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BEFORE THEIR LORDSHIPS:
(3) VICTOR OSAYANDE EVBUOMWAN
Boyo for the Defendants/Appellants.
Odje for the Plaintiffs/Respondents.
Land Law – Title to Land – Benin Customary Law on grants of land by Oba must be proved in evidence as not decided by earlier cases – Trial Judge wrong to take judicial notice of Benin Custom – Trial Judge did not determine the real issue as to which Apostolic Church got grant from Oba.
The respondents in this appeal were the plaintiffs in Benin High Court Suit No. B/57/67, where their writ of summons was endorsed as follows:-
The Plaintiffs claim from the defendants is as follows:-
The appellants were the defendants to the action.
The pleadings on both sides were unnecessarily prolix having regard to the issues to be decided and the facts actually canvassed at the trial. As the writ shows, the plaintiffs claimed to be acting as registered trustees of the Apostolic Church, Benin City, Mid-western Nigeria. They had sued the first and second defendants in the capacities in which they are shown in the writ and the third defendant individually. The controversy ranged around the ownership of a piece of parcel of land in Benin City (on which the Apostolic Church is stated to be standing) the land itself being shown on the plan produced at the trial as exhibit ‘Nl’ and therein edged red. The plaintiffs aver in paragraph 21 of their statement of claim as follows:
“The plaintiffs aver that the land upon which the Church stands has been acquired by them in accordance with Bini customary laws and that same was later conveyed to them by His Highness Akenzua 11, Oba of Benin, the trustee of all lands in Benin”.
The plaintiffs gave evidence at the trial to the effect that the land was first acquired by the Apostolic Church, Benin City (then the Faith Tabernacle) in 1929 from the then Oba of Benin, Eweka II; that the Church had thereafter been built on the land and they had been in undisturbed and continuous possession ever since; that they later (on the 17th April, 1967) received a formal conveyance of the land and that the defendants belonged to a different section of the Apostolic Church from which from time to time only the plaintiffs had received assistance by way of the supply of religious leaders to lead them in their worship. The defendants resisted the whole of this story and stated that what the plaintiffs described as the autonomous Apostolic Church in Benin City was no more than a branch of the Apostolic Church, Ilesha; that since its founding in 1926 it has always been part of the Ilesha Church; that the land in dispute was in 1933, or thereabouts, given by the then Oba of Benin to the Apostolic Clinch, Ilesha, albeit for the use of the branch at Benin City. The defendants also stated that the plaintiffs were seceders from their Church who, as a result of schism introduced by them into the parent Church, were seeking to get themselves established as an autonomous Benin Church.
There is a large body of oral evidence taken at the trial and some forty-five exhibits were tendered. In a reserved judgment, Iriikefe, J. acceded to the claims of the plaintiffs observing inter alia, as follows:
“My finding is that although the plaintiffs and the defendants with effect from 1951 until 1966 co-operated in religious matters and that the plaintiffs by getting themselves incorporated as a distinct religious organisation in 1967 may be deemed technically to have seceded from the defendants’ church, the property in dispute was never owned by or vested in the defendants at any time …. In view of all the foregoing there will be judgment for the plaintiffs for possessory title under Bini customary law for the land in dispute shown verged in pink on the survey plan No. A.R. 573 dated 3/3/67 and attached to the conveyance exhibit `C’ in this case.
The plaintiffs are also granted possession of the entire premises in dispute as per the survey plan No. A.R. 573 of 3/3/67 as against the defendants jointly and severally.
The defendants by themselves, their servants and or agents are hereby restrained from entering on the premises in dispute as per the survey plan No. A.R. 573 of 3/3/67 for any purpose whatsoever as from the date of this judgment”.
The defendants are dissatisfied with this judgment and have appealed to this Court. A number of grounds of appeal were filed and argued but in sub-stance the points canvassed before us were two, namely:
(i) whether on a proper appraisal of the evidence the plaintiffs did make out a case for the reliefs which were granted to them; and
(ii) Whether the real issue postulated by the case of both sides as to there being only one Apostolic Church from which the plaintiffs have seceded or as to there having always been an autonomous Apostolic Church in Benin City of which the plaintiffs are the accredited representatives and registered trustees was in fact determined.
In connection with the first point taken on appeal, it was submitted to us by learned counsel for the defendants that the claims of the plaintiffs were not proved. The claims for possession and injunction pre-suppose that the claim for title was proved and if the latter fails the others must of necessity fail. In awarding title to the plaintiffs the learned trial judge adjudged them to be entitled to “possessory title under Bini customary law for the land in dispute…”. At this stage, it must be observed that the declaration sought by the plaintiffs in their claim was different from that granted; the pleadings were nowhere amended, or even sought to be amended and no opportunity was given, as indeed it should have been given to, counsel on both sides to address the court on the propriety or otherwise of granting a type of declaration different from that claimed. Be that as it may, in arriving at the conclusion to make a declaration in favour of the plaintiffs the learned trial judge reasoned as follows:-
“The case of Agidigbi Uwagboe vs. Atu Evbuomwan 4 F.S.C. at page 91 clearly settled the issue as to ownership of land in Benin, that is, all Benin land is vested in the Oba of Benin as legal owner and all that a grantee obtains is possessory title.
The above facts are so notorious that even if there were no proof of a grant under Bini customary law, as I have found there was, I should take judicial notice of it on the authority of Giwa vs. Erimilokun [19611 All Nigeria Law Reports, part 2 at page 294.
The principles of law established in the case of Larinde vs. Afiko 6 WA.C.A. at page 108 would not apply here”.
Learned counsel for the defendants had submitted that this passage of the judgment constituted a serious misdirection in that:-
(i) Uwagboe’s case did not decide what the learned trial judge said it did;
(ii) in any case it did not establish the radical title of the Oba of Benin to all lands in Benin;
(iii) there was no evidence of Bini customary law re grants of land by the Oba;
(iv) title as was being contested in this case was not a matter for judicial notice as suggested by the learned trial judge; and
(v) the inferences which the learned trial judge drew from the cases he relied on were not justified by those cases.
On behalf of the plaintiffs learned counsel submitted that Uwagboe’s case did establish the rule that all lands in Benin belonged to the Oba. Counsel conceded that there was no evidence of Bini customary law as to gifts of land but submitted that this was not necessary since Uwagboe’s case and that the judge was therefore entitled, as he did, to treat the relevant customary law as a matter for his judicial notice.
For reasons which shall become apparent later in this judgment we are of the view that the point in consideration is one of considerable substance. The passage in Uwagboe’s case relied on by counsel for the plaintiffs, and presumably by the learned trial judge as well, is at p.91 of the report and reads as follows:-
“It is common ground, as the learned judge found, that there is no individual ownership of land in Benin; all Benin lands are vested in the Oba and the people. The declaration which the respondent seeks, therefore, is no more than for a possessory title”.
On the plain reading of this dictum it is obvious that the point whether or not all lands in Benin belong to the Oba of Benin and his people was treated with respect to both sides as common ground. This means that for the purposes of the case the parties were agreed as to that particular point and so neither of them need prove it. In other words, as between them there was this concession and it is inconceivable that two parties to a case by a mutual act of theirs can hold everybody else to their view of particular facts. The passage cited supra, reflects the view or may be the conduct of the parties to that case with reference to the point conceded or agreed and certainly we are not prepared to accept the passage as authority for showing that it was established in the present case that all lands in Benin belong to the Oba under customary law and when, in any case, in Uwagboe’s case the proposition was that the lands are vested in the Oba and the people. If that be so, as we think it is, then the plaintiffs still had to prove that fact and there must be evidence on the point before the plaintiffs can succeed in getting a declaration of the type they sought.
It is settled law that except where a rule of customary law has received judicial recognition such rule is treated for the purpose of proof as a matter of fact. In this case, one of the complaints against the plaintiffs is that they did not prove the Bini customary law as to grants of land so as to show that they did in fact comply with that rule and that the customary grant which they claim was regularly made. Paragraph 24 of the statement of defence reads as follows:-
“The defendants deny that the land in dispute has been acquired by the plaintiffs in accordance with Bini customary law or at all”.
No evidence of Bini customary law on the grant of lands was in fact led and so much was conceded by learned counsel for the plaintiffs before us. It is manifest therefore that the plaintiffs did not prove that the grant which they stated originally received from Oba Eweka II, or the subsequent formal one which they purported to receive from Oba Akenzua II, was validly made in accordance with Bini native law and custom. Counsel for the plain-tiffs referred us to certain passages in the judgment of this Court in Lydia Erinosho v. Owokoniran & Anor  N.M.L.R. 479 to show that the presence of witnesses and putting in possession of the grantee are essential elements in a grant under native law and custom and that there was evidence in this case that these two occurred. The case clearly concerns Yoruba native law and custom but counsel submitted that we would be entitled to take the view that the incidents under the native laws and customs of a particular area of Nigeria are the same as those of another area or other areas. Counsel based this rather extraordinary submission on the dictum of Verity, C.J. in Awgu v. Nezianya (1949) 12 WA.C.A. 450 at p. 451 to the following effect:-
“Although the principles of native law and custom to which we have referred are, in the specific instances cited, applicable expressly to the law and custom of the Gold Coast they are nevertheless equally applicable as general principles to the law and custom of Nigeria, a departure from which can only be justified if it is established by evidence that the native law and custom in any particular area differs from the general principle. Unless, therefore, the evidence in this case establishes such a variation it is clear not only that the land in question remained the absolute property of the second defendant but that his right of disposal during his life-time is unfettered.”
We are in no doubt that counsel’s submission overlooks the significance of the dictum on which he relied and to accept his submission will occasion an outrage on the principles stated in the citation. It is manifest that the pas-sage refers only to general principles of the type to which references had earlier on in the judgment been made and which are not what are in issue herein and obviously not to individual rules of native law and custom on the transfer of land.
The requirement of proof of the relevant customary law in matters of this kind is a vital one and counsel for the plaintiffs having conceded that no such evidence was led had striven hard to convince us that despite the lack of evidence on the point, the point should still succeed. We are unable to agree with his argument. The learned trial judge in the course of his judgment stated that the case of Larinde v. Afiko (1940) 6 WA.C.A. 108 did not apply in this case. As submitted to us by learned counsel for the defendants, we think he was clearly in error and that the case very much applies as it deals with proof of custom by evidence. The learned trial judge apparently rested his view on what he, wrongly in our view, considered to be the value of the decision in Uwagboe’s case; but it is only necessary for us to refer to the judgment of the West African Court of Appeal in Larinde v. Afiko, supra, at p. 110, that:
“The decision of one case in 1892 cannot be said to be `frequent proof in the courts’ enabling the courts to take judicial notice of this particular alleged Awori custom. It therefore had to be proved, and it was not. This is a second reason why the judgment of the court below cannot stand……..
Finally on this point, we observe that Uwagboe’s case is not an authority for dispensing with the requisite proof of customary law if such proof is necessary. Indeed, the decision in that case is the very antithesis of this and, as stated therein:-
“The question then is which of these contentions is right according to Benin customary law. Is the appellant correct in contending that there could be no proper approval by the Oba unless the application was recommended to him by the Ward Council?…. What are the respective powers, if any, of the Ward Council and of the Benin City Council with regard to allocation of plots under Benin customary law, or, if both were the creation of statutes, under the statutes creating them? …. Could the Oba and Council grant the land to someone also notwithstanding that Madam Iguodala had sold the trees to the respondent? Finally, what is the proper channel for transferring or obtaining land in Benin?
It is true that evidence was led on some of the issues stated above, but the judge did not make any specific finding on them.”…..
(See per Mbanefo, AJ., as he then was, at pp. 92, 93).
These cases, among others, show the nature of the burden of proof in this respect. The learned trial judge apparently took the view that he could take judicial notice of the custom that the lands in Benin are vested in the Oba. Section 75 of the Evidence Act prescribes the matters on which the court shall take judicial notice and section 73(l)(l), which deals with customs, provides as follows:-
“73-(l) The Court shall take judicial notice of the following facts:
(1) all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England, the Supreme Court of Nigeria, or former Supreme Court now known as the High Court of Lagos, or by the High Court of the Region and all customs which have been duly certified to and recorded in any such court.”
It had not been and we do not see that it can be contended that the rule of the Bini customary law in question falls under this section for none of the conditions of exemption contained in that section has been shown to exist here. Customary law in the present context of our legal system is a matter of fact and must be proved as such. No judicial or other authority (as indeed no evidence) establishing the contrary has been cited or shown to us. We have come to the conclusion that the judge erred and therefore misdirected himself when he purported to treat as a matter for judicial notice a fact which, according to the pleadings, the plaintiffs must prove. In Giwa v. Brinmilokun  All N.L.R. 294 at p. 296, this Court laid down the law on the point as follows:-
“It is a well established principle of law that native law and custom is a matter of evidence to be decided on the facts presented before the court in each particular case, unless it is of such notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without evidence required in proof.”
This case decided that unless in the circumstances stated, evidence must be given of customary rule where it is sought to depend or rely upon the existence of such a rule. The case did not decide that the court is entitled to take judicial notice of a custom or customary rule because it is widely known. To apply the case in a way suggesting that it dispenses with proof of customary rule where such rule should be proved, is, in our view, a serious misdirection and if by that direction a declaration of title is granted to a party, such a declaration cannot be allowed to stand.
The document put forward by the plaintiffs as conferring a formal title on them, i.e. exhibit ‘C’ is open to a number of objections and appears to contain a number of irregularities. There is no specific reference in the recitals to the long history which the plaintiffs claim attached to the land. Besides this, the document does not recite, as the judge found, that all lands in Benin are vested in the Oba of Benin as the legal owner or that all that it confers upon the grantees was a possessory title. Indeed, if one looks at the habendum in exhibit ‘C’ it will be seen that the vendor was “to HOLD the same unto and to the use of the grantee.” The nature of the estate which was being transferred or to be held is not described in the deed.
Finally, the document recites that the Oba of Benin is the trustee of all communal lands in Benin whereas the fact is not adumbrated in this case that the land in dispute is communal land.
In a case for a declaration of title, the onus is upon the plaintiff to adduce sufficient evidence to show that he is entitled to the type of estate or interest sought and that a declaration in his favour for the quantum of interest is justified. In the present case before the learned trial judge, the plaintiffs sought a declaration that the land in dispute “is the property of the Apostolic Church, Benin City.” The judge gave them “a possessory title under Bini customary law.” There was no evidence, as indeed there should have been, of the relevant Bini customary law much less of any tenure involving a possessory title under Bini customary law. We have come to the conclusion that the plaintiffs did not discharge the onus of proof placed on them by law so as to justify the declaration granted them: the plaintiffs’ claim for declaration and with it the other claims which are ancillary should have been dismissed.
The second point raised in this appeal concerns the locus standi of the plaintiffs. The pleadings in the case are profuse and the plaintiffs’ statement of claim was freely traversed by the pleadings of the defendants; the evidence which is relevant is conspicuously meagre on both sides. The plain-tiffs claimed to have started as a religious community in Benin City in 1926 under the name of Faith Tabernacle; they named the members who formed the nucleus of the group and told the story of their emergence as a virile Church under the names, successively, of African Apostolic Church, Benin City (1929) and, finally, Apostolic Church, Benin City (1943). They claimed that the land in dispute was originally given by Oba Eweka II in 1929 to the African Apostolic Church, Benin City – the name in which the first plan of the land in dispute, exhibit ‘A’, was made. Their case is that from time to time they had requested spiritual assistance in the form of clergymen and the like from Apostolic Churches in Lagos and in Ilesha and that it was by virtue of this exercise that the defendants, who had come from Ilesha and Lagos, got a foothold on their premises which they have now refused to quit. For the defendants the story was simply that the Apostolic Church in Nigeria is part of a universal Christian movement with its international general headquarters at Penygroes Carmarthenshire, in South Wales, and its International Missionary Centre in Bradford, Yorkshire. Paragraphs 8, 10 and 11 of the statement of defence read:-
“8. The Apostolic Church Movement in Nigeria is one Christian Church united by certain Rules of Belief and Conduct and Tenets. The Apostolic Church in Nigeria is divided into four Administrative Areas as follows:-
(i) The Apostolic Church Nigeria Lagos Area
(ii) „ „ Ilesha „
(iii) „ „ Kabba „
(iv) Zaria „
The defendants further stated that the Church of Benin City is still there holding fast to the beliefs and tenets of the Universal Apostolic Church; that the Benin Church has always been a sub-area of the Ilesha Church; that the land in dispute was granted to the Church in this capacity by Eweka II in 1933 and that the plaintiffs are no more than a few disgruntled members of the Benin sub-area Church who have dissented from the Church generally and are therefore seceders. It was also claimed by the defendants that the plaintiffs have no following but the learned trial judge made no findings about this.
That the land in dispute was granted by Eweka II is manifestly common ground. This was canvassed by both sides but, unhappily, there was no attempt in the judgment to resolve the obvious conflicts both as to the actual time of the grant and of the actual recipient of it. In all cases of this type where it is claimed that property bestowed for use in connection with the activities of religious associations or bodies of persons bound together by common dogmas, tenets, faiths or other indications of mutual persuasions, it is no heresy for a court of law to examine and evaluate carefully such evidence as there may be for the purpose of ascertaining not only the subject-matter of the grant but also its destination as well as – what may be fore-most in the mind of the donor – the purposes of the association. As Lord Davey pointed out in General Assembly of Free Church of Scotland & Ors v. Lord Overtoun & Ors. (1904) A.C. 515, at p. 644:-
“My Lords, I disclaim altogether any right in this or any other Civil Court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association, or to say whether any of them are or are not based on a just interpretation of the language of Scripture, or whether the contradictions or antinomies between different statements of doctrine are or are not real or apparent only, or whether such contradictions do or do not proceed only from an imperfect and finite conception of a perfect and infinite Being, or any similar question. The more humble, but not useless, function of the civil Court is to determine whether the trusts imposed upon property by the founders of the trust are being duly observed. I appreciate, and if I may properly say so, I sympathise with the effort made by men of great intelligence and sound learning to escape from the fetters forged by an earlier generation. But sitting on appeal from a Court of Law, I am not at liberty to take any such matter into consideration.”
(See also Noibi & Ors. v. Ajose & Ors. (1934) 2 W.A.C.A. 135 at p. 143; Jibril Martins & Ors. v. Saka Tinubu & Ors. (1937) 13 N.L.R. 124 at p. 127.) There was in this case evidence, both oral and documentary, which the parties had put forward in support of their several contentions. For the purposes of arriving at a decision whether the gift by Oba Eweka II was to the plaintiffs, it was necessary to ascertain whether the plaintiffs existed as a Church at the time of the grant; it was necessary to determine as well whether there was an Apostolic Church, Ilesha, with a sub-area in Benin City; it clearly would be in place to decide whether or not the gift was meant for a particular community or for the use of an established church or association for purposes connected with the free exercise of its religious and spiritual duties. None of these matters received consideration in the High Court as they should have done. Unless there is a clear finding that the plaintiffs existed as a separate church of their own at the time of the grant and, if not, unless the gift was to a particular community as opposed to a church, then known and ascertained, it is difficult to see how a declaration of title can be made in their favour. In General Assembly of Free Church of Scotland v. Overtoun, supra, a similar question as in this case was decided. In that case, cited supra, the House of Lords, deciding a similar question as has arisen in this case, directed itself thus:-
“The principles for decision thus propounded have been recognised and acted upon ever since, and it would seem that it may be laid down that no question of the majority of persons can affect the question, but the original purposes of the trust must be the guide.”
(Per the Earl of Halsbury, L.C. at p.617).
We think this direction is apposite in the present case and if the original purpose of the trust or grant is settled the question of who owns the proper-ty will become much less difficult.
The plaintiffs in the present case obtained the conveyance, exhibit ‘C’ on the 17th April, 1967. The validity and effectiveness of that document were put in issue by the defendants who have remained in possession of the land in dispute and have done so ever since. The Land (Perpetual Succession) Act does not on itself create or confer title to land; that must be established de hors. Some of the deficiencies of the document exhibit ‘C’ have already been commented upon by us. There can be no doubt that if Eweka II properly divested himself of the title to the land at the time he granted it to a particular grantee, then the present Oba of Benin has nothing which he can give or grant afresh, especially if the grants are being made to different grantees. These are matters on which there are no findings by the learned trial judge and they have such momentous bearing on the whole case and the issues involved that the omission to deal with them would, at the very least, have compelled us to send the case back for a re-hearing. The second point taken on appeal therefore also succeeds.
In view of these decisions at which we have arrived and in particular on the first point taken on appeal, we are in no doubt that on that ground the defendants are entitled to ask for and obtain an order for the dismissal of the plaintiffs’ case. In these circumstances we do not propose to order a re-trial but to allow the appeal and put finality to a matter which must have agitated adversely the minds of a number of worshippers attached to the Apostolic Church.
The appeal is hereby allowed and the judgment of the Benin High Court in Suit No. B/57/67 is set aside and the plaintiffs’ case is dismissed. The respondents shall pay to the appellants the cost of this appeal fixed at 157 guineas and the costs in the Court below fixed at 80 guineas.
Appeal allowed: Plaintiffs’ claim dismissed.