MR. A. O. OBASEKI & ORS v. MADAM ROSELINE AIYANYOR (2019)

MR. A. O. OBASEKI & ORS v. MADAM ROSELINE AIYANYOR

(2019)LCN/13129(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of April, 2019

CA/B/368/2017

RATIO

LAND LAW: HOW IS TITLE TO LAND ACQUIRED UNDER THE BINI CUSTOMARY LAW

See ENABULELE V AGBONLAHOR (1999) 4 NWLR PT. 598 p. 166.
According to ONU J.S.C.
The law is that under Binin Customary law, title to land is acquired through a grant by the Oba of Benin through a specific procedure which is as follows:
a) A person intending to acquire land must direct an application in writing to that effect through the Plot Allotment Committee responsible for the ward in which the land intended to be acquired is situated.
b) Upon receipt of the application the plot allotment committee will delegate some of its members to carry out an inspection of the land and they in turn will report back to the committee on their inspection, the purpose of inspection being to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has been previously granted to someone else.
c) After being satisfied that the desired piece of land in dispute is free, the committee will endorse the application and forward it to the Oba of Benin.
d) The Oba of Benin will then grant his approval to the application in writing ?see also ATITI GOLD V OSASEREN (1970) 1ALL NLR 125 at 132: ARASE V ARASE (1981) 5SC. 33; AMAYO V ERINMWINGBOVO (2006) LPELR 458(SC).PER TUNDE OYEBANJI AWOTOYE, J.C.A.

CROSS-EXAMINATION: MEANING OF FAILURE TO CROSS EXAMINE A WITNESS
It is trite law that failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. See GAJI V PAYE (2003) 5 SC 53; AMADI V NWOSU (1992) 5NWLR PT. 241 p. 273; OLA V STATE (2018) LPELR 44983 (SC).PER TUNDE OYEBANJI AWOTOYE, J.C.A.

COURTS: THE COURT HAS THE DUTY TO CONSIDER ALL ISSUES THAT ARE RAISED BEFORE IT

Indeed the law is trite that a Court is duty bound to pronounce and determine all the issues properly raised before it and failure to do so may lead to a rehearing. However, a rehearing may not be appropriate where it has not led to miscarriage of justice. See AYISA V AKANJI (1995) 7NWLR (PT 406) 129; KRAUS THOMPSON ORG. LTD. V UNICAL (2004) 9NWLR PART 879 p. 631.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

JUSTICES

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. MR. A. O. OBASEKI (Deceased)
2. MR. MARTINS IDUSUYI
(Trading under the name and style of Ken’s Place)
3. NOSAKHARE OLAITAN OBASEKI
4. OSAGIE OLUSEGUN OBASEKI
5. IRONOMA BABATUNDE UWUMAROGIE OBASEKI
6. IKPONMWOSA ABIODUN OBASEKI Appellant(s)

AND

MADAM ROSELINE AIYANYOR Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellants against the judgment of Edo State High Court delivered on 15/6/2017.

The claim of the claimant now (Respondent) at the lower Court as per paragraph 28A-C of his 4th Amended Statement of Claim read thus:
WHEREOF Plaintiff claim from the defendant is for:
a. A declaration that the claimant is the bona fide owner seized in legal ownership and therefore lawful possession of all that piece or parcel of land measuring approximately 200ft x 200ft, or 3455 758 square meter a shown in litigation Survey Plan No. JAO/ED 2010/13L dated 27th September, 2010 by Surveyor J.A. Osazuwa (FNIS) REGISTERED SURVEYOR of No. 29, Sapele Road, Benin City, lying within Ward 17/H otherwise known as No. 37 Ihama Road, Benin City, and entitled to apply for the requisite Certificate Occupancy in respect thereof.
?b. An Order on the Defendants jointly and/or severally, whether by themselves or their agents, servants or privies, third parties (by whatever name called) to render account of all monies collected as rents

from the 2nd defendant or any other person from their sue and occupation of the Claimant?s land and deliver up possession of the land and/or any structure thereon as aforesaid, and directing them to remove with immediate effect the structures and/or bungalow erected thereon by them.
c. SPECIAL DAMAGES
4,000 blocks at N150.00 per 6 inches block 600,000
10 single trips of sand at 6,000 per trip 60,000
Solicitor fees 500,000
Cost of Litigation Survey 120,000
Total Special damages N1,280,000
General damages N2,220,000
TOTAL SPECIAL AND GENERAL DAMAGES N3,500,000
d. Wherefore the Claimant claims from the Defendants jointly and/or severally, the sum of N3,500,000 (Three Million, Five Hundred thousand Naira) being special and general damages sustained by her on account of the Defendants action by their trespass into her land.?

Parties filed and exchanged pleadings. After hearing the parties the learned trial Judge gave judgment in favour of the claimant in the following terms:
On the whole, I hold that the claimant has successfully proved her case on the balance of probability as required by

law. Accordingly, I hereby enter judgment in favour of the Claimant against the Defendants in the following terms:
a. A declaration that the claimant is the bona fide owner seized in legal ownership and therefore lawful possession of all that piece or parcel of land measuring approximately 200ft x 200ft, or 3455 758 square meter a shown in litigation Survey Plan No. JAO/ED 2010/13L dated 27th September, 2010 by Surveyor J.A. Osazuwa (FNIS) REGISTERED SURVEYOR of No. 29, Sapele Road, Benin City, lying within Ward 17/H otherwise known as No. 37 Ihama Road, Benin City, and entitled to apply for the requisite Certificate Occupancy in respect thereof.
b. I hereby decree an order of perpetual injunction restraining the Defendants jointly and/or severally, whether by themselves, their servants and or privies by whatever name called from further entering, trading, selling, building or interfering with the Claimant?s possessory title, use and enjoyment of the said land.
c. I award the sum of N100,000 (One Hundred Thousand Naira only) as General damages against the Defendants for acts of trespass on the Claimant?s land.
The claimant

is entitled to costs which I assess and fix at N50,000.00 only against the Defendants.?

Miffed by the above decision, the appellants filed a Notice of Appeal challenging it on ten grounds.

?GROUNDS OF APPEAL
GROUND ONE
Learned trial judge erred in law on the facts when he held inter lia that the claimant respondent proved her case in accordance with Bini Native Law and Custom in the land in question, that is ward 17H was not inspected by the ward delegates which findings has occasioned a very serious miscarriage of justice.
PARTICULARS OF ERROR
a) There was no evidence of inspection of the land in dispute by the delegates of Ward 17H
b) The inspection of the land by the delegates of the relevant Plot Allotment committee is an indispensable step towards the grant of land under Bini customary law within Benin city where the land is carved into wards.
c) Ward 17H where the land in dispute is situate is not one of the villages called 36A as per Osayande Ogbeide (CW2) who is the secretary of Ikponkpan and all the ward villages now called Iyekogba ward 36A.
d) Mr. Michael Okunrobo (CW4) whom the Court

ascribed the inspection of the land in dispute to is not the bush inspector in respect of the land in dispute as rightly stated in his deposition dated and filed on 6th March, 2013.
e) There is no evidence before the Court that ward 17H is not the same as ward 36A as per deposition of CW3 on the 16/9/2015.
GROUND TWO
Judgment is against the weight of evidence
GROUND THREE
Learned trial judge erred in law on facts when he failed and or refused to pronounce on all the issues canvassed before him which failure amounts to a very serious miscarriage of justice.
PARTICULARS OF ERROR
a) The Appellants pleaded copiously in their amended statement of defence the issue of long possession in paragraph 12 and 13 of the defendants? amended statement of defence dated and filed on the 18/6/2016 which was an issue formulated by the appellants in their address before the Court.
b) The issue of jurisdiction raised by the appellants in their issue 3, before the lower Court was not pronounced upon.
c) There is no evidence before the Court that the 1st Appellant had divested his interest in the land in dispute by assigning the

land to (his children) the 3rd -6th Appellants.
d) The learned trial judge failed to pronounce on the lack of jurisdiction in that the 1st defendant has disposed of his interest in the land in dispute as pleaded in paragraph 19 of the defendants? amended statement of defence.
e) The learned trial judge failed to pronounce on exhibit ?C? referred to under issue 5, in the appellants? final address.
f) The learned trial judge failed to advert his mind to the evidence of DW 1 who tendered exhibits ?F? and ?G? where the dates the approval by the Oba were inserted.
GROUND FOUR
Learned trial judge erred in law and on facts when he failed and or refused to evaluate exhibit F properly the Oba?s approval of the 1st appellant dated 19/6/61 and approved by the Oba on the 30/8/1961 and exhibit G the deed of conveyance between the 1st Appellant and the Oba of Benin dated the 29/12/1977 and registered as No. 11 at page 11 in volume 533 at the lands Registry in the office of Benin City.
PARTICULARS OF ERROR
a) Since the exhibit ?F? and ?G? are 47 years and 31 years

old respectively from the date of execution and more than 20 years old at the time the trial commenced on 1/12/2008. The presumption of due execution as provided for in Section 155 of the Evidence Act, 2011 attaches to the documents which the learned trial judge ignored.
b) The Oba of Benin having granted the land in dispute to the 1st appellant as far back as 19/6/1961 could not validly grant the same land to the Respondent as per exhibit B after that date because by the grant to the 1st appellant, the Oba of Benin having divested himself of title to the land in dispute.
GROUND FIVE
The Learned Trial Judge erred in law and facts when he held that the appellants failed to adduce evidence to comply with the condition of tendering document or oral evidence in prove of their title in respect to the land in dispute as laid down in the case of IDUNDUN V. OKUMAGBA (1976) 9 ? 10 SC 227.
PARTICULARS OF ERROR
a) The appellants called DW 1 who tendered exhibits ?F? and ?G? without any objection in support of one of the condition in proving title to land as laid down in IDUNDUN V. OKUMAGBA (SUPRA) WHICH LEARNED TRIAL

judge applied wrongly.
GROUND SIX
The learned trial judge erred in law and on the facts when he held inter alia that the parties did not appear before the Oba of Benin as to which of the party has priority over the land in dispute which decision has caused the appellants a very serious miscarriage of justice.
PARTICULARS OF ERROR
a) It is wrong for the learned trial judge to give a decision on issue [to introduce the question of parties appearing before the Oba], a point in which opportunity was not afforded Counsel to argue at the hearing and particularly a point which throughout the hearing was not raised.
b) Having not giving the opportunity to the appellants to address on the point amounts to denial of fair hearing as enshrined in Section 36(1) of the 1999 Constitution as amended.
GROUND SEVEN
The learned trial judge erred in law and the facts when he held inter alia that the grant of Oba?s approval exhibit ?B? was amply corroborated by the evidence of CW 2 and CW4, the secretary of ward 17H at the time the land was allocated to the Claimant?s Mother and CW4, the bust inspector of Ward 36A,

Ikponkpan Iyekogba which judgment has caused a very serious miscarriage of justice.
PARTICULARS OF ERROR
a) CW 2 in his deposition and oral evidence in Court stated that he was the secretary of Ikponkpan and the villages now called Iyekogba Ward 36A, as per paragraph 1, of his deposition dated 16/9/2015 and filed on 16/9/2016.
b) That the land in dispute as pleaded by both parties is in Ward 17H. The litigation plan of the respondent is exhibit ?A?. the conveyance of the 1st appellants is exhibit ?G? wherein the land is described as in Ward 17H.
c) Throughout the respondent?s and his witnesses evidence in Court she failed and/or refused to call the Ward Pointer or delegate to give evidence; which is a cardinal requirement of the acquisition of land under Benin Custom. There is evidence that Ward 17H where the land is situated has any relationship with Ward 36A.
GROUND EIGHT
The learned trial judge erred in law and on fact when he failed to evaluate exhibits ?G? and ?F? respectively properly which failure has caused a very serious miscarriage of justice.

PARTICULARS OF ERROR
a) That exhibits ?G? and ?F?, were more than 20 years old before commencement of proceedings in this case.
b) Exhibit F Appellant?s Oba?s approval was approved on 30/8/1961 while the conveyance exhibit ?G? is dated 29th December, 1977 both exhibits are more than 20 years old but the Court failed to give due evaluation to them.
GROUND NINE
The learned trial judge erred in law and on the facts when he admitted inadmissible evidence exhibit ?C? which has caused a very serious miscarriage of justice.
PARTICULARS OF ERROR
a) That exhibit ?C? which is the receipt in respect of the transfer of the land was not stamped as required by law.
GROUND TEN
The learned trial judge erred in law and on facts when he held that the appellants unlawfully trespassed on the respondent?s land when the survey plan attached to exhibit ?G? shows that the 1st appellant planted his survey beacons on the land in dispute on the 27th September, 1963 through his surveyor G.A. Obianwu which judgment has occasioned a very serious miscarriage of justice<br< p=””

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PARTICULARS OF ERROR
a. It is trite that when a party plants his survey beacons on the land it amounts to act of possession.
b. The 1st appellant having planted his survey beacons on the land in dispute which land is bounded by survey beacons Nos. WJ 9950 ? WJ 9954 as shown in survey in survey plan No. W/GAI169/63 drawn by G.A. Obianwu license surveyor, annexed to exhibit G is an act of possession.
c. The survey beacons planted by the respondent on the land in dispute which is bounded by survey beacons Nos. CP1 – CP4 as per exhibit ?A? was planted on the land on 27th September, 2010 as shown in Exhibit ?A? drawn by CW 1.
d. The survey plan attached to exhibit ?G? is first in time to exhibit ?A?, this shows that the 1st Appellant was in possession of the land in dispute before the respondent planted her beacons on the land as an act of her possession.
e. That with regard to particulars C and D above, the 1st appellant and his successor-in-title having been in possession cannot be guilty of trespass as wrongly held by the learned trial judge.

After transmission of record of

appeal to this Court parties filed and exchanged briefs of argument.
The Appellants brief of argument was prepared by SIR CHIEF (DR.) ALFRED EGHOBAMIEN SAN and filed on 31/8/17.
The Respondents brief of argument was filed on 31/8/17. It was settled by TOM OSA-OGBEIDE their solicitor. The said brief was filed on 25/9/17.

On receipt of the Respondents? brief of argument, the appellant?s counsel filed appellants reply brief on 4/10/17.
Learned Senior Counsel distilled 7 issues for determination in this appeal.

ISSUES AS FORMULATED BY APPELLANT?S COUNSEL
1. Having regard to the totality of evidence whether the Respondent has proved her case to entitle her to judgment.
2. Whether the Respondent proved trespass and was entitled to the damages of N100,000.00 awarded against the Appellants for trespass.
3. Whether the failure of the learned trial judge to pronounce on all the issues canvassed before him amounts to breach of fair hearing.
4. Whether the Oba?s approval exhibit ?F? of the 1st Appellant dated 19/6/1961 and approved by the Oba of Benin on the 30/8/1961 must take

priority over the Respondent?s Oba?s approval which was approved by the Oba of Benin on the 16/11/1961.
5. Having regard to the long possession by the 1st?6th Appellants of the land in dispute pleaded in paragraph 12 and 13 of the Appellants? Amended Statement of defence dated 18/6/2016 and filed on 18/6/2016 does not defeat the title of the Respondent.
6. Whether the Respondent had the jurisdiction to sue the 1st Appellant now deceased who had disposed of his interest in the land in dispute as pleaded in paragraph 19 of the Amended Statement of Defence.
7. Whether the inspection of the land in dispute by the delegates of the relevant Plot Allotment Committee is an indispensable step towards the grant of land under Benin Customary Law within Benin City where the land is carved out into wards.

On the other hand, Tom Osa-Ogbeide on behalf of the Respondents formulated one sole issue for determination to wit:-
WHETHER THE LEARNED TRIAL JUDGE WAS WRONG TO HAVE ENTERED JUDGMENT IN FAVOUR OF THE RESPONDENT AS CONTAINED IN HIS JUDGMENT AT PAGES 135 -169 OF THE RECORD.
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ARGUMENTS OF COUNSEL

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APPELLANT?S BRIEF OF ARGUMENT
ISSUES 1, 5 AND 7
Learned Senior Counsel on the issue submitted that the learned trial Judge even though relied on ARASE V. ARASE (1981) 5S.C. 33; OKEAYA V AGUEBOR (1970) 1ALL NLR 1 at 8-10 and other cases in his judgment, failed to follow the conditions spelt out in the said cases.

Learned Senior Counsel referred to the evidence of the 4 witnesses of the respondent particularly that of Mr. Wilfred Osayande Ogbeide CW3.

He submitted that the learned trial judge wrongly inferred that there was an inspection before giving judgment to the respondent. He asserted further that the learned trial judge failed to properly evaluate the evidence before him and this led to a wrong conclusion. He urged the Court to therefore resolve the issues in favour of the appellant.

ISSUE 3
Learned Senior Counsel contended on this issue that the learned trial judge failed to pronounce on issue 2 and 3 of the 7 issues canvassed before him. Learned Senior Counsel submitted that all Courts below were bound to take all issues canvassed by parties even when superfluous. He cited ADAH V NYSC (2004) 13NWLR (PT 891) page 639.

Failure to pronounce on the issues amounted accordingly to him, to denial of fair hearing. He cited OVUNWO V WOKO (2011) 17NWLR (PT. 1277) 522 at 546 -547 such a breach of fair hearing, he argued would vitiate the proceeding.

In further argument learned counsel contended that the 1st appellant had divested his interest in respect of the land in dispute having disposed of his interest to the 3rd and 6th appellants in Exhibit J therefore 1st appellant had no interest to protect or defend and was not the proper party to be sued. But the persons on whom the land devolved. He cited AMUDA V AJOBO (1995) 7 NWLR (PART 406) 170 at 182 and OLORIODE V OYEDE (1984) 1SCNLR at 390.

ISSUE 4
Learned Senior counsel for the Appellants contended on this issue that the learned trial judge erred when his lordship decided on the issue of priority which was not argued before it as there was no issue of representation of the parties before the Oba. He submitted that before the Oba could determine the issue of priority the two contesting parties must be present before the Oba at the same time. He referred to OKEAYA V AGUEBOR (supra).
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He argued further that where

two allocations had been made by the same Ward Allotment Committee the first one took priority. He cited SODIMU V AKANDE (1978) WSCA VOL.1 page 204 at 208. AWOYEGBE V OGBEIDE (1988) 1NWLR (PT. 73) 698 and other cases.

Learned Senior Counsel then submitted that the 1st Appellant?s Oba?s approval (Exhibit F) took priority over the Respondents Oba?s approval (Exhibit B). He finally urged the Court to resolve this issue in favour of the appellant.

ISSUE 2
Chief Eghobamien SAN on this issue argued that the appellants by virtue of Exhibit C where the survey beacons were buried on the land had been in possession and could not be guilty of trespass since trespass was actionable at the instance of the person in possession. He relied on DANJUMA V SCC (NIG) LTD (2017) 6NWLR (PT 1561) 175 at 203.

RESPONDENT?S BRIEF OF ARGUMENT
Respondent?s Brief of Argument was filed on 25/9/17 it was settled by her counsel Tom Osa-Ogbeide Esq.

Learned counsel for the Respondent adopted the 7 issues formulated on the Appellant?s brief of Argument) for determination. These issues were collapsed into one cardinal issue.<br< p=””

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WHETHER THE LEARNED TRIAL JUDGE WAS WRONG TO HAVE ENTERED JUDGMENT IN FAVOUR OF THE RESPONDENT AS CONTAINED IN HIS JUDGMENT AT PAGES 135 -169 OF THE RECORD.

Learned counsel submitted that the learned trial judge was right when he gave judgment to the Respondent as it was well thought out, evaluated and considered based on well established principles of law regarding acquisition of land under Benin Native Law and Custom. He relied on the cases of ATITI GOLD VS OSASEREN (1970) 1ALL NLR 1323 AND ADEWUYI VS ODUKWE (2005) 14 A FWLR (PT. 278) PG. 1112 PARAS G ? H PER KASTINA ? ALU JSC (as he then was)

Learned Counsel submitted further that the Respondent?s testimony and that of her witnesses were never successfully challenged nor controverted during cross-examination and must therefore be taken as proved. He relied on MONKOM VS ODILI (2010) 2 NWLR (PT 1179) 419 AT 442 PARAS D ?E Per OMOKRI JCA.

Learned counsel also submitted that the alteration of Exhibit F which is palpable on the face of the document, renders same legally lifeless. He relied on the case of ORJI VS DORJI ILE MILLS (NIG) LTD (2010) 5 WRN 59 PER TOBI JSC

Lines 5 -15. He submitted that the Appellants made a feeble attempt to deceive this Court by tendering a photocopy of same-Exhibit F ? which the Respondent alleged to being a forgery, and failure to challenge, rebut or controvert this material point must be taken as proved against the Appellant who had the opportunity to do so.

As to whether the inspection of the land in dispute by delegated of the relevant Plot Allotment Committee, which is an indispensable step towards the grant of land under Benin Customary Law, learned Counsel to the Responded submitted that the Respondent?s late Mother followed this process. He relied on the case of ENABULELE VS AGBONLAHOR (1999) 67 LRCN 571 AT 581 RATIO 1. He referred the Court to Paragraphs 12,13,14 and 15 of the Respondent?s further Amended Statement on Oath at page 59 of the Record.

Learned Counsel to the Respondent also submitted that the Respondent could sue the 1st Appellant irrespective of the fact that he has disposed of his interest in the land as a Necessary Party whose presence was necessary for the complete determination of all the issues in the suit. He further submitted that from

all the pleadings filed by both parties, 1st Appellant was a Necessary Party who alone knew the history of the land and who alone could also answer any question that might arise in the course of the hearing of the matter.

Learned counsel to the Respondent submitted that the Appellants failed and/or neglected to defend this suit at the lower Court having abandoned their pleadings and that the only witness that testified for the Defendant/Appellant, having no bearing with the instant case, must be treated as a MEDDLESOME INTERLOPER, moreso, as her testimony was neither here nor there.

Learned counsel submitted that on the issue of award of N100,000 as against the Appellant for trespass that the learned trial judge was right when he made the award.

On the strength of Order 15 Rule 3 of the Court of Appeal Rules, 2016, learned Counsel to the Respondent urged this Court to strike this appeal off hearing list with the death of the 1st Appellant (who is the principal party) on the 13th day of July, 2017.
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He concluded by submitting that the learned trial judge properly evaluated the evidence on both sides and reached a considered Judgment and

found as a fact that between the Appellants and Respondent, considering the entire case of the parties, that the Respondent had better title to the land in dispute.

APPELLANT?S REPLY BRIEF OF ARGUMENT
Appellant?s Reply Brief was filed on 4/10/17. It was settled by their learned Senior Counsel CHIEF ALFRED EGHOBAMIEN.

Learned counsel to the Appellants submitted in response to the issue of fraud as raised by the Respondent?s Counsel that it was not pronounced upon by the learned trial judge in that when exhibit F was tendered by DW1 on 5th day of December, 2016, Respondent?s Counsel said he has no objection at page 95 lines 15?18 of the Record. He relied on the case ofETIM VS EKPE (1983) 3 SC 12 AT 36 ? 37.

Learned counsel to the Appellants in reply to Paragraph 4.4 at Page 8 of the Respondent?s Brief of Argument submitted that the appellant by a motion dated 7/6/2016 praying the Court for an order to file additional witness statement on oath to bring in DW 1 was moved and granted by the Court on 23/6/2016 without opposition from the Respondent and also that on 5/12/2016, DW1 testified and tendered

the Oba?s approval exhibit F without any objection from the Respondent. He relied on the case of OKAFOR V EFFIONG (2017) 11 NWLR (PT 1577) 519 at 540 PARAS A?C. Learned Counsel submitted that Exhibit F having been admitted without any objection from the respondent, the respondent cannot now raise it in his brief as the only option left to the respondent was to appeal to the admissibility of the document.

Learned Counsel to the Appellants submitted further that it was not correct that DW 1 agreed with the respondent that the appellants have never had long possession and enjoyment of the land in dispute. He referred this Court to the evidence of the DW 1 at pages 95?97 of the Record. He noted that the respondent did not call any member of ward 17H. Plot Allotment Committee to testify for the respondent as against the decision in the case of BELLO V EWEKA (1981) 1 SC 101 AT 102.

Learned Counsel to the Appellants submitted that the land in dispute was not inspected by Mr. Amadasun who was alleged to be the ward?s pointer as Amadasun did not testify for the respondent in the lower Court.
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Learned counsel submitted that the

respondent was wrong in law and procedure when he urged the Court to strike out the appeal because of the death of the 1st Appellant. He noted that from the record, Justice A.O. Obaseki, who died on the 13th July, 2017 (3 days after the notice of appeal was filed) was not the principal party in the appeal, he was one of the 6 appellants and so his death did not affect the appeal, as 5 other appellants were left in the appeal.

RESOLUTION
I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal. It appears to me right to condense the issues raised in this appeal into one sole issue as follows:
WHETHER THE TRIAL JUDGE WAS WRONG TO HAVE ENTERED JUDGMENT IN FAVOUR OF THE RESPONDENT AS CONTAINED IN HIS JUDGMENT”

Both counsel agreed on the basic principles governing land law in Benin. It is that all land in Benin is owned by the community and the Oba of Benin holds the land in trust. Transfer of land to an individual can only be done by the Oba. See ENABULELE V AGBONLAHOR (1999) 4 NWLR PT. 598 p. 166.
According to ONU J.S.C.
The law is that under Binin

Customary law, title to land is acquired through a grant by the Oba of Benin through a specific procedure which is as follows:
a) A person intending to acquire land must direct an application in writing to that effect through the Plot Allotment Committee responsible for the ward in which the land intended to be acquired is situated.
b) Upon receipt of the application the plot allotment committee will delegate some of its members to carry out an inspection of the land and they in turn will report back to the committee on their inspection, the purpose of inspection being to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has been previously granted to someone else.
c) After being satisfied that the desired piece of land in dispute is free, the committee will endorse the application and forward it to the Oba of Benin.
d) The Oba of Benin will then grant his approval to the application in writing ?see also ATITI GOLD V OSASEREN (1970) 1ALL NLR 125 at 132: ARASE V ARASE (1981) 5SC. 33; AMAYO V ERINMWINGBOVO (2006) LPELR ? 458(SC).
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Was the above complied with in respect of the

transfer of ownership to either of the parties in this appeal?

The claimant MADAM ROSELINE AIYANYOR in her adopted statement on oath explained how she acquired the land in dispute thus:
?Paragraph 4
That the land in dispute was originally owned by my late mother, Madam Onaghise Okundaye, to whom the land was earlier allotted by an application dated 16/2/61, made through the Chairman of Ward 17H, to the OBA OF BENIN, AKENZUA II CMG and latter duly approved same on the 16/11/61. that I shall lead credible evidence of this fact at the trial.
Paragraph 5
That my late mother transferred the land to me by Deed of Gift dated 20th day of February, 1975, as her daughter, and I have since then been exercising right of ownership over the said land ever since by clearing farming thereon in company of my late mother, depositing sand and molding blocks thereon without let or hindrance. The said Deed of Gift was witnessed by on Sunday Irabor and Idurobo Okundaye.
Paragraph 6
That I molded 4,000 (four thousand blocks) and deposited another 10 trips (ten trips of sand on the land in preparation for building. That shortly after molding

the said blocks I traveled overseas and could not therefore commence building immediately.
Paragraph 7
That while I and my late Mother Onaghtise Okundaye were clearing the land on Michael Okunrobo the then Bush Inspector and some patrol members of Ikpokpe Community came to disturb us that we had not paid the development levy, which my Late Mother then had to pay.
Paragraph 8
That I gave the land to one Mr. D Ihoevbie Amadasun (deceased) and he has been the person helping me to look ater the land because he was a pointer and a member of the Plot Allotment Committee at Ward 17/H where the land is located.
Paragraph 9
That my late mother is of the same age and a very close friend of the said late Mr. D. Iheoevbie Amadasun who was one of the very active pointers in Ward 17H.
Paragraph 10
That it is with the assistance of the said late Mr. Iheovbie Amadasun and one B.I. Omokaro (the then Secretary of the ward) that my late mother applied sometime in 1961, through the Plot Allotment Committee of ward 17/H to the Oba of Benin who duly approved same in his capacity as Trustee and overlord of all communal land in Benin and its

environs.
Paragraph 11
That I will lead evidence that prior to the enactment of the Land Use Act in 1978, the Oba of Benin was the sole Trustee of all communal land in Benin Kingdom.
Paragraph 12
The Oba of Benin established ward Plot Allotment Committee in each ward on behalf of the Oba as Sole Trustee
Paragraph 13
That any person desirous of building plot would apply to the word plot allotment committee who on receipt of such application would refer same to ward pointers or ward inspectors to confirm is such plot was free from dispute.
Paragraph 14
That on the receipt of the report of the ward Pointers or Ward Inspectors that the land applied for was free from dispute, the ward would recommend same to the Oba for his approval and upon the Oba signing same, the applicant acquires good titles under Benin Customary law.
Paragraph 15
That I shall lead evidence that my late mother ? Mrs. Onaghise Okundaye applied to the Oba of Benin through Ward 17/H Plot Allotment Committee on the 16th day of February, 1961 and same was approved by His Majesty Oba Akenzua II the Oba of Benin on 16th day of November,

1961.?

It should be noted that the claimant referred to D.I. Amadasun (deceased) as the then pointer at Ward 17H. The evidence of CW3, Sunday Irabor is very pertinent on this point. In his adopted witness statement on oath, Sunday Irabor stated thus:
?That I am aware as a fact that the said Late Madam Onaghise Okundaye acquired a piece of land at then Ikpokpan Ward 17H with the assistance of one Late Mr. D. Iheovbie Amadasun one of the pointers of Ward 17H. That the said land is measuring 200ft x 200ft (4plots) lying within then Ikpokpan Area/layout now known as Ihama Road, GRA, Benin City. At the time of acquisition, the said land was comprised of rubber plantation and other trees and was duly approved by the Oba of Benin.?

This evidence was not challenged under cross-examination. The role played by Mr. D. Ihoevbie Amadasun and the fact that he was a pointer to Ward 17H was not challenged by the defence at the lower Court. It is trite law that failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. See GAJI V PAYE (2003) 5 SC 53; AMADI V NWOSU (1992) 5NWLR

PT. 241 p. 273; OLA V STATE (2018) LPELR ? 44983 (SC).
It is established therefore thus:
i. Mr. Amadasun was a pointer to Ward 17H
ii. Mr Amadasun assisted Madam Onaghise Okundaye in acquiring the land.
iii. There is evidence on record that Mr. Amadasun is dead. There is evidence on record that the claimant has Oba?s approval dated 16/2/16. This is Exhibit B.

It is clear that both the claimant and the defendants are laying claim to legal acquisition of the land in dispute after it was transferred to them by the Oba of Benin.

The Defendants however could not produce any witness to buttress their claim to proper acquisition of the land.
?
Their sole witness was Osarrmen Airihenbuwa. Under cross-examination by learned counsel for the claimant, he said;
?Cross examination by Oga Ogbeide:- I know something about this case. The dimension of the land in dispute is 200ft by 200ft.
The land is situate in Ward 17H. I don?t know the elders of Ward. I was not present when the 1st defendant applied to the Ward for the land in dispute. I don?t know when the land was approved for the 1st defendant. It

is not true that exhibit F is a forged document. I am aware that there had been long standing dispute between the parties which led to the 1st defendant putting a sign post on the land. It is not true that it was because of the dispute that the 1st defendant purported transferred the land to tenants. I cannot remember when the documents were given to me.
I have not come to tell lies in this case.?

This evidence pales into insignificance in the face of unchallenged evidence of Sunday Irabor who asserted categorically that;
i. He was aware of the facts
ii. That the land was acquired by Madam Okundaye with the assistance of Amadasun a pointer of Ward 17H.
iii. That the land acquisition was duly approved by the Oba of Benin.
?
I agree with the learned trial judge when he opined that ?the defendants merely relied heavily on the Registered Deed of Conveyance Exhibit G and the Oba?s approval Exhibit F simpliciter in proof of the 1st Defendants? title to the land in dispute, without first leading evidence of due compliance with the set procedure followed by the 1st defendant to acquire the land under Benin Customary

Law?

I am fully convinced that his lordship arrived at a right decision on this point. The claimant gave convincing evidence of compliance with the requirements of Benin Customary Law on transfer of land. The defendants, in my respectful view did not.

FAILURE TO CONSIDER ALL ISSUES
Learned Senior Counsel for the appellants has posited that the failure of the trial judge to pronounce on issues 2 and 3 canvassed before him amounted to denial of fair hearing and could vitiate the proceeding.

Learned Senior Counsel submitted that the appellants had been in possession of the land in dispute since 1961 and he referred to the Survey Plan attached to Exhibit G and beacons planted by the appellants surveyor on the land on 27/9/63.
?
With due respect to the Respected learned

Silk, I am convinced the learned trial judge did not ignore this issue. In fact he dealt extensively with it on pages 167 -168 of the record in his judgment.

In a further argument, learned Senior Counsel submitted that the 1st appellant had divested his interest in respect of the land in dispute and therefore should not have been sued as a proper party. He cited AMUDA V AJOBO (1995) 7NWLR (PART 406)170 at 182, OLORIODE V OLOYEDE (1984) 1SCNLR at 390. My simple answer to this is that having regard to the findings of the lower Court, the 1st appellant has no interest to divest. The alienation of the said land itself was an act of trespass by him so he was properly and rightly joined as a party. See ENEH V OZOR & ANOR (2016) LPELR 40830 (SC).

APPLICATION OF ISSUE OF PRIORITY
I must state right away that the consideration of this issue does not arise as the defendants failed to prove proper allotment and approval by the Oba if Benin. The defendants did not prove compliance with the requirements of Bini Customary Law. See ARASE V ARASE (supra), ATITI GOLD V OSASEREN (supra) and other cases.

AWARD OF N100,000.00 DAMAGES
The learned trial

judge on the issue of trespass held as follows:
?The law is that the slightest interference with the land in peaceable possession of another amounts to trespass for which the Claimant is entitled to an award of damages. See ECHERE V. EZIRIKE (2006) 12 NWLR (PT. 994) 386.
It is important to point out that having held that the Claimant has succeeded in proving her case, it is my view that the Defendants were in adverse possession of the land in dispute against the interest of the Claimant.
I, therefore hold that the Claimant has established that the Defendants unlawfully trespassed on her land without her consent.?
I entirely agree. A trespasser cannot claim to be in possession by mere act of entry. See EKPAN & ANOR V UYO & ANOR (1986) 3 NWLR PART 26 p. 63: OLORIODE & ORS V OYEBI & ORS (1984) I SCNLR 390: ECHERE & ORS V EZIRIKE & ORS (2006) 12NWLR (PART 994) p. 386.
?Acts of trespass of the appellants, the planting of Survey beacons and the drawing of the survey plan cannot be sufficiently used to resist the claim for trespass of the Respondent who had been adjudged to be the rightful owner of the

land.
In the light of all the above, I resolve the sole issue in favour of the Respondent. I affirm the judgment of the lower Court delivered on 15/6/2017.
This appeal lacks merit. It is accordingly dismissed with N200,000.00 cost in favour of the Respondent.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading in advance, the well considered judgment of my learned brother, TUNDE OYEBANJI AWOTOYE, JCA.
I agree with the reasons therein advanced leading to the conclusion that the appeal lacks merit and deserves an order of dismissal.
Accordingly, I also dismiss the appeal. I abide by the consequential orders made in the lead judgment inclusive of the order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading before now the judgment just delivered by my learned brother, Tunde Oyebanji Awotoye, JCA. I agree that the appeal ought to be dismissed and I also dismiss it.
?I abide by the orders in the leading judgment, including order as to costs.

Appearances:

Sir Alfred Eghobamien SAN with him, A. Oserodua and P.W. AhuenFor Appellant(s)

Tom Osa-Ogbeide, with him, M.E. Okonoboh-Okon (Mrs) and P.I. Aifuwa (Mrs)For Respondent(s)

Appearances

Sir Alfred Eghobamien SAN with him, A. Oserodua and P.W. AhuenFor Appellant

AND

Tom Osa-Ogbeide, with him, M.E. Okonoboh-Okon (Mrs) and P.I. Aifuwa (Mrs)For Respondent