Legalpedia Citation: (2021-05) Legalpedia 07129 (CA)

In the Court of Appeal

Holden at Benin

Wed May 5, 2021

Suit Number: CA/B/263/2012

CORAM

JOSEPH EYO EKANEM, JUSTICE COURT OF APPEAL

ABIMBOLA O. OBASEKI-ADEIUMO, JUSTICE COURT OF APPEAL

BALKISU BELLO ALIYU, JUSTICE COURT OF APPEAL

JOSEPH EYO EKANEM, JUSTICE COURT OF APPEAL

ABIMBOLA O. OBASEKI-ADEIUMO, JUSTICE COURT OF APPEAL

PARTIES

DAVID EKHATOR & ORS

APPELLANTS

PRINCE PEDRO ELEMA & ANOR

RESPONDENTS

AREA(S) OF LAW

APPEAL, CUSTOMARY LAW, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Respondents/Plaintiffs claimed against the Defendant at the Edo State High Court, Auchi Judicial Division for Special damages in the sum of N22, 798,861. 14 (Twenty Two Million, Seven Hundred and Ninety Eight Thousand, Eight Hundred and Sixty One Naira, Fourteen Kobo, being accumulated compound interest and the capital sum on the said N235, 000.00 (Two Hundred and Thirty Five Thousand Naira) borrowed,  N77,201,138.85 (Seventy Seven Million Two Hundred and One Thousand, One Hundred Thirty Fight Naira, Eighty Five Kobo), being damages for trespass committed by the Defendants, their agents, privies and or servants on the said land and an order of perpetual injunction restraining the Defendants by themselves, agents, servants or assigns or otherwise however from continuing with their acts of trespass and or disturbances on the portion of Plaintiffs land verged red in the survey plan. At trial, the Respondents traced the root of their title to a grant of land under Bini Customary law which was obtained by the 2nd Plaintiffs father who wrote applications to the Oba Akenzua II (the Oba of Benin 1963/1964) while the Appellant asserted that the land in dispute is not part of Oko village and Ugiokhuen village and did not fall under the jurisdiction of Ward A Allotment Committee. At the conclusion of trial, the lower found that the Respondents had proved a better title, granted the relief for trespass but dismissed the claims for special and general damages and dismissed the Appellants counter claim. Dissatisfied with the judgment, the Appellant filed a notice of appeal.

HELD

Appeal Dismissed.

ISSUES

1. Whether the learned trial Judge was right in that the respondents have proved title or better title to the land in dispute.
2. Whether the learned trial Judge was right in terminating the appellant’s counter claim.”

RATIONES DECIDENDI

BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROOF

“It is a settled principle of law that he who asserts must prove, this Court held thus in Ayala v Daniel & Ors (2019) LPELR – 47184 (CA);

“It is the law that whoever assert the affirmative must proof by credible evidence. See sections 131, 132 and 133 of the Evidence Act, 2011. The latin maxim in this regard is “INCUMS PROBATIOQUI DICIT, NON QUI NEGAT” Meaning the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it for a negative is usually incapable of proof. See the case of Senator Iyiola Omisore & Anor V. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR – 24803, Famuroti V. Agbeke (1991) 5 NWLR (PT. 189) AT 13.” per ONIYANGI, JCA (P. 4, PARAS. A – C)

See also; Dasuki v FRN & Ors (2018) LPELR – 43897 (SC); Jimoh v Hon. Minister Federal Capital Territory & Ors (2018) LPELR – 46329 (SC); Osumili & Anor v CNPC/BGP International (2019) CA.” PER A.O. OBASEKI-ADEJUMO, J.C.A

ACQUISITION OF TITLE TO LAND – PROCEDURE FOR THE ACQUISITION OF TITLE TO LAND UNDER BINI CUSTOMARY LAW PRIOR TO THE LAND USE ACT

“Furthermore, in Osawe & Anor v Idehen (2014) LPELR – 23330 (CA), the Court held thus; “The law is well settled as it relates to acquisition of title to land under Bini Customary Law prior to the Land Use Act. The procedure as follows: 1. The Oba of Benin is the only authority competent under Bini 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 Bini people and the legal estate in such lands is vested and resides in the Oba as trustee for the Bini people. 2. The application for allocation of land is usually made to the appropriate Plot Allocation Committee having jurisdiction over the land in question; which Committee will send some of its members to inspect the land and ascertain its availability for grant. 3. Recommendations of the applications are then made by the relevant Plot Allocation Committee to the Oba of Benin 4. The endorsement of the Oba of his approval on the grantee’s written application, duly recommended by the relevant and appropriate Plot Allocation Committee immediately transfers to the purchaser or grantee the plot of land involved. 5. An approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one. 6. It is contrary to Bini customary law to unilaterally set aside an earlier approval. See Okeaya vs. Aguebor (1970) 1 ALL NLR 1, Aikhionbare vs. Omoregie (1976) 12 SC 11, Evbuomwan vs Elema (1994) 6 NWLR (PT 917) 184 or (2005) LPELR (2846) 1 at 17 – 18.” per Ogakwu, JCA (PP. 29-31, PARAS. F – C). See also; Ogbebor v Ihasee (2013) LPELR – 20729 (CA); Onwuanyi v Borha (2013) LPELR – 21970 (CA); Owie v Ighiwi (2005) LPELR – 2846 (SC); Amayo v Erinmwingbovo (2000) LPELR – 6016 (CA); Enabulele v Agbonlahor (1999) LPELR – 1138 (SC). I align myself with the reasoning and decision of the lower court where it held thus; “…It is trite that whosoever asserts must prove and so the onus is on the defendants to prove that Ekhaguere village is not part of Oko and Ugiokhuen villages for the purpose of land allocation. In my view the best way they would have proved this would have been the production of any land allocation approval by the Oba of Benin in their favour at that period in time when Plaintiffs claimed their father was allocated the area by the Oba. The defendants pleaded erroneously that they are owners of the village in the said paragraph 3. In the case in Exhibit Gl, Dahiru Musdapher JCA (as he then was) stated at pages 20 and 21 as follows: – Under Benin Customary Law, a native or native communities are not the legal owners of the land and lands cannot be owned until and unless there is a grant from the Oba of Benin. See Bello V Eweka (1981) 1 SC 101. In other words, the appellants can only be the “owners” of the land in dispute when there was a grant to them by the Oba of Benin. In the instant case, Chief Elema wanted large parcels of land in the Oko Village area. At the relevant time, there was no Plot Allotment Committee established for the village area. The cardinal issue was whether the Oba of Benin had granted the land in dispute to Chief Elema. If the Oba of Benin, Chief Elema had acquired a valid Customary title to the land in dispute per Dahiru Musdapher JCA in William Evbuomwan & 3 ors V Jonathan Elema & 2 Ors (1989) {as reported) CA/B/175/86 of 11th July, 1989 at pp 20 & 21. The evidence of possession of the land by the defendants cannot sustain their title to the land in dispute in view of the superior evidence of the Plaintiffs as to the mode of acquisition. The Survey of the land which I find in Exhibit F is an act of ownership by the Plaintiffs predecessor in title since 1965. Although the defendants tried to lead some recent evidence of their autonomy, it cannot match the Oba’s approval…” PER A.O OBASEKI-ADEJUMO, J.C.A

JUDGMENT OF COURT -EFFECT OF NOT PLEADING A JUDGMENT BY WAY OF ESTOPPEL “Section 174 Evidence Act, 2011 provides thus; (l)lf a judgment is not pleaded by way of estoppels it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was or might have been decided in the action in which it. was given, is in issue, or is deemed to be relevant to the issue in any subsequent proceeding, (2)Such judgment is conclusive proof of the facts, which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel. See also Ukaegba v Ugoji (1991) 6 NWLR Part 196” PER A.O. OBASEKI-ADEJUMO, J.C.A

COUNTER CLAIM – NATURE OF A COUNTER CLAIM

“It a trite principle of law that a Counter claim is a separate suit from the main suit, which will succeed on its own. In Amadi v Amadi (2018) LPELR – 46269 (CA), this Court held thus; “The law is well settled that, a counter claim is a separate, independent and distinct action which stands on its own and though filed along with the statement of defence does not depend on the statement of defence for sustenance or support. It is on equal footing with the main claim before the Court. See Dahiru & Anor V. Kamale (2004) LPELR 1115 and Maito & Ors V. Ogunbodede (2013) LPELR 20892.” per Lamido, JCA (PP. 10 – 11, PARAS F – B). Sec also; Oroja & Ors v Adeniyi & Ors (2017) LPELR – 41985 (SC); Ifemesia v Ecobank (2018) LPELR -46589 (CA); R- Benkay Nigeria Ltd v Cadbury Nigeria Ltd (2012) LPELR – 7820 (SC).PER A.O. OBASEKI-ADEJUMO, J.C.A.

BURDEN OF PROOF- ON WHOM LIES THE BURDEN OF PROVING THE EXISTENCE OR NON – EXISTENCE OF A FACT

“The law is settled that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts he has asserts, must prove that those facts exist. He has the burden of first proving the existence or non – existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side. The apex court held in Sharing Cross Educational Services Limited V Umaru Adamu Enterprises (2020) LPELR – 49567 (SC); “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist: Section 131 (1) of the Evidence Act, 2011.” per EKO, JSC (PP. 7-8, PARAS. F – A). This court in Etubom Essien Ekpenyong Efiok & Ors V Etubom (Dr) Anthony Asquo (2013) LPELR -21400 (CA) also held; “It is trite that he who asserts must prove; and the fact that the defendant never proves or even remains silent will not discharge the burden on him. The proof required is clear, cogent evidence, directly pointing of the issues in dispute so that the plaintiffs case is preponderantly believed and preferred. See; Archibong vs Ita (2004) 1 S.C (Pt. I)…” per Otisi, JCA (PP. 136 – 137, Paras F – C). See also; Sections 131, 132 & 133 of the Evidence Act, 2011; Agboola v UBA Plc & Ors (2011) LPELR – 9353 (SC); Ohochukwu v Ag Of Rivers State & Ors (2012) LPELR – 7849 (SC); Mohammed v Wammako & Ors (2017) LPELR – 42667 (SC); UNILORIN & Ors v Obayan (2018) LPELR – 43910 (SC).” PER A.O. OBASEKI-ADEJUMO, J.C.A

BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROOF

“It is a settled principle of law that he who asserts must prove, this Court held thus in Ayala v Daniel & Ors (2019) LPELR – 47184 (CA);

“It is the law that whoever assert the affirmative must proof by credible evidence. See sections 131, 132 and 133 of the Evidence Act, 2011. The latin maxim in this regard is “INCUMS PROBATIOQUI DICIT, NON QUI NEGAT” Meaning the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it for a negative is usually incapable of proof. See the case of Senator Iyiola Omisore & Anor V. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR – 24803, Famuroti V. Agbeke (1991) 5 NWLR (PT. 189) AT 13.” per ONIYANGI, JCA (P. 4, PARAS. A – C)

See also; Dasuki v FRN & Ors (2018) LPELR – 43897 (SC); Jimoh v Hon. Minister Federal Capital Territory & Ors (2018) LPELR – 46329 (SC); Osumili & Anor v CNPC/BGP International (2019) CA.” PER A.O. OBASEKI-ADEJUMO, J.C.A

ACQUISITION OF TITLE TO LAND – PROCEDURE FOR THE ACQUISITION OF TITLE TO LAND UNDER BINI CUSTOMARY LAW PRIOR TO THE LAND USE ACT

“Furthermore, in Osawe & Anor v Idehen (2014) LPELR – 23330 (CA), the Court held thus;

“The law is well settled as it relates to acquisition of title to land under Bini Customary Law prior to the Land Use Act. The procedure as follows: 1. The Oba of Benin is the only authority competent under Bini 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 Bini people and the legal estate in such lands is vested and resides in the Oba as trustee for the Bini people. 2. The application for allocation of land is usually made to the appropriate Plot Allocation Committee having jurisdiction over the land in question; which Committee will send some of its members to inspect the land and ascertain its availability for grant. 3. Recommendations of the applications are then made by the relevant Plot Allocation Committee   to   the   Oba  of Benin   4. The endorsement of the Oba of his approval on the grantee’s written application, duly recommended by the relevant and appropriate Plot Allocation Committee immediately transfers to the purchaser or grantee the plot of land involved. 5. An approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one. 6. It is contrary to Bini customary law to unilaterally set aside an earlier approval. See Okeaya vs. Aguebor (1970) 1 ALL NLR 1, Aikhionbare vs. Omoregie (1976) 12 SC 11, Evbuomwan vs Elema (1994) 6 NWLR (PT 917) 184 or (2005) LPELR (2846) 1 at 17 – 18.”

per Ogakwu, JCA (PP. 29-31, PARAS. F – C). See also; Ogbebor v Ihasee (2013) LPELR – 20729 (CA); Onwuanyi v Borha (2013) LPELR – 21970 (CA); Owie v Ighiwi (2005) LPELR – 2846 (SC); Amayo v Erinmwingbovo (2000) LPELR – 6016 (CA); Enabulele v Agbonlahor (1999) LPELR – 1138 (SC).

I align myself with the reasoning and decision of the lower court where it held thus;

“…It is trite that whosoever asserts must prove and so the onus is on the defendants to prove that Ekhaguere village is not part of Oko and Ugiokhuen villages for the purpose of land allocation. In my view the best way they would have proved this would have been the production of any land allocation approval by the Oba of Benin in their favour at that period in time when Plaintiffs claimed their father was allocated the area by the Oba. The defendants pleaded erroneously that they are owners of the village in the said paragraph 3. In the case in Exhibit Gl, Dahiru Musdapher JCA (as he then was) stated at pages 20 and 21 as follows: – Under Benin Customary Law, a native or native communities are not the legal owners of the land and lands cannot be owned until and unless there is a grant from the Oba of Benin. See Bello V Eweka (1981) 1 SC 101. In other words, the appellants can only be the “owners” of the land in dispute when there was a grant to them by the Oba of Benin. In the instant case, Chief Elema wanted large parcels of land in the Oko Village area. At the relevant time, there was no Plot Allotment Committee established for the village area. The cardinal issue was whether the Oba of Benin had granted the land in dispute to Chief Elema. If the Oba of Benin, Chief Elema had acquired a valid Customary title to the land in dispute per Dahiru Musdapher JCA in William Evbuomwan & 3 ors V Jonathan Elema & 2 Ors (1989) {as reported) CA/B/175/86 of 11th July, 1989 at pp 20 & 21. The evidence of possession of the land by the defendants cannot sustain their title to the land in dispute in view of the superior evidence of the Plaintiffs as to the mode of acquisition. The Survey of the land which I find in Exhibit F is an act of ownership by the Plaintiffs predecessor in title since 1965. Although the defendants tried to lead some recent evidence of their autonomy, it cannot match the Oba’s approval…” PER A.O OBASEKI-ADEJUMO, J.C.A

COUNTER CLAIM – NATURE OF A COUNTER CLAIM

“It a trite principle of law that a Counter claim is a separate suit from the main suit, which will succeed on its own. In Amadi v Amadi (2018) LPELR – 46269 (CA), this

Court held thus;

“The law is well settled that, a counter claim is a separate, independent and distinct action which stands on its own and though filed along with the statement of defence does not depend on the statement of defence for sustenance or support. It is on equal footing with the main claim before the Court. See Dahiru & Anor V. Kamale (2004) LPELR 1115 and Maito & Ors V. Ogunbodede (2013) LPELR 20892.”

per Lamido, JCA (PP. 10 – 11, PARAS F – B). Sec also; Oroja & Ors v Adeniyi & Ors (2017) LPELR – 41985 (SC); Ifemesia v Ecobank (2018) LPELR -46589 (CA); R- Benkay Nigeria Ltd v Cadbury Nigeria Ltd (2012) LPELR – 7820 (SC). PER A.O. OBASEKI-ADEJUMO, J.C.A.

BURDEN OF PROOF- ON WHOM LIES THE BURDEN OF PROVING THE EXISTENCE OR NON – EXISTENCE OF A FACT

“The law is settled that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts he has asserts, must prove that those facts exist. He has the burden of first proving the existence or non – existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side.

The apex court held in Sharing Cross Educational Services Limited V Umaru Adamu Enterprises (2020) LPELR – 49567 (SC);

“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist: Section 131 (1) of the Evidence Act, 2011.”

per EKO, JSC (PP. 7-8, PARAS. F – A).

This court in Etubom Essien Ekpenyong Efiok & Ors V Etubom (Dr) Anthony Asquo (2013) LPELR -21400 (CA) also held;

“It is trite that he who asserts must prove; and the fact that the defendant never proves or even remains silent will not discharge the burden on him. The proof required is clear, cogent evidence, directly pointing of the issues in dispute so that the plaintiffs case is preponderantly believed and preferred. See; Archibong vs Ita (2004) 1 S.C (Pt. I)…”

per Otisi, JCA (PP. 136 – 137, Paras F – C). See also; Sections 131, 132 & 133 of the Evidence Act, 2011; Agboola v UBA Plc & Ors (2011) LPELR – 9353 (SC); Ohochukwu v Ag Of Rivers State & Ors (2012) LPELR – 7849 (SC); Mohammed v Wammako & Ors (2017) LPELR – 42667 (SC); UNILORIN & Ors v Obayan (2018) LPELR – 43910 (SC).” PER A.O. OBASEKI-ADEJUMO, J.C.A

 

CASES CITED

Not Available

STATUTES REFERRED TO

Evidence Act, 2011

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