OGIEMWANRE & ORS v. ABIODUN
(2020)LCN/15482(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Monday, December 14, 2020
CA/B/147/2016
RATIO
JUDGMENT OF COURT: WHETHER A ‘MISCARRIAGE OF JUSTICE’ MAY RENDER A JUDGMENT OF A COURT OF LAW INVALID
In law therefore, the mere use of the phrase ‘miscarriage of justice’ alone without proof or more is not a talisman by which a judgment of a Court of law is made or rendered invalid just by the mention of the phrase alone by an Appellant. The law does not work like that as there must be proof of miscarriage of justice to render an otherwise correct judgment of a trial Court on appeal by virtue only of Section 294(1) of the Constitution of Nigeria 1999 (as amended). See Section 294 (5) of the Constitution of Nigeria 1999 (as amended). See also Imoh & Anor. V. Efcc & Ors (2018) LPELR -46579 (CA) per Georgewill JCA; Dibiamaka & Ors V. Osakwe & Anor (1989) 3 NWLR (PT. 107) 101 @ pp. 114 – 115; Ogundele V. Fasu (1999) 12 NWLR (Pt.632) 662; PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
TRESPASS TO LAND: RIGHT TO SUE TO PROTECT THE FAMILY PROPERTY
I thought I should point it out here and now that in law, the Appellants as members of the family have the indisputable and undoubted right to sue to protect the family land against any trespasser with or without the consent and or knowledge, though desirable, of other members of the family and for the benefit of the family. See Sapo V. Sunmonu (2010) All FWLR (Pt. 531) 1408, where the Supreme Court laid this issue to rest when it held that any member of a family may take steps to protect or defend family property or his own interest in it.
In Balarabe V. Nadabo (2012) All FWLR (Pt. 646) 516, it was held that every member of a family is permitted by law to sue strangers to protect family property against meddlesome interlopers. Indeed, even where the member of the family seeking to protect the family by an action in Court is a younger member of the family or a girl child or woman, it is all immaterial and irrelevant where they exercise their right to sue to protect the family property against strangers or trespassers for the benefit of the family. See Mozie v. Mbamalu (2006) All FWLR (Pt. 341) 1200. See also Dadi V. Garba (1995) 8 NWLR (Pt. 411) 12; Akinyemi V. Ojo (2011) All FWLR (Pt. 588) 984; Sogunle V. Akinrele (1967) NMLR 58, Babayeju V. Ashamu (1998) 9 NWLR (Pt. 567) 546, Olowosago V. Adebanjo (1988)4 NWLR (Pt. 88) 275; Dadi V. Garba (1995) 5 NWLR (Pt. 411)12.
Now, having found as fact that the land in dispute does not and did not form part of the Igiogbe of the late father of the Appellants’ family, and had remained the family property of the Appellants’ family, it has become obvious to me, and I hereby so readily find, that the Appellants, being members of their deceased father’s family, are entitled in law, as of right, to institute the action against the Respondent to protect its unauthorized alienation. In law, family property is created by death intestate of the land owner, and whose estate is governed by customary law and such land would devolve on his heirs in perpetuity as family land unless and until it is either shared or partitioned, by which act it would lose its status of being a family property. A family property cannot in law be sold without the consent of principal members and or concurrence of the members of family. And any such unauthorized sale of family land is void and liable to be set aside if properly challenged in Court. See Olowosago V. Adebanjo (1988) 4 NWLR (Pt. 88) 275 @ p. 287; Balogun V. Balogun (1943) 9 WACA 78. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
1. IDAHOSA OGIEMWANRE 2. NETE OGIEMWANRE 3. MADAM EWEMADE OGIEMWANRE (For Themselves And On Behalf Of Ogiemwanre Family) APPELANT(S)
And
AILENOATOR ABIODUN RESPONDENT(S)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Coram: E. F. Ikponmhen J., in Suit No. B/110/2007: Idahosa Ogiemwanre & Ors. V. Ailenoator Abiodun delivered on 11/11/2015, wherein the Claims of the Appellants as Claimants against the Respondent as Defendant were dismissed for lacking in merit.
The Appellants were dissatisfied with the said judgment and promptly appealed against it vide a Notice of Appeal filed on 17/12/2015 on seven grounds of appeal at pages 151 – 154 of the Record of Appeal. The Record of Appeal was deemed duly transmitted to this Court on 15/4/2016. Subsequently, an Amended Notice of Appeal was filed on 1/6/2017. The Appellant’s Brief was filed on 20/6/2016 but was deemed as properly filed on 7/2/2017. The Respondent was deemed properly filed on 29/6/2018.
At the hearing of this appeal on 18/11/2020, L. O. Alenkhe Esq., learned counsel for the Appellants adopted the Appellants’ brief of arguments and urged the Court to allow the Appeal and set aside the judgment of the Court below and grant the Claims of the Appellants against the Respondent. On her part, Mrs. F. O. Igbineweka, learned counsel for the Respondent, adopted the Respondent’s brief as her arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.
By a Writ of Summons filed on 26/2/2007 and amended Statement of Claim, the Appellants as Claimants claimed against the Respondent as Defendant the following reliefs, to wit:
1. A declaration of the statutory right of occupancy to the piece or parcel of land in ward 22J in Upper Lawani Street, Uselu, Benin City, covered by the Oba approval dated 13/12/63 to be reflected in a survey plan later.
2. N500,000.00 general damages for trespass in that the Defendant was discovered to have built the house in year 2002/2003.
3. Perpetual injunction restraining the Defendant, his privies or servants from trespassing further on the land in dispute. See pages 1 – 3, 23 – 25 of the Record of Appeal.
BRIEF STATEMENT OF FACTS:
The gist of the case of the Appellants as Claimants before the Court below as can be gleaned from the averments in their pleadings and evidence led as in the Record of Appeal was that the Appellants, who sued in a representative capacity, are the children of late Ajayi E. Ogiemwanre who died intestate on the 25th of February 1988, but in his life time had acquired a parcel of land under Benin Customary Land tenure on 13/12/1963 and built a storey building on part of the land where he lived and died, while the remaining portion measuring 50 feet by 100 feet was undeveloped and remained vacant until his death in 1988. The Appellants asserted that the property of their late father, Ajayi E. Ogiemwarire, was not shared after the burial of their late father as a result of the dispersal of the children to their respective places of work soon after the burial, except Owens Ogiemwanre, the 3rd son, who continued to live in the family house.
By a certificate of transfer dated 4/2/1997, Mr. Owens Ogiemwanre purportedly transferred the vacant land, the land in dispute to the Respondent as his personal property without the knowledge, consent and authority of the family members. In total disapproval of the sale of the vacant land, the 3rd Appellant caused the said Owens to be arrested and detained at Okhoro Police Station where he disclosed the Respondent as the person who deposited sand on the land. All attempts to invite the Respondent to the Police station was fruitless as he went into hiding and Owens was later charged to the Magistrates’ Court by the Police for conspiracy, forgery, alteration and stealing. However, prosecution of the charge was inconclusive. Despite this development, the Respondent continued his acts of trespass and built a house thereon and moved into the house sometime in 2002/2003 as he could no longer hide. After several correspondences between the parties, the Appellants filed an action at the Court of below. See pages 23 -25, 71 -72, 94 – 99 of the Record of Appeal.
On the other hand, the case of the Respondent as Defendant before the Court below as can be gleaned from the Defendant avers that sometime in 1997 he acquired a legal title to a piece of land measuring 50ft by 100ft situate at WARD 22J Upper Lawani Street, Benin City from Owens Ogiemwanre who had the authority of the first son of the family to sell same at the time. The Appellants not being the first son have no authority of the head of Ogiemwanre Family, Pa Osaretin Ogiemwanre to file the suit as the
property in dispute forms part of the ancestral home or Igiogbe of Late A. E. Ogiemwanre who died intestate in 1998 as a Benin man and was buried by his children headed by Osaretin Ogiemwanre, the Eldest child in accordance with the Benin Customary law and after the burial ceremony the property in dispute was inherited by Osaretin Ogiemwanre as the Eldest son in accordance with the Benin Customary law. The property in dispute being the Idiogbe of Late A. E. Ogiemwanre it is the exclusive right of Osaretin Ogiemwanre to inherit same being the Eldest son of his father after performing the final burial rites and is not subject to any sharing by the children as an Idiogbe cannot be shared in Bini Customary Law and therefore, Appellants have no locus to commence the suit as they have no interest in the property in dispute.
As soon as the land in dispute was bought in 1997, the Respondent commenced the construction on the land to the knowledge of the Appellants, who were always coming there but did not disturb him in his development of the land but only conspired among themselves without the authority of Osaretin Ogiemwanre their elder brother to arrest and charge Owens to the Magistrate Court for selling the property to the Respondent but the matter was dismissed by the Court. Subsequently, the Respondent completed his building and packed into the house in 2001, during which opening ceremony the eldest son, Osaretin Ogiemwanre came with the community to bless the house, in the presence of the Appellants as is the custom of the Binis. However, Owens Ogiemwanre died in 2006 and has since been buried and the Appellants merely took the advantage of his death and burial to file the spurious suit against him, which suit is caught by the doctrine of standing by, delay and acquiescence and therefore, was barred in law. See pages 15 – 17, 37 – 60 – 72, 100 – 102 of the Record of Appeal.
The parties filed and exchanged their pleadings and the matter proceeded to trial. The Appellants as Claimants called three witnesses, including the 1st and 3rd Appellants, and tendered some documents which were admitted in evidence as Exhibits. In his defense, the Respondent testified and called one witness, and tendered some documents admitted in evidence as Exhibits. At the close of the cases for the respective parties, they filed and exchanged their final written addresses which were duly adopted by their counsel. On 11/11/2015, the Court below delivered its judgment wherein it dismissed the claims of the Appellant for lacking in merit, hence this appeal. See pages 128 – 150, 151- 154 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, four issues were distilled as arising for determination from the seven grounds of appeal, to wit:
1. Whether the decision of the lower Court that the vacant land formed part of Igiogbe of the deceased was right in view of the decision of the Supreme Court in Uwaifo V. Uwaifo? (Distilled from Grounds 1 & 2)
2. Whether the vacant land constitute family property which any member of the family has right to bring an action to protect its alienation? (Distilled from Grounds 3, 4 & 5)
3. Whether the lower Court was right to have held that this action is caught by the doctrine of laches and acquiescence or estoppel by standing by? (Distilled from Ground 6)
4. Whether the delivery of the judgment of Court after a period of eleven months after the final address of counsel did not occasion miscarriage of justice in the circumstances of this case? (Distilled from Ground 7)
In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, to wit:
1. Whether the trial judge was right in holding that the property in dispute was the Igiogbe of their father which devolves on the eldest son and the Appellants were mere interlopers who had no locus standi?
2. Whether the trial judge was not right in upholding the submission of the Respondent’s solicitor that the Appellants case was caught up with the doctrine of laches and acquiescence?
My lords, upon due consideration of the pleadings on the issues as joined and the evidence as led by the parties before the Court below as can be gleamed from the Record of Appeal in the light of the findings in the judgment of the Court below, it does appear to me that the two issues for determination as distilled in the Respondent’s brief as well as issue four as distilled in the Appellants’ brief are the three apt issues arising for determination in this appeal, a consideration of which would, in my view, involve a consideration of all the other three issues as distilled in the Appellant’s brief. I shall consider Respondent’s issue one together with Appellants’ issues one and two, while Respondent’s issue two shall be considered together with Appellants’ issue three. The Appellants’ issue four shall then be considered on its own as issue three in this judgment.
ISSUE ONE
Whether the trial judge was right in holding that the property in dispute was the Igiogbe of their father which devolves on the eldest son and the Appellants were mere interlopers who had no locus standi?
APPELLANTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellants had submitted that the decision of the Court below that the land referred to as vacant land formed part of the Igiogbe was erroneous and a wrong interpretation of the meaning of Igiogbe in Benin Customary Law and contended that the concept of Igiogbe in Benin has been judicially noticed and interpreted in a plethora of cases to mean the principal house where a deceased Benin man lived and died and not a vacant land and urged the Court to hold that the land in dispute being a vacant land does and did not form part of the Igiogbe and therefore, belonged to the entire family unless and until it was shared and to set aside the contrary and perverse judgment of the Court below. Counsel relied on Egbarevba v. Oruonghae (2001) 11 NWLR (Pt.724) 318; Agidigbi V. Agidigbi (1996) 6 NWLR (Pt.454) 30; Imade V. Otabor (1998) 4 NWLR (Pt. 544) 20; Ogbahon V. Registered Trustees CCC (2002) 1 NWLR (Pt. 749) 675; Uwaifo V. Uwaifo (2013) 21 LRCN (Pt.1) 1 @ p. 19.
It was also submitted that the Court below having appraised itself of the decision of the Supreme Court in Uwaifo V. Uwaifo (Supra) to the effect that a vacant land does not constitute Igiogbe under Benin Customary Law still proceeded, for no reason, to depart from the established principle of law enunciated by the Supreme Court and contended that in law the decision of the Supreme Court is an authoritative precedent binding on all Courts in Nigeria and must be followed by all other Courts and urged the Court to hold that the vacant land in dispute did not form part of the Igiogbe of Late Ajayi E. Ogiemwanre and thus did not devolve on Osaretin Ogiemwanre as of right as held by the Court below and to set aside the contrary and perverse judgment of the Court below and allow the appeal. Counsel relied on Osemwingie V. Osemwingie (2014) All FWLR (Pt. 710) 1322 @ p. 1343; Re: Hallett (1880) 13 Ch. D 712.
On his issue two, learned counsel for the Appellants had submitted that the vacant land constitute family property and therefore, the Appellants acted within their right to institute the action to protect its alienation since in law family properties are created by death intestate of the land owner, whose estate is governed by customary law and contended that such land devolves on his heirs in perpetuity as family land and urged the Court to hold that the land in dispute is the family land of the Appellants, it having not been shared and therefore, the sale of same without the consent and concurrence of the family was void and should be set aside. Counsel relied on Olowosago V. Adebanjo (1988) 4 NWLR (Pt. 88) 275 @ p. 287; Balogun V. Balogun (1943) 9 WACA 78.
It was further submitted that the Court below was in error when it stated that the concept of family property appears alien to Benin Native Law and has not be proved by the Appellants and contended that in law, custom being a fact is proved by evidence unless it is judicially noticed and contended that by the evidence of PW1 the custom of the land of a deceased apart from his Igiogbe becomes family land until it is shared, an evidence that was not even challenged, was satisfactorily proved by the Appellants and urged the Court to so hold and to set aside the erroneous statement of the law by the Court below. Counsel referred to Sections 18 and 73 of the Evidence Act 2011and relied on Muojekwu Vs Ejikome(2000) 5 NWLR (pt. 657) 402, 433-434 para H-A; Ayinke V. Lawal (1994) 7 NWLR (Pt. 356) 263; Alhaji Bello Nasir V. Civil Service Commission, Kano State (2010) Vol. 2 MJSC 1.
It was also further submitted that the Appellants having proved by credible unchallenged evidence of PW1 that vacant is family property in that the property of the deceased has not be shared and not being part of the Igiogbe, the Appellants as members of the family have the requisite locus standi to bring the action since the law is that any member of the family has the right to bring an action to protect family property and urged the Court to so hold and to set aside the perverse finding to the contrary by the Court below and to allow the appeal. Counsel relied on Olowosago V. Adebanjo (1988) 4 NWLR (Pt. 88) 275 @ p. 287.
It was also submitted that had the Court taken time to evaluate the evidence properly including the documentary Exhibits B and C, the certificate of transfer, it would have readily found as fact that the transfer of the vacant land belonging to the family was done not by the eldest son, Osaretin Ogiemwanre, but curiously and unlawfully by Owens Ogiemwanre as his own personal property was void and urged the Court to hold that the vacant land of the family, not being part of the Igiogbe of their deceased father cannot be personally sold by one member of the family as his own personal property without the consent of principal members or concurrence of other members of the family, including the Appellants, who are not in any way meddle-some interlopers as they were erroneously branded by the Court below, and to set aside the perverse judgment of the Court below and allow the appeal. Counsel relied on Usiobaifo V. Usiobaifo (2005) 4 MJSC 82; Teriba V. Adeyemo (2010) 4 (pt. 11) MJSC 48 at 65.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Respondent had submitted that the 1st Appellant admitted that he is not the first son of his father who is the person that owns the property that was sold to the Respondent and also admitted that the first son is one Osaretin and contended that in Bini native law and custom the Igiogbe cannot be shared and the property in dispute being part of the Igiogbe belongs exclusively to the first son of the family, who only or whoever he so authorizes to do so on his behalf can dispose of it as was done by Owens in the valid sale of the land in dispute to the Respondent as was correctly found by the Court below and urged the Court to affirm the correct findings of the Court below and to dismiss the appeal for lacking in merit
It was also submitted that the Court below having found out that the property belonged to Osaretin Ogiemwanre was right to come to the conclusion that the Appellants were mere interlopers who had no locus standi to challenge the sale of the land to the Respondent and contended that in law where a party has no locus standi he cannot maintain an action and urged the Court to so hold and to affirm this finding of facts by the Court below and to dismiss the appeal. Counsel relied on Anozia V. AG. Lagos State (2011) 4 WRN 150; Imade V. Otabor (1988) 56/57 LRCN 3116.
It was further submitted that the Court was right when it held that under the Bini native law and custom the Igiogbe shared or unshared does not belong to the Appellants but belongs to the fist son, Osaretin who is well and alive and aware of the sale of the property after the death and burial of their late father but has not raised any complaint against the said sale and contended that the Appellants being not persons with any known rights under the Bini native law and custom to inherit the Igiogbe of their late father were rightly held to lack any locus standi to maintain the action against the Respondent over the valid sale to him of part of the Igiogbe of their late father and to affirm the judgment of the Court below and dismiss the appeal for lacking in merit.
RESOLUTION OF ISSUE ONE
My lords, issue one deals basically with the issue of the custom of the Bini people as regard the Igiogbe, the last living place of a deceased father and what constitutes the Igiogbe and the effect of a sale of either the Igiogbe or any vacant land situate at or by the Igiogbe?
Now, this being an issue of custom of the people, and custom being a way of life of the native people and thus is an issue of fact provable by evidence unless it has been so judicially pronounced upon in such a way that it has gained judicial notice, I shall pay close attention to the evidence as led by the parties to see if the conclusions drawn there – from by the Court below are right as contended by the Respondent or wrong as contended by the Appellants.
By Section 18 (2) of the Evidence Act 2011, it is provided thus:
“where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinions of persons who would be likely to know of its existence in accordance with Section 73.”
And by Section 73 (1) of the Evidence Act 2011, it is further provided that:
“Where the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed are admissible.”
PW1 is the 1st Appellant. He testified that his late father died on 25/2/1998 and has been duly buried by the family according to the Bin native law and custom with one Pa. Iguisi as the Okaegbe who presided over the burial ceremonies. That of all the children of his late father, only Mr. Owens Ogiemware, now deceased was living in the family house known as No. 159, Upper Lawani Street, Benin City until his death. However, during the lifetime of their father he acquired a parcel of land measuring 100 feet by 100 feet situate at Ward 22J, Upper Lawani Street, Benin City on 13/12/1963 where he erected a storey building on a part of the land, where he lived until his death, while leaving the other part of the land measuring 50 feet by 100 feet vacant and undeveloped, which one Owens Ogiemwanre, the third son had without the consent and authority of the family purportedly sold the Respondent who had erected a building thereto, the subject matter of the dispute between the parties, whilst their late father’s property had not been shared. The matter was reported to the Police at Okhoro Police Station and the said Owens was arrested and charged to the Court but the charges were later dropped by the family. Sometime in 2002/2003, the Respondent completed the building and packed into it on the land of the Appellant’s family and there has been several correspondences between the solicitors to the parties over the illegal sale of the family property by one of the members to the Appellant’s family to the Respondent without the consent and authority of the family. That the land in dispute does not form part of the Igiogbe of their late father and devolved on the family as family property, it having not been shared. PW1 was thoroughly cross-examined and he admitted that he is not the first son of his father but Osaretin Ogiemware is the first son and is still alive and that the Igiogbe cannot be shared. He also admitted that Osaretin stepped into the shoes of their late father when their father died and took over the properties pending when the properties will be shared but that it was Owen, the third son that sold the family property as his own personal property without the authority of the family.
PW2 is the 3rd Appellant. She testified that their late father married three wives in his life time, out of which one was dead and the two wives remaining had children for him. Her mother had seven children, while the 3rd wife had one child. Their late father’s burial ceremonies have since been performed and Pa. Iguisi was the Okaegbe and her father’s property has not been shared because her younger brother, Osaretin who is the 1st son and some of her siblings left for their respective places of work immediately after the burial ceremonies except Owens who remained at the family house. She repeated the evidence of the acquisition of the property in dispute and the rest of the issues between the parties as already testified to by the PW1. She was also thoroughly cross – examined but was not shaken in any material particular on the matters she had testified to in – chief.
One Godwin Bazuaye testified as CW1 for the Appellants. He stated that late Ajayi E. Ogiemwanre has since been buried under Benin Native and Custom in his family house at No. 159A, Upper Lawani Street, Benin City, where one late Pa Iguisi was the Okaegbe at the burial ceremony and he also participated in the burial ceremony. The property of the deceased has not been shared because Osaretin, the 1st son of the deceased left Benin soon after the burial and the property cannot be shared in his absence. He stated that under Benin native law and custom, it is forbidden for any member of the family to sell family property when it has not been shared and or authorized by the family and that the property of a deceased Benin man which is yet to be shared remains family property and in control of the family until it is shared and any member of the family has the right to protect such family property.
The first witness for the Respondent testified as DW1. He stated that he is the Odionwere of Upper Lawani, Benin City and that sometime in 1997, Mr. Owens Ogiemwanre came to meet him at his house with a letter written by his elder brother Osaretin Ogiemware authorizing him to sell 50 feet by 100 feet of the land which forms part of their father’s Igiogbe and inherited by their eldest brother who was residing in Zaria at that time to pay up the debt he was owing from where he borrowed money which he used to complete his house at Upper Erhumwuse Street, in Benin City. After sometime he went to inquire about the land and eventually the Respondent bought the land and commenced his building on the land in his presence and the rest of the Community and upon its completion he and some Community people went to bless the house in the presence of Owens and they were all entertained as the custom of the Binis demands.
The Respondent testified on his own behalf. He stated that sometime in 1997, he acquired the land in dispute from Owens Ogiemware who had the authority to sell same at the time and that the Appellants have no authority of the head of Ogiemwanre family Pa. Osaretin Ogiemwanre to file the suit and that the property in dispute forms a part of the ancestral home or Igiogbe of late Ajayi A.E. Ogiemwanre who died intestate in 1988 as a Benin man and was buried by his children headed by Osaretin Ogiemwanre, the eldest child, in accordance with the Benin customary law and after the burial ceremony the property in dispute was inherited by Osaretin Ogiemwanre as the eldest son and being the Igiogbe it cannot be shared. After he purchased the property from Owens, who had the right to sell the property having been given authority by his eldest brother Osaretin Ogiemwanre who told him to pay more money for the land and with which he complied. The Appellants were aware of the purchase and his construction of his house but merely stood by and conspired among themselves without the authority of Osaretin and arrested and charged Owens to the Magistrate Court for selling the property to him. The matter was dismissed. He completed and packed into the house in 2001, and when he opened the house the elder brother of the Appellants, Osaretin Ogiemwanre came with the community to bless the house in the presence of the Appellants as is the custom of the Binis. However, when Owens Ogiemvanre died in 2006, the Appellant took the liberty to file the suit against him and they are not entitled to any or all of their claims against him. He was also thoroughly cross – examined.
It was on the above state of the evidence, both oral and documentary as led in line with the averments in the pleadings of the parties that the Court below had on 11/11/2015 delivered its judgment wherein the claims of the Appellants as Claimants against the Respondent as Defendant were dismissed for lacking in merit.
On the issue of Benin custom of Igiogbe, the Court below stated and held inter alia thus:
“…Under Bini Native Law and Custom, the eldest son of a deceased person or testator is entitled to inherit without question the house or houses known as “Igiogbe” in which the deceased/testator lived and died. Neither testamentary deposition nor family elders’ arrangement, can deprive the eldest surviving son of the Igiogbe, the house in which his deceased father lived and died. In other words, no one can derogate from the eldest son’s exclusive title to his father’s Igiogbe upon final rites of “Ukonwen”. The claimants agree that the burial rights have been concluded … As for the case at hand, the argument of the claimants is that the land is a family property and as such the sale of the land without the consent of the principal members is void. While that of the defendant is that the property is an Igiogbe and the eldest surviving son can dispose it off without the consent of the principal members. A look at the evidence before the Court shows that the parties are agreed that the land in dispute belonged to the deceased father of the claimants. I find that the land referred to as vacant land formed part of the land where the deceased house was built and therefore part of the “Igiogbe”. The above being said, the logical conclusion is that the Land is not family property but “Igiogbe” since it devolved to the 1st son Osaretin Ogiemwanre after the death of his father. The concept of family property appears alien to Benin native law and has not been proved in this case.” See pages 128 – 150 of the Record of Appeal.
On the issue of locus standi of the Appellants, the Court below stated and held inter alia thus:
“The next issue for determination is whether the claimants have the locus standi to institute this action. In my respectful view, since it is my finding that the land in question is not family property but “Igiogbe” which is the exclusive right to own of the first son of the deceased one Osaretin as agreed by the parties, the claimants have no right to sue in this matter. That Igiogbe “shared” or “unshared” does not belong to the Claimants. The said Osaretin is well and alive and aware of the sale of the property after the death and burial ceremonies of their late father. In the light of the above there is no merit in the claim of the claimants as they are mere interlopers.” See pages 128 – 150 of the Record of Appeal.
My lords, I have taken time to consider the pleadings of the parties as to the real issues joined by them therein as well as reviewed the totality of the evidence, both oral and documentary as led by them. It does appear to me that the real issue was not whether an Igiogbe can be shared or sold by any other member of the family save the first son under the Bini native law and custom, but rather whether the land in dispute, a vacant portion of land owned by the deceased father of the Appellant in his life time, was part and parcel of the Igiogbe in which he lived until his death?
In my finding, and on the preponderance of the evidence as in the printed record, it was shown very clearly by the Appellants, and the Respondent did not even dispute it, that the land in dispute was indeed and in fact a vacant land and not the Igiogbe itself where the father of the Appellants lived and died. The only issue in contention was whether it formed part of the Igiogbe?
Having considered the totality of the evidence, particularly the evidence of CW1, I find that the Court below erred gravely when contrary to the clear evidence before it, proceeded to find as fact that the land in dispute, though a vacant land, formed part and parcel of the Igiogbe of the Appellants’ father. I agree with the apt submissions of the learned counsel for the Appellant in this regard that the Court below gave a very wrong interpretation of the meaning of Igiogbe under the Benin Customary Law.
The concept of Igiogbe in the customs of the Bini people has long been judicially noticed and pronounced upon in a deluge of decided cases, so much so that its true meaning and proper application ought not to be of any difficulty any longer to any Court, including the Court below. There is indeed a surfeit of authorities on it as are replete in our law reports. In Bini custom, the Igiogbe means and refers to the principal house where a deceased Benin man lived and died. It does not refer to vacant land owned by such a deceased man. I find therefore, that the land in dispute being a vacant land, on which both parties are ad idem does not and did not form part of the Igiogbe of the Appellants’ late father. It is my finding, having remained unshared upon the death and burial of the late father of the Appellants, it became family property for the benefit of all the members of the family of the Appellants’ late father. Thus, all the findings to the contrary by the Court below, being perverse, cannot be allowed to stand. See Egbarevba V. Oruonghae (2001) 11 NWLR (Pt.724) 318; Agidigbi V. Agidigbi (1996) 6 NWLR (Pt.454) 30; Imade V. Otabor (1998) 4 NWLR (Pt. 544) 20; Ogbahon V. Registered Trustees CCC (2002) 1NWLR (Pt. 749) 675.
In Uwaifo V. Uwaifo (2013) 21 LRCN (Pt.1) 1 @ p. 19, Galadima JSC had stated inter alia thus:
“These plethora of authorities have left no one in doubt that Igiogbe in Benin Customary Law is a principal house where a deceased Benin man lived and died. This is an ancestral home. It is not vacant land whether or not adjacent.”
In his contribution to the lead judgment, Alagoa, JSC had @ p. 25 stated inter alia thus:
“The Appellant’s contention that the Igiogbe consisted also of other vacant adjoining land does not represent the position of the law and was certainly not the pronouncement of the Court in Igbinoba V. Igbinoba (1995) 1 NWLR (pt. 317) 375 at 381. That case, if properly read, did not decide the issue of vacant land as it pertains to Igiogbe in Benin Customary Law.”
The Court below having appraised itself of the decision of the Supreme Court in the above case of Uwaifo V. Uwaifo (Supra) to the effect that a vacant land does not constitute Igiogbe under Benin Customary law was under a burden duty to follow it and was indeed left with no choice of its own to venture into strange concept of the Igiogbe custom different from as has been fully interpreted and pronounced upon by the Supreme Court. It didn’t have such luxury in the hierarchy of Courts in this Country and the resultant principles of binding precedent and stare decisis. The Supreme Court has spoken not once but on several occasions on this issue of the concept of the Igiogbe under Bini native law and custom, and all other Court below the apex, including this very Court in which hallowed Chamber I am privileged to sit to dispense justice according to law, is bound to follow the decision of the apex Court. See Osemwingie V. Osemwingie (2014) All FWLR (Pt. 710) 1322 @ p. 1343.
It follows therefore, that since as a fact the land in dispute, being a vacant piece or parcel of land not forming part of the Igiogbe of Late Ajayi E.Ogiemwanre, the deceased father of the Appellants, it did not and cannot automatically devolve exclusively on Osaretin Ogiemwanre as of right. The Court below was therefore in grave error when it held to the contrary that it devolved exclusively on the first son of the Appellants’ family, and referring to the Appellants as meddlesome interlopers such findings are perverse and should not be allowed to stand. The Appellants, being family members and the property in dispute being their own family property, they are not and cannot be said to be meddlesome interlopers in their quest to protect and preserve their family property Usiobaifo V. Usiobaifo (2005) 4 MJSC 82; Teriba V. Adeyemo (2010) 4 (pt. 11) MJSC48 at 65.
In Paul Lawani V. Mrs. Risikatu Grillo & Ors (2018) LPELR – 44912 (CA), @ pp. 52 – 53, I had pondered generally on how family property is created and had opined inter alia thus:
“The law is settled that family property is property which devolves from father to children and grandchildren under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole. See Ogundairo V. Abeje (1967) LLR 9. See also Olukoya V. Bankole (1909 – 09) 1 NLR 81; Otun V. Ejide (1933) 11 NLR 124; I. O. Smith, Practical Approach to Laws of Real Property in Nigeria Ecowatch Publications Limited @ Page 32.”
I thought I should point it out here and now that in law, the Appellants as members of the family have the indisputable and undoubted right to sue to protect the family land against any trespasser with or without the consent and or knowledge, though desirable, of other members of the family and for the benefit of the family. See Sapo V. Sunmonu (2010) All FWLR (Pt. 531) 1408, where the Supreme Court laid this issue to rest when it held that any member of a family may take steps to protect or defend family property or his own interest in it.
In Balarabe V. Nadabo (2012) All FWLR (Pt. 646) 516, it was held that every member of a family is permitted by law to sue
strangers to protect family property against meddlesome interlopers. Indeed, even where the member of the family seeking to protect the family by an action in Court is a younger member of the family or a girl child or woman, it is all immaterial and irrelevant where they exercise their right to sue to protect the family property against strangers or trespassers for the benefit of the family. See Mozie v. Mbamalu (2006) All FWLR (Pt. 341) 1200. See also Dadi V. Garba (1995) 8 NWLR (Pt. 411) 12; Akinyemi V. Ojo (2011) All FWLR (Pt. 588) 984; Sogunle V. Akinrele (1967) NMLR 58, Babayeju V. Ashamu (1998) 9 NWLR (Pt. 567) 546, Olowosago V. Adebanjo (1988)4 NWLR (Pt. 88) 275; Dadi V. Garba (1995) 5 NWLR (Pt. 411)12.
Now, having found as fact that the land in dispute does not and did not form part of the Igiogbe of the late father of the Appellants’ family, and had remained the family property of the Appellants’ family, it has become obvious to me, and I hereby so readily find, that the Appellants, being members of their deceased father’s family, are entitled in law, as of right, to institute the action against the Respondent to protect its unauthorized alienation. In law, family property is created by death intestate of the land owner, and whose estate is governed by customary law and such land would devolve on his heirs in perpetuity as family land unless and until it is either shared or partitioned, by which act it would lose its status of being a family property. A family property cannot in law be sold without the consent of principal members and or concurrence of the members of family. And any such unauthorized sale of family land is void and liable to be set aside if properly challenged in Court. See Olowosago V. Adebanjo (1988) 4 NWLR (Pt. 88) 275 @ p. 287; Balogun V. Balogun (1943) 9 WACA 78.
Now, when one looks at the concept of family property and how it has evolved over the years under different customs, it would not be correct, in my view, to say that the concept of family property appears to be alien under the Bini native law and custom, merely on account of the operation of the concept of Igiogbe, which is exclusively in relation to the principal house owned and lived in by a deceased man at the time of his death which devolves exclusively, and without any whimper of dissent, on his eldest son.
I have also taken time to study the documentary Exhibits tendered by the parties, particularly Exhibits B and C, the documents evidencing the transfer of the land in dispute to the Respondent by Owens Ogiemwanre. A careful look at clause 4 of the recital in the said document at page 59 of the record of appeal would reveal that Owens Ogiemwanre sold the land as his own personal property allegedly given to him by the family. A cursory glance at it alone readily reveals the capacity in and with which the said Owens had transferred the property to the Respondent, even if it were the Igiogbe of the deceased father of the Appellants, of which I have found as fact that it is not.
The said Owens, being only the third son, had transferred the property, even assuming but not so deciding that it was the Igiogbe of the deceased father of the Appellants’ family, had transferred the said property vide Exhibits B and C as his own personal property to the Respondent, yet the Court below which had emphatically held that the land was the Igiogbe which can only devolve on the first son saw nothing untoward about the act of the 3rd son, Owens, in disposing of the Igiogbe if even it were so as his own personal property. This position would still remain the same even if Owens was authorized by Osaretin to dispose of the Igiogbe on his behalf since in Exhibits B and C, the expressly stated capacity of Owens was not that of either an attorney or any person acting on behalf of Osaretin to sell his property but the capacity of being the personal owner of the property being sold. On this score too, even if the property were the Igiogbe, the sale is still void as Owens had nothing in law in the property in dispute which he could transfer or sell to the Respondent. The law is ‘nemo dat quod non habet’.
So, why would Owens, in acting on behalf of the first son transfer title to the land in dispute not as a donee of power of attorney from Osaretin in the first son but ‘being the person entitled to the Statutory right of Occupancy’ of the land in dispute? How and under which law, whether statutory or native law and custom, was Owen entitled in his own right to transfer title to the land in dispute to the Respondent? Even if the land was part of the igiogbe, can Owen on his own transfer it to the Respondent in his own personal capacity as clearly stated in the Certificate of Transfer? I think not.
My lords, having found as fact that the land in dispute was not the Igiogbe of the late father of the Appellants family but a vacant piece of family land, even under Bini custom the first son, Osaretin, would lack the power and right to the exclusion of all other principal members and other ordinary members of the family to transfer the said land as his own personal property to the Respondent, talk less of authorizing without any proper valid consent of other principal members or concurrence of other members of the family for Owens to transfer the family property solely on his own behalf even before it was either shared or partitioned to him
In the light of all I have said and found as fact above, I have no difficulty resolving, and I hereby so resolve issue one in favor of the Appellants against the Respondent.
ISSUE TWO
Whether the trial judge was not right in upholding the submission of the Respondent’s solicitor that the Appellants case was caught up with the doctrine of laches and acquiescence?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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APPELLANTS’ COUNSEL SUBMISSIONS
On his issue three, learned counsel for the Appellants had submitted that the decision of the Court below that the Appellants’ suit was caught by the doctrine of laches and acquiescence or estoppel by standing by is not supported by the evidence on records and contended that the Court below failed to properly appraise the evidence of the parties before arriving at a conclusion since the time lag between the facts leading to the cause of action and the filing of the suit were well within the time allowed by the law, coupled with all the actions taken by the Appellants against Owens for the illegal purported sale of their vacant family land to the Respondent and urged the Court to hold that the Appellants’ suit was competent and was not caught neither by the doctrine of laches and acquiescence nor by the doctrine of standing by as was erroneously held by the Court below and allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Ezekwesili V. Agbapuonwu (2003) 22 WRN 1; Ibenwele V. Lawal (1971) 1 ALL NLR 23.
It was also submitted that both on the pleadings and evidence led by the parties, the Appellants never abdicated their rights and never at any time gave tacit acceptance to the continued trespass by the Respondent into their family land which was yet to be shared to any member of the family and contended that neither the statute of limitation nor laches and acquiescence apply to inheritance and urged the Court to so hold and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 1(2) of the Limitation Law of Bendel State now applicable to Edo State and relied on Ogbahon V. Registered Trustee CCCCA (2002) 1 NWLR (Pt.749) 675; Lawal Osula V. Lawal Osula (1995) 32 LRCN 291.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue two, learned counsel for the Respondent had submitted that the Court below was right when it held that the action of the Appellants if even maintainable was caught by the doctrine of laches and acquiescence and contended that from the evidence by the Appellants the Respondent acquired the land in dispute from their junior brother Owens who acted as an agent for Osaretin and sold the land in dispute in 1997 and they got him arrested, charged him to the Magistrate Court and the matter was later abandoned and the Respondent went on to build, complete and move into his house on the land in dispute and urged the Court to hold that when the suit by means of a Writ of Summons on 26/2/2007, their claims had been caught by the operation of the doctrine of laches and acquiescence and of standing by as rightly held by the Court and rendered bare and no longer capable of any enforcement in a Court of law and to dismiss the appeal for lacking in merit. Counsel relied on Ngwu V. Onuigbo (1999) 73 LRCN 3226 @ pp. 3243 – 3244.
It was also submitted that there was evidence from the Appellants that they became aware of the Respondent’s presence on the land in dispute in 1997 and only attempted to prosecute their brother who sold it to him in 1997 and abandoned same and went to rest and did nothing until 2007 after the death of their brother in 2006 to file the suit against the Respondent after a waiting period of ten years after they had become aware of the presence of the Respondent on the land in dispute and contended that their claim was clearly caught by laches and acquiescence as was rightly held by the Court below and was consequently rightly dismissed and urged the Court to dismiss the appeal. Counsel relied on Kayode V. Odutola (2001) 87 LRCN 1995.
RESOLUTION OF ISSUE TWO
My lords, this issue deals with when in law it could be said that a claim, even where maintainable on the merit, is defeated by reason of the operation of the doctrine of laches and acquiescence? The pleadings and evidence forming the basis of this issue were largely uncontested between the parties. The land was sold in 1997 to the Respondent by Owens, a member of the Appellants’ family. They took him to the Police and he was eventually charged to Court but nothing came out of that charge. The Respondent commenced, completed and went into occupation of his building on the land in dispute and subsequently Owens died in 2006 and the suit was filed in 2007. At the conclusion of trial, the Court below in dismissing the suit, had on this issue, held inter alia thus
“However, even if they are said to have some right to question the sale of that land to the defendant the ancillary issue that arises for determination is whether this action is not caught by the doctrine of laches and acquiescence… Even if it is agreed (which is not the case) that the claimants have a right to sue, time is of the essence, any undue delay can affect the action. See Garuba V. The Public Trustee (1947) 18 N,L.R. 132 at 137; Onyekonwu V Okeke (1961) S.E.R.L.R. 48. I agree with the Learned Counsel to the defendant that the doctrine of laches and acquiensce will apply in this case. The claimants in this case definitely stood by and allowed the defendant to build on the land in question, from 1997- 2003, the only action taken by the claimants is to take their brother to Court and abandon the case though there is no proof of this by the charge sheet. From 2003 – 2007 there is no evidence that the claimants did anything to stop the defendant from acquiring the land or building on it. I find that this action is caught by the doctrine of laches and acquiesce or estoppel by standing by… The actions of the claimants did not show that they took enough steps to prevent the defendants from acquiring and building on the land. They stood by and watched him.” See pages 128 – 150 of Record of Appeal My lords, I have calmly reviewed the pleading, circumstances and relevant evidence of the parties on this issue of fact, and it does appear to me that decision of the Court below that the Appellants’ suit was caught by the doctrine of laches and acquiescence or estoppel by standing is strange and not in the least supported by the evidence on records. There was no evidence of even any relapse or letting by the Appellants in their vociferous contention with the Respondent over their alleged illegal sale of their family property to him by just one of the members of their family. There were copious and sustained correspondences on this issue back and forth between the parties through their respective Solicitors. The Appellants never gave up the persistence that the sale of their family property to the Respondent was illegal.
The time lag of 10 years and the circumstances of the facts between the parties in all of the years leading to the cause of action and the filing of the suit are in my finding well within the period allowed by the law for actions of this nature relating to dispute over land. The Appellant remained very active in their avowed challenge of the action of Owens for the illegal purported sale of their vacant family land to the Respondent. I cannot see how in the circumstances of this case, the Appellants could have been said to have stood by and caught by the doctrine of laches and acquiescence merely because the Respondent being fully aware of all the lawful steps being taken to challenge and redress their perceived injury to their right to their family property had with his arms wide open proceeded not only to commence to build, but completed and moved into the house on the land in dispute.
The Appellants in a manner consistent with the law by not taking the laws into their hands by not physically confronting the Respondent but using the machinery of the law, evidence of which abounded before the Court below as in the printed record but all of which the Court below ignored in its judgment, to challenge and check mate his actions. At any rate, the Appellants’ suit was filed with time as allowed them by law. I therefore, hold that the Appellants’ suit was competent and was not in any way caught neither by the doctrine of laches and acquiescence nor by the doctrine of standing by as was erroneously held by the Court below, which finding was palpably perverse and cannot be allowed to stand. See Ezekwesili V. Agbapuonwu (2003) 22 WRN 1; Ibenwele V. Lawal (1971) 1 AIL NLR 23.
In Edo State, there seems to be no limitation period for the commencement of actions founded on inheritance, as in the instant case. The Court below thus reached its decision to the effect that the Appellants’ claims were defeated by laches and acquiescence per incuriam without reference to the extant law in Edo State on this issue. See 1(2) of the Limitation Law of Bendel State now applicable to Edo State, which provides thus:
“Nothing in this Law affects actions in respect of the title to land or any inheritance in Land held by Customary Tenure or in respect of any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death”.
In the light of all I have said and found as above, I hereby resolve issue two in favour of the Appellants against the Respondent.
ISSUE THREE (APPELLANTS’ ISSUE FOUR)
Whether the delivery of the judgment of Court after a period of eleven months after the final address of counsel did not occasion miscarriage of justice in the circumstances of this case?
APPELLANTS’ COUNSEL SUBMISSIONS
On his issue four, learned counsel for the Appellants had submitted that by Section 294(1) of the 1999 Constitution of Nigeria (as amended) every Court established under this Constitution shall deliver its decision in writing not later that ninety days after the conclusion of evidence and final addresses and contended the final addresses of parties were adopted on 16/12/2014 but the judgment was not delivered until 11/11/2015 when it was delivered after eleven months and urged the Court to hold that it had occasioned miscarriage of justice in that the Court below failed to consider the oral address on point of law delivered by Appellants’ counsel on 16/12/2014 in the consideration of plea of laches and acquiescence raised in the Respondent’s written address before holding that the defense of laches and acquiescence availed the Respondent and to allow the appeal and set aside the judgment of the Court below.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue of whether the delay of eleven months in delivering of the judgment arising from the judicial strike occasioned a miscarriage of justice, learned counsel for the Respondent had submitted that Section 294 (1) of the 1999 Constitution of Nigeria which prescribed 90 days for delivery of judgment after adoption of written addresses had also by 294 (5) provided that the decision of the Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof and contended that the Appellant had apart from merely mouthing miscarriage of justice had not shown any miscarriage of justice by reason of the delivery of the judgment of the Court below after eleven months and urged the Court to discountenance the same and dismiss the appeal
RESOLUTION OF ISSUE THREE (APPELLANTS’ ISSUE FOUR)
My lords, I have taken time to read through the provisions of Section 294(1) and (5) of the Constitution of Nigeria 1999 (as amended) and considered the facts and circumstances of this appeal and it does appear to me that nowhere in the judgment appealed against or in the printed record was any reason given by the Court below for the delay of eleven months before the eventual delivery of its judgment.
It is the law that for judgment of a Court of law established under the Constitution of Nigeria 1999 (as amended) to be rendered invalid pursuant to the provisions of Section 294 (1) of the said Constitution by reason of delay in its delivery outside the prescribed 90 days period, it must be shown by the party complaining, generally the Appellant of course, that the delay had occasioned a miscarriage of justice to him, failing which the judgment stands and remains valid.
Now, by Section 294 subsections (1) and (5) of the Constitution of Nigeria 1999 (as amended) it is provided thus:
294(1): “Every Court established under the Constitution shall deliver the decision in writing not later than ninety (90) days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
294(5): “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal of review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In Dennis Akoma & Anor V. Obi Osenwokwu & Ors (2014) LPELR – 22885 (SC) @ pp. 40 – 41, the Supreme Court per Onnoghen JSC (as he then was but later CJN) had pronounced on the legal effect of Section 294 (1) and (5) of the Constitution of Nigeria 1999 (as amended) inter alia thus:
“The question is; what is the consequence(s) of the failure of the lower Court, in the circumstances of this case, to deliver its decision within the ninety days of the final addresses of counsel? The answer is that the judgment/decision/order is valid except an Appellant can satisfy the Court that the non – delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him.”
My lords, having taken time to review the judgment, and having already found that there were errors on both findings as to facts and application of relevant principles of law, which is nothing extra ordinary since no Court manned by man is infallible, I cannot see any miscarriage of justice occasioned solely by the lapse of time in the delivery of the judgment by the Court below on 11/11/2015, that is after eleven months from the date the final addresses were adopted before it by learned counsel to the respective parties on 16/12/2014.
Now, what would in law constitute miscarriage of justice varies from case to case depending on the facts and circumstances, and therefore, to reach the conclusion that a miscarriage of justice has occurred, it does not require a finding that a different result necessarily would have been reached in the proceedings. It is enough if what happened is not justice according to law. See Unilorin V. Akinola (2014) LPELR – 23275(SC).
In law therefore, the mere use of the phrase ‘miscarriage of justice’ alone without proof or more is not a talisman by which a judgment of a Court of law is made or rendered invalid just by the mention of the phrase alone by an Appellant. The law does not work like that as there must be proof of miscarriage of justice to render an otherwise correct judgment of a trial Court on appeal by virtue only of Section 294(1) of the Constitution of Nigeria 1999 (as amended). See Section 294 (5) of the Constitution of Nigeria 1999 (as amended). See also Imoh & Anor. V. Efcc & Ors (2018) LPELR -46579 (CA) per Georgewill JCA; Dibiamaka & Ors V. Osakwe & Anor (1989) 3 NWLR (PT. 107) 101 @ pp. 114 – 115; Ogundele V. Fasu (1999) 12 NWLR (Pt.632) 662;
My lords, though I have found no real miscarriage of justice as a result of the delay of eleven months, yet it is important to call attention of trial Courts to the need for them in circumstances of this case to put on record why the delay to deliver any judgments in line with the dictates of the constitutional provisions requiring them to do so within 90 days from the date of the final addresses of counsel. In this vein, I find all the unsolicited reasons proffered in the Respondent’s brief, and unsupported by any evidence in the printed record, as amounting to nothing but evidence from counsel which is outside the scope and mandate of counsel qua counsel. Consequently, they are hereby, in their entirety, wholly discountenanced.
In the circumstances therefore, I hereby resolve issue three against the Appellants in favour of the Respondent.
Now, as I bring this judgment to a close and having resolved all the three issues arising for determination in this appeal, and having held firmly that the Court below was wrong to have dismissed the claims of ten Appellant as Claimants against the Respondent as Defendant, and having further held that the Appellants’ claims succeed, it would appear that the Respondent who had put up a building on the land belonging to the Appellants’ family would now stand to lose it all to the Appellants’ family under the land law maxim of ‘quid quid plantatur solo solo cedit’, which maxim I find to be so uncannily applicable to this case, and since that is the law, so be it. See Frank Anyi & Ors V. Chief Harry Ayoade Akande & Ors (2017) LPELR – 41973 (CA) @pp. 62 – 64, where I had reiterated inter alia thus:
“Now, this is one of those cases that brings to the fore and continues to reinforce the land law principle well settled over hundreds of years ago that abusers must beware ‘caveat emptor’ in order to avoid the unpleasant consequences of buying nothing but a law suit and an empty worthless document of title incapable of vesting on the buyer any known right, whether legal or equitable, on the land the subject of such bogus purchase. This case graphically and strongly illustrates the fool hardiness of a party who rushes, dabbles and stumbles into land transaction and even before obtaining a valid or proper or even equitable title thereto, rushes ahead with the construction of a building or structure on the land in dispute. If it turns out tomorrow, sooner or later, that he had bought nothing from his alleged vendors, then by the operation of the very old land law maxim of “quid quid plantatur solo solo cedit”, meaning whatever is affixed to the land belongs to the land owner, he may end up losing not only the money used in buying and obtaining his invalid title to the land but also the investment on the building. A word should be enough for the prudent and wise buyers of land to look very well and deeply before they leap into buying land! I say no more.”
See also Orianwo V. Okene (2002) 11 NWLR (Pt. 786) 156.
On the whole therefore, having resolved the most crucial issues one and two in favor of the Appellants against the Respondent, notwithstanding the fact that issue three has been resolved against the Appellants in favor of the Respondent, I hold that this appeal has great merit and ought to be allowed. Consequently, I hereby so allow it
In the result, the judgment of the High Court of Edo State, Coram: E. F. Ikponmhen J., in Suit No. B/110/2007: Idahosa Ogiemwanre & Ors. V. Ailenoator Abiodun delivered on 11/11/2015, wherein the Claims of the Appellants as Claimants against the Respondent as Defendant were dismissed for lacking in merit, is hereby set aside.
In its stead, Judgment is hereby entered in favor of the Appellants against the Respondent on their Claims in Suit No. B/110/2007 and it is hereby ordered as follows:
1. It is hereby declared that the Appellants’ family are the persons entitled to the Statutory Right of Occupancy over all that piece or parcel of land situate in Ward 22J in Upper Lawani Street, Uselu, Benin City, covered by the Oba’s Approval dated 13/12/63.
2. N300,000.00 general damages for Trespass against the Respondent in favor of the Appellants’ family
3. An Order of Perpetual injunction be and is hereby issued in favor of the Appellants restraining the Respondent, his privies or servants from further trespassing on the Appellants’ family land situate in Ward 22J in Upper Lawani Street, Uselu, Benin City, covered by the Oba’s Approval dated 13/12/63, and put in dispute by the Respondent.
4. There shall be cost of N100,000.00 in favor of the Appellants against the Respondent.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA.
I agree that this appeal has merit and I allow it in the manner and terms set out in the leading judgment.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree.
Appearances:
L. O. Alenkhe Esq. For Appellant(s)
Mrs. F. O. Igbineweka For Respondent(s)
