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10TH DECEMBER, 1976.

SUIT NO. SC 91/1973.

3PLR/1976/11  (SC)



(1976) 12 S.C. 11

(1976) NSCC 692








  4. OGUNSUYI IMADE (for themselves and on behalf of the people of Evboriaria Village, Benin City District).




  4. OGIESOBA AGHAHOWA (For themselves and on behalf of the people of

Evbuoba – Ohen village, Ward 37B, Benin City District).



Chief F.R.A. Williams (with, Dr. P.O. Onaghise AND Miss Kester) – for Appellants

Mr. G.O.K Ajayi (with him Mr. Evbuomwan) – for Respondents



Land Law – Declaration of title, damages for trespass, perpetual injunction – Traditional history in conflict – Recent acts of possession – Oba of Benin as trustee of Benin land – Benin Customary Law.



SOWEMIMO,        J.S.C. (Delivering the Judgment of the Court):

The Plaintiffs, who are the respondents in this appeal, sued the defendants, the appellants before the Court, in Suit No. B/135/75 at the High Court of Bendel State (Then known as the Midwestern State) and

‘The Plaintiffs’ claims against the Defendants are for:-

(1) A declaration of title to that piece or parcel of land known as “Evbuoba-Ohen land” at Evbuoba-Ohen village Benin/Sapele Road, Ward 378, Benin City District in the Benin Judicial Division. The dimensions and abuttals of which are sufficiently shown in the plan to be filed later. And value of land is £5. (2) The sum of £100 being damage for trespass on the said land in that between September 1971 and 1972 the Defendants their agents or servants broke and entered upon the said land without plaintiffs’ permission.

(3) Injunction restraining the said defendants,. their agents or servants from further acts of trespass on the said land.”

On decided authorities, and; this is not disputed by either party, land in Benin is vested in the Oba. Any claim therefore to possessory title must of necessity stem either directly or indirectly from the Oba.        It is in the light of this that this case assumes a peculiarity of its own because the Plaintiffs did not trace their title from any Oba of Benin.

The sum total of Plaintiffs’ case is that during the reign of Oba Oguola there existed a village known as Eghosa and which name was later changed to Ekae. One Ereghezi, a native doctor carved out an area out of Ekae village for one of the sons of Oba Oguola, and this son later left the area to become Oba Ohen. A brother of Oba Ohen was later sent to the carved out area and was given the title of an Enogie. 1st Plaintiff gave history of ancestry to the first Enogie. The area was stated to be called Evbuoba- Ohen.

On the other hand the existence of Evborlarla village, (in these proceedings sometimes spelt Evbuorhiarhia) the Defendants’ village, is not in dispute. The Defendants maintained however that their village extended over both sides of Benin – Sapele Road and that it covered the area which the Plaintiffs claimed as Evbuoba-Ohen Village.

The learned trial Judge considered the evidence of traditional history of either side and being in conflict rejected that of the defendants on the issue of credibility. He accepted the evidence of traditional history as narrated by the Plaintiffs’ wit-nesses as convincing and described the evidence of 1st Defence witness as being full of prevarications, confused and strangely enough described the old man as being stupid. The other evidence referred to by learned Judge is that of the 1st defendant which he rejected because instead of being called as the first witness he was called as the last. He drew attention to the observations of this court in Chief Asiya Ita Effiom Otu Ekong Vs. Benson Okpala (1972) 5 S.C. 177 and cited a passage at page 188 as an authority. On a proper consideration of the facts of that case the learned Judge would have seen the basis for the view that in that case it is only the probative value that could be considered in the assessment of the evidence. It was no ground for total rejection. The learned trial Judge then concluded his findings on the traditional history thus:-

“On the whole I have come to the inevitable conclusion that the traditional evidence given by the witnesses who testified on behalf of the plaintiffs is far more convincing and reliable than that of the defence. I accept the evidence of Osa-waru Uwadiae (2nd P.W) Uyiekpen Omoregie (1st Plaintiff) Simeon Osaghae (2nd Plaintiff) and find as a fact that the village formerly known as Evbuoba-Ohen was an off-shoot of where Oba-Ohen was born and that it- began to bear that name when his younger brother Uhewemwen settled there and became an Enogie. In accepting the traditional history of the plaintiffs and rejecting that of the defendants I have borne the following facts in mind. Firstly, 1 should not use double scales in weighing the evidence of both parties. 1 watched the demeanour of each witness and the confident manner in which he answered questions.”

The learned trial Judge with some justification referred to a portion of the judgment of the Privy Council in Kolo 11 Vs. Bonsie AND ANOTHER . (1957) 1 W.L.R. 1223. We are of the view that what was held in that portion of the judgment was that the demeanour of witnesses in the circumstances of that case, as in this case, is not a proper guide in deciding the truth of traditional history but the learned trial Judge in spite of this did the opposite in his consideration of the defendants’ version of their traditional history. We think that the learned trial Judge stopped short of what is stated to be the correct approach which a court should adopt in considering traditional history. We refer to the portion of the judgment of the Privy Council at pages 1226 to 1227:-

‘Their Lordships notice that the Judges in the appeal courts, who were in favour of upholding the decision of the Asantehene’s B Court, did so on two grounds: first, that it was a decision of fact depending on the demeanour of the witnesses and almost inviolable on that account: second, that on a review of the evidence it was the correct decision.

“So far as the first ground is concerned, their Lordships do not think it was the correct approach to this case. Their Lordships notice that there was no dispute as to the primary facts, that is, the facts which the witnesses actually observed with their own eyes or knew of their own knowledge in their own lifetime. The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.”

The learned Judge was in error in deciding the issue of traditional history on the demeanour of the witnesses before him. The 1st Plaintiff claimed to be the Enogie of Evbuoba-Ohen village tracing his ancestry directly to a royal prince of Benin. He also claimed that the Oba of Benin knew him and recognised him as Enogie. He referred to his regalia as evidence of his title. The Oba of Benin gave evidence in this case. His evidence is very material and it reads:-

“I live at the Palace and I am the Oba of Benin. I know the plaintiffs. I met them before when they brought a complaint to me. I also know the defendants. The 1st defendant is the Ohen-Oriaria of Evboriaria village. The plaintiff brought a complaint claiming ownership of a village called Evbuoba-Ohen and the claim was opposed by the defendants. I promised to go into the matter, and had not done so before I heard that the case was in court. I cannot tell all the villages in Benin Kingdom. 1 have never heard of Evbuoba-Ohen village since I came on the throne. I did not know the plaintiffs until the time they brought their com-plaint and claimed to belong to Evbuoba-Ohen village and I had no time to look into it before they went to court. I do not know the father of 1st plaintiff. I do not know whether Exhibits ‘E’ – ‘E3’ were given to 1st plaintiff’s forefather by Oba-Ohen. It was the 2nd and 3rd plaintiffs who first brought the complaint to me and were later joined by 1st and 4th plaintiffs, but before I had time to go into the matter, I was informed that the case had already gone to court. I have never had any experience of an Enogie delegating a relation to act for him during his absence from home. It was when 1 asked 2nd and 3rd plaintiffs to bring the Enogie of their village that they brought the 1st plaintiff.

XXD by Longe: Exhibit ‘E’ (an Ada) is not one of the things we give to an Enogie. It was never the practice to give things like Exhibits E – E3 to an Enogie when appointed. Oba Ohen was born in Evboriaria village area.”

The evidence of the Oba was never challenged or contradicted. The Oba came to the throne in 1933 and up till the time he gave evidence on 29/4/74 a period of 41 years he had never heard of the existence of Evbuoba-Ohen Village or of the Enogie of such a village. We are of the view that that should, on a proper appraisal, have put an end to Plaintiffs’ evidence of the reputable existence of the “old and new’ Evbuoba-Ohen village. The learned Judge chose to ignore this very important and material evidence of the Oba. There was the other evidence of an-other witness whom the learned Judge regarded as a truthful and independent witness, that is, the 14th Defence Witness. He gave evidence thus:

“I am a traditional chief in Benin Division, and my title is Ukebo-Nokhua. I live at Aruogba village in Ward 37/13. I am a farmer. I am a member of the Benin City Management Committee and Chairman of the ward. As the chairman of the ward I preside over the ward meetings. We hold meetings once in a month, but when there are matters to be discussed we do so twice a month. The meetings are attended by all the elders and tax payers in the ward. I know 2nd and 3rd plaintiffs. I only know 1st and 4th plaintiffs about three years ago. I know the defendants, 2nd and 3rd plaintiffs were attending our meetings and were coming to the meeting from Evboriaria. The defendants also attended our meetings and were coming from Evboriaria village. I have been the chairman of ward 37/13 for the past sixteen years. I do not know 1st plaintiff’s father by name Omoregie. I know Ohen Ereghezi of Ekae (D.W.1) who also attends my meetings. I know P.W.7, D.W.2, D.W.3 and D.W.4 all of them attend my meet-ings. It is not true that the father used to attend our meetings. Nobody from Evbuoba-Ohen attended our meetings. Since my birth I have known the whole area as Evboriaria village, and people have been attending the meeting from Evboriaria village. It was only three years ago that some people attended the meeting and they said that they were from Evbuoba-Ohen village. My age is about 72 years. I was attending the meeting before wards were created. It was a meeting of lyekogba area, I was attending the meeting for about fifteen years before I was made the chairman. Nobody attended from Evbuoba-Ohen. The people who now occupy the present site of Evbuoba-Ohen were calling the place Evboriaria. 1 know the area now called Evbuoba-Ohen by plaintiffs and also visited the old settlement of Evbuoba-Ohen. When I got to the old settlement of Evbuoba-Ohen I saw ruins of old buildings, dug water wells and kola-nut trees.

By Court When I got there I was satisfied that there was once a settlement in the place. I found out from my elders what that deserted and abandoned settlement was called, and the elders were divided in their answers. A set of elders said that it was Evbuoba-Ohen village and another set called it Igiebor’s camp in Evboriaria. Those elders who called it Evbuoba-Ohen village, came from Ekae village, Idunmwunivbiotor village and Etete village who claimed to have boundaries with the place. Some people from Ekae village, Etete village and Ugbor village called it Igiebor’s camp in Evboriaria village. In every village, there was always someone to speak for each side. I traced the descend-ants of Igiebor and saw his son. He showed me a settlement which was distinct from the one called Evbuoba-Ohen village.

Witness (cont’d). I have come to the court to speak the truth.

XXD by Evbuomwan:       The ward meetings are attended by many people. We do not keep records of all meetings. It is true that it is not everybody who at-tends the meeting that is known to me. I would not know the father of 1st plain tiff. I did not know 1st plaintiff’s father.  Igiebor’s son showed me two places, one was Igiebor’s camp and the other old settlement was not part of Igiebor’s camp. There is no Enogie who is not a Prince by BIN custom. He should be able to trace his origin to an Oba of Benin. An Enogie is different from a juju priest. A juju priest can never be an Enogie.”

A proper evaluation of the evidence of this witness which was never challenged or contradicted showed that the name “Evbuoba-Ohen village” surfaced only three years before 11th April 1974 and that previous to that, the 2nd and 3rd Plaintiffs had also claimed that they were from Evboriaria village.

The learned Judge admitted in evidence as part of Plaintiffs case Ex. B (a public notice in the ‘The Nigerian Observer’ of 19/10/71) AND Ex. D. (letter from Plain-tiffs Solicitor dated 26th September 1972). Exhibits B and D were pleaded and relied upon by Plaintiffs in proof of their case. Pares 1 AND 2 of Exhibit B reads:-



“1. The attention of the Chairman and members of the Plot Allotment Committee, Evbuoba-Ohen village has been drawn to the wrong and misleading “PUBLIC NOTICE” which appeared in the back page of ’THE NIGERIAN OBSERVER” of 14th of September, 1971 under the signature of DR. P.O. Onaghise, Solicitor to Evboriaria Plot Allotment Committee.

  1. This is to inform the GENERAL PUBLIC and the unfortunate persons who have purported to acquire or are intending to acquire land from Evborhiar-hia Plot Allotment Committee in particular that the claim by the said Evboriaria Plot Allotment Committee to ALL the parcel of land described in the said publication has no foundation whatsoever and should be COMPLETE-LY ignored.” (Italics ours).

It is clear from the contents of this notice that it refers to “the Chairman and members of the Evboriaria-Ohen village” on the one hand and the “Evborhiarhia Plot allotment Committee” on the other as being parties contesting the ownership of the land in dispute. Neither of these two bodies are parties to this case. Under Benin Customary Law it is also settled that the Oba of Benin since 1961 is the only competent authority to set up Plot Allotment Committees for the different areas in Benin and also to appoint the members of such Committees. It is not in dispute that the Evboriaria Plot Allotment Committee was set up by the Oba and that he appointed the Chairman and members of that Committee. It was never established, and in fairness to the Plaintiffs not pleaded by them, that the Oba set up a Plot Allotment Committee for Evboba-Ohen village nor appointed any members. It is therefore difficult to reconcile the Newspaper Public notice – Ex. B. with the case which the Plaintiffs set out to make.

If the learned Judge had considered Ex. B. he would have realised that the proper defendants should be “the Evbooriaria Plot Allotment Committee” and not the present defendants, who are now appellants before us.

Ex. D was pleaded by Plaintiffs as a letter from their Solicitor to the Defendants about the trespass complained of in this case. The letter was addressed to “Mr. Ohenodaria of Evbuorlaria and members of Evbuorlaria Plot Allotment Commit-tee” and the relevant portions read:-

“Dear Sir(s),

Trespass and Wanton Destruction of property Along Benin/Sapele Road

We represent Chief Ogiesoba Aghahowa, the Onogie of Evbuoba-Ohen village, Benin, Sapele Road Benin, hereinafter referred to as ‘our client’.

We write you this letter on the instructions of our client. Our client has informed us that you have trespassed on his piece or parcel of land lying and situate along Benin Sapele Road and bulldozed the said piece of land, thereby wantonly damaged our client’s property on the said land, without his permission, authority or consent.

Further you have since left Bulldozers and other implements on the said land.

NOTE 1. that you are to remove those bulldozers and implements you have placed on our client’s land immediately.

  1. That you are to desist forthwith from allocating the said land to people because the said plot Allotment Committee you claim does not exist anywhere and
  2. You are to pay the sum of 300 (three hundred pounds) to our client or into this Chambers for trespassing on our client’s land within 14 days of the date of the date of this letter (Italics ours).

The above stipulated warnings and conditions must be met on or before 14th October 1972, failing which, we have firm instructions from our client to institute legal action against you in the court of Law.”

On the face of this letter, relied upon by the Plaintiffs, the alleged trespassers are the addressees, and the party that gave instruction to the solicitor as named is one “Chief Ogiesoba Aghahowa” and described as the “Onogie of Evbuoba-Ohen village” as on 26th September, 1972 (date on letter). This individual is not the 1st Plaintiff in the lower court who is described as the Enogie of Evbuoba-Ohen vil-lage. How then could the learned trial Judge hold that this letter proves the averment in the Statement of Claim? If this letter proves anything it only establishes that the parties to this case are not the proper parties and the court below should have dismissed the claims as no application was made to amend the writ and pleadings at the close of trial.

Before dealing with the arguments canvassed before us, learned counsel for the respondent in the course of his reply applied to have the claim amended to read “declaration of possessory; title to the land or beneficial use and occupation of the land”. This application was opposed by the learned counsel for the appellants because, if granted, then the whole pleadings would have to be amended and further evidence called. The reason for the application, according to learned counsel for the respondents, was that he conceded that the radical title to land in Benin is vested in the Oba and any claim by any person or persons must be subject to the Oba’s radical title. On the averments in the Statement of Claim and evidence of 1st and 2nd Plaintiffs, it was one native doctor Eregheze who carved out of Ekae village land a portion for the prince who later became Oba Ohen. On the basis of this 1st and 2nd Plaintiffs maintained that they do not need the permission or approval of any person should they the plaintiffs decide to allocate any portion of their land to any person. The nature of the title claimed by the Plaintiffs does not admit of the radical title of the Oba of Benin to the land in dispute. The amendment sought therefore will be quite contrary to the averments in the Statement of Claim as well as the evidence led. The learned Judge did not qualify the nature of the title of the Plaintiffs. In these circumstances the application will be refused.

We now deal with the arguments of Counsel for the appellants on the appeal before us. Learned Counsel submitted that there is no allegation of trespass established by the respondents both in the amended Statement of Claim and on the evidence led in support. Evidence was led by the appellants, that all the allocations in the disputed area, were made by the Oba of Benin on the recommendations of Evboriaria Plot Allotment Committee through whom the applications were sent to the Oba. All the acts which the respondents relied upon, were made sub-sequent to the Oba’s approval. On the complaint of the respondents the proper defendants should have been either the Oba of Benin, the Evboriaria Plot Allotment Committee and the companies or the ministries who erected buildings on the land. The defendants committed no acts of trespass as a community and the claim against them for damages for trespass should have been dismissed. Learned Counsel for the respondents did not reply to the averment canvassed on this point by learned counsel for the appellants. In our view the point is well taken by the appellants and the contention of their learned counsel invalid. That ground of appeal succeeds and the judgment of the learned trial Judge awarding damages for trespass to the Plaintiffs cannot stand.

On the issue of declaration of title to the land, in view of our refusal to grant the application for amendment of the writ of summons then the nature of title granted by the learned trial Judge cannot be supported and the declaration made in favour of the Plaintiffs cannot be maintained. We wish to state that we are in agreement that traditional evidence, that is, of traditional history and tradition, where such evidence is not contradicted or in conflict and found by the court to be cogent can support a claim for declaration of title – see F. M. Alade vs. Lawrence Awo (1975) 4 S.C. 215 at page 228, Olujebu of Ijebu vs. Oso, the Eleda of Ede (1972) 5 SC 143 at page 151.

We wish to draw attention to an earlier ruling by the learned trial Judge on 25/11/73 when he granted an interlocutory injunction against the Defendants. He set out the case of either party thus:-

‘The main dispute between the two parties is ownership of the land in dispute and the   right to allocate plots in the area to applicants. The Applicants are asking for an Order of Court to restrain the Respondents from further allocating plots to people until the determination of the case, and in their opinion, if this was not done, their rights to allocate plots would be greatly prejudiced if in the end, the case terminated in their favour. The Respondents, on the other hand contend that the right to allocate plots and deal with the land has been given to them by His Highness the Oba of Benin, the sole overlord and Trustee of all Benin land, and that it would be inequitable and unfair to deprive them of the right to exercise that power until the determination of the case. A lot of the matters which were pleaded in their Statement of claim were repeated in the counter- affidavit; this was not unnecessary as in considering the argument for or against the grant of such application matters pleaded by the parties form part of the record of the court, from which the court can legitimately determine whether the plaintiff has made out a strong prima facie case to entitle him to the grant of the Order sought by him.”

Whatever may be the learned trial Judge’s view of the declaration of title granted by him to the Plaintiffs, it is quite clear that he did not consider the radical title of the Oba of Benin to all land in Benin. He did not also consider that all the allocation made between 1965 and 1973 were made by the Oba of Benin through the Evboriaria Plot Allotment Committee and not by the defendants. If he had done so, he would have considered the liability of the Defendants on this basis and decide whether the Plaintiffs, if they had sued the proper party, would have been en-titled to a declaration of title as against that of the Oba of Benin. On the concession made by the learned counsel for the respondents, the title granted to the Plaintiffs cannot stand.

On the order for permanent injunction granted in favour of the respondents against the appellants, this was based on the declaration of title and the award of damages for trespass which the learned Judge made. We have pointed out above that both claims cannot stand and on that view the order for permanent injunction must therefore fail.

We are satisfied that learned counsel for the appellants had made valid sub-missions which support the relief sought for in the notice of appeal. The appeal succeeds and it is hereby allowed. The judgment of Ogbobine, J. in suit B/138/72 delivered on 12th July 1974, including the award of costs, is hereby set aside. In substitution thereof we enter judgment in favour of the defendants/appellants and order that the claims of the Plaintiffs in the suit, be and hereby dismissed. This shall be judgment of the court and the lower court shall carry out the order made by this court.

We award costs against the Plaintiffs/Respondents in favour of Defendants/Ap-pellants in the sum of 250 Naira in the lower court and in this court 304 Naira. Appeal allowed.


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