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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MRS. VERO EDOH

APPELLANTS 

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1. MR. PATRICK OMOROGIEVA

2. MRS. ESTHER EDOH

RESPONDENTS 

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AREA(S) OF LAW

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LAND LAW, CUSTOMARY LAW, PROPERTY LAW, EVIDENCE, CIVIL PROCEDURE, CONSTITUTIONAL LAW, APPEAL

 

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SUMMARY OF FACTS

The Appellant, Mrs. Vero Edoh, filed a suit at the
High Court of Edo State claiming declaration of title to a parcel of land
measuring 100ft by 100ft situated at Uteh Village Area, Benin City, along with
claims for damages for trespass and perpetual injunction. Before pleadings
closed, the 1st Respondent, Mr. Patrick Omorogieva, filed a separate suit
claiming declaration of title, damages and injunction over the same piece of
land. The 2nd Respondent, Mrs. Esther Edoh, was later joined as 2nd Defendant.
Both suits were consolidated by court order.

 

The 1st Respondent claimed to have acquired the
land in 1974 from Mr. Eremwanarue Johnson Edoh, who had obtained Oba’s approval
dated 19th July 1965. The Appellant’s predecessor-in-title, Mr. G.I. Edoh, had
obtained a separate Oba’s approval dated 17th June 1972. The High Court
delivered judgment in favor of the 1st Respondent. Dissatisfied, the Appellant
appealed.

 

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HELD

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The appeal was dismissed.

The judgment of the High Court was affirmed.

 

Costs of N300,000 was awarded against the Appellant in favor of the 1st Respondent.

 

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ISSUES

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Whether the trial Judge was right in entering judgment for the claimant when he did not plead and lead evidence of Benin customary law on land acquisition and the identity of the land granted his predecessor-in-title in accordance with Benin Customary Law.

 

Whether the learned trial Judge erred in law in delving into the process Appellant’s Oba’s approval went through when it was not an issue before the Court in the trial.

 

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RATIONES DECIDENDI

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IDENTITY OF LAND DISPUTE – BURDEN AND STANDARD OF PROOF

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“It is trite law that in a claim for a
declaration of title to land, the starting point is the identity of the land,
which must be clearly ascertained. The onus is on the Claimant to establish the
identity of the land in dispute.” – Per Muhammad Ibrahim Sirajo, J.C.A.

 

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LAND ACQUISITION UNDER BENIN CUSTOMARY LAW – ROLE OF OBA’S APPROVAL

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“Under the Benin (Bini) Customary Law,
procedures for the acquisition of title to any land, prior to the promulgation
of the Land Use Act, 1978, has been judicially noticed and emphasized in a
number of cases” – Per Muhammad Ibrahim Sirajo, J.C.A.

 

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PRIORITY OF INTEREST IN LAND GRANTS – APPLICATION OF FIRST IN TIME PRINCIPLE

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“The law is settled that both at law and in
equity, the basic principle is that estate and interests primarily rank in
order of creation. The maxim is Qui prior est tempore portior est jure which
simply means he who is earlier in time is stronger in law.” – Per Muhammad
Ibrahim Sirajo, J.C.A.

 

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EFFECT OF OBA’S GRANT – SUBSEQUENT GRANTS OF SAME LAND

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“After the grant of the land in dispute to
the 1st Respondent’s predecessor-in-title in 1965, the Oba of Benin cannot give
the same land to the Appellant’s predecessor-in-title in 1972, the appropriate
maxim being, nemo dat quod non habet, meaning no one can give what he does not
have.” – Per Muhammad Ibrahim Sirajo, J.C.A.

 

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COURT’S POWER TO DRAW INFERENCES – DISTINCTION FROM RAISING ISSUES SUO MOTU

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“A Court cannot be accused of raising an
issue, matter or fact suo motu if the issue, matter or fact exists in the
litigation. A judge, by the nature of his adjudicatory functions, can draw
inferences from stated facts in a case and by such inferences, the judge can
arrive at conclusions…” – Per Muhammad Ibrahim Sirajo, J.C.A.

 

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VALIDITY OF OBA’S APPROVAL – DURATION AND EFFECT

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“The position of the Supreme Court in Owie
vs. Ighiwi, supra, is that once the approval of the Oba of Benin is obtained,
it forthwith passes title to the land in issue to the grantee and the approval
remains valid until it is set aside by the Oba of Benin.” – Per Muhammad
Ibrahim Sirajo, J.C.A.

 

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EVALUATION OF COMPETING OBA’S APPROVALS – COURT’S DUTY

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“The learned trial Judge must of necessity
put the two Oba’s approvals on an imaginary scale of justice in order to
determine the veracity of the parties’ claim to title over the said land”
– Per Muhammad Ibrahim Sirajo, J.C.A.

 

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BENIN LAND TENURE SYSTEM – OBA’S AUTHORITY

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“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.” – Per Muhammad Ibrahim Sirajo, J.C.A.

 

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PROOF OF IDENTITY OF LAND – ROLE OF SURVEY PLANS

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“From the evidence before the lower Court,
particularly the litigation survey plan prepared by CW1 and the litigation
survey plan prepared by the Appellant’s witness, DW1, it is clear that the
identity of the land claimed by the 1st Respondent is not in dispute” –
Per Muhammad Ibrahim Sirajo, J.C.A.

 

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COMPETING LAND GRANTS – PRINCIPLE OF PRIORITY

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“Undoubtedly, since Oba of Benin, the trustee
and custodian of all land in Benin, both within and outside the ancient city, had
granted approval to the predecessor-in-title to the first Respondent as far
back as 1965, ownership of the land in dispute had automatically been vested in
the 1st Respondent’s predecessor-in-title since 1965” – Per Lateef Adebayo
Ganiyu, J.C.A.

 

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BURDEN OF PROOF IN LAND CASES – STRENGTH OF CLAIMANT’S CASE

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“In Declaration of Title to Land, the
Claimant will succeed on the strength of his case and not on the weakness of
the Defendant’s case.” – Per Lateef Adebayo Ganiyu, J.C.A.

 

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PROCEDURE FOR LAND ACQUISITION IN BENIN – PLOT ALLOTMENT COMMITTEE

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“Any application for intending transfer of
title to a land is usually made to the appropriate plot allotment committee in
the area of the jurisdiction over the land in question.” – Per Muhammad
Ibrahim Sirajo, J.C.A.

 

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EFFECT OF PRIOR APPROVAL – SUBSEQUENT GRANTS VALIDITY

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“That is to say, the very day the Oba
approved the grant to the predecessor of the 1st Respondent on 19th July, 1965,
the grant became effective and the said land can no longer be available for the
Oba to give out or grant to another person in 1972.” – Per Muhammad
Ibrahim Sirajo, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Land Use Act, 1978

Evidence Act, 2011

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