Enawakponmwhem Aighobahi & Ors V. Chief Edokpayi Aifuwa & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin Division, in appeal No. CA/B/115/99 delivered on 14th December, 2000 in which it dismissed the appeal of the present appellants against the judgment of Edo State High Court holden at Abudu in suit No. HAB/11/87 delivered on 3rd October, 1997 in which it granted the reliefs claimed by the plaintiffs/respondents.

The claims of the respondents as plaintiffs at the High Court are as follows:

(a) A declaration that in accordance with Bini customary law and tradition, the plaintiffs the people of Iguomo village, Uhunmwode Local Government Area of Edo State are persons vested with all existing right to the use and occupation of all that piece or parcel of land lying being and situated at Iguomo village in Uhunmwode Local Government Area, verged pink in survey plan No. ISO/BD/1358/87 of 14/10/87 filed in this action.

(b) A declaration that the plaintiffs by virtue of their rights, particularly farming rights and occupation over the said land are entitled to the grant of customary rights of occupancy in respect of the said parcel of land verged pink in survey plan No. ISO/BD/1358/87 of 4/10/87 filed in this action, the said land not being in an urban area.

(c) An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents and or any person claiming through or under them or whosoever from entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use and occupation of the land or any part thereof in delegation of the plaintiffs’ right or interest as vested from time immemorial.

On the other hand and by way of counter-claim, the defendants now appellants, claimed against the respondents in the following terms:

(a) That from time immemorial and prior to the Land Use Act the plaintiffs have been the customary owners of all that area as shown in the dispute survey plan verged pink in survey plan No. OSN1952/89 filed with the statement of defence.

(b) That notwithstanding the change in the radical title to land by reason of the Land Use Act, the plaintiffs’ vested rights, interests and/or customary rights of use and occupation over the area in dispute remains in force and effective.

(c) An order for forfeiture of the defendants’ right over the entire land, in that the defendants being customary tenants, now claim title or ownership of the land against the plaintiffs (their overlords) and/or for failure to pay their usual or annual tributes or homage as customary tenants of the plaintiffs.

(d) An order of perpetual injunction restraining the defendants their agents, servants or privies from further asserting their rights of ownership over the land in dispute or howsoever doing or continuing to do anything inconsistent with the vested rights of the plaintiffs over the area in dispute.

From the reliefs reproduced (supra) it is very clear that the claims of the parties to ownership of the land in dispute are based on traditional history as given effect to by the relevant customary law.

The case of the respondents who are natives of Iguomo village is that they have been the original owners in possession of a large piece or parcel of land including the portion now in dispute between the parties, from time immemorial which land is situated and lying at Iguomo village and founded by one Imadegue who deforested and settled therein; that the Iguomo village was originally known as Imadequen but was later changed to Iguomo by Oba Ozolua when he visited the village and met only women due to the fact that the male members of the community had committed suicide before his arrival; that they had since exercised acts of ownership over the entire land by letting out portions thereof to people including members of the appellants’ community; that appellants later started to commit acts of trespass on the land resulting in the institution of the action.

On the other hand, the appellants who are from Ikhuenbo village, claim that Iguomo village was a settlement made up of Oba of Benin palace servants and slaves, which was established by one Chief Ehenegha; the Chief priest and clan head of the appellant’s community, during the reign of Oba Eresoyan; that it was the said Oba Eresoyan who sent the respondents’ ancestors as palace servants and or slaves to the said Chief priest Ehenegha to help the latter in farming and other chores; that respondents’ ancestors and the present respondents paid traditional homage to the appellants’ but later stopped.