CASE TITLE: EDOH v. OMOROGIEVA & ANOR (2025) LPELR-80012(CA)
JUDGMENT DATE: 21st Jan, 2025.
JUSTICES: MUHAMMAD IBRAHIM SIRAJO
LATEEF ADEBAYO GANIYU
ASMAU OJUOLAPE AKANBI
DIVISION: BENIN
PRACTICE AREA: LAND LAW
FACTS:
This appeal borders on land law.
This appeal is against the judgment of the High Court of Edo State, Benin Judicial Division delivered on 22nd June, 2017.
The appellant, claimed against the 1st respondent, declaration of title to a parcel of land measuring 100ft by 100ft situated at Uteh Village Area, Benin City. She also claimed damages for trespass and perpetual injunction. The action was given Suit No. B/191/2006. Before the close of pleadings in that case, the 1st respondent also instituted another action before the same trial Court against the appellant, claiming declaration of title, damages, and injunction over a piece of land measuring 100ft by 100ft situated at Uteh Village Area, Benin City. That action was registered as Suit No. B/224/2006. The 2nd respondent, was later joined as 2nd defendant on the application of the 1st respondent. By an order of the trial Court both Suit Nos. B/191/2006 and B/224/2006 were consolidated and heard together. In respect of Suit No. B/224/2006, which is the subject of the instant appeal, judgment was delivered in favor of the plaintiff, now 1st respondent, against the appellant and the 2nd respondent.
Being dissatisfied with the judgment of the trial, the appellant appealed against the same to the Court of Appeal.
ISSUES:
The court determined the appeal on these issues thus:
(i) Whether the learned 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?
(ii). Whether the learned trial Judge did not err 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?
COUNSEL SUBMISSIONS:
The learned counsel for the Appellant submitted that even though the 1st Respondent pleaded that he acquired the land in dispute in 1974 from Mr. Eremwanarue Johnson Edoh, a grantee of the Oba of Benin’s approval dated 10/05/1965, he neither pleaded nor led evidence of Benin customary law on land acquisition, i.e., as to how his grantor obtained the Oba’s approval, as no pointer of the Uteh Village who inspected the land was called to testify. He relied on the authorities of Okeaya vs. Aguebor (1970), 1 All NLR 1 @ 10; Agbonifo vs. Aiwerioba (1988), 1 NWLR (t.70) 327 @ 340 on the importance of inspection of the land before the grant of Oba’s approval. Counsel further argued that where a person claims title to a parcel of land through a predecessor, the title of the predecessor must first be proved – Imade vs. Otabor (1998) 56/57 LRCN 3116 @ 3128. He submitted that the 1st Respondent did not plead or lead evidence of the steps taken by his predecessor-in-title before acquiring interest in the land under Benin customary law as decided by the Supreme Court in Finnih vs. Imade (1992) 1 NWLR (Pt.219) 511.
Counsel for the Respondent on the other hand, submitted that the 1st Respondent led credible evidence in line with Benin customary law as he pleaded and proved his title to the land in dispute and that of his predecessor in title, whose Oba’s approval was dated 19th July, 1965. He contended that the evidence of the 1st Respondent’s Surveyor and that of the Appellant’s Surveyor are all in agreement on the features on the disputed land. Counsel contended further that the issue of the delayed approval of the Appellant’s predecessor-in-title by the Oba of Benin for a period of seven years after the making of the application was not explained and that the seller to the Appellant’s predecessor-in-title, though alive, was not called as a witness. Counsel to the 1st Respondent stated that the proof of title to land under Benin customary law does not give room for a long-time unexplained difference in time between the date the application was made to the Ward and the time the Oba’s approval was given after the verification of the availability of the land was concluded. 1st Respondent also noted that the pointer who identified the land when the Appellant’s husband, who was her predecessor-in-title, bought the larger expanse of land, was not called to testify, as only the pointer who checked the land when the Appellant bought the same from her husband in 2002 was called to testify.
DECISION/HELD:
In the final analysis, the appeal was dismissed.
RATIO:
CUSTOMARY LAW—BENIN CUSTOMARY LAW: Procedure for acquisition of title to land under Bini customary law
“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, have been judicially noticed and emphasized in a number of cases, such as Owie vs. Ighiwi (2005) LPELR-28461 (SC), where the Supreme Court quoted with approval its earlier decision in the case of Enabulele vs. Agbonlahor (1999) LPELR-1138 (SC), as follows: (a) The Oba of Benin is the only authority competent under Bini Customary Law to make an allocation or grant of Bini lands in or outside Benin City. This is in view of the fact that, under the Benin law, all Bini lands are communal property of the entire Bini people, and the legal estate in such lands is vested in the Oba of Benin as trustee for the Benin people. (b) 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. (c) Any recommendation for such application is made to the Oba of Benin by the relevant Plot Allotment Committee. (d) The Oba of Benin’s endorsement of his approval on the face of the grantee’s written application, duly recommended by the appropriate Plot Allotment Committee, immediately transfers the title to the plot of land involved to the applicant/grantee. (e) 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 being bona fide and in ignorance of the existence of an earlier one. (f) It is contrary to Bini Customary Law to set aside an earlier approval granted unilaterally. The foregoing procedure of acquiring title to land under the Bini Customary Law has, over a long period, acquired so much notoriety that it is beyond any debate. See Lyase & Ors vs. Omoragbon (1976) LPELR-1576 (SC); Arase vs. Arase (1981) LPELR-534 (SC); and the very recent case of Ogbebor vs. Ihasee (2024) LPELR-62380 (SC). ” Per MUHAMMAD IBRAHIM SIRAJO, J.C.A
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