholor Community in 1977. He wrote the application on behalf of the Claimant’s company for the land measuring 500ft by 600ft. The Enogie of Uholor Community and some members of the Community recommended his application to the Oba of Benin in 1978 which application was approved by the Oba. They immediately took possession of the land which was intended for industrial purposes by purchasing the economic crops from members of Uholor Community who had crops on the land. He tendered the Original copy of Oba’s Approval dated 10/12/77 as Exhibit 3.

The defendant at paragraph 4 of his 1st Amended Statement of Defence/Counter-Claim stated that there was never a time the Oba of Benin approved any grant of any parcel of land or 500ft by 600ft to the Claimant in the area where the land is situated.

He said that the document is fraud.

The lower Court then observed at page 315-316 of the record of appeal thus:
“The plot of land in dispute is within Benin land, subject to the overlordship of the Oba of Benin who holds all Bini land in trust for the people. He alone approves the allocation of Bini land after the recommendation of the Plot Allotment Committee of the Community which is jurisdiction over the land. See Arase V. Arase (1981) 5 SC 33, Oleaya – Inneh V. Agwebor (1970) ANLR 1.
Exhibit “3” is the document, the Claimant called the Oba’s approval. It is titled “Application For Industrial Land”. It is addressed to “The Enogie and Elders of Uholor Village, Uholor Village Area, lyekogba Oredo Local Government Area. After the Applicant signed the application, the following sentence followed:
“The plot or piece of land having been found free from any dispute whatsoever after careful inspection we therefore approve the plot or piece of land for you.”
The signature/thumb impression of some persons then followed. It was then counter-signed by the Enogie of Uholor. Below the Enogie of Uholor’s signature there is a signature, the document does not bear the name or office or designation of the owner of the said signature. As submitted by the Learned defence Counsel there is no evidence on the face of Exhibit “3” that it was approved by the Oba of Benin. The Exhibit “3”, however has the stamp with the writing “Oba of Benin’s Office, Palace, Benin City”. This cannot take the place of a properly spelt out approval by the Oba of Benin. Looking at the Exhibit “3”, I am in agreement with the Learned defence Counsel that there is no evidence that the document was approved by the Oba, the sole authority to perform that function by law. The grantors in Exhibit “3” had no authority or capacity to make the grant they purportedly did in Exhibit “3”.
An application should have been made to the Oba of Benin City through the relevant plot allotment – Committee who will then recommend the application to the Oba who in his wisdom will approve it. See Inade V. Otabor (1998) 56/57 LRCN 3116.Owie V. Ighiwi (2005) Supra.
The grant not having been approved by the Oba of Benin cannot be said to have been properly made. I find and so hold.
Now this land not having been properly allocated does that give the Defendant the right to enter into the land belonging to the Cw2’s Community?”

As rightly found by the lower Court, the supposed Oba’s Approval tendered as Exhibit 3 dated the 10th December, 1977 was addressed to the Enogie and Elders of Uholor Village, Uholor Village Area, Iyekogba, Oredo Local Government Area. It was not addressed to the Oba of Benin and there was no endorsement of the Oba’s Approval on any of the documents tendered by the Respondent, meaning that no approval whatsoever was given by the Oba of Benin to the Respondent in respect of the land in dispute. In Eholor vs. Osayande (1992) 6 NWLR Part 249 page 524, the Supreme Court per Nnaemeka-Agu, JSC., held that under Benin/Bini Land Tenure System, “No doubt, the approval of any grant or transfer of land according to Benin customary law by the Oba of Benin is a most crucial factor, as title to land in Benin begins not with any conveyance or assignment but with that approval. See on this: K.S. Okeaya v. Madam Ekiomado Aguebor (1970) 1 All N.L.R. 1; Vincent Bello v. Magnus Eweka (1981) 1 S.C. 101; Arase v. Arase (1981) 5 S.C. 33.”
Also in Ojo vs. Azama (2001) 4 NWLR Part 702 page 57, it was reiterated by the Supreme Court, per Onu, JSC., that “the Oba’s approval is not merely an administrative acknowledgment of the respondent’s vendor’s title, but indeed, marks the complete transfer of the respondent’s vendor of the legal estate in the land concerned. This, as Idigbe, J.S.C. put it in Mrs. D. M. Aigbe v. Bishop John Edokpolor (1977) 2SC 1: “… There was a complete transfer of the legal estate in the land in dispute… long before the proceedings commenced (i.e. when the Oba endorsed his approval.” Also in Evbuomwan v. Elema (1994) 6 NWLR (Pt. 353) 638 at 654 and 655 this Court per Adio, JSC re-iterated the above principle of law when he held: “(1) 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.”
However, one would not lose sight of the fact that it is an established principle of law as pronounced by Nnaemeka Agu JSC., in the case of Finnih vs. Imade [1992] 1NMLR Part 219 page 539-540 that in respect of Benin City itself, the Oba of Benin had by 1961 appointed Ward Allotment Committees in respect of Twelve Wards into which the city had been divided shortly before this for the purpose of plot allocation.
The question now is, what happens to the areas where the Oba did not appoint the Ward Plot Allotment Committee? Who would then serve as such in those areas that are within the Benin Division but outside the Benin City. The snag in this case is that the Respondent copiously pleaded that the land in dispute is situated within Benin City. The Respondent did not aver that the land in dispute is outside Benin City. It was emphatically pleaded and was equally given in evidence that the land in dispute was granted to the Claimant by the Oba of Benin when the defendant’s father was the Enogie of Oghede, so the onus is squarely placed on the Respondent to prove that it indeed obtained the Oba’s Approval. I must say that in the face of the evidence before the lower Court, there was no such proof by the Respondent. No concrete or authentic Oba’s Approval was tendered by the Respondent. What was presented by the Respondent before the lower Court was a complete mirage, of Uholor Village, Uholor Village Area, Iyekogba, Oredo Local Government Area and titled “Application for Industrial Land”. It does not have the caption “Oba’s Approval”. It is also instructive to note that no emphasis was laid as to the absence of the Ward Plot Allotment Committee in the Uholor and Oghede Communities in the pleadings and evidence of the parties, particularly that of the Respondent who bore the burden of proving its claims on preponderance of evidence. Although in the case of Uhunmwangho vs. Okojie (1982) ANLR page 276, the Supreme Court, per Nnamani, JSC, on whether the approval of the Oba is conclusive proof of title to land under Bini customary law, expressed that:
“This Court has now decided that the Oba’s approval, all-important as it is, must be the culmination of a series of steps in a chain. To acquire a good title in Bini customary law these steps in the chain (procedure) as set down above must be fulfilled prior to the Oba’s approval. See Arase v. Arase (supra). Idigbe, J.S.C. delivering the leading judgment of this Court in that suit observed at p. 59 as follows: “It is clear from all these cases (i.e. Okeaya, Eweka, etc), that in proving title under Bini Customary Law, title is not always established merely by production of a document to which the Oba’s approval has been endorsed, and this is particularly so where, as here, each of the parties can produce such a document, one of which even bears an earlier date of approval. For as was stated by Coker J.S.C in Atiti Gold v. Beatrice Osaseren (Supra) at 134:… The question at all times was which of the parties had made a good title to the land and certainly not which of them first obtained the Oba’s approval which according to the evidence again rightly accepted by the learned Chief Justice, was but a single step culminating in a whole chain of events and conditions to be strictly fulfilled by a prospective purchaser (and I would respectfully add that the production of the Oba’s Approval sometimes and more so in cases of competing approvals by the Oba in respect of the same land, is only one of many steps through a culminating step in proof of title to the said land).”
Although this observation may be unnecessary in view of the Supreme Court’s decision in Enabulele vs. Agbonlahor (1999) 4 NWLR Part 598 page 166 where the Supreme Court, per Onu, JSC., in stating the principles governing the acquisition of valid title to land in accordance with Bini Customary law, had the following to say:
“Indeed, the fundamental principles governing acquisition of land under Benin native land law and custom may more clearly and expansively be stated as follows:- (a) The Oba of Benin is the only authority competent under Benin 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 Benin people and the legal estate in such lands is vested and resides in the Oba as trustee for the Benin people. (b) Application for such transfer is usually made to the appropriate plot allotment committee having jurisdiction over the land in question. (c) Recommendations of the application are then made by the relevant plot allotment committee to the Oba of Benin (d) The endorsement of the Oba of his approval on the grantee’s written application, duly recommended by the relevant and appropriate plot allotment committee, immediately transfers to the purchaser or grantee the plot of land involved. (e) 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. (f) It is contrary to Benin customary law to unilaterally set aside an earlier approval. Therefore, to set aside an approval which is admittedly 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 Ward Allocation Committee from which the two conflicting recommendations had emanated. See Aigbe v. Edokpolor (1977) 2 SC. 1 at 3; Arase v. Arase (1981) 5 SC. 33, Okeaya v. Aguebor (1970) 1 All NLR 1 at 8-10 (reprint), Atiti Gold v. Osaseren (1970) 1 All NLR 132; (1971) U.I.L.R. 131, Aikhionbare v. Omoregie(1976) 12 SC. 11 at 28, Bello v. Eweka (1981) 1 SC. 101 followed. See also Awoyegbe v. Ogbeide (1988) 1NWLR (Pt. 73) 695.”
In fact, it was made clear by the Supreme Court in the above case that the Bini customary law land tenure applies to lands within and outside Benin City, that was why the word “expansively “ was used by His Lordship to qualify the areas in question. In view of the Supreme Court decision in Enabulele vs. Agbonlahor (supra), I must say that since the Respondent hinged its arguments on the fact that (1) the land in dispute is outside the Benin City, (2) that there was no Ward Plot Allotment Committee in the Uholor and Oghede Communities, (3) that it was the functions of the Enogies in places outside Benin City to recommend allotment of lands in those rural areas to the Oba of Benin, as it had endeavoured to argue in its Brief of Argument, (though not pleaded and given in evidence), it will, therefore, be a laborious task for this Court to attempt to accord with the declaratory order made by the lower Court in relation to this point.
Since the Respondent acknowledged the importance of grant of the Oba’s Approval to any allocation of plots or lands in and outside Benin City within Benin Kingdom or Division, the Enogie, as the Communal head of Uholor, where the land is situated, and who, presumably, has jurisdiction to allot lands where the Ward Plot Allotment Committee does not exist, after the grant or allotment of the said land, ought to have recommended the allotment or allocation to the Oba of Benin for endorsement of his approval since the Bini Customary land law vested all the lands in Benin Division in the Oba of Benin who is thus the trustee or legal owner thereof of the people of Benin who are beneficiaries in respect thereof. As restated in Enabulele vs. Agbonlahor (supra), the Oba of Benin is the only authority competent under Benin 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 Benin people and the legal estate in such lands is vested and resides in the Oba as trustee for the Benin people. It was made clear in Uhunmwangho vs. Okojie that the Oba’s approval, all-important as it is, must be the culmination of a series of steps in a chain. To acquire a good title in Bini customary law these steps in the chain (procedure) as set down above must be fulfilled prior to the Oba’s approval. It is clear in the instant appeal that the process had started but has not culminated in the endorsement of the Oba’s Approval. The Enogie ought to have recommended the allotment to the Oba of Benin for his approval. They began a process that has not been completed. There was nothing before the lower Court establishing that the Oba’s approval was indeed sought for and obtained and this was acknowledged by the lower Court. I hereby answer issue 1 in the affirmative and issue 2 in negative.

I may however say in passing that although this Court would readily agree with the Appellant in the face of the uncountable decisions of this Court and the apex Court that a claim for declaration of title to land ought to be dismissed where a party failed to prove the root of title pleaded and relied upon, it would however observe that there are situations where an order of dismissal may be unjustifiable and order of non-suit most appropriate but, it is mandatory that parties must be heard by the Court before an order of non suit is made. It is usually made where: (A) The plaintiff has not failed intoto or entirely to prove his case. (B) The defendant is not in any event entitled to the Court’s judgment: and (C). No wrong or injustice to the defendant would be caused by such order. In the instant case, that issue was not raised before the lower Court by either the plaintiff or the Court.

Be that as it may, it is clear in the instant case that the Respondent was granted the land by the Enogie of Uholor who has jurisdiction to make such grant and whose remaining duty now is to send a recommendation to the Oba of Benin for the Oba’s Approval to the allotment of the 500ft by 600ft of parcel of land situates along Benin/Ekenwan Road, in Uholor Ward 38C, Uholor Village Area, Benin City. This obviously was what could have propelled the lower Court to make the declaratory order in its judgment which, I am of the firm view, is not anchored on any relief before it. It was proved before the lower Court that the land allotted to the Respondent by Uholor Community is within the area already settled by the Oba of Benin in 2004 between the Uholor Community and Oghede Community that belongs to the Uholor Community, therefore, the Appellant cannot be entitled to any judgment in his favour. This is a typical case where an order of non-suit ought to have been made but it was not adverted to at the lower Court nor was it raised at all which would have afforded the parties the opportunity to address the Court on it. See Egbuchu vs. Continental Merchant Bank Plc & Ors (2016) LPELR-40053(SC). Due to the intricacies of this matter, where the plaintiff has not failed intoto in proving his title due to the hitches in failure to obtain the Oba’s Approval in respect of the land in dispute, and the defendant is not entitled to judgment in the light of other facts x-rayed before the lower Court, this Court shall now proceed to consider the rest issues in this appeal.

Regarding issue 3, which queried, “Whether Exhibit “5” which is a letter addressed to the Enogie of Uholor could be said to have resolved boundary dispute between Uholor and Oghede Communities”, it is imperative to have a comprehensive study of the pleadings of the parties and the evidence led in respect thereof. It was pleaded at paragraph 9 of the Respondent’s Statement of Claim that the boundary between Uholor and Oghede Communities had long been decided by the State Government after the ruling of the Oba of Benin through the Traditional Council.

CW2 in paragraphs 10, 11, 12, 13 and 14 of his witness statement on oath which he adopted before the lower Court as his evidence in chief presented copious facts that culminated in the making of Exhibit 5. CW2 tendered the Oba’s ruling as Exhibit 2. CW3 tendered the Oba’s Approval as Exhibit 3, the Property Survey Plan dated 4/12/1985 as Exhibit 4, and the certified true copy of the Letter from the Ministry of Local Government and Chieftaincy Affairs No. C/DLG/22 dated 23/11/2009 as Exhibit 5.

CW4 testified that it was upon the Oba’s instruction he wrote Exhibit 2 in 2004 when he was the Secretary, Benin Traditional Council.

Then CW5, Mr. E. Ehigiamuose, a Director in the Ministry of Local Government and Affairs, at paragraph 4 of his witness statement on oath dated 22/11/12, also adopted before this Court as his evidence in chief, said that by the letter dated 23/11/2009 signed by Hon. Victor Enoghama, the then Commissioner for Local Government and Chieftaincy Matters, which was certified by Iraoya S. A. on 29/6/2010, the Edo State Government ratified the Omo N’Oba ruling that the Old Ekewan Road remain the true boundary between Uholor Community and Oghede Community. In his oral evidence before the Court he identified the said letter which was already tendered as Exhibit 5. He said under cross-examination that Exhibit 5 was written on the demand of the addressee. He said they have a copy of the Omo N’Oba’s ruling in his department.

The lower Court found as a fact that Exhibit 5 dated the 23rd November, 2009 was made before the suit was filed and that it reintegrated the decision of the Oba of Benin. It further found as a fact that it was the Oba of Benin that came to that decision and not the Commissioner for Local Government, and, that the Edo State Government merely reaffirmed the decision of the Oba. The lower Court thoroughly considered the averments at paragraphs 9 and 13 of the Statement of Claim of the Claimant, and paragraphs 30 and 31 of the defendant’s statement on oath and held that Exhibit 5 corroborated the evidence of the Claimant that the old Ekenwan Road is the adjudged boundary between the two Communities. It further said it believed the testimonies of CW2 and CW4 that the old Ekenwan Road is the adjudged boundary between Uholor Community and Oghede Community. The lower Court further held that the decision of the Oba as stated in Exhibit 5 settled the issue meaning that the defendant has nothing whatsoever to do with the area within which the land in dispute is located, the boundaries having been set and established by the Oba of Benin. I could not agree more. The findings cannot be faulted and I utterly agree with the same. Accordingly, issue 3 is resolved in favour of the Respondent.

Issue 4 centered on Exhibit 7 tendered through the Claimant under cross-examination. It was one of the pictures the Respondent attached to the Motion on Notice for injunction it filled against the defendant. It was contended by the Appellant that the lower Court ought not to have relied on it to grant the Respondent damages for trespass against the Appellant. Appellant argued that the Respondent did not tender any picture to show the trespass as held by the lower Court. On this note I would make reference to the Supreme Court decision on the effect of evidence elicited during cross-examination in the case of MTN Nigeria Communication Ltd vs. Corporate Communication Investment Ltd (2019) LPELR-47042(SC), per Kekere-Ekun, JSC., where it held inter-alia thus:
“…I have considered the authority of Gaji Vs Paye (supra) relied upon by learned senior counsel for the respondent and which learned senior counsel for the appellant sought to distinguish on the basis that evidence elicited under cross-examination is only relevant if it arises from issues joined between the parties. In other words, that it is only where both parties have filed pleadings that issues can be joined and the party cross-examining may rely on evidence elicited under cross-examination. With due respect to learned senior counsel, the submission does not reflect the decision of this Court in that case. His Lordship, Niki Tobi, JSC held at page 611 A-B of the report: “Evidence procured from cross examination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevancy and relevancy is the heart of admission in the law of Evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or cross-examination.” (Underlining mine) For this reason, lawyers are often advised to be wary of questions they put to witnesses under cross-examination, particularly when they do not know the answer the witness would give. This is because the response to a question put to a witness under cross-examination may turn out to sound the death knell for his opponent’s case. Again, in Adeosun Vs Governor, Ekiti State (2012) 4 NWLR (Pt. 1289) 581 at 602 A-B, it was held per Onnoghen, JSC (as he then was): “……it is settled law that evidence elicited from the cross-examination of a defence witness, which is In line with the facts pleaded by the plaintiff, forms part of the evidence produced by the plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties.” (Underlining mine) From the authorities cited above, it is clear that the claimant was fully entitled to rely on evidence elicited from DW1 under cross-examination, which supported the claimant’s pleadings.”

It was the Appellant’s Counsel question to the Claimant under cross-examination that elicited Exhibit 7, so the Appellant had to be stuck with the picture it tendered that eventually aided in proving that there were activities on the land in dispute.

I would also draw attention to the position of the law that a claim in trespass is not dependent on proof of title to land. See Ezukwu vs. Ukachukwu (2004) 17 NWLR Part 902 page 227 per Edozie, JSC, where it was held that “It is a correct statement of law that a claim in trespass is not dependent on proof of title to land. A plaintiff who fails to prove title may not necessarily fail in his action for trespass. If he establishes by evidence acts of exclusive possession, his claims for damages for trespass and an order of injunction may be granted. See Oluwi v. Eniola (1967) NMLR 339 at 340, Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24 at 39-40, Ajero v. Ugorji (1999) 10 NWLR (Pt. 621) 1 at 11, Amakor v. Obiefuna (1974) 1 All NLR 119 at 126.
This principle was stated in detail by Oguntade, JSC., in Balogun vs Akanji (2005) LPELR-722(SC)
“…the claim for trespass is not dependent on the success of a claim for declaration of title. Both are quite separate and independent of each other. See Oluwi v. Eniola (1967) N.M.L.R. 339. In Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169 at 187, this Court per Iguh, J.S.C. discussed the position of the law on the point thus – “Turning now to the main question for determination, it is beyond dispute that the Court below in allowing the respondents’ appeal before it and dismissing the appellants’ claims in their entirety was mainly concerned with proof in respect of their claim for a declaration of title to the land in dispute and never, for one moment, gave any consideration whatsoever to the appellants’ claims for damages for trespass and perpetual injunction. It is trite law that trespass is essentially a tort against possession and only a person in possession of a land in dispute at all material times can maintain an action in damages for trespass. See Olagbemiro v. Ajagungbade III (1990) 3 NWLR (pt. 136) 37, Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661 et. Accordingly, possession alone is sufficient to maintain an action in trespass although for such possession to found an action in trespass, it must be clear and exclusive. And even where a plaintiff has established sufficient acts of exclusive possession, the mere fact that his claim for title has failed does not mean that his claim for trespass to the same land must necessarily fail. See Adegbite v. Ogunfaolu and Another (1990) 21 NSCC (Pt. 65), (1990) 4 NWLR (Pt. 146) 578, George Oluwi v. Daniel Eniola (1967) NMLR 339, (1967) NSCC 248 etc. This was lucidly explained in the judgment of this Court in Osafile v. Odi (1994) 2 NWLR (pt. 325) 125 where Uwais, J.S.C., as he then was, stated the principles as follows- ‘It is settled law that a plaintiff can succeed in a claim for damages for trespass and injunction even where his claim for a declaration of title fails. So long as a claim in damages for trespass is quite separated and independent of the claim for declaration of title, the incidents of which may be entirely different, and the plaintiff establishes not only his actual possession of the land in dispute but that the defendant is neither the owner of nor has he a better title to the said land than the plaintiff, and that the said defendant trespassed on the land, failure of the claim for declaration of title will not necessarily lead to the dismissal of the claims in respect of trespass and injunction. In such circumstances, the plaintiff will be entitled to succeed in his claim in trespass and/or perpetual injunction depending on the essential ingredients of those reliefs he has established. Even where a plaintiff’s title is defective and the defendant’s title is also defective but the plaintiff is in possession of the land, he can still maintain an action in trespass against the defendants. See Alhaji Adeshoye v. Shiwoniku (1952) 12 WACA 86.”
See too Omotayo vs. Co-operative Supply Association (2010) per Ogbuagu, JSC., wherein it was restated that “It is now firmly settled that a claim for trespass, is not dependent on a declaration of title. See the cases of Oluwi v. Eniola (1967) NMLR 339 at 340 and Nwosu v. Otunola (1974) 4 S.C. 21. Afterwards, trespass, is an injury to a possessory right and therefore, the proper plaintiff in an action for trespass to land, is the person who was or who is deemed to have been in possession at the time of the trespass. See the cases of Will v. Will 5 NLR 76, Pan Bros. Ltd v. Landed Property Ltd. & Anor. (1962) 2 ANLR (Pt.1) 22, Wura-Ofei v. Danqua (1961) 1 WLR 1238 and Halsbury Laws of England Vol. 38 Page 744 Pt 1214.”

Having clearly stated the principles above, it goes without saying that issue No. 4 would definitely be resolved in favour of the Respondent. It is evident in the record of appeal herein that in considering the issue of trespass and damages claimed in respect thereof, the lower Court deeply considered the averment in paragraph 6 of the Appellant’s 1st Amended Statement of Defence/Counter-Claim wherein the Appellant admitted that the Claimant planted palm trees on the land in dispute but that it was after the death of his (defendant’s) father and that the palm trees are few. By the evidence adduced before the lower Court, it found as a fact that the Claimant, that is, the Respondent herein was located on the land in dispute, property of Uholor, by the then Enogie of Uholor, who allowed the Respondent on the land and that the defendant trespassed on it. As I stated earlier, it is trite law that the claim for trespass is not dependent on the success of a claim for declaration of title. Both are quite separate and independent of each other. Accordingly, issue 4 is resolved against the Appellant. On the whole, and despite answering issues 1 and 2 in the affirmative and negative respectively, this appeal is partly dismissed on issues 3 and 4 propositioned by the Appellant.

I now turn to the cross-appeal for determination.

In the Cross-Appellant’s Brief of Argument, it was stated that the cross-appeal was generated by the remarks in the judgment of the lower Court at page 316 of the record of appeal thus: “The grant not having been approved by the Oba of Benin cannot be said to have been properly made. I find and so hold.”

Only one issue was presented for determination in this cross-appeal, that is to say;
“Whether the learned trial judge was right in law to avert that the Cross-Appellant needed the Oba of Benin approval, for the land in dispute to be properly made.”

Learned Counsel submitted that the age long tradition of acquisition of land under the Bini Native Law and Custom was recognized by the Supreme Court in the case of Okeaya vs. Madam Ekiomado Aguebor (1970) 1 All NLR 1 at 9 where it was held that: (a) All lands in Benin Division are vested in the Oba of Benin who is thus trustee; legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof; and (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.

He then submitted that the division of Benin City into 12 Wards by the Oba for the purpose of plot allocation did not extend to rural areas in Benin Division, where the Enogie’s and Odionwere’s held sway. The Oba did not appoint Plot Allotment Committees for these rural communities. He then contended that the land in dispute is not in Benin City but in a rural area or village community in Benin Division where different procedure for acquisition of land applies. He further contended that both Uholor and Oghede communities are not in Benin City. He equally referred to the Book titled “Land Law” by Justice R. A. I. Ogbobine, Chapter 111 page 17 where it was also stated that “Persons who wished to use land belonging to a village community without settling on it would seek the permission of the Enogie but where there was none, the Odionwere and other Elders would be consulted before doing so. The person was required to make gifts of kolanuts and palm-wine but nowadays, small sums of money which they share among themselves are always extracted. Tributes are paid annually out of the produce of the farm. Members of the village community also have to pay tributes to the Oba annually, not only for their use and occupation of his land, but also for the protection they receive from him as his subjects. “Counsel then submitted that it was erroneous for the lower Court to have said, that the Cross-Appellant needed to get the Oba of Benin Approval for a land in the rural area. He stated that the two communal heads i.e The Enogie of Uholor and the Enogie of Oghede did not make such exertions but instead insisted that they had territorial jurisdiction to allocate the land in dispute. He also emphasized that no party raised or joined issue over Plot Allotment Committee, that it was the lower Court that raised it suo-moto and did not invite respective Counsel for the parties to address it on it. He referred to the case of Paul O. Omoregbe vs. Ehigiator Edo (1971) 1 ALL N.L.R 282 at 288 where the Supreme Court agreed that Enogie/Odionweres and village heads granted land to applicants within their village jurisdictions”. He further stressed that the land in dispute is in a rural area and that both Uholor and Oghede Communities are over 30 Kilometers from Benin City and each community has its Enogie. He explained that the defendant was sued in his capacity as the Enogie of Oghede Community and that both Enogies of Oghede and Uholor, testified in the suit while the Enogie of Uholor said he granted the land to the Cross-Appellant and the Enogie of Oghede claimed that he ought to have granted the land. He then urged this Court to allow the cross-appeal.

Learned Counsel for the Cross-Respondent in the Cross-Respondent’s Brief of Argument reproduced relief (A) in the Cross-Appellant’s Writ of Summons which clearly stated that the land is situated in Benin City. He also referred to the property survey plan No. 150/BD/1664/85 made by the Cross-Appellant in 1985 and the Litigation Survey Plan both of which fixed the land in Benin City. He further referred to the evidence of the Surveyor Francis Ilawe at page 89 of the record of appeal and the evidence of the Cross-Appellant’s witness, HRH Jackson Owie Igbinoghene, (the Enogie of Uholor) who stated that the land in dispute is situated at Benin City. Counsel further referred to the evidence the Executive Director Administration of the Cross-Appellant at page 99 of the record of appeal where he said that he said that he wrote the application on behalf of the Cross-Appellant and the same was approved by the Oba of Benin. He then argued that the Cross-Appellant is fully aware that the land is in Benin City. He argued that it was because the lower Court held that the application was not approved by the Oba of Benin that the Cross-Appellant is now claiming that the land is in rural area. He contended that the Cross-Appellant relied on the custom of the Benin people in acquiring the land in dispute. He relied on the decision in Olubodun vs. Lawal (2008) 151 LRCN 76 at 79 and submitted that the burden is on the Cross-Appellant to prove that the custom was observed in acquiring the land. Learned Counsel submitted that it is the settled customary law that all land in Benin before the Land Use Act, 1978, was vested in the Oba of Benin and it was he alone that could approve the allocation of plot of land through the appropriate Plot Allotment Committee in the Area. He then contended that the lower Court was right in its holding that: “The grant not having been approved by the Oba of Benin cannot, be said to have been properly made.”

On the argument of the Cross-Appellant that no party raised or joined issue regarding Plot Allotment Committee, learned Counsel submitted that the issue was pleaded by the parties in their respective pleadings. He referred to paragraph 3 of the Statement of Claim at page 66 of the record of appeal and paragraph 4 of the Statement of Defence/Counter-Claim at page 72 of the record of appeal. He also said that the issue was addressed by both parties in their respective written addresses and then urged this Court to dismiss the cross-appeal.

Without further ado, I would hastily reference the Supreme Court decision in Enabulele vs Agbonlahor (supra) where it was expatiated that the Oba of Benin is the only authority competent under Benin 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 Benin people and the legal estate in such lands is vested and resides in the Oba as trustee for the Benin people. The Supreme Court said that the Oba’s authority applies to Bini lands in or outside Benin City. It follows therefore, that the lower Court was right in its holding that the grant not having been approved by the Oba of Benin cannot be said to have been properly made. I hereby resolve this lone issue against the Respondent. Consequently, this cross-appeal is hereby dismissed.

On the whole, the substantive appeal is partly dismissed on issues 3 and 4 while the cross-appeal is dismissed in its entirety. I make no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. I agree with and adopt his reasoning and conclusion reached in the appeal and cross-appeal.

Consequently, I endorse all the orders made.

ADEMOLA SAMUEL BOLA J.C.A.: I have read in draft the judgment of my learned brother, THERESA NGOLIKA ORJI-ABADUA, PJCA. I am in agreement with his reasoning and conclusion both in the main appeal and the Cross-Appeal. I abide by the consequential orders made.

Appearances:

I.N. Ewansiha, Esq. For Appellant(s)

J. O. Momoh, (Mrs.) For Respondent(s)