William Evbuomwan Vs Jonathan Elema (1994)

LawGlobal-Hub Lead Judgment Report

ADIO, J.S.C. 

The respondents’ claim in an action filed by them against the appellants in the Benin Judicial Division of the High Court of the defunct Bendel State of Nigeria was as follows:-

“1. A declaration that the demarcation of building plots made by the defendants on the parcel of land subject of customary grant by the Oba of Benin, Akenzua II, dated 26th November, 1963 in favour of Chief Felix Owen Elema measuring 5,000 feet by 556 feet by 4780 feet by 3130 feet and by 3000 feet within Oko village area, the said land delineated in survey plan No. OM1670 in conveyance registered as No.22 at page 22 in volume 253 of the lands Registry embracing the said land in dispute in physical possession of the plaintiffs within Benin Judicial Division is ultra vires, illegal, unconstitutional, null and void. The said land will be particularly delineated in a survey plan to be filed in this action.

2. An order of perpetual injunction restraining the defendants, their servants and/or agents from further entering upon any part of the said parcel of land.
3. N100,000.00 (One Hundred Thousand Naira) being general damages against the defendants for acts of trespass already committed in the said parcel of land.”

Pleadings were duly filed and exchanged. The evidence led was that the respondents were the administrators and the beneficiaries of the estate of one Chief Felix Owen Elema who was their late father. Chief Elema was a traditional Chief. He acquired in his lifetime some parcels of land in accordance with Benin customary law, including the land in dispute, which was in Oko village area. He was in possession of the land in dispute up to the time that he died on the 14th February 1986. The respondents were granted letters of administration of his estate. What prompted the respondents to bring this action against the appellants was that sometime the appellants began to demarcate the land in dispute into plots with a view to allocating the plots of land to members of their community.

According to them, the land in dispute was their (appellants’) community land and that it was not granted to the late Chief Elema in accordance with the Bini customary law. They also took the view that the Oba of Benin was misled in granting the land in dispute to the late chief.

The learned trial Judge after evaluating the totality of the evidence before him and due consideration of the submissions of the learned counsel to the parties, entered judgment for the respondents. It was the view of the learned trial Judge that the identity and extent of the land in dispute were established. He held that the late chief acquired a valid title to the land in dispute under the Bini customary law and that he was in possession of it at all material times. He also found that the respondents had power to institute the action. Dissatisfied with the judgment, the appellants appealed to the Court of Appeal. The court below dismissed the appellants’ appeal. It affirmed the finding of the learned trial Judge that the late chief acquired a valid title to the land in dispute under the Bini customary law and that the respondents were competent to institute this action against the appellants.

It also affirmed the finding of the learned trial Judge that the identity and the extent of the land in dispute were established. Dissatisfied with the judgment, the appellants had lodged a further appeal to this court.

The appellants and the respondents. in accordance with the rules of this court, duly filed and exchanged briefs. The appellants identified three issues for determination, based on their grounds of appeal in their brief. In addition, they indicated in their brief their intention to apply for leave to introduce new points not hitherto taken. The new points were argued in their brief. The respondents did not formulate any issues in their brief, for determination. They adopted the issues

identified for determination in the appellants’ brief which were as follows:-

“(1) Whether the respondents were competent to sue in this case or, in other words, whether they possessed locus standi or standing to sue.

(2) Whether the respondents established clearly the area and extent of the land put in dispute by them.

(3) If the answer to issue 2 above is in the affirmative, whether the Court of Appeal was right in upholding the decision of the trial court to the effect that the late Chief Felix Owen Elema had valid title at all material times to the land in dispute according to Bini customary law.”

Musdapher, J.CA. who read the lead judgment of the court below, after making reference to the finding of the learned trial Judge on the question raised under the first issue, said inter alia as follows:-

“In my view, the capacity of the respondents to sue as the administrators of the estate of their father of which they were the beneficiaries was beyond any doubt. Even if by Exhibit D, the estate was conveyed to him as the secretary of the trustees and the beneficiaries and not to him personally or beneficially ………………………………………………….Exhibit D did not clearly or in any manner divest the respondents from their control or ownership of the land in dispute. It merely for the ease of administrative purposes allowed the third respondent to deal with the land for and on behalf of all the respondents ………………………… In any event, there was contained in Exhibit C, a deed, reconveying the land in dispute to the respondents.”