CORAM

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Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

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PARTIES

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BISHOP SAMUEL OSAHENI UWUMARONGIE

(Suing through his lawful Attorney A.U. Osunde, Esq.)

APPELLANTS 

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MRS. UWADIAE OGUNSUYI

RESPONDENTS 

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AREA(S) OF LAW

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PROPERTY LAW, LAND LAW, BENIN CUSTOMARY LAW, EVIDENCE LAW, PRACTICE AND PROCEDURE, APPEAL, PLEADINGS, NEMO DAT QUOD NON HABET, TITLE TO LAND, STATUTORY RIGHT OF OCCUPANCY, TRESPASS, PRIORITY RULE, VISIT TO LOCUS IN QUO, DOCUMENTARY EVIDENCE, MISNOMER

 

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SUMMARY OF FACTS

This case involves a land dispute between Bishop Samuel Osaheni Uwumarongie (Appellant) and Mrs. Uwadiae Ogunsuyi (Respondent) over a parcel of land measuring 200ft by 300ft situated at Okha Village Area, Ward 29A, Benin City. The Appellant sought a declaration of title to land measuring 200ft by 350ft along Benson Idahosa University Road, claiming it was part of a larger plot (400ft by 400ft) granted to his late father, Mr. Daniel Uwumarongie Erhunmwunise, by the Oba of Benin through an approval dated 26th May, 1976.

The Respondent counter-claimed, asserting that her father, Mr. Sunday Okunbor, was granted approval by the Oba of Benin on 16th June, 1974 for land measuring 200ft by 300ft at the same location. She further claimed that her father subsequently transferred this land to her as a gift inter-vivos in 1987 through a deed of transfer witnessed by family members.

During trial, both parties tendered various exhibits including Oba’s approvals, survey plans, and transfer documents. The Appellant’s pleadings contained significant inconsistencies regarding the size of land he claimed to inherit and own. He averred that he had sold portions of his inherited land to JOSHUA GENERATION MISSION INTERNATIONAL (JOGOM) measuring 100ft by 350ft and another portion to one Mr. Inneh, yet still claimed ownership of 200ft by 300ft.

The trial court granted a visit to the locus in quo, after which certain witnesses were recalled. The trial court ultimately dismissed the Appellant’s claim and granted the Respondent’s counter-claim, finding that the Respondent had established better title to the disputed land.

 

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HELD

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1.The appeal was dismissed.

2.The judgment of the trial Court delivered on 26th June, 2020 was affirmed.

3.The Court held that the Appellant’s pleadings were inconsistent regarding the size of land claimed.

4.The Court found that the Appellant had divested himself of significant portions of the land he claimed through sales to third parties, thereby precluding him from claiming the disputed area under the doctrine of nemo dat quod non habet.

5.The Court held that the Respondent’s father’s Oba’s approval dated 16th June, 1974 took precedence over the Appellant’s father’s approval dated 26th May, 1976 under the priority rule.

6.Cost in the sum of N500,000 was awarded in favour of the Respondent against the Appellant.

 

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ISSUES

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1.Whether there exists any legal basis for upholding the counter-claim of the Respondent against the claim of the Appellant by the Court below?

2.Whether the Appellant has not proffered sufficient evidence and facts to be entitled to the judgment of the Court below?

3.Whether the visit to the locus in quo and the subsequent evidence and facts did not further substantiate the claims of the Appellant?

 

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RATIONES DECIDENDI

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ISSUE FORMULATION IN BRIEFS – RESPONDENT’S DUTY TO RELATE ISSUES TO GROUNDS OF APPEAL

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“Now, it is pure common sense and logic that in determining whether an issue for determination distilled in an appeal arises from the ground of appeal to which it is connected, it is not enough to focus on mere semantics, i.e. the words used in framing the issue for determination, without looking at the arguments canvassed thereon and identifying the complaints addressed under the issue for determination and see whether they are the same as those raised by the ground of appeal and in its particulars.” – Per ABIRU, JCA

 

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SUBSTANTIAL JUSTICE OVER TECHNICAL JUSTICE

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“Although the issues formulated by the appellant are verbose and incoherently drafted, I am enjoined to make use as best as I can of a brief that is inelegantly and/or badly drafted. For a brief of argument, even though inelegant and badly drafted is still a brief and the argument built on it will still be taken into consideration in conformity with Court’s attitude to do substantial justice.” – Per GALINJE, JSC

 

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RESPONDENT’S LIMITATION IN FORMULATING ISSUES

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“By formulating three issues each, the 1st and 2nd Respondents seem to be crying more than the bereaved. The Appellant, who is aggrieved by the decision of the lower Court issued only two issues for determination of this appeal? Although the Respondents are entitled to either adopt the issues formulated by the Appellant, give the issues a slant in favour of his own side of his case or formulate his own issues derivable from the grounds of appeal, it is always desirable that the Respondent should not formulate more issues than the Appellant.” – Per GALUMJE, JSC

 

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RESPONDENT’S ISSUES MUST RELATE TO GROUNDS OF APPEAL

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“On the issues formulated by the respondents which is differently couched from the issues formulated by the appellants, the law is very clear and trite, that a respondent to an appeal cannot formulate an issue or issues completely different from the issues formulated by the appellant from the grounds of appeal filed by the appellant, unless such a respondent has a cross appeal or has filed a respondent notice to the appellant’s appeal.” – Per ARIWOOLA, JSC

 

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CONSISTENCY IN PLEADINGS – PROHIBITION AGAINST INCONSISTENT AVERMENTS

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“A party is expected to be consistent in the case he sets up in his pleading, saves he engaged in pleading in the alternative; and this is not the situation in the instant case. A party is not allowed to make inconsistent averments in the pleading stating in one part that a set of facts exist and in another, averments contrary to those stated before.” – Per LOKULO-SODIPE, JCA

 

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DOCTRINE OF NEMO DAT QUOD NON HABET – APPLICATION TO LAND CLAIMS

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“It is settled law that you cannot give what you do not have, otherwise known as the doctrine of “Nemo dat quod non habet” The question is simply whether the respondents who had sold their title to the portion of land in dispute to the appellants which title was compulsorily acquired by the Lagos State Government from the appellants and which acquisition has been declared by a Court of law to be null and void legally speaking be entitled to a repossession of the title already sold to appellants from the third party; Lagos State Government; without the authority and/or consent of the new owner of that title?” – Per ONNOGHEN, JSC

 

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OBA OF BENIN AS CUSTODIAN OF ALL LAND

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“It is the settled customary law that all land in Benin before the Land Use Act, 1978, was vested in the Oba of Benin and it was he alone that could approve the allocation of a plot of land through the appropriate Plot Allotment Committee.” – Per WALI, JSC

 

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PRINCIPLES GOVERNING LAND ACQUISITION UNDER BENIN CUSTOMARY LAW

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“Indeed, the fundamental principles governing acquisition of land under Benin native land law and custom may more clearly and expansively be stated as follows:- (a). The Oba of Benin is the only authority competent under Benin customary law to make allocation or grant of Bini lands in or outside Benin City; for under the self-same law, all Bini lands are communal property of the entire Benin people and the legal estate in such lands is vested and resides in the Oba as trustee for the Benin people.” – Per ONU, JSC

 

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EFFECTIVENESS OF OBA’S GRANT FROM DATE OF APPROVAL

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“That under Benin Customary Law, a grant of land by the Oba of Benin becomes effective from the date he appends his signature of having approved the application for land. See the case of Aigbe v. Edokpolor (1977) 2 S.C. 1 at P. 8.” – Per BABALAKIN, JSC

 

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PRIORITY RULE IN COMPETING LAND TITLES

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“I am astounded by the argument of learned Appellant’s Counsel which flies in the face of all established authorities as cited by him. His submission is that by virtue of the doctrine of creation of priorities under Bini Customary Land Law, in respect of two competing title to land, it is not a question of who first obtained the Oba’s approval, but who has made a good title to the land in question. That, with the greatest respect is not the position of the law.” – Per OGUNWUMIJU, JCA

 

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MISCARRIAGE OF JUSTICE – DEFINITION AND APPLICATION

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“Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favorable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it.” – Per TOBI, JSC

 

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COMMUNITY READING OF DOCUMENTS

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“the Court can only impute the meaning or intention of the drafter of a document from the clear words therein. The Court been bound by the documents before it can only be allowed in exercising its interpretive role, to interpret the words used in a document as it is. The Court is also bound to give community reading to the wordings of a document relevant to the dispute in issue.” – Per IDRIS, JCA

 

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PURPOSE AND LIMITATIONS OF VISIT TO LOCUS IN QUO

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“I think the point must be emphasized that a trial Judge should under no circumstance put his personal observations at a locus in quo in place of the evidence before the Court. The main purpose of a view or a visit to the locus in quo is to assist the Court to understand fully the questions in issue in a case, to appreciate and follow the evidence before it and properly to apply such evidence in arriving at its decision.” – Per IGUH, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Land Use Act, 1978

2. Evidence Act 2011

3. Constitution of the Federal Republic of Nigeria 1999 (as amended)

4. Court of Appeal Rules

 

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