3PLR – UHUNMANGHO V. OKOJIE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
UHUNMANGHO
V.
OKOJIE
IN THE SUPREME COURT OF NIGERIA
17TH SEPTEMBER, 1982
SUIT NO. SC 43/1981
3PLR/1982/41 (SC)
OTHER CITATIONS
(1982) 9 S.C. 52
BEFORE THEIR LORDSHIPS
BETWEEN
OSAYAMDE UHUNMWANGHO
AND
REPRESENTATION
Mr. E.O. Ebohon (with him A.l. Uhunmwangho) for the Appellant.
Mr. J.O. Saldoh for the 1st Respondent.
MAIN ISSUES
LAND LAW/REAL ESTATE:- Declaration of title to land – Land held under Bini Customary Law – Relevant considerations – Need for strict proof of identity of land – Whether can be presumed in layouts in distinction from bush or virgin lands
LAND LAW/REAL ESTATE:- Declaration of title to land – Land held under Bini Customary Law – Conflicting evidence of Oba’s approval for different parties over the same piece of land – How resolved – Whether Oba’s approval is only one of many steps though a culminating step in proof of title to the said land).”
CUSTOMARY LAW: Customary Land Law (Bini) Land Tenure Oba of Benin’s approval of allocation Prior inspection by Plot Allocation Committee before recommendation to Oba Not a prerequisite where the allotted land situated in a plot Allotment Committee Layout and not in the bush.
JURISPRUDENCE AND PUBLIC LAW:- Customary Law characteristics – Dynamism and ability to evolve – Bini customary law as to land – Strict requirement and procedure for identification of land – Need to distinguish between lands in virgin/bush areas from those in layouts – Effect
CRIMINAL LAW AND PROCEDURE:– Fraud – Need for same to be specifically pleaded and proved – General allegations however strong – Whether insufficient to amount to an averment of fraud of which any court ought to take notice
PRACTICE AND PROCEDURE:- Civil proceedings – Allegation of fraud – Need for same to be specifically pleaded and proved
MAIN JUDGMENT
NNAMANI, J.S.C.: (Delivering the Judgment of the Court): In this suit the appellant (plaintiff in the trial court) sued respondents (defendants) for the following reliefs:
“1. Declaration of title to all that piece or parcel of land situate lying and being at ward “A” Alkhionbare Avenue, behind the Government Reservation Area, Benin City within the Benin Judicial Division, property of the plaintiff and which parcel of land shall be particularly described and delineated on the plan to be filed by the plaintiff in this Honourable Court. The annual value of the land is N40.00.
- Possession of the said land.
- N400 being damages for trespass committed and is still being committed by the defendants by themselves their servants and/or agents on the said plaintiffs land.
- A perpetual injunction restraining the defendants, their servants and/or agents from committing further acts of trespass on the aforesaid land.”
Pleadings were ordered and were duly filed and delivered. Both the appellant and the 1st respondent filed plans of the land in dispute. In the course of the trial, the 1st respondent applied by way of motion, to amend his statement of defence and plan. There was a protracted trial in which both parties, appellant, 1st respondent and a brother of 2nd respondent as well as several witnesses testified.
The case of the appellant, on the pleadings and evidence, was briefly that the land in dispute was granted to him by His Highness the Oba of Benin on 16.4.62 following his application to the relevant Plot Allotment Committee Ward “A” Benin City dated 28th February 1962 and the recommendation of his said application for the Oba’s approval. The recommendation of the Committee was dated 6th February, 1962. The documents on which the appellant relied were tendered at the trial as exhibits. C, C.1 and C.2. On the other hand, the 1st respondent’s claim to the land was based on purchase of same from the 2nd respondent on 10th February 1972. Conveyances dated 11th February, 1973 were executed in his favour. They were admitted in evidence at the trial as exhibits K, K1. The 2nd respondent, Chief Jonathan Elema, had sold the land in dispute in his capacity as one of the administrators of the estate of his father, the late Chief Elema. The land sold was said to have been granted by His Highness the Oba of Benin to the 5 year daughter of the late Chief Elema Anna Elema following Chief Elema’s application dated 26th February, 1962. When she predeceased her father this land fell into the estate of her father. No evidence was given as to the Benin customary law on this part of the case. The document signifying the Oba’s grant of the land in issue to Anna Elema dated 21st April, 1962 was tendered at the trial as exhibit G. 3rd and 4th respondents bought portions of the land in dispute from the 1st respondent and were content to rest their case on his.
At the end of the trial, the learned trial Judge, Ogbobine, J on 2812177 dismissed the appellant’s case. The learned trial Judge specifically dealt point by point with the reasons for dismissing the appellant’s case in the following portion of his judgment:
“…The result is that when members of Ward ‘A’ purported to allocate the plot of land in exhibit ‘A’ to plaintiff after the Oba had approved his application (exhibit C) on the recommendation of Ward A Plot Allotment Committee in February 1961 it is doubtful whether there was any dear proof that they knew the plot that they were allocating to plaintiff. The evidence does not convince me that they had full knowledge of the location of the plot and this is borne out by the following facts:
Firstly, Izekor Edaeyi (5th plaintiff’s witness) who showed the plaintiff his plot was illiterate and he admitted that he did (not) know whether the same piece of land was granted to Chief Elema or any of his children. Secondly, Chief Osayande Obanor (3rd witness who was the Chairman of Wand A Plot Allotment Committee and who signed exhibit ‘C’ (plaintiffs application) admitted that he did not know that he was in boundary with plaintiff until he visited his own plot which was allocated to him in the same area. Thirdly, the non-availability of the layout plan in order to ascertain that the beacon numbers on exhibits C C1 agreed with those on the layout plan and Fourthly, exhibits C and G were signed by Chief Osayande Obanor (3rd plaintiff’s witness) and Patrick Idehen (6th plaintiff’s witness) both members of Ward A. The plaintiffs claim is for a declaration of title and the burden is on the plaintiff to prove his title; and his first duty is to show the court clearly the area to which his claim relates. See Okosun Epi and another v Aigbedion (1972) 10 S.C. 53, 59.”
After dealing with other specific points which I do not find necessary to set down he had concluded that:
“On a clear consideration of the entire facts disclosed both by the pleadings and evidence in this case, it is my view that although the defence of 1st and 2nd defendants may be weak, the plaintiff who has to succeed on the strength of his own case has not established any title to the disputed land in accordance (sic) Benin custom and the entire claim is therefore dismissed with costs.”
The appellant herein appealed to the Federal Court of Appeal, Benin Judicial Division (hereinafter known as the Court of Appeal). That Court thoroughly considered all the evidence before the learned trial Judge as well as the authorities of this Court on Benin customary law relating to allocation of land by His Highness the Oba of Benin. Agbaje, J.C.A. in a painstaking judgment to which Eta and Okagbue JJ.C.A. concurred, on 15th July, 1980, also dismissed the appellant’s appeal but for different reasons from those held by the learned trial Judge. In fact, it is pertinent to mention at this stage that the Court of Appeal specifically rejected all those reasons. As Agbaje, J.C.A. said in his judgment:
“I have so far dealt with the specific points taken by the learned trial judge as to why he said the plaintiffs claim must fall having regard to the evidence he adduced. And it appears to me on the submissions before us which I have considered above that all the specific points he took against the plaintiff cannot stand.”
Nevertheless, as stated earlier the appellant still failed. The Court of Appeal dismissed his appeal on two grounds with which I shall deal more fully later in this judgment. These were, briefly
(i) That exhibits C, C1 and C2 are not regular on the face of each of them in that the application to the Oba for land was made on the 28th February, 1962 whereas the recommendation by Ward “A” Plot Allotment Committee carried the date 6th February 1962 which suggested that the recommendation preceded the application.
(ii) That Ward “A” Plot Allotment Committee did not inspect the land before recommending the Plaintiffs application to the Oba of Benin.
To return, however, to the facts of this case, the appellant, still dissatisfied, appealed to this Court. In his notice of appeal the appellant filed 7 grounds of appeal all challenging the decision of the Court of Appeal based as it was on the two grounds set down above. Learned counsel for the appellant has in his brief of argument set out the questions for determination which bring out the issues contained in these grounds. The questions are stated as follows:
“(a) Whether the learned Justices of Appeal were correct when they dismissed the plaintiff/appellant’s appeal by holding inter alia at page 198 lines 2934 that Ward “A” Plot Allotment Committee did not inspect the land granted to the plaintiff before recommending same to the Oba of Benin.
(b) Whether the learned Justices of the Court of Appeal were right in their interpretation and application of the cases of Aigbe vs Bishop Edokpolor 1977 2 S.C.1 and KS. Okeaya v Madam Ekomado 1970 1 A.N.LR. 1 to this case. (c) Whether the interpretation of exhibits C, C1 and C2 by the learned Justices of Appeal was correct in view of the totality of the evidence adduced at the trial.
(d) Whether the findings of the Federal Court of Appeal on part of the evidence of plaintiff witness 2, Richard Eriyo is justifiable.
(e) Whether an error in the date the plaintiff/appellant made his application as per exhibits C,CI and C2 is crucial in determining ownership of land under Bind customary law.
(f) Whether the cases of In Ramsbottom v Duckworth 1847 1 Exh 506 and Middlesex County Council vs Minister of Local Government and Planning 19,52 2 A.E.R. 709 are relevant and applicable to a case based on Bini customary law of acquisition of land.”
The issues before this Court are narrowed to the two points on which the Court of Appeal based its decision. As all the reasons on which the learned trial Judge dismissed the appellant’s case were, as stated earlier in this judgment, rejected by the Court of Appeal (on grounds, I should add, with which I entirely agree) I shall not deem it necessary to touch that part of this case. Indeed, learned counsel’s arguments before us are appropriately limited to those two points. Their arguments were briefly as follows:
Learned counsel to the appellant, Mr. Ebohon, submitted on the first point, the irregularity on the face of them of exhibits C, C1 and C2 that recommendation of the Ward “A” Allotment Committee of appellant’s application to the Oba took place after appellant’s application. He contended that the date 6th February 1962 for the recommendation was a mistake. He referred to the testimony of appellant’s witness 2 and the appellant himself to this effect. Learned counsel in further argument on this in his brief contended that the material date for the grant of land under Bini customary law was the date of the Oba’s approval provided the land had been inspected by the appropriate ward allotment committee and duly recommended for the Oba’s approval. The date of the application, he said, has never been material and the application could even be undated. As to the implication of fraud because the recommendation of the Committee predates the application he submitted that Exh C, C1, C2 were never questioned as forgeries and fraud was never the case of the defence.
Adverting to the second point the question of inspection learned counsel for the appellant argued strenuously that there was inspection of the land in issue before it was recommended by the Ward “A” Allotment Committee for the Oba’s approval although he conceded that there was no direct evidence of inspection. He referred to the evidence of appellant’s witness who said he cut traces on the land in dispute to make sure that it had not been previously allocated. The grant of land to the appellant by the Oba did not offend the principles laid down in the cases Aigbe v Bishop Edokpolor and KS. Okeaya vs Madam Ekomado Aguebor (supra) in that the land was inspected before a recommendation was made for the Oba’s approval. He sought to distinguish these cases on the ground that in both of them it was specifically conceded that there was no inspection of the land in issue before recommendation. He contended that as found by the Court of Appeal, the Ward “A” Allotment Committee knew the land they allocated to the appellant and that they were satisfied that that land had not been hitherto allocated to any other person.
Learned counsel for the 1st respondent in his reply referred to some paragraphs of the pleadings to show the issues joined by the parties. The appellant, he contended, had been put on strict proof that he got the land in dispute in accordance with Bini customary law. On the 1st point, i.e. the dates he referred to the irregularity on the face of the documents exhibits C, C1 and C2. He conceded, however, that there was evidence by the appellant that there was a mistake in date. Learned counsel in his brief of argument further contended that date is a material aspect of land acquisition under Bini customary law. The date of application, the date of inspection, and the date of approval, he said are all important steps in the process of acquisition of land under Bini customary law.
Learned counsel’s main submission was, however, on the issue of inspection. Relying on the authorities of this Court Okeaya v Aguebor, supra; Vincent Bello v Magnus Eweka (1981) 1 S.C. 101 at 102 and Arase v Arase (1981) 5 S.C. 33 at page 59 he contended that there was no evidence of inspection in this case. Full knowledge of the land by the Ward Committee, he argued, does not dispense with the requirement of inspection of the land. All that appellant’s witness did was to show allottees their land after the Oba’s approval. Accordingly, he only showed the appellant the land allocated to him. This was not inspection, he said, as required under Bini customary law.
Before dealing with the two points on which the Court of Appeal based their decision and on which both learned counsel have addressed this Court, I would wish to deal with and dispose of two matters.
The first has to do with the identity of the land in dispute. It would on the face of it seem from the pleadings and the evidence led by both parties that two separate pieces of land are in issue in this suit. Indeed, the learned counsel for the appellant submitted before us that the land granted as per exhibits, C, G and C2 was a different piece of land from the land the subject of the grant in exhibit G. In his statement of claim paragraphs 6 and 7, the appellant had averred as follows:
“6. The said plaintiff’s land is opposite one Mr. Enehizena’s land on Akhionbare Avenue and opposite Chief O. Obanor’s land (the then Chairman of Ward “A”) on Imuetinyan Avenue.
- In July, 1973 after pleadings had been ordered in this suit, the plaintiff employed the services of Mr. O. E. Omoregie, licensed surveyor to survey his said approved land and Plan No. OM. 4155 of 29th August, 1973 was prepared…
As against this the 1st respondent in his statement of defence referred to the land in dispute as follows in paragraphs 3, 5 and 6.
“3. The 1st defendant denies paragraphs 6, 8, 9, 11, 14, 17, 18, 19 and 21 of the statement of claim and puts the plaintiff to the strictest proof of the facts contained therein
- The 1st defendant avers that the said parcel of land is opposite a parcel of land of one A. O. Aigbogun, a proposed road and a parcel of land of one Obazee on Imuetinyan Avenue and a parcel of land of one Sunday Elema a proposed road and a parcel of land belonging to one Madam Comfort Ogiemien on Aikhionbare Avenue. On the Western side, the parcel of land is bounded by a proposed road and a parcel of land of one Ozo and on the Eastern side by a proposed road.
- The 1st defendant shall also assert that Plan No. OM 4155 filed by the plaintiff in support of his case does not show precisely the location, identity and description of the piece of land in dispute and that the plaintiff is confused as to the piece of land which he alleged was allocated to him by Ward “A” Plot Allotment Committee.”
The witnesses of both parties gave evidence at the trial confirming the boundaries to the land in dispute as claimed in the pleadings. It is significant that the learned trial Judge did not make any findings on which version of the evidence as to boundaries he accepted. When it was also conceded by learned counsel to the appellant that the appellant’s surveyor never compared the land granted by exhibits C, CI and C2 with that granted by exhibit G, it looked indeed as if two separate pieces of land are involved in this suit. On a calm view of the whole evidence led at the trial as well as the pleadings as a whole, however, I am in agreement with the view of the Court of Appeal that the land in dispute is one piece of land and that the land granted in exhibit C, G, C2 is the same land that was claimed by the 2nd respondent. Further, the land verged red in exhibit ‘A’, the appellant’s plan, and area of land verged green in exhibit J, the 1st respondent’s plan, relate to the same land. Learned counsel for the 1st respondent conceded as much in argument before us. There ought to be no dispute really as to the Identity of the land in dispute between the parties. It is the land on which the 1st respondent built his house. The appellant in this regard pleaded in paragraphs 19 and 20 of the statement of claim:
“19. At the time the plaintiff visited the land as hereinbefore referred to the 1st defendant was moulding blocks on the said land preparatory to erecting a building thereon.
- The 1st defendant has almost completed the said building despite plaintiffs letter referred to in paragraph 12 herein.”
It is also the land in respect of which police Intervened following a report by 1st respondent of forcible entry into land. At the trial too Chief O. Obanor gave evidence of his inspection of a piece of land following the request of the 1st respondent that he should intervene in a dispute between him (i.e respondent) and appellant. His evidence on this Issue is significant.
He said:
“On a certain day, I was in my house when 1st defendant came to me and said that he had some land. The 1st defendant said that the land was transferred to him. I told him 1st defendant that (sic) 2nd defendant had no land around that side. He asked me to beg plaintiff to allow the plot on which he had built for him but plaintiff refused. On that day 2nd defendant was also at the scene and he heard all that we said. When we all, namely myself, plaintiff witness 2 (secretary Ward A, Plot Allotment Committee) one P. O. Idehen (P.W.6, member of the Plot Allotment Committee), the plaintiff, 1st defendant, 2nd defendant and Izekor (P.W.5 another member of the Committee) … The 1st defendant asked us to plead with the plaintiff to leave the land for him, but when we spoke to the plaintiff he refused to give up the land…”
Although 1st respondent denied this, and the learned trial judge made no findings on its truth or otherwise, I am of the view that the Court of Appeal was right in its inference that the land so inspected was the land in dispute.
The other subsidiary matter as far as identity of the land in dispute is concerned was also in my view correctly determined by the Court of Appeal. Exhibit F was the document which recorded the terms of agreement between the late Chief Elema’s Ward and the other members of Warri “A” Allotment Committee. From 1st December 1961 when it was made, it would be correct to regard Ward “A” allotment Committee as the appropriate authority for purposes of allocation of the land in dispute. It would therefore be unnecessary for purposes of this judgment to consider the possibility that the land in dispute may have been in Chief Elema’s layout. In fact, true to the terms of exhibit F, a member of late Chief Elema’s Ward, Oseki, was present when Ward “A” Allotment Committee made the allocation to the appellant.
The other matter forms a necessary background to the consideration of the all-important question whether there had been inspection of the land in dispute before its recommendation for the Oba’s approval. I must therefore remind myself of the procedure for acquisition of land under Bini customary law as has been repeatedly set down by this Court in the following authorities – KS. Okeaya v. Madam Ekomado Aguebor (1970) 1 All N.LR. 1, 8; Anti Gold v. Oserenren (1970) 1 All N.LR. 125, 132; Mrs. D.M. Aigbe v. Bishop John Edokpolor (1977) 2 S.C. 1, 2; Vincent 1. Bello V. Magnus A. Eweka (1981) 1 S.C. 101, 127; Madam I. Arase v. Peter U. Arase (1981) 5 S.C. 33 at 58, 59.
I will only set down a passage in the Okeaya case. In that case, this Court accepted the testimony of Hawdon Omoregbe Uwafo which was said to have been corroborated by a book tided “Benin Custom and Law Regarding Land, Burial Rites and Inheritance.” Paragraphs (a), (b), (c), (e), (f), and (g) of the customary rites therein are particularly relevant to the points in issue in this suit. They state as follows:
(a) all lands in Benin Division are vested in the Oba of Benin who is thus trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof;
(b) in respect of Benin City itself, the Oba of Benin had by 1961 appointed ward allotment committees in respect of 12 wards into which the City had been divided shortly before this for the purpose of plot allocation;
(c) whereas any grantee of land in Benin City before 1961 might not be able to produce the approval in respect thereof reduced by the Oba of Benin into writing, such a grantee after this period must be able to produce such evidence;
(e) an applicant for. land in. Benin. City as from 1961 has to direct his application in writing to the ward plot allotment committee of his choice;
(f) the ward plot allotment committee upon receipt of the application would delegate some of their members to carry out an inspection of the land acquired within the area of their ward and they in turn would report back to the committee on their inspection. ‘The purpose of the inspection” being ‘to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has not been previously granted to someone”;
(g) upon being satisfied about the exact location, the dimensions and the fact that the desired plat is “dispute free” the ward plot allotment committee would endorse the application with the above facts and forward to the Oba of Benin as recommended.”
To further emphasise the importance of inspection the same Hawdon Omoregbe Uwaifo had further testified:
“The purpose of the inspection is to ascertain the location of the plot, to ascertain how large it is and to ascertain its boundaries. The delegates would also report back on whether the plot is “dispute free” in other words, whether it is vacant or being claimed by some other persons. On being satisfied that the plot is “dispute free” the committee would recommend the applicant’s application to the Oba of Benin. 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’.
All the cases in this Court subsequently have endorsed the procedure set down above.
Against this background therefore one has to consider whether in the circumstances of the case in hand there has been inspection of the land dispute. The only evidence on which the appellant relies in contending that there has been inspection is contained in the testimony of Izekor, appellant’s witness 5. At the trial he had testified as follows:
“About 13 years ago a piece of land was given to the plaintiff by the members of Ward “A” Plot Allotment Committee and I was delegated to go and show it to him…
It was part of my duties in the ward committee to plant beacons on the plots and show the applicants plots allocated to them. The land we granted to plaintiff was not in Evbo Elema layout; it was behind the Government Reservation area. The land we gave to plaintiff was not allocated to any other person. I was responsible for cutting traces.”
There is no doubt that from the evidence of Izekor what he did had nothing to do with inspection as it had been described repeatedly in the authorities of this court over the years i.e. in terms of inspection of the land in issue by members of the Allotment Committee (as delegates of the Committee) and a report back of their findings before a decision is taken whether to recommend the land for the Oba’s approval. His duty appeared to have been, as he said, showing applicants their land after the Oba’s approval of the grant of land to them. That this is confirmed by the testimony of Chief O. Obanor, 3rd appellant’s witness, who was Chairman of the Ward “A” Committee which allocated the land in dispute to the appellant. His evidence on this was to this effect:
“I was the Chairman of Ward “A” Plot Allotment Committee in 1962. I knew one Izekor Edahi quite well who was a member of our Plot Allotment Committee. His main duty was to show applicants their plots on the approval of their application. In 1962, the plaintiff applied for a piece of land measuring 200 feet by 200 feet. If a person applies for a plot of land in our ward, we give him a form to fill. After filling the form we recommend the application to the Oba for his approval. When the Oba approves the application, Izekor would take the applicant to the land and show it to him.
When the land was approved. for the plaintiff in 1962,. Izekor took him to the land and showed it to him.”
As the appellant adduced no direct evidence of inspection it would at first appear that he must fail in his bid to acquire title to the land in dispute under Bini customary law. It seems that until recently the emphasis centred on the Oba’s approval of a grant of land. In the case of competing claims where, as in this suit, both parties have obtained the Oba’s approval of their respective grants, the issue was determined on the basis of first in time. This Court has now decided that the Oba’s approval, all-important as it is, must be the culmination of a series of steps in a chain. To acquire a good title in Bini customary law these steps in the chain (procedure) as set down above must be fulfilled prior to the Oba’s approval. See Arase vs. Arase (supra).
Idigbe J.S.C. delivering the leading judgment of this Court in that suit observed at p.59 as follows:
“It is clear from all these cases (i.e. Okeaya Eweka, etc.) that in proving title under Bini customary law title is not always established merely by production of a document to which the Oba’s approval has been endorsed, and this is particularly so where, as here, each of the parties can produce such a document, one of which even bears an earlier date of approval. For as was stated by Coker J.S.C. In Anti Gold vs. Beatrice Osarenren (Supra) at 134:
“… The question at all times was which of the parties had made a good title to the land and certainly not which of them first obtained the Oba’s approval which according to the evidence again rightly accepted by the learned Chief Justice, was but a single though culminating step in a whole chain of events and conditions to be strictly fulfilled by a prospective purchaser (and I would respectfully add that the production of the Oba’s approval sometimes and more so in cases of competing approvals by the Oba in respect of the same land, is only one of many steps though a culminating step in proof of title to the said land).”
But to determine really whether the appellant should fail on this point, it would be necessary to see whether these authorities are applicable to the particular facts of the case in hand. All the law that has developed around inspection would appear to me to relate to lands in the “Bush” or at least lands not located in layouts. Most of the land which was the subject of litigation in the decided cases to which I have made reference was not contained in layouts. In Okeaya’s case, the land in dispute was said to be “a piece or parcel of land lying situate and being at Ward 23L Benin City and the particulars of which are given as measuring approximately 92 feet by 100 fear’. In Add Gold’s case it was “all that piece and parcel of building land measuring 100 feet by 75 feet in dimension situated in Ward “C” New Benin, Benin City…” In Aigbe’s case the land was “all that piece or parcel of land (building plot) situate lying and being along Anglican Girls Grammar School Road, Benin City …” The purpose of inspection, it was said, was “to locate the land to be allocated with certainty and ensure that it is dispute free.” Locating the land with certainty would in my view be more applicable to the case of lands in the “bush” rather than to layouts. It is certainly understandable that where what is involved is not in a layout with cut traces, easily identifiable plots, pillars, beacon numbers etc. there should be so much insistence on inspection to locate the land and of course ensure that it has not been previously allocated.
In the case in hand, although the claim of the appellant was for “all that piece or parcel of land situate lying and being at Ward “A” Aikhonbare Avenue …..,” there is no doubt that from the evidence before the trial court this was land in a layout. The appellant’s witness 2, Richard Eriyo (the Secretary of the Ward “A” Allotment Committee) actually testified at the trial as follows:
“We have a layout of the plots in the Ward. The Committee would then decide to give him the plot after which the application would be recommended to the Oba of Benin … Sometime in 1962, the plaintiff applied to us for a piece of land … I wrote the beacon numbers on identification “Z„ (i.e. on the application of the appellant). The beacon numbers were actually planted on the land shown in identification “Z”.”
Then of course there was the question which I had resolved earlier whether the land in dispute was in Evbo Elema layout. Even the application of the appellant Exh. C, CI, C2 was for “a building plot in your new layout.”
It seems to me that when the land being allocated is in a layout, as in this case, it would be pointless for a delegation of the members of the Ward Committee to go and locate the land as the Committee could quite easily determine which plot they wish to allocate to the applicant from their layout plan and then enter the relevant beacon and pillar numbers into the application. What is important in such cases is that the members of the Plot Allotment Committee should have full knowledge of the plot they are allocating including information that the land has or has not been allocated to any other person.
There was abundant evidence that the Plot Allotment Committee of Ward “A” had full knowledge of the land they allocated to the appellant and were quite sure, as they all testified, that it had not been allocated to any other person. I am therefore in agreement with that portion of the Judgment of Agbaje J.C.A. in which the learned Justice said:
“If the learned trial Judge had sufficiently directed himself to the evidence from the plaintiff which I have recited above he could not have properly held, as he did, that when members of Ward “A” Plot Allotment Committee recommended the plaintiffs application to the Oba for approval in February 1961 it is doubtful whether there was any clear proof that they knew the plot they were allocating to plaintiff. For in the face of the above evidence for the plaintiff it cannot be doubted that the members of the Ward “A” Plot Allotment Committee had full knowledge of the plot allocated to the plaintiff…”
The Court of Appeal correctly stated the law on inspection under Bini customary law, but with all due respect, erred in applying the decided cases to the facts of this case. I think the peculiar facts of this case make it distinguishable from those authorities of this Court to which I have made reference.
The next point is of course the alleged irregularity on the face of Exh C, C1 and C2. The appellant no doubt pleaded in paragraph 2 of his statement of claim that “on the 28th February 1962 the plaintiff applied to the Oba of Benin through the Ward “A” Plot Allotment Committee of Benin City for a parcel of land… “Exhibits C, C1 and C2 show that the recommendation of the appellant’s application for the Oba’s approval was made by the Committee on 6th February, 1962. The contention of the respondents, which the Court of Appeal accepted, is that it would appear the recommendation to the Oba was made before the application for the plot was made by the appellant a gross irregularity. Although learned counsel for the 1st respondent did not raise this argument before us, in his brief he did suggest that the appellant, who was the Oba’s Secretary at the time, played some role in the processing of exhibits C, C1 and C2 and in doing this took advantage of his official position. I think in such circumstances there is merit in the submission of learned counsel for the appellant that there was allegation by the defence of fraud or at the very least allegation that exhibits C, CI and C2 were forgeries. No evidence was led by the respondents to support such serious allegations. I think it is now well settled that fraud has to be specifically pleaded and proved. General allegations however strong are insufficient to amount to an averment of fraud of which any court ought to take notice Wallingford v. Mutual Society (1880) 5 App. Cas. at 697. See also Johnson v. The King (1904) A.C. 817 (P.C.). Furthermore, if the defence case is that exhibits C, CI, C2 were forgeries the onus was on the respondents to prove that assertion. That onus was not discharged. See section 137 (1) and (2) of the evidence Act Cap 62 Laws of the Federation of Nigeria 1958 and Aiyedoun T. Jules v. Raimi Aani (1980) 67 S.C. 96 at 116. I would only add on the possibility of fraud that if indeed there was any intention to “doctor” the papers it would appear to me ludicrous that the date chosen after the recommendation was made on 6th February 1962 should be 28th February 1962 and not a date earlier than 6th February.
The appellant gave evidence at the trial that the date 6th February 1962 was a mistake and that it ought to have been 16th March, 1962. It may be pertinent to mention here that there is a stamp of the Oba of Benin’s Office dated 21st March, 1962 on exhibits C, C1 and C2. This was probably the date on which those documents were received in the Oba’s office from the Ward “A” Committee. Then there was the testimony of the appellant witness 2 that “there must have been a mistake in the date. The operative date is the time the Oba approved the application.” The learned trial Judge made no findings on exhibits C, C1, C2 and I am unable to accept the reasons adduced by the Court of Appeal for rejecting the appellant’s submissions on this part of the case. In the face of the appellant’s evidence referred to earlier I cannot understand how the learned Justices of the Court of Appeal could have held as they did that “No effort was made by the plaintiff to put the court wise as to any mistake about the date on exhibit C if at all there was one.” However Agbaje J.C.A. conceded that the decision on this point (i.e. whether appellant’s application can be said to be duty recommended) had given me some difficulty’. I really cannot see the relevance to the circumstances of this case of the cases Ramsbottom v. Duckworth and Middlesex County Council v. Minister of Local Government on which the Court of Appeal relied. If the explanation of the appellant as to the mistake in the dates was accepted, the application would properly have been made before the recommendation. Again the proposition that anything required to be duly made was not duly made if not made within the time specified for making it would only apply if one still Insisted, Inspite of the explanations, that the recommendation was made before the application of the appellant. I think it would be fair to say that the Court of Appeal could not have felt too strongly about the reasons it gave. To quote Agbaje, J.C.A., again he concluded:
“So I am constrained on the authorities to come to the conclusion that Exhibit C was not on the face of it duly recommended for the Oba’s approval. And since there was no evidence before the court correcting this apparent irregularity on the face of Exhibit C, I hold that Exhibit C was not duly recommended by the Ward “A” Plot Allotment Committee for Oba approval.
There is also merit in learned counsel for the appellant’s submission that there is nothing in the procedure for acquiring land under Bini customary law which requires that the application for a grant of land must be dated. The decided cases merely show that the requirement is for an application in writing. The operative date is the date of approval by the Oba as its timing may be important particularly in cases of competing claims. A date on an application form and the endorsement on it of the date of recommendation are only relevant for purposes of showing that the recommendation was made after the application. In the absence of those dates admittedly it would be difficult to give oral evidence of the dates of those events.
Having thus disposed of the two grounds on which the Court of Appeal based their decision, I have no difficulty in arriving at the conclusion that on the evidence adduced at the trial the appellant has proved his title to the land in dispute in accordance with Bini customary law.
Finally, learned counsel for the 1st respondent in his submissions to this Court referred to the building of the 1st respondent on the land in dispute. He claimed that at the time 1st respondent first received a letter exhibit “D1” from the appellant the building was near completion. I can only say that the 1st respondent was given due and timely notice of appellant’s interest in the land on which he built. At the time Exh. D1, dated 13th March, 1973 was written the appellant claimed that the 1st respondent has “started moulding blocks on the said land.” The 1st respondent bought the land in dispute on 10th February 1972 and got the conveyances in respect of the land (Exh. ‘KK’) on 11th February 1973 and April 1973. The writ of summons in this suit was issued on 19th April, 1973.
The result is that for the reasons given in this judgment, this appeal must succeed and it is hereby allowed. The judgments of the Benin High Court and the Federal Court of Appeal dated 28th February, 1977, and 15th July, 1980, respectively, together with the orders for costs are hereby set aside. I make the following orders:
“(a) The plaintiff Osayande Uhunwangho is hereby awarded a declaration of title, under Bini customary law to the land situate lying and being at Ward “A” Aikhionbare Avenue, behind the Government Reservation Area, Benin City within the Benin Judicial Division verged red on Survey Plan No. OM 4155 of 29th August, 1973 prepared by Mr. O. E. Omoregie, evidence in these proceedings as exhibit A.
(b) The plaintiff is awarded N200 being damages for trespass committed by the defendants, their servants, and/or agents on the said land.
(c) The defendants, their agents, servants or privies are hereby restrained from entering the land the subject matter of this suit, described in (a) above.
It is further ordered that this shall be the judgment of the High Court of Benin in Suit No. B/52/73. I award costs in favour of the appellant and against the respondents which I assess at N500.50 in the High Court (that respondent is to pay N250, 2nd respondent N100.50 and 3rd and 4th respondents N75 each), N300 In the Federal Court of Appeal and N300 in this Court.
SOWEMIMO, J.S.C.:
The appeal in this case is from the judgment of the Federal Court of Appeal, Benin City which upheld the judgment of the Bendel State High Court but for different reasons from that given by the trial Judge. It is a matter which deals with what has to be considered in deciding whether the Oba of Benin has validly approved the transfer of a piece of land to a particular applicant. It is necessary that in all cases where transfers have been made that the identity of the land should be ascertained and it is because of this that trial court should examine the pleadings, the Issues raised, and the evidence led. There must be some finding of facts which would justify the different averments in the pleadings. It is after an exhaustive consideration of such matters that it could be stated that the conclusions are supported by the evidence.
In this case whilst the rival applicants disagree as to the dates when the Oba approved their applications, a decision should have been made by the Bendel State High Court, but the trial Judge failed to make any such specific finding. The trial Judge made general statements on the customary law but did not direct his mind to the fact that the identity of the land has to be strictly proved. Though a surveyor was called to give evidence the learned trial Judge did not examine the evidence and come to the conclusion as to the identity of the land. On the contrary he proceeded to consider a layout plan, not drawn by any expert like a surveyor, and gave judgment on oral evidence which has no bearing on the survey plan. In the result, when the case went on an appeal to the Federal Court of Appeal his reasons were set aside and that Court, quite rightly in my view, gave two reasons which should govern decision in such a case.
My learned brother, Nnamani, J.S.C. in his judgment made an exhaustive examination and evaluation of the pleadings and the evidence before the High Court as the learned trial Judge failed to make specific finding of facts as pleaded. The judgment of this Court is that the Federal Court Appeal was wrong in its consideration of the appeal before it. I agree with the judgment just delivered and have come to the same conclusion as my learned brother Nnamani, J.S.C. I would adopt the consequential orders made by him and agree that the appeal be allowed and it is hereby allowed. And this shall be the judgment of the Court.
BELLO, J.S.C.:
I read in advance the judgment of my learned brother, Nnamani J.S.C. I agree that the case in hand is distinguishable from the cases decided by this Court stating the law and practice on inspection under Bini customary law. The land in the case on appeal is in the layout while the lands in the former decided cases were in the “bush.” My learned brother, Nnamani J.S.C. has considered in his judgment all the relevant cases. I do not intend to repeat them. I would only add that in none of those cases did this Court make any pronouncement as to the effect of a grant by the Oba on the recommendation of the allotment committee of a ward but without inspection.
I agree with the reasoning and conclusions reached by my learned brother, Nnamani J.S.C. I endorse all the orders made by him.
OBASEKI, J.S.C.:
I have been privileged to read in advance the draft of the judgement just delivered by my learned brother, Nnamani, J.S.C. I agree with it completely.
The issue of inspection which was the main ground on which the Federal Court of Appeal sustained the decision of the High Court raised very many questions which have been fully answered and dealt with in the judgment of my learned brother. The need for inspection of a plot of land sought to be acquired, if the piece of land is not within the Wards Plot Allotment Committee’s layout, under Benin customary law cannot be overemphasised. See K. S. Okeaya v. Madam Ekomado (1970) 1 All N.LR.I; Vincent Bello v. Magnus Eweka (1981) SC.101 at 127128; Arase v. Arase (1981) 5 SC. 33 at 59; Add Gold v. Osarenren (1970) 1 All N.LR. 132, 134; Aigbe v. Bishop Edokpolo (1977) 2 SC.I, 3.
Inspection of the plot acquired or to be acquired is mainly to satisfy the Plot Allotment Committee on the question of location, identity and boundary of the piece or parcel of land. It is also directed at finding out whether the land is vacant and free from genuine third party claims. K. S. Okeaya v. Madam Ekomado (supra). If the purposes served by inspection of the land are satisfied by the evidence of the existence of a layout of building plots in the possession and control of the Plot Allotment Committee from which plots are allotted as and when applications for plots are received, it will be a travesty of justice to deny a party with approved application verified by the testimony of the Chairman, the Secretary and other members of the Plot Allotment Committee the declaration of title he seeks and which the evidence justified. There is no evidence anywhere on record that the plot was never at any time inspected before demarcation and planting of beacons.
The preparation of a layout of building plots involves inspection of the land, demarcation and the planting of beacons to identify the various plots comprising the layout. The acceptance by the court of the evidence of the existence of a layout implies the acceptance of the fact that the plots comprising the layout have been inspected and demarcated, and identified by the beacon numbers demarcating the boundaries. It is otherwise if the plot allocated is in a private layout or in an area not laid out for the Ward’s Plot Allotment Committee. But in the instant appeal, the evidence shows that the plot applied for is within the layout of the Ward’s Plot Allotment Committee. The application, Exhibit C, of the appellant did not indicate a request for any particular plot. It was the Secretary, P.W.2 who on receipt of the application inserted the beacons numbers demarcating the plot the Plot Allotment Committee decided to allocate to the appellant. The important objective of inspection is for the Plot Allotment Committee to satisfy itself that the plot exists and that it had not been previously allotted or allocated to anyone. 1 am satisfied that there is overwhelming evidence before the Court that the plot allotted to the appellant existed and that it had not been previously allotted to anyone before its allocation to the appellant. The issue of inspection cannot be dealt within hypothetically or without regard to its purpose.
The Federal Court of Appeal quite properly and rightly, in my view, found that it is one and the same plot that is being claimed by both the appellant and the respondents and that the Plot Allotment Committee allotted the plot to the appellant and that this allotment received the approval of the Oba. The only issue raised in the pleading is that the 2nd respondent has an approved application to justify the presence of the respondents on the land. The case for the respondents having broken down in view of the uncontradicted evidence of approval of the allotment of that plot to the appellant, the absence of any evidence of endorsement of inspection on the application does not, under Benin customary law, destroy the grant made to the appellant.
For the above reasons and the reasons stated by my learned brother, Nnamani, J.S.C., I would and I hereby allow this appeal and set aside the decision of the Federal Court of Appeal and that of the High Court including the orders for costs. I agree with the order made and I would also award the appellant costs in the same amount as ordered by my learned brother, Nnamani, J.S.C.
ESO, J.S.C.:
I have had the privilege of a preview of the judgment which has just been read by my learned brother Nnamani, J.S.C., I agree with the reasoning and the conclusion reached by my brother.
The land in question is in a layout. This court has in a line of decisions, to wit: Okeaya v. Ekomado (1976) 1 All N.LR. 1; Mill Gold v. Osarenren (1970) 1 All N.LR.132; Aigbe v. Edokpolo (1977) 2 S. C. 1; Vincent Bello v. Magnus Eweka (1981) 1 S.C. 101 and Arase v. Arase (1981) 5 S.C. 33 emphasised the need for the inspection of a land which a party seeks to acquire. It is, as my brother has stated, necessary, to satisfy the Plot Allotment Committee on the identity and location of the land. This will prevent allocation of the same piece of land to more than one person.
However, the land in this case is a layout. The identity is beyond question. So also is the location once the layout is determined. I agree with my learned brother that once the land is a layout it would be an idle exercise for members of a Ward Committee to go on a voyage of determining the plot. Being in a layout I think has determined the identity, the boundaries and the location per adventure.
In any event in this case the Plot Allotment Committee in question had a full knowledge of the land in question. It was free. In other words it had not been previously allocated to any other person. They were quite right therefore to allocate it to the appellant.
I agree that the appeal must succeed and it is hereby allowed with costs as indicated in the aforementioned judgment of my brother Nnamani, J.S.C.
Appeal allowed.
