In The Court of Appeal
(Benin Judicial Division)
On Thursday, the 15th day of November, 2012
Suit No: CA/B/48/1997
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJU....... Justice, Court of Appeal
TOM SHAIBU YAKUBU....... Justice, Court of Appeal
TUNDE OYEBANJI AWOTOYE....... Justice, Court of Appeal
MRS. MARY WILKEY Appellants
1. MRS. OGBOHU OGIEGBAEN
2. MRS. EWENMADE OJO Respondents
TOM SHAIBU YAKUBU J.C.A.: (Delivering the Leading Judgment): The respondents as the Plaintiffs at the Benin City High Court of Justice, in the Suit No. B/66/90, had claimed against the appellant/defendant, that they were entitled to that piece or parcel of land measuring 100' X 200' situate at Ward 40A at Ogbeson in Oredo Local Government Area, Benin City. They prayed for a declaration to that effect and also for a perpetual injunctive relief, restraining the defendant, her agents, servants and/or privies from further acts of trespass and/or interference with the Plaintiffs' possession, use and enjoyment of the said land. There was an added claim of general damages of N5, 000.00 against the defendant.
The parties filed and exchanged their respective pleadings. The Suit proceeded to hearing. The Plaintiffs gave evidence for themselves and four other witnesses testified for them. The defendant also gave evidence and called one witness who testified for her. Each side tendered in evidence some documentary exhibits and at the end of oral evidence, counsel on each side addressed the trial Court. In a considered judgment, the learned trial Judge, found for the Plaintiffs. This appeal is against the said judgment of 25th October, 1995. It is noteworthy that this court on the 7th February, 2001 and at the instance of the respondent's preliminary objection to the competence of the appellant's three original grounds of appeal, struck out the appeal. However, on the application of the appellant, leave was granted her by this court on 5th May, 2003, to appeal against the aforesaid judgment of 25th October, 1995.
Consequently, the appellant filed a Notice of Appeal dated 12th, May, 2003 on same date. It contains six grounds of appeal, which say:
"1. The learned trial Judge erred in law on the issue of competing titles of parties to the land in dispute as shown in Exhibits 'B' & 'F' when he held in that part of his judgment as follows: -
"It is clear from the above that the defendant's root of title is not in accordance with Bini Customary Law at all. It is also clear that Mrs. Melodia Omoregie from whom she alleged to have acquired the piece of land in dispute is not a beneficiary of the Will - Exhibit 'E' and no credible evidence is available to link her up with Exhibit 'F' the Deed of Conveyance." And thereby came to a wrong decision in the case.
PARTICULARS OF ERROR
i. Whereas the determining issue of competing titles as pleaded and adduced are that of Late Donald Idiaghe Omoregie, Exhibit 'F' and that of the 1st Plaintiff, Ogbohu Ogiegba (Mrs.) - Exhibit 'B';
ii. Whereas Exhibit 'F' encompasses the larger parcel of land of Late Donal I. Omoregie, including the smaller parcel of land in dispute, - Exhibit 'C' claimed by the 1st Plaintiff.
iii. Whereas the evidence of D.W.1 - Survey Expert, Mr. Osaikhuiwu put the identity or identities of the parcels of land claimed by the parties beyond doubt;
iv. Whereas the D.W's i.e. D.W.1 evidence on exhibits 'C', 'D' and 'F' were not discredited nor challenged by the Plaintiff nor rejected by the Court in the judgment;
v. Whereas the issue or consideration of good title to land in this case as contended by the learned trial Judge was part from priority in favour of the original owner of land, now put in dispute, was in accordance with Bini Customary Law one in favour of Late Donald I. Omoregie and not the 1st Plaintiff;
vi. When it is clear from the statements of defence and exhibits 'E' & 'F' that the defendant traced her title, possession and interest to the land in dispute to the original owner and predecessor-in-title - Late Donald Omoregie.
vii. When the parties from the Record admitted Exhibits 'E' and 'F' by consent of Counsel.
2. The learned trial Judge erred in Law in failing to consider or consider adequately the legal effect of Exhibits 'B' & 'F' in relation to the competing titles of parties and thereby came to an erroneous decision in this case.
PARTICULARS OF ERROR
i. There is evidence that Exhibits "B" and "F" emanated from the Oba of Benin as trustee of Bini communal Lands before 1978;
ii. In law, Exhibits "B" and "F" vested legal title of the relevant land under Bini Customary law in favour of their respective holders or allottees;
iii. Exhibit "F" encompasses the larger parcel of land of Late Donald I. Omoregie, including the smaller parcel of land in dispute - Exhibit 'C' claimed by the 1st Plaintiff;
iv. Exhibit 'F' being first in time to Exhibit "B" in relation to the land in dispute, the first in title owns the land under Bini Customary Law;
v. That evidence of the D.W.1 - the Licensed Surveyor clearly established the identity of the land in dispute and squarely put the land in dispute within the lager parcel of land of the Defendant's Predecessor in title. See Exhibit 'G'.
vi. That the trial Judge failed to appreciate and apply the import of the decision of the cases namely: -
(1) Thomas v. Holder, 12 WACA at 78 and;
(2) Bello v. Otolorin (1996) 9 NWLR, PART 470 at Page 52, ratio 1 respectively.
vii. Thus the competing titles to the land i.e. Exhibit 'B' and 'F' and the identity of parcel of land and Exhibit 'C', 'D' and 'F' as evidence by the D.W.1 the Licensed Surveyor put the determining issue in the case clearly as between the Late Donald I. Omoregie and the 1st Plaintiff;
viii. Whereas there is undisputed GRANTOR known to the original GRANTEE under Bini Custom in the Oba of Benin as the overlord and trustee/legal owner of all land in Benin Division, including the land in 'Ogbeson' - See Exhibits 'B' and 'F'
See: Finnih v. Imade (1992) 1 NWLR, PART 219, at Page 311 at 539, Cited in the judgment.
ix. Whereas the finding by the learned trial Judge that the Defendant's root of title traceable to Exhibit 'F' -was not in accordance with Bini Custom is untenable.
See the case of: Thomas v. Holder, 12 WACA at 78 and;
Bello v. Otolorin, (1996) 9 NWLR, Part 470, page 52, ratio 1.
3. The learned trial Judge misdirected himself on the facts and came to a wrong decision when he held as follows: -
"It is not made clear from the above the exact area or portion of the land allocated to each of the beneficiaries stated above and the defendant did not testify as to the land acquired by Mrs. Melodia Omoregie from Exhibit 'F' for and on behalf of her son - Daniel Imuetinyan Omoregie - a Beneficiary of Exhibit 'F'.
Mrs. Melodia Omoregie, the person alleged to have sold the land in dispute to the Defendant was not called as a witness and her son, a beneficiary of exhibit 'E' who by now should be of age was also not called as a witness."
PARTICULARS OF ERROR
i. Whereas on the pleading and evidence of the D.W.1 - resulting in Exhibits 'E' and 'F', the land in dispute was clearly established at trial.
ii. Whereas there was clear evidence on the record by the parties that the Oba of Benin has the final say on Bini land. "Oghora Village" has been part of Bini from time immemorial. The plot Allotment Committee represents the Oba of Benin.
iii. That the principle enunciated in Thomas v. Holder - a land matter - was erroneously ignored by the trial Judge.
iv. Whereas the legal effect of Exhibit 'F' was not faulted at trial.
4. The learned trial Judge erred in law in granting title to the land in dispute to the 1st Plaintiff.
PARTICULARS OF ERROR
i. The 1st Plaintiff had no locus to institute this action.
ii. The declaration granted by the Court is contrary to the evidence proffered at trial;
iii. The 1st Plaintiff at page 21 of the records lines 5 - 6 of the records said
"I gave one of the plots to my sister"
iv. The learned trial judge at page 45 of the records line 32 - 33 found that: -
"...she (1st Plaintiff) sold a part of the land in dispute to one Felix Adogha"
v. The learned trial Judge at page 46 lines 25 - 30 stated "that the 1st Plaintiff gave 100 x 100 in Exhibit 'B' to the 2nd Plaintiff and sold the remaining 100 x 100 to someone"
vi. The 1st Plaintiff having divested herself of title in the entire land including the part, which is in dispute, cannot in law maintain an action in which she has no claim/colour of title.
5. The learned trial Judge erred in law when he held that the issue of competing titles was between 1st Plaintiff and the Defendant.
PARTICULARS OF ERROR
i. Whereas the plaintiff had given clear evidence at page 27 lines 5-6 of the records that she had divested herself of title to the land entirely;
ii. Whereas the learned trial Judge himself had referred to this fact this judgment at pages 45 lines 32-33 and page 46 lines 25-30 of the records;
iii. Whereas the issue of competing titles as shown by the pleadings and evidence is between the 2nd Plaintiff and the Defendant's predecessor in title whose direct grant by the Oba of Benin is prior to the root of title established by the 2nd Plaintiff.
6. That the judgment of the learned trial Judge is against the weight of evidence."
In order to prosecute the appeal, the appellant's Counsel filed an amended brief of argument which was deemed filed on 4th May, 2006 and also the appellant's Reply Brief of Argument dated 3rd February, 2011 which was deemed filed on 7th February, 2011.
The respondents, on their part, filed the brief of argument date 26th July, 2006 which was deemed filed on 29th November, 2007. At the hearing of the appeal on 4th October, 2012, each Counsel adopted and relied on his own brief of argument and urged us to either allow or dismiss the appeal, as the case may be. Three issues were formulated for determination of the appeal by the appellant in her amended brief of argument as follows: -
"Whether the Learned Trial Judge was right in law and on the facts in failing to consider the legal effect of Exhibit 'B' & 'F'."
"Whether the Learned Trial Judge was right in law and on the facts when he held that the Defendant/Appellant did not testify as to the exact area of land acquired by Mrs. Melodia Omoregie (a third party) who was not part of the present action."
"Whether the Learned Trial Judge was right in law and on the facts in granting title to land in dispute."
Learned Counsel to the respondents identified a sole issue for determination, in this appeal, to wit:
"Whether the Learned Trial Judge evaluated properly the evidence before him in this case."
The respondents at paragraph 2 of the brief of argument, indicated that they will ventilate a Preliminary Objection on the ground that the appellant's brief is defective and also at paragraph 3 of the said respondents' brief of argument, another preliminary objection on the ground of insufficiency of materials on which the Court of Appeal can decide the appeal.
I think it is expedient to consider and determine the preliminary objection(s) at the instance of the respondents, first.
It is the contention of Chief Osaheni Uzamere, learned Counsel to the respondents that the six grounds of appeal filed by the appellant are deficient for non-compliance with the requirement of Order 3 Rules 2(2); (3) & (4) of the rules of this court; and that all the grounds of appeal alleged errors of law whereas an appraisal of their particulars reveal that the real complaint of the appellant is in respect of the evaluation of evidence by the learned trial Judge.
Furthermore, learned counsel submitted that the mere fact that a ground of appeal alleges an error of law does not necessarily clothe it with an error of law. Therefore, it is not how the ground of appeal is christened that matters but what it really complains about. He referred to COMEX LTD V. NAB LTD (1997) 3 NWLR (PT. 492) 643; OBATOYINBO V. OSHATOBA (1996) 5 NWLR (PT. 450) 531.
Chief Uzamere, also contended that the issues for determination were not properly formulated by the appellant and that for an example: Issue 2 at page 11 as formulated by the appellant is a ground of appeal and not an issue. Furthermore, that issue 3 at page 15 is a repetition of issue 1 at page 4. He urged that it be held that the grounds of appeal are incompetent and liable to be struck out, in reliance on BI ZEE, HOTELS LTD. V. ALLIED BANK (NIG.) LTD. (1996) 8 NWLR (PT. 465) 176 at P. 197; OGUNLEYE V. MILITARY ADMINISTRATOR, ONDO STATE (1996) 9 NWLR (PT. 471) 176; ALOM V. AMENGER (1997) 7 NWLR (PT.514) 578.
The second ground of the preliminary objection relates to the evaluation of Exhibits "E" and "F" by the learned trial judge in his judgment. Learned Counsel doubts whether Exhibit "F" was registered because it was not copied. The said Exhibit "F" is a Certified True Copy of the Deed of Conveyance executed between the Oba of Benin and the Late Donald Idiaghe Omoregie dated 13th March, 1963, which the defendant alleged covered the land willed to Mrs. Melodia Omoregie's son.
The remaining part of the submissions of Chief Uzamere, relate to the probative value of Exhibits "B" and "F" which were the roots of title of the 1st respondent and appellant respectively. Thereafter, learned Counsel veered into the essence of brief writing and the rules of court bordering on it, which I do not consider relevant to the determination of the second ground upon which the preliminary objection is predicated.
Responding to the preliminary objection at the instance of the respondents, the learned Counsel Ade Okeaya-Inneh, SAN, in the Appellant's Reply Brief of Argument, first contended that there is no notice of a preliminary objection filed by the respondent, as required under Order 3 Rule 15(1) of the Court of appeal rules, 2002. The learned senior counsel's contention is that a formal notice of preliminary Objection ought to have been filed by the respondents, giving three clear days' notice to the appellant, before the hearing of the appeal. He relied on NEPA V. ANGO (2001) 15 NWLR (PT. 737) 627 at 645; ONOCHIE V. ODOGWU (2006) 2 SC (PT. 11) 153 at PP. 155 - 156; NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) 285 at 297; ABIOYE V. AFOLABI (1998) 4 NWLR (PT.545) 296 at 304 -305 and urged that the preliminary objection be struck out.
Learned Senior Counsel in his response on the merits of the preliminary objection, submitted that the appellant's brief is properly before the Court and it is in no way defective. And that assuming without conceding that the said brief is defective, the authorities say that such a brief nonetheless, must be looked at by the Court. He relied on OBIORA V. ISELE (1989) 1 NWLR (PT.97); BABATUNDE V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & 2 ORS (2007) 4 SC 1 at 71; AKPAN V. THE STATE (1992) 6 NWLR (PT.248) 439.
With respect to the respondents' contention that appellant's grounds of appeal are incompetent, learned Senior Counsel submitted that this Court granted leave to the appellant to file the notice and grounds of appeal which were exhibited to the application for leave to appeal and that the said leave was granted by the Court having found that the grounds of appeal were arguable and substantial.
Therefore, according to learned senior Counsel, this Court cannot now sit on appeal upon its own ruling, in respect of the leave granted to the appellant to appeal out of time.
With respect to the 3rd ground of appeal, couched as misdirection, the learned Senior Advocate for the appellant submitted that the authorities of this court and the Supreme Court are very instructive, to the effect that the fact that a ground of appeal is framed as an error in law and misdirection does not make it incompetent. He referred to ADERONMU v. OLOWU (2000) 4 NWLR (PT. 652) 253 at 265 - 266; NTEOGUIJA & ORS V. IKWU & ORS (1998) 10 NWLR (PT. 569) 267 at 310; AIGBOBAHI V. AIFUWA (2006) 2 SC (PT. 1) 82 at 89.
Responding on the second ground of the preliminary objection, learned senior counsel submitted that the submissions of the respondents' Counsel in respect of the legal consequence of Exhibit "F" were better left for a consideration in the main appeal and not as a basis for a preliminary objection. He therefore urged that the same be discountenanced and that the preliminary objection, be overruled.
I have considered the contention of the learned Senior Counsel to the appellant to the effect that the respondents' preliminary objection is incompetent because of its non-compliance with Order 3 Rule 15(1) of the Court of Appeal Rules, 2002. Undoubtedly, the respondents' brief of argument was prepared and filed in July, 2006 pursuant to the then extant 2002 Rules of this Court. Order 3 Rule 15(1) of the said 2002 Rules, says:
"A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days' notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time."
It is noteworthy that Order 10 Rule 1 of the Court of Appeal Rules, 2007 and Order 10 Rule 1 of the Court of Appeal Rules, 2011, are in pari materia with Order 3 Rule 15(1) of the 2002 Rules of this Court. In the instant case, I have perused all the processes filed by the parties and it is glaring that the respondents did not file a formal notice of their preliminary objection in accordance with Order 3 Rule 15(1) of the 2002 Rules of this Court which was in force when the respondents' brief of argument was filed in July, 2006.
The authorities of NEPA V. ANGO (2001) 15 NWLR (PT.737) 627 at 645; ONOCHIE V. ODOGWU (2006) 2 SC (PT. II) 153 at PP. 155 - 156 and NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) 285 at 297 by this Court and the Supreme Court respectively were to the effect that a formal notice of preliminary objection must be filed by the respondent before the hearing of the appeal "so that argument on it can be heard in Court." However, in NSIRIM V. NSIRIM (supra) the learned jurist - my Lord OBASEKI, JSC indicated that: -
"While notice of preliminary objection may be given in the brief, it does not dispense with the need for respondent to move the court at the oral hearing of the relief prayed for."
It meant that in as much as a respondent intending to raise a point of law in a notice of preliminary objection to the hearing of the appeal, could formally file such a notice, he can also raise such a notice of his preliminary objection, in his brief of argument and at the hearing of the appeal, he moves the Court on the same preliminary objection notified in his brief of argument.
Undeniably, the essence of the notice whether formal or vide a brief of argument of the respondent, is to ensure that the appellant has an opportunity of reacting to the preliminary objection before the hearing of the appeal. This is now commonly done by the appellant through the filing of a Reply Brief of Argument.
Hence, the Supreme Court recently in CHARLES CHIKWENDU ODEDO V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2008) 17 NWLR (PT.1117) 554; (2008) 7 SCNJ 1 at 25; (2008) 7 SC 25 provided a guide as to how a preliminary objection can be raised in a brief of argument. It is to be raised under a conspicuous title or heading: PRELIMINARY OBJECTION, and followed by the grounds of the objection and supported with the argument thereon. Also see: CHIEF EMMANUEL OSITA OKEREKE V. ALHAJI UMARU MUSA YAR-ADUA & ORS (2008) 5 SCNJ 1; (2008) ALL FWLR (PT.430) 626; (2003) 8 MJSC 182; (2008) 12 NWLR (PT. 1100) 95; (2008) 34 NSCQR 370; RALP UWAZURIKE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) 2 SCNJ 369 at 380; (2007) 40 WRN 79; (2007) 2 SC 169; (2007) 8 NWLR (PT. 1035) 1; (2007) ALL FWLR (PT.387) 834 and the more recent decisions of this Court in His Excellency, MR. AYO FAYOSE (EXECUTIVE GOVERNOR, EKITI STATE V. INDEPENDENT COMMUNICATION NETWORK & 3 ORS (2012) 10 WRN 147 at 167 - 168; DR. ERATUS B.O. AKINGBOLA V. THE CHAIRMAN, ECONOMIC & FINANCIAL CRIMES COMMISSION (2012) 9 NWLR (PT.1306) 475 at 497.
For all I have been saying, I am of the considered opinion that the preliminary objection at the instance of the respondents, having been notified in their brief of argument and to which the appellant responded in her Reply brief of Argument, the non-filing of a formal notice of preliminary objection by the respondent, is not fatal to nor does it infirm the said preliminary objection. I am satisfied that the respondents' preliminary objection is competent and I now proceed to consider and determine it.
The first ground upon which the preliminary objection was anchored is that the appellant's brief of argument is defective. I have duly considered the submission of each counsel on this ground of the preliminary objection. I must say that I am unable to see any defect in the appellant's brief of argument. Learned Counsel to the respondents, made a heavy weather in respect of the appellant's grounds of appeal as being incompetent. I am afraid, I do not have the power to undo what this Court per Akaahs, JCA (now JSC) did in 2003 when leave was granted to the appellant to file her notice and grounds of appeal. That order is extant. It has not been appealed against and even if it were appealed against, I certainly lack the jurisdiction to entertain it.
Chief Uzamere, furthermore contended that there were no proper issues formulated by the appellant for the determination of this appeal.
Having perused the three issues formulated by the appellant in her brief of argument, I have no doubt at all in understanding the complaint of the appellant in each of them. The issues may not have been couched elegantly to the satisfaction of learned Counsel to the respondents. To my mind, that is a matter of the semantics of the language employed in the couching of the issues by the appellant. In any event, I understand the issues as they are straight forward and concise and they are each related to the respective grounds of appeal. For, every issue formulated for determination in an appeal must be predicated on a ground of appeal and so no issue can be entertained if it is formulated in vacuo or from the air. See KHALED CHAMI V. UNITED BANK FOR AFRICA PLC (2010) 2 SCNJ 23 at 36.
In sum, the preliminary objection on ground one, to my mind, is bereft of merits and it is therefore over-ruled.
With respect to the second ground of the preliminary objection, learned Counsel to the respondents forcefully argued that since Exhibit "F" was not copied, there is an insufficiency of materials which this court will utilise in determining this appeal. I have perused page 38 of the records of appeal transmitted to this court and it is clear to me that at lines 25 - 30 thereof, it was recorded manifestly:
"Certified True Copies of a Will and a Deed of Conveyance was by consent of Counsel admitted in evidence and marked Exhibit "E" and "F" respectively."
Therefore, whether or not the said Exhibits were copied, they were admitted in evidence and transmitted to this court as part of the records of appeal. So, Exhibits "E" and "F" along with all other exhibits tendered and admitted in evidence at the Court below, are physically before this court.
The submissions of Chief Uzamere, for the respondents, touching on the probative value to be attached to Exhibit "F" vis-à-vis Exhibit "B", with respect, is tantamount to putting the cart before the horse. It has no place appropriately in a preliminary objection. One cannot cross the bridge before getting to the bridge. Therefore, those submissions are discountenanced at this stage as they will be adequately considered in the main appeal.
In all, I am satisfied that the preliminary objection on this ground also fails. Thus, essentially, the preliminary objection at the instance of the respondents is lacking in merits, on all grounds canvassed and it is accordingly dismissed.
Now, to the real meat in this appeal, I adopt the three issues formulated by the appellant for determination of this appeal. I shall consider and determine them together.
The submission of learned Counsel to the appellant on issue 2 is to the effect that the learned trial Judge failed to give effect or consider the legal implication of the evidence proffered at the trial with regard to the root of title - Exhibit "B" of the Plaintiffs/respondents and Exhibit "F" of the defendant/appellant. He contended that the appellant's root of title - Exhibit "F" having been made on 13th March, 1963 ranked first in creation to the 1st respondent's root of title - Exhibit "B" which was made on 1st April, 1976.
Learned senior Counsel furthermore submitted that the appellant's root of title which was based on a registered Deed of Conveyance and earlier in time was far better that the subsequent and later approval of the 1st respondent's Exhibit B. He referred to the authorities of SNELLS EQUITY 29th Edn. Page 46, Section 1 Page 59, Section B; PHILIPS V. PHILIPS (1862) DE. G. F & J, 208 at 218 (SNELLS EQUITY, Page 47); THOMAS V. POESTON HOLDER 12 WACA 78; UGBO V. ABURIME (1994) 8 NWLR 1 at 19.
And with particular reference to the doctrine of creation of priorities under Bini Customary Land Law, he submitted that the authorities are agreed that in two competing titles to a parcel of land, it is not the question of who first obtained the Oba's approval, but who has made a good title to the land in question. He relied on AWOEGBE V. OGBEIDE (1983) 1 ALL NLR (?); ATITI GOLD V. BEATRICE OSSAREREN (1970) 1 ALL NLR 132; UGBO V. ABURIME (supra) at page 20 thereof; BELLO V. EWEKA (1981) NSCC 48 at 55. He urged that the Deed of Conveyance executed in 1963 (Exhibit "F") between the common grantor - the Oba of Benin, Akenzua II and the appellant's predecessor in title was a better title to the later approval vide Exhibit "B" of 1976 by the same Oba Akenzua in favour of the 1st respondent, over the same parcel of land.
Arguing issue 2 the learned Senior Counsel to the appellant submitted that the evidence led by both parties at the trial was clear of the fact that both of them know the exact area of the land in dispute, hence the identity of the land in dispute was not an issue at the trial. He furthermore contended that it was the duty of the 1st respondent to prove the identity of the land and not that of the appellant, as opined by the learned trial judge. He relied on EPI V. AIGBEDION (1972) 10 SC 53; ARABE V. ASALU (1980) 5 - 7 SC 78; Section 135 (1) of the Evidence Act.
With respect to issue 3, the learned Silk for the appellant, submitted that since there is evidence at the trial that the 1st respondent gave one of her plots to her sister, and sold the other plot of 100' x 100' to another person - Felix Adogba, she had divested herself of title in the entire land, hence she had nothing more in respect of that parcel of land upon which to maintain an action. Therefore, the learned trial judge ought not to have granted a declaration of title of the land to the 1st respondent. He urged that the appeal be allowed.
Chief Osahemi Uzamere, of learned Counsel to the respondents, arguing his sole issue for determination, submitted that Exhibit "F" which the appellant heavily relied upon as her root of title through Mrs. Melodia Omoregie was never made in favour of the said Mrs. Omoregie, who could not have been her predecessor in title to the land in dispute. He referred to Exhibit "E" - the Will of Donald Idiaghe Omoregie under which one Daniel Imuetinyan is a beneficiary of a parcel of land and not Mrs. Melodia Omoregie as a beneficiary under the aforementioned Will of Donald Idiaghe Omoregie. He furthermore submitted that Exhibit "F" did not confer title to anybody because a Deed of Conveyance becomes relevant only after the Oba of Benin had granted an approval of a parcel of land to a person, under Benin Native Law and Custom. He was emphatic that a root of title cannot be based on a registered Deed of Conveyance, because the Oba of Benin's approval is not subsequent to a Deed of Conveyance which is subsequent (becoming relevant) after the Oba's approval of a parcel of land. He referred to the book: Materials and cases on Benin land Law at page 35 by (Justice R. I. Ogbobine. He also relied on K. S. OKEAYA V. MADAM EKIOMADO AGUEBOR (1970) 1 ALL NLR 8 - 9; AKHIONBARE & ORS V. OMOREGIE & ORS (1970) 1 ALL NLR 125 at 132; AIGBE v. EDOKPOLOR (1977) 2 SC 1; FINNIH V. IMADE (1992) 1 NWLR (PT.219) 511.
Chief Uzamere, furthermore submitted that with the pieces of evidence proffered by the respondents and their witnesses and supported with Exhibit "B", the 1st respondent had on a balance of probalities established her title to the land in dispute. Relying on IJADE V. OGUNYEMI (1996) 9 NWLR (PT.470) 17 at 22, learned Counsel submitted that since the findings of the trial court has not been shown to be perverse and unreasonable, this Court will not interfere with the said findings.
He further submitted that the strength of the respondents' claim is better than that of the appellant. He relied on ARASE V. ARASE (1981) 5 CS 33; AJIBONA V. AJIBONA (1996) 10 NWLR (PT.476) 22. He added that if Exhibit "G" - an Indenture at the instance of the appellant was registered, it could have conferred title to the land in dispute on her, but the said Exhibit 'G' was not registered as provided for under the Land Instrument Registration Law of Bendel State (now Edo State), 1976.
Learned Counsel furthermore in justifying the finding of the learned trial judge that it was not enough to have merely tendered Exhibits "B" and "F" in evidence, submitted that the appellant did not lead evidence to establish a nexus between Exhibits E & F and Exhibit "G", which in any event, was not registered as required by law.
Chief Uzamere, also submitted that the fact that the 1st respondent had given part of her land in Exhibit B, to a person and sold the other part to another person, does not erase the fact that she was the original owner of that parcel of land. And that, in any case, that issue was not raised at the court below and no leave of this court was obtained by the appellant to raise it here. He referred to ONOSHOSA v. ODIAZON (1999) 1 NWLR (PT. 586) 173.
Finally, learned Counsel to the respondents, submitted that the learned trial judge having properly evaluated the pieces of evidence proffered before him and rightly made his findings on them, it is not the business of this court, to substitute its own views for the views of the trial court. He relied on AKPALA V. IGBAIBO (1996) 8 NWLR (PT.468) 533; ORUBOKO v. ORUEME (1996) 7 NWLR (PT.463) 555; ONWUEGBU v. OKOYE (1996) 1 NWLR (PT.424) 452; AMADI v. NWOSU (1992) 5 NWLR (PT.214) 273; AKUYILI V. EJIDIKE (1996) 5 NWLR (PT. 449) 381; AJIBI V. OLAEWE (2003) 8 NWLR (PT.822) 237 at 270-271; KAVOPTOE v. ISENIYI (1999) 4 NWLR (PT.600) 571 and urged that this appeal be dismissed.
The claim of the 1st respondent regarding her root of title to the land in dispute is Exhibit "B" - the approval of her application for the parcel of land situate at ward 40/A, Ogbeson, Benin City, measuring 100 ft x 200 ft and bounded by Ward Beacon Blocks Nos. 282, 379 -377,400; by the Oba of Benin, Akenzua II in 1976.
The appellant on the other hand, traced her root of title to the same parcel of land vide Exhibit "F" which is a Deed of Conveyance executed between the Oba of Benin - Akenzua II and one Donald Idiaghe Omoregie in 1963.
The learned trial Judge formed the opinion that the mere putting in evidence of Exhibits "B" and "F" is not enough to prove title to the land in dispute. Exhibit B was tendered and admitted in evidence at the instance of the 1st respondent in aid of proving her title to the land in question. Exhibit "F" was tendered and admitted in evidence at the instance of the appellant in order to establish the root of her title to the same parcel of land. Therefore, there are two competing claims on the land.
Generally, the law has been well established that in a claim for a declaration of title to land, it is the Plaintiff who has the burden of establishing prima facie, that he is entitled to the declaration he seeks from the Court. And this, he must do on the strength of his own case and not to take solace in the weakness of the defendant's case, except where the latter's case favours him - the Plaintiff, then he can take advantage of it in establishing his claim. See WOLUCHEM V. GUDI (1981) 5 SC 291; MOGAJI V. CADBURY (NIG) LTD (1985) 2 NWLR (PT.7) 393; MR. AUDU OTUKPO V. APA JOHN & ANOR (2012) 7 NWLR (PT. 1299) 357 at 376 -377.
The learned trial judge in considering the Plaintiffs' claim and the legal effect of Exhibit "B" said:
"The Plaintiffs in evidence and per Exhibit "B" have established in my view, the land in dispute was acquired in accordance with the procedure laid down under the Bini Customary Law."
The learned trial judge relied on FINNIH V. IMADE (1992) 1 NWLR (PT.219) 511 at 539, where the revered learned law Lord, NNAEMEKA - AGU, JSC, succinctly stated the mode of acquisition of land under Benin Customary Law, thus: -
"... before the promulgation of the Land Use Act, title to land in Benin was provable not from the grant or convenancy of the land by any other person but from the date of the approval of a grant by the Oba of Benin. This is because all lands in Benin Division were vested in the Oba of Benin who was the trustee or legal owner thereof who held it on behalf of all Benin people who were beneficiaries thereof. The whole of Benin City was divided into a number of Wards, each with its Plot Allotment Committee which made recommendations of "trouble free" plots for grant to grantees. The signature of approval of the Oba of Benin of any application recommended by a plot Allotment Committee signified the commencement of the title of the grantee who became a beneficial owner of the plot. See on this; K. S. Okeaya v. Madam Ekiomado Aguebor (1970) 1 All NLR 1 at pp. 8 - 9; Aikhionbare & Ors v. Omoregie & Ors (1976) 12 S.C. 11 and Aigbe v. Edokpolor (1977) 2 S.C. 1"
Thereafter, the learned trial Judge came to the conclusion that the Plaintiffs led credible evidence which showed that Exhibit B was in accordance with the "fundamental principles governing acquisition of land under Bini Native Law and Custom..."
I am of the firm and considered opinion that at that stage, the Plaintiffs had been shown to have established prima facie, their root of title to the land in dispute. But that would not be the end of the matter. The learned trial Judge, also rightly in my view, considered the appellant's root of title which she traced to Exhibit "F" - the Deed of Conveyance aforementioned and Exhibit "E", the Will of Donald Idiaghe Omoregie, in order to determine whether or not the appellant's root of title was better than that of the 1st respondent.
The trial judge found that "Mrs. Melodia Omoregie from who she (appellant) alleged to have acquired the piece of land in dispute is not a beneficiary of the Will - Exhibit "E" and no credible evidence is available to link her up with Exhibit "F" the Deed of Conveyance" and came to the conclusion that the defendant's (appellant's) "root of title is not in accordance with Bini Customary Law at all."
I am at pains in comprehending the complaint of the appellant that the learned trial judge did not consider the legal effect of Exhibits "B" and "F". He certainly did as I have highlighted above. The evidence proffered by the Plaintiffs and their witnesses - PW1, PW2 and PW3 clearly and manifestly demonstrated that Exhibit "B" passed the acid test laid down in FINNIH V. IMADE (supra) in respect of the mode of acquiring a parcel of land in Benin City, through the Ward Plot Allotment Committee, set up by the Oba of Benin. On the other hand, Exhibit "F" was not on a strong foundation, since Mrs. Melodia Omoregie - the alleged predecessor-in-title to the appellant, was certainly not a beneficiary of the property of Donald Idiaghe Omoregie vide his will in Exhibit "E". In other words, for Exhibit "F", to have been of any effect, there ought to have been first a grant or approval of the parcel of land by the Oba of Benin to Donald Idiaghe Omoregie before the execution of the said Deed of Conveyance - Exhibit "F". For, under the Benin Customary Land Law, an approval or grant of a parcel of land by the Oba of Benin precedes a deed of conveyance in respect of such land. See FINNIH V. IMADE (supra). It follows that if Exhibit "F" was on a faulty foundation, so also Exhibit "E" was on a sandy foundation and any title founded on them would legally fall.
The learned Senior Counsel to the appellant made a heavy weather of the doctrine of priorities under Benin Customary Law. Indeed, the law is on a strong wicket, having been solidly and firmly established beyond reproach that where two persons, lay claim of title to a parcel of land, from a common grantor, the first in time clearly takes priority, because he is stronger in law. Therefore, at law and also in equity, the doctrine is that estates and interests primarily rank in the order of their creation. So, he who is earlier in time is stronger in equity. That is the rationale for the maxim: qui prior est tempore est jure. See ILONA V. IDAKWO (2003) 11 NWLR (PT.830) 53; ADELAJA V. FAMOIKI (1990) 2 NWLR (PT.131) 137; AUTA v. IBE (2003) 13 NWLR (PT.837) 247; UGBO v. ABURIME (1994) 8 NWLR (PT.360) 1; ROMAINE V. ROMAINE (1992) 2 SCNJ 25; OKELOLA V. ADELEKE (2004) 7 SCNJ 103 at 111; ERO V. TINUBU (2012) 8 NWLR (PT.1301) 104; I.B.B IND. LTD V. MUTUNCI CO. (NIG.) LTD (2012) 6 NWLR (PT.129) 487 at 524.
The doctrine or principle, however applies per force, only where the equities are equal. Where as in this case, the learned trial judge found and I entirely agree with him, that Exhibit "B" passed the acid test in respect of the acquisition of land under Benin Customary Law as against Exhibit "F" which did not, the mere fact that the latter was executed earlier in 1963 before the creation of Exhibit "B" in 1976 did not make them to be on the same footing. Therefore, the said principle does not strictly apply in the circumstances of this case.
With respect to the contention of the appellant that the learned trial judge was in error when he said the appellant ought to have testified as to the exact area of land acquired by Mrs. Melodia Omoregie and so had thus put the onus of proof on the defendant/appellant, I think that, that finding by the learned trial judge needs be put in its proper perspective. At page 52 of the records of appeal, the learned trial judge, reproduced paragraph 15 of Exhibit E - the Will of Donald Idiaghe Omoregie. In the said Exhibit "E", at paragraph 15, the testator willed that:
"(15) My farm at Ogbeson Village of 42 acres is to be divided in the ratio of 9, 8, 7, 6, 5, 4, 3, 2, 1 respectively for Godwill, Lucki, Charles, Osamuede, Isoken, Victor, Idurayi, Imuetinyan and Osabuohien."
Then at page 53 of the records, the learned trial judge said:
"It is not made clear from the above the exact area or portion of the land allocated to each of the beneficiaries stated above and the defendant did not testify as to the land acquired by Mrs. Melodia Omoregie from Exhibit "F" for and on behalf of her son Daniel Imuetinyan Omoregie - a beneficiary of Exhibit "F"."
Now, was it the duty of the respondents to know the exact area or portion of the land allocated to each of the beneficiaries of Exhibit E and more particularly, the exact portion of land allocated to Mrs. Melodia Omoregie's son - Imuetinyan Omoregie? Was that fact not within the knowledge of Mrs. Melodia Omoregie - the alleged predecessor-in-title to the appellant and also within the knowledge of the appellant herself who ought to have known exactly the land she was buying from Mrs. Melodia Omoregie?
Section 135(2) of the Evidence Act 2011, says:
"When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
I am not impressed by the submission of learned Senior Counsel to the appellant that the burden of proof in civil claim does not shift and that it is static and remains only and solely on the Plaintiff. I am afraid, that does not, with respects, represent the law.
In civil claims, in as much as the burden of proof initially rests on the Plaintiff to prima facie, establish his claim, there is a contingent burden on the defendant to rebut the claim and prove the existence of any fact within his own knowledge, in order to defeat the Plaintiff's claim. The law and the authorities are clear to the effect that the burden of proof on a Plaintiff seeking a declaration of title to land is for him to establish his case prima facie and thereafter the burden shifts to the defendant to disprove or defeat the claim and thereafter the trial Court examines the evidence put forward by both parties and weigh them together on an imaginary scale, in order to determine which side preponderates. See ANUONYE WACHUKWU & ANOR V. AMADIKE OWUNWANNE & ANOR (2011) 5 SCNJ 197 at 212; GABRIEL A. OGUNDEPO & ANOR V. THOMAS E. OLUMESAN (2011) 12 SCNJ 89 at 99; A.R. MOGAJI V. ODOFIN (1978) 4 SC 91 at 94 - 96; NICON V. POWER IND. ENGINEERING CO. LTD (1986) 1 NWLR 1 at 27; NZERIBE V. DAVE ENGINEERING CO. LTD (1994) 9 SCNJ 16 at 173.
For, it is who asserts the positive, who had the duty to lead evidence and establish it before the burden of proof shifts to the other party, to establish the negative assertion. This position of the law was succinctly explained by my Lord, Niki Tobi, JSC in General Muhammadu Buhari V. Independent National Electoral Commission (INEC) 2008) 9 NWLR (Pt. 1120) 240 at P.421, to wit:
"This position reminds one of the decision of this court in ELEMO V. OMOLADE (1968) NWLR 359, where it was held that burden of proof has two distinct and frequently confusing meanings. It means (a) the burden of proof as a matter of law and pleadings; the burden as it has been called of establishing a case whether by preponderance of evidence or beyond reasonable doubt; and (b) the burden of proof in the sense of introducing evidence. As regards the first meaning attached to the term, "burden of proof" this rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstances whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which later the pleader cannot frequently vary at will. A negative must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party's case, the proof of such allegation rests on him. While the burden in the first sense
is always stable, the burden of proof in the second sense may shift consistently more as one scale of evidence or the other preponderates. In the sense, the onus probandi rests upon the party who will fail if no evidence at all or no evidence is gone into upon the party asserting the affirmative or the party against whom the Tribunal at the time the question arises would give judgment if no further evidence were adduced. The test as to who is to begin is determined by asking how judgment would be entered on the pleadings if no evidence at all was given on either side. The party against whom judgment would in that event be given is entitled to begin..."
In the circumstances, I have no difficulty in resolving issue 2 against the appellant.
With respect to issue 3, the contention of the appellant that since the 1st respondent had given part of the land in question to the 2nd respondent and also sold the other part to another person, the 1st respondent no longer had any interest in the said land, it appears to me that contention is oblivious of the fact that the area of dispute in this case concerns the area of 100' x 100' given out by the 1st respondent to the 2nd respondent. The case at the court below was a joint claim by the respondents, which was in respect of the entire plot contained in Exhibit B.
I have perused lines 32 to 33 at page 45 of the records of appeal wherein the learned trial judge rehashed the 1st Plaintiff/respondent's evidence in respect of a part of the land she sold to one Felix Adogba. This was not a finding by the learned trial judge, as submitted by learned Senior Counsel to the appellant. I have also perused lines 25 - 30 at page 46 of the records of appeal wherein, the learned trial judge rehashed the evidence of the PW.1, to wit:
"That the piece of land approved in Exhibit B is 100' x 200' and that the 1st Plaintiff gave 100' x 100' in Exhibit B to the 2nd Plaintiff and sold the remaining 100' x 100' to someone."
This was not a finding by the learned trial Judge as submitted by learned senior Counsel to the appellant.
Indeed, the findings of the Court below are contained at pages 53 to 54 only of the records of appeal. There was no finding by him in respect of the gift neither of 100' x 100' out of the land in dispute to 2nd Plaintiff by 1st plaintiff nor of the sale of 100' x 100' out of the same land in Exhibit "B" to Felix Adogba. Therefore, the submissions of learned Senior Counsel to the appellant premised on the fact that the learned trial judge made some findings which he did not, are misconceived and are hereby discountenanced. Issue 3 therefore fails.
In sum, the appeal fails on all grounds of appeal and issues canvassed by the appellant. Accordingly, the appeal is dismissed.
The judgment of S.F.E. AKHIGBE, J., of 25th October, 1995 in respect of the Suit NO. B/66/90 is hereby affirmed.
I award costs of N50, 000.00 only to the respondents.
HELEN MORONKEJI OGUNWUMIJU J.C.A.: I have read the erudite judgment just delivered by my learned brother TOM SHAIBU YAKUBU, JCA. I agree with his reasoning and conclusion that the appeal be dismissed. I will add a few words.
The main complaint by the Appellant in this appeal is that the learned trial Judge was in error not to have concluded that the Appellant's root of title which was based on a registered Deed of Conveyance and earlier in time was far better than the 1st Respondent's claim to the land. His argument is that since the Appellant relied on Exh. 'F' a deed of conveyance executed in 1963 between the Oba of Benin Akenzua II and the Appellant's predecessor in title, it is a better title than the later approval vide Exh. 'B' executed in favour of the Respondent in 1976.
There is no doubt that facts are the fountainhead of law. Let us look at the bare facts. The Appellant traced her root of title to Exh. 'F', the Deed of Conveyance and Exh. 'E' the will of one Donald Idiaghe Omoregie. I have read the record, and I have to agree with the finding of the trial Judge that in the will of Donald Omoregie the original grantee of the land Mrs. Melodia Omoregie was not mentioned as a beneficiary to enable her transfer any title or interest whatever to the Appellant or anyone else. Indeed there appears to be no nexus between the Appellant and Exh. 'F'. Most important is that there is no evidence proffered by the Appellant that before Exh. 'F' was executed there was first a grant of the said land by the Oba of Benin to Donald Idiaghe Omoregie. 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 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. The decision of law as laid down in FINNIH V. IMADE (1992) 1 NWLR pt. 219 pg. 511 at 539 is clear. The root of title of any person laying claim to land in Benin is derived from the date of the approval of the grant or allocation of that land by the Oba of Benin since all lands in Benin is vested in the Oba of Benin.
Without proof that the Appellant's grantor derived title to the land by grant or approval from the Oba of Benin, prior to the Oba's grant to the Respondent, her insistence of having a prior registered legal title to the land does no good. The doctrine of priorities much harped upon by Appellant's Counsel would have availed her if her title was created first in time and according to Benin native law and custom.
There is no doubt that interest in land rank in the order of their creation. Thus the first in time takes priority in equity and law. However, a claimant whose root of title is nebulous or bad cannot take priority even if there is a deed pretending to lend legality to the claim. It is only where equities are equal that the first in time prevails. In this case only the Respondents proved that they were possessed of a valid grant from the Oba of Benin.
In the circumstances, this appeal fails. I abide by the order as to costs in the lead judgment. Judgment of the trial court in Suit B/66/90 is hereby affirmed.
TUNDE OYEBANJI AWOTOYE J.C.A.: I had a preview of the lead judgment just delivered by my learned brother T.S. YAKUBU JCA. I agree entirely with his reasoning and conclusions. I have nothing more to add.
This appeal lacks merit. It is accordingly dismissed. I also award costs of N50, 000 only to the Respondent.
Ade Okeaya-Inneh, SAN, (with him: V.O. Okhuire, Esq.) For the Appelants
Chief Oaheni Uzamere (with him: Mrs. S.O. Ezomo) For the Respondents