Alfred Usiobaifo & Anor V. Christopher Usiobaifo & Anor (2000)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, J.C.A.

This appeal is from the judgment of Omage, J (as he then was) sitting In the High court of Justice Benin and delivered on the 6th day of March, 1997.

The plaintiffs as the respondents in this appeal filed a specially endorsed writ of summons against the defendants (now appellants) seeking the following reliefs:

“1. A declaration that the first defendant has no right to sell the family properties known ans (sic) situate at No. 107 Forestry Road, Benin City without the consent of other principal members of the family.

2. A declaration that the purported sale of the family properties known and situate at No. 107 (formerly NO. 101) Forestry Road, Benin city on the 11th day of September, 1992 by the first defendant to the 2nd defendant within the jurisdiction of this Honourable Court is illegal, null and void and of no effect whatsoever.
3. An order of perpetual injunction restraining the 1st defendant from selling, parting with the title of the family properties known and situate at No. 107 Forestry Road, Benin City.”

Pleadings were filed and exchanged between the parties. The pleadings were equally amended several times over and exchanged between the parties. In paragraph 31 of the eventual Further Amendment statement of Claim, the plaintiffs sought the following two reliefs as opposed to the three reliefs in the Writ of Summons severally and jointly against the defendants:

“1. A declaration that the first defendant has no right to sell the family properties known and situate at No. 107 Forestry Road, Benin city without the consent and approval of other principal members of the family.

12. A declaration that the purported sale of the properties known and situate at NO. 107 Forestry Road, Benin City on the 11th day of September 1992 by the first defendant to the second defendant within the jurisdiction of this Honourable Court is illegal, null and void and void (sic) and of no effect whatsoever.”

The defendants on their part joined issues with the plaintiffs on the reliefs claimed and particularly averred in paragraphs 18 and 24 of the Further Amended Statement of Defence as follows:

“18 The Defendants averred that in Ishan customary law of inheritance is based on principle of promo geniture (sic) according to which the right of inheritance or succession to property belongs exclusively to the eldest son of a deceased person on performance of his father’s burial. On the basis of this customary law of Ishan the 1st defendant was and/or is exclusively owner (sic) of the said property and has right to deal with it.

24. The Defendants shall contend at the trial of this action that the Suit is grossly misconceived, incompetent and ought to be dismissed as being frivolous and an abuse of the process of the Court”

At the trial in the court below, the 1st plaintiff testified and called three witnesses while the 1st defendant equally testified and called the same number of witnesses.

The salient items of evidence adduced by the 1st plaintiff and in behalf of the plaintiff are as follows: the first witness who is the 1st plaintiff testified that the 2nd plaintiff, the 1st defendant and himself are some of the male children of Chief Ebunde Usiobaifo who owned, lived and died in Ewaise Street now known as No. 107 Forestry Road Benin City in 1954. The eldest son of their late father was Obote Usiobaifo who lived in the same house and built another house in addition to the one built by their father on 107 Forestry Road Benin city until he too died in 1973 without performing the traditional burial ceremony of their late father. The 1st defendant being the eldest surviving son on the death of Obite Usiobaifo called a family meeting where it was agreed that each child should pay N590.00 towards the said ceremony. Each of them contributed that amount and the ceremony was performed”. The 1st plaintiff (the P.W.1) further testified that Pa Okaisabor, D.O. Aburime, Akhimien, Odudu Negbeneda and Ibhafidon Abulu are members of his family. In 1975 a family meeting was held and the property of his late father was shared. The minutes of the meeting are in exhibit CU 1. At the meeting, sharing the property of their late father was one of the items deliberated upon. Property situate at No. 107 Forestry Road, Benin city in particular was shared to 1st defendant “to take care of the house and to use the property in rotation.” The 1st defendant thereafter sold the said property to the 2nd defendant for N500, 000.00 without the consent of himself (the 1st plaintiff) and the 2nd plaintiff who are the principal members of the family. He added that the property which is “Igiogbe” cannot be dealt with by discussion with the other beneficiaries”‘. He asserted that he is still living in the house said to have been sold by the 1st defendant. Under cross examination, the P.W. 1 denied that the property in point was given to the 1st defendant absolutely. Mr. Akhimien Ofenagbon testifying as the P.W.2 said that apart from being the oldest man in the parties’ village, he is also of the same clan with them. He asserted that he shared the property in question to the 1st defendant to hold it in Trust for the family as that property is an Igiogbe which should not be sold. Selling of such a house is a taboo under Ishan Native law and custom. He particularly testified that the Igiogbe does not belong to the eldest son. It is instead held in trust according to seniority on rotational basis. He identified exhibit CU 1 which contains the minutes of the meeting at which property situate at 107 Forestry Road, Benin city was shared to the 1st defendant to hold in trust for the family of which the plaintiffs are members. The P.W. 3, Mr. Okaisabor Oseghae, testified, in the main, that he was present at the meeting held on 6/12/75 to share Usiobaifo property. He also testified, inter alia, as follows:

“The house in Benin was given to Alfred as the senior in joint ownership of the house with his brothers. After Alfred, the next brother uses the house, after another brother uses the property, after all brothers are deceased then the grand children now take in turn ……………. Alfred cannot sell the house at all.”

The house being an Igiogbe was shared to the 1st defendant and his brothers as female children have no share in it.  He identified exhibit CU 1.

The P.W. 4, Mr. Joseph Abulu testified that he was the person who recorded minutes at the meeting where the Igiogbe was shared to the 1st defendant. He identified exhibit CU 1.

On the part of the defence, the 1st defendant testifying as the D.W. 1 said that the two plaintiffs are his younger brothers of the same father who died on 5/5/55. Oboite, his elder brother, did not perform the funeral rites for their father until he died in 1973. He, however, performed the burial ceremony as required by Ishan native law and custom. On 12/2/94, after the said ceremony, there was family meeting presided by Mr. Iweren, his paternal uncle. At the meeting, the properties situate at NO. 107 Forestry Road, Benin city and No. 19 Ukpenu Ekpoma were given to him. He named those present at the meeting Ibofar Ali, Esole, Captain Peter Erewele, Okogun and Oriarewo. He sold one of the three houses on No. 107 Forestry Road, Benin City to the 2nd defendant at N500, 000.00. He identified exhibit CU 2 as the approval from Oba Akenzua transferring No. 107 Forestry Road, Benin city to him. He asserted that it is forbidden to share a deceased person’s property among his male children rotationally. Property at No. 107 Forestry Road, Benin City was therefore not shared to him rotationally. Under cross examination the D.W. 1 said, inter alia:

“It is not correct that the deceased’s property is shared among males of different doors. No. 101; Forestry is not Igiogbe of my father. It is true that the 1st plaintiff lives in 101 Forestry Road, but he does not live in my father’s house. I have the right to eject him from the father’s property … I got the consent of the plaintiff before I sold the property.”

The D.W. 2 Mr. Patrick Enakhimien, claimed to know Ishan native law and customs. According to Ishan native law and customs, where a father dies, the son who performs the burial ceremony inherits the property. It is not Ishan custom to inherit property in rotation. It is not the custom to obtain the consent of the children. On being cross examined, he said that he did not know the 1st plaintiff nor when the burial ceremony took place. He knew the father of the D.W. 1. The first son has no right to drive out other children. He should instead maintain them. The D.W. 3, Chief Stephen Ogbebor, testified that as a member of the same Ward 7 in Benin with the D.W. 1, he said:

“Alfred Usiobaifo brought an application for approval in the Ward. As a member of the Ward, we sent some people to follow him for inspection, report showed that it belonged to Usiobaifo and we approve (sic) same for approval by the Oba of Benin who approved it… Alfred came with some of his family.”

He went on to identify exhibit CU 2 as the approval. On being cross examined, the D.W. 3 said that the size of the land approved was 100 feet by 100 feet and that the D.W. 1 brought a paper which he claimed his family gave him. He thereafter derailed by saying that he did not know how the D.W. 1 got the approval nor can he remember the name of any of the people who came with the D.W. 1 for approval. The D.W. 4, Mr. Patrick Okaigbele, who claimed to be the head of the family turned out to have been ostracized “from the country”. This may possibly mean from the town or village. In this circumstance, he could not have been accorded any functional position by the clan that ostracized him any longer. At the close of hearing, the parties learned counsel addressed the court. The learned trial Judge, in a reserved judgment held inter alia:

“The 1st plaintiff has testified and I believe the testimony that he was not consulted and he was not aware and would not consent to the sale of any part of the three houses, the Igiogbe at No. 107 Forestry Road, Benin City, property of Chief Usiobiafo’s family. Evidence exists (sic) though the instrument of sale was not tendered that the 1st defendant sold the house as his personal property. I declare that the said sale is void and that the said property remains the properties (Sic) of Usiobiafo family because the 1st defendant has no power or authority to sell family property or to sell the said property as his own property. The sale is declared null and void. The plaintiffs’ succeeds (sic)…”

The defendants who are the appellants in this Court were utterly dissatisfied with the judgment of the trial court and thereby appealed to this Court on one ground. The appellants subsequently sought and got the leave of this Court to file seven additional grounds of appeal. The appellants identified from those eight grounds of appeal, the following four issues for determination:

“1. Whether the plaintiffs (respondents) proved their case and were entitled to judgment?

2. Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the Court.
3. Whether the learned trial Judge was right when he suo motu raised issues and resolved them without giving the parties thereto opportunity of being heard.
4. Whether the learned trial Judge was right in giving to the plaintiffs (respondents) what they did not ask for.”

The respondents also filed their brief of argument” in which they adopted Issue No.1 (above) formulated by the appellants.

At the hearing, Chief N.O. Ogbodu and P.A. Otaigbe Esq., who were respectively the learned counsels for the appellants and respondents canvassed oral argument in amplification of the argument in their briefs?

On Issues Nos 1 and 2 argued together, the learned counsel for the appellants submitted that the respondent’s claims were predicated on declaratory orders and as such the burden to establish them as per Sections 135, 136 and 137 of the Evidence Act cap 112 of the Federation of Nigeria 1990 (hereafter referred to as the Evidence Act 1990) was on them (the respondents). He added that in a declaratory action the plaintiffs shall succeed on the strength of their own case and not the weakness of the defendants’ Case and he relied on the case of ELENDU V. EKWOABA (1995) 3 N.W.L.R. (PART 386) 704 at 745. He referred to pages 33 to 40 of the record of appeal where the parties relied on the customary law of inheritance in Ishan land and joined issues on whether the first son holds the family house in trust for other members of the family. He pointed out that the position at law is that he who asserts will fail if no evidence is called in support of the assertion as per Section 136 of the Evidence Act 1990. He then argued that the burden to establish whether the 1st appellant has no right to sell the family property situate at No. 107 Forestry Road, Benin city without the consent and/or approval of the other principal members of the family is on the respondents. He referred to Sections 2 and 14(2) of the Evidence Act 1990 which deal with the definition of “custom” and that custom can be judicially noticed or established by evidence with the proviso that any custom relied upon in any judicial proceedings shall not be enforced as law if it is contrary to public policy and does not accord with the principle of natural justice, equity and good conscience. He emphasized that native law and custom is a matter of evidence to be decided in each particular case unless it is of such notoriety and has been so frequently followed by the courts that judicial notice could be taken of it without evidence required in proof. He relied on the Supreme Court Case of GIWA V. ERINMILOKUN & ANOR. (1961) ALL N.L.R. 297.

Learned counsel argued that it is unsafe to accept the testimony of the person asserting the existence of a particular custom as conclusive. It is instead desirable and good law that the person other than the person asserting the custom should also testify in proof thereof and he referred in support to the cases of OZOLUA II V. EKPENGA (1962) S.C.N.L.R 423 and OYEDIRAN V. ALEBIOSU (1992) 6 N.W.L.R. (PART 249) 558.

Learned counsel for the appellants posed the questions of which is the applicable Ishan Customary Law on inheritance. Is it the said law that the eldest son of the deceased Ishan man holds the family house in trust for other members of the family or whether the applicable law is that the family house exclusively belongs to the eldest son after the due performance of the necessary burial ceremony of his late father and can deal with such property without reference to any principal members of the family? He referred to the items of evidence adduced in behalf of the respondents by the P.W.1, the P.W. 2 and the P.W. 3 who respectively and saliently testified that first, the procedure under Ishan law and custom is that the older member will ask the younger ones to discuss the Igiogbe (that is to say the family property). Secondly, that the house in point is an Igiogbe and can never be sold as it is a taboo to do so and thirdly that Alfred (the 1st appellant) could not sell the house at all. He then contended that there is conflict in those items of evidence and submitted that the learned trial Judge did not resolve the material contradictions in those testimonies by the P.W. 1, P.W.2 and P.W. 3. He therefore urged this Court to hold that where evidence is at variance with the pleadings, such evidence must be disregarded by the court whether it was objected to or not and he relied on the case of OLORIEGBE V. OMOTOSHO (1993) 1 N.W.L.R. (PART 270) 386. In view of the glaring contradictions, the learned counsel submitted that the failure of the learned trial Judge to resolve them was perverse and obvious consequence of miscarriage of justice.

Learned counsel equally argued that on a careful consideration of the Further Amended Statement of Claim as at pages 33 to 39 of the record of appeal, there is no averment that the land on which Chief Usiobaifo built a house and lived in until his death in 1953 is family land and his Igiogbe for the family. He further argued that the learned trial Judge introduced the concept of family land or Igbiogbe where there was no supportive evidence before him and that his finding was made in error. He therefore urged the court to interfere and set aside that finding and he relied on the case of AKINLOYE V. EYIYOLA (1968) N.M.L.R. 92.

Furthermore, the learned counsel alleged that the learned trial Judge, without evidence, decided at page 69 lines 15 to 22 of the record of appeal the issue of demarcation which was not before him. He submitted that facts not pleaded go to no issue and if any evidence is led on such facts and admitted by the trial court, this court being an appellate is empowered to expunge those facts and findings thereon from the judgment of the lower court. He relied on the case of FERDINARD GEORGE & ANOR. V. UBA (1972) 8/9 S.C. 264.

Other areas of perverse findings of the trial court alluded to by the learned counsel are that the learned trial Judge held that once land is in the family, it is not alienable and that after the 1st appellant had performed the funeral rites for his late father, he held that family land for his own use and the family in just the same way as his elder brother, Obiote did before him. Vide pages 65 lines 1 to 10 and 67 lines 16 to 23 of the record of appeal. He argued that there was no evidence to support those findings. In view of the foregoing, he submitted that those findings were only speculative because the 1st respondent failed to discharge the onus placed on him by law to entitle both respondents to the declaratory reliefs sought. He therefore submitted that the conclusion of the learned trial Judge is perverse and lacking in merit as he had failed to make good use of the opportunity of seeing and hearing from the witnesses at the trial and that he equally refused to make specific findings on the issues raised by the parties. He referred to the case of GENERALLY THE CASE OF WHYTE V. JACK (1996) 2 N.W.L.R. (PART 431) 407.

On Issue No.3, the learned counsel for the appellants submitted that the learned trial Judge was in error to have raised ten issues suo motu as they were not raised in the course of the proceedings. He instead argued that as opposed to those ten issues, the only issue raised is whether the right of succession to the property situates at 107 Forestry Road, Benin City devolved rotationally in the family or exclusively to just one member of the family. He submitted that since the  ten issues raised by the learned trial Judge did not touch on such issue as jurisdiction which admits of being raised suo motu by the trial court, such importation occasioned denial of fair hearing and he relied on the case of ALLIED BANK OF NIGERIA LTD. V. AKUBUEZE (1997) 6 N.W.L.R. (PART 509) 374 at 395.

Learned counsel went on to reopen the issue of contradictions in the evidence of the P.W.1, P.W.2 and P.W. 3 on a “very material point” of whether or not the property can be sold and he urged this court to expunge those items of evidence; and that having done that, nothing would be left in support of the respondents’ case. He instead urged this Court to hold that upon due performance of burial ceremonies by the eldest son, he (the eldest son) inherited his father’s property exclusively and he relied on the evidence of the D.W. 2 who he claimed is an expert on Ishan custom. Failure of the learned trial Judge to consider the testimonies of the D.W. 2 and D.W. 3 led to serious miscarriage of justice.

On Issue No.4, the learned counsel for the appellants argued that the P.W. 1 did not testify that there was a change of title to family land as reflected in exhibit CU 2 nor that that exhibit be declared null and void. He therefore submitted that the finding of the learned trial Judge as far as exhibit CU 2 is concerned is not borne by the evidence of the P.W.1 and it is accordingly perverse. A finding is perverse in a number of circumstances including when it runs counter to the evidence and pleadings or it occasions miscarriage of justice as held in the case of NKADO V. OBIANO (1997) 5 N.W.L.R. (PART 503) 31 at 56. It is trite law, he submitted, that a court, however, benevolent or charitable has no power to grant a party a relief he did not ask for. He relied on the cases of LAWAL OSULA V. LAWAL OSULA (1993) 2 N.W.L.R. (PART 274) 158 and UGO V. 0BIEKWE (1989) 1 N.W.L.R. (PART 99) 37. He further submitted that the order declaring exhibit CU 2 was not asked for and it is wrong of the trial court to have so ordered. He therefore urged this Court to set this finding aside as it is within its province to do by virtue of the case of FASHANU V. ADEKOYA (1974) 1 ALL B.L.R. 32 at 37. He finally urged the Court to allow the appeal.

At the hearing of the appeal in this Court, the learned counsel for the respondents amplified that the only issue raised in the respondents’ brief of argument encompassed the issues raised in the appellants’ four issues. The learned counsel for the respondents stated the trite principle of law that where the question involved is purely of facts an appellate court will not interfere unless the decision of the court below is shown to be perverse and not as a proper exercise of judicial discretion and referred to the case of NTIARO V. AKPAN 3 N.L.R.

He submitted that under Ishan native law and custom the family house unless partitioned is jointly owned by all members of the family and no one can sell or alienate same without the consent of the other principal members of the family. In proof of this custom learned counsel said that the 1st respondent did not testify in person but also called three other witnesses from Ishan including the Odionwele the oldest man in the 1st appellant and the respondents’ village and his second in command that is to say the P.W. 2 and P.W. 3 respectively. Each of them identified exhibit CU 1 (the minutes of the meeting) in which at its paragraph 4 it was expressly stated as recorded by the P.W. 4 that “The family house at No. 101 Forestry Road, Benin City shall be for the first appellant’s use and for the use of Usiobaifo’s family in rotational heredity.” He referred to the case of ADEJUMO V. AYANTEGBE (1989) 3 N.W.L.R. (PART 110) 417 at 444 in support of that arrangement where the supreme court held that the family land is vested in the past, existing and future members of the family. He argued that the 1st appellant appeared to have admitted this arrangement as follows:

“… I got the consent of the plaintiff before I sold the property.”

He went on to pose the question that why should the 1st appellant seek the consent of the respondents if the house in point was not jointly owned. The answer as reproduced above is an admission that he could not alienate or sell the family house without the consent of the respondents. He referred to some decided cases that where family land is sold by the head of the family without the consent of the principal members of the family, the sale is voidable. See EKPEPENDU V. ERIKA (1959) 4 F.S.C. 79; ESAN V. FARO 12 WACA 135 and ALLI IKUSEBIALA (1985) 1 N.W.L.R. (PART 4) 631; and that such sale is void where the head of the family disposes of family property as his own. See ADEJUMO V. AYANTEGBE (SUPRA) page 448. He argued that it is irrelevant if the foregoing principles are borne out of cases based on customs other than Ishan custom. What is of moment is that these are settled laws on the legal status of such dispositions.

Learned counsel further argued that the 1st appellant unlawfully transferred the said house to himself by procuring Oba’s approval through exhibit CU 2 and he thereafter sold the house to the 2nd appellant as his own without obtaining the consent of other principal members of Usiobaifo family. He equally argued that the trial court had no option but to declare the Oba’s approval in exhibit CU 2 and the sale a nullity as the Oba could not have any basis for a second approval having earlier on granted an approval to the land in favour of the 1st appellant’s father, late Chief Usiobaifo. He referred to the notoriety of the custom of plot allotment in Benin City and that that Custom is judicially noticed under Section 14(2) of the Evidence Act 1990 as well as the cases of AGBONIFO V. AIWERIOBA (1988) 1 N.W.L.R. (PART 70) 325 at 336 and D.M. AIGBE V. BISHOP JOHN EDOKPOLOR (1977) 2 S.C.1 30.

As regards the sale based on the approval of the Oba of Benin (exhibit CU 2), the learned counsel argued that it was mere surplusage for the respondents to seek a declaration that the transfer covered by exhibit CU 2 was a nullity. The court need not make such a declaration based on the proposition sanctioned in U.A.C. V. MACFOY (1962) A.C. 152 and approved by the Supreme Court in SKENCONSULT NIG. LTD. V. GODWIN SEKONDY UKEY (1981) 1 S.C. 6 at 9 and the court of Appeal in OLOWOFOYEKU V. A-G OF OYO STATE (1990) 2 N.W.L.R. (PART 132) 369 at 390.

On the issue of contradictions in the respondents’ case, learned counsel urged the Court to hold that there was no contradiction at all because the use of the words “it is a taboo” to sell an Igiogbe were meant to fortify the respondents’ claim that the 1st appellant could not sell the family house. He referred to the case of GABRIEL V. STATE (1989) 5 N.W.L.R. (PART 122) 457 at 468 on contradictory evidence. He submitted that the answer of the P.W. 1 is not sufficient to cast doubt in the mind of this Court as urged by the appellants. It is settled law that where an appellate court is in doubt it should not interfere with the finding of the trial Court, it should instead dismiss the appeal as the burden is on the appellant. He relied on the cases of MACAULAY V. TUKURU (1899) 1 N.L.R. 35 and LIONS BUILDINGS V. SHADIPE (1976) 2 FNR 2 at page 289. He further submitted that where there is ample evidence to support the trial court’s findings and there is also evidence on which the trial court could have found otherwise, an appellate court should not interfere as laid down in the case of SACKNA MORMODU ALLI V. AHMED ALHADI 13 WACA 320 at 321. He equally submitted that the respondents proved their case by preponderance of weighty evidence with particular reference to the evidence adduced in his behalf on Ishan native law and custom on inheritance and alienation of family property aside the evidence of the 1st respondent. He finally urged the Court to dismiss the appeal.

Issues Nos. 1 and 2 apparently touch on burden of proof with regard to the nature of property situate at No. 107 Forestry Road, Benin City purported to have been disposed off to the 2nd appellant by the 1st appellant. The respondents asserted in their pleading and evidence that that property was family property and that it remained so until it is partitioned.

It is settled in civil cases that he who asserts bears the burden to prove to the satisfaction of the Court and once that burden is discharged the burden to dislodge the assertion shifts to the other party. See Section 136 and 137 of the Evidence Act 1990 and DURU V. NWOSU (1989) 4 N.W.L.R. (PART 113) 24 at 39 and AWOMUTI V. SALAMI (1978) 3 S.C. 105 at 115. The crucial questions in these issues are (a) did the respondents establish that the property situate at No. 107 Forestry Road, Benin City was a family land? (b) Did the appellants establish that the said property devolved on him absolutely?

As regards the first question the 1st respondent testified that the property in issue was owned by Chief Usiobaifo who died intestate in 1954 and was survived by himself, the 2nd respondent, Mr. Oboite Usiobaifo and the 1st appellant, among others. Mr. Oboite Usiobaifo, the eldest son of their late father did not perform the funeral rites for his late father before he too died in 1974. The 1st appellant being the next eldest son performed those rites and thereby inherited the house in question. Evidence of the P.W. 2 and P.W. 3 is to the effect that since Chief Usiobaifo died intestate, the property became family property. The P.W. 2 and P.W. 3 confirmed the status of the house that traditionally such property became family property on the death of Chief Usiobaifo intestate and that the eldest son held such property for his own use and the use of his younger brothers. On his death the next eldest son becomes seized of the property in like manner. In keeping with this custom a family meeting was held and it was decided that, inter alia, the 1st appellant would have the use of the house (that is to say No. 101 (now 107) Forestry Road, Benin City on rotational basis.

Evidence adduced in behalf of the 1st appellant is that he owned the said house but not absolutely.

It is instructive to consider how a land or house becomes family land or property. It is settled law that the concept of family property is original to our indigenous society and the bedrock of our law of inheritance. The most common circumstance of creating, family property is death intestate of a land owner whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land.  Another method of creating family land is by a conveyance inter vivos where land purchased with money belonging to the family. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See the cases of OLOWOSAGO & ORS. V. ADEBANJO & ORS. (1988) 4 N.W.L.R. (PART 88) 275 at 287, LEWIS V. BANKOLE 1 N.L.R. 81 and SHAW V. KEHINDE (1947) 18 N.L.R. 129.

Family land ceases to be family land when it is partitioned among the beneficiaries. See OLOWOSAGO & ORS. V. ADEBANJO & ORS. (Supra) at page 287 and BALOGUN V. BALOGUN (1943) 9 WACA 78.

From the state of the pleadings and the supportive evidence in relation to the foregoing principles it is apparent that the property situate at No. 107 Forestry Road, Benin city being customary land is family land. By virtue of its status as family land, it is vested in the past, existing and future members of the family. See the Case of ADEJUMO & 2 ORS. V. AYANTEGBE (supra) at page 444. When this principle is related to the house in issue, it simply means that the 1st appellant’s enjoyment of it only lasted his life time and by virtue of Ishan native law and custom sumptuously testified to by the P.W. 1, P.W. 2 and P.W. 3, that house would pass to the next eldest surviving son of Chief Usiobaifo – the original owner.

In effect, the 1st appellant has no property in that house which he could pass to any body including the 2nd appellant.

The house in point being family house means that it belongs to all the members of a known family.

In order to weaken the strength of the respondents’ evidence, learned counsel for the  appellants said that that evidence was replete with contradictions. Upon a careful consideration of the alleged conflicting evidence, I could not find any material conflict. The resume of those items of evidence is instead that the property situate at 107 Forestry Road, Benin City is an Igiogbe and cannot be sold. What is described as contradiction is not a functional contradiction with regard to what is the status of the property in point. It is settled law that a piece of evidence will be regarded as contradiction when it affirms the opposite of what the other evidence has stated not when there is a minor discrepancy between them. See GABRIEL V. THE STATE (SUPRA) at page 468. In the instant case, the act of the older member of the family asking the younger ones to discuss the Igiogbe was done in the spirit of carrying the younger ones along in the administration of the family property. Furthermore the evidence that it is a taboo to sell family land is purely to lay emphasis on the fact that family land per se does not admit of alienation or sale in its original status until it is partitioned.

The issues that the learned trial Judge introduced the concept of family land, demarcation and the inalienability of family land by the 1st appellant on performing the funeral rites by, holding the land in trust for members of the family were not acts which amounted to perverse findings. Thus from the state of the pleadings and particularly the evidence before the trial court, it is apparent that Chief Usiobaifo, the progenitor of the 1st appellant and respondents, died intestate and having died intestate, his property in law becomes family land. Such family land, it is also settled, cannot be acquired absolutely by any member of that family until it is demarcated. Demarcation in this sense is synonymous to partition. Evidence also abounds that the property in point became inalienable after the 1st appellant had performed the funeral ceremonies for his late father. In view of the foregoing, I failed to see where the learned trial Judge introduced issues extraneous to the evidence before him as to amount to perverse findings.

In sum, I agree with the learned trial Judge that there was preponderant evidence upon which the respondents discharged the onus to accord them the declaratory reliefs sought. The learned trial Judge did not arrive at any findings which are perverse and liable to cause miscarriage of justice. I accordingly resolve Issues Nos. 1 and 2 in the affirmative.

Issue No. 3 deals with the formulation of issues suo motu by the learned  trial Judge. It is trite to say that the formulation of issues in any litigation is ordinarily the prerogative of learned counsel in the case. But this general statement does not shut out the learned trial Judge from formulating issues from available evidence in the absence of any such formulation by learned counsel. The essence of issues formulated is to identify areas of consideration for the just disposal of the case before the trial court. Issues formulated by learned counsel at the court of first instance are invariably reflected in their addresses. In the instant case, only the learned counsel for the respondents formulated issues for the consideration of the trial court. The issues read:

“… (1) Whether the subject matter of the suit is a family land. If so, does the 1st defendant have a right to alienate same without consent of the family?”

I have considered the seemingly ten vexed issues formulated by the learned trial Judge and I found that the basic issue raised in each of them relate to family land. All that the learned trial Judge did was to expand the issues raised by the respondents counsel to the unfettered attention of the appellants’ counsel. I am of the strong view that the learned counsel for the appellant cannot be heard to say at this stage that the appellants were denied fair hearing. What happened, instead, was that the learned trial Judge through possibly abundance of caution or ease of comprehension amplified the issues identified by the learned counsel for the respondents. The ten issues are in my opinion rooted in the issues distilled by the respondents and were therefore not raised suo motu at the judgment stage by the learned trial Judge. Issue No. 3 is accordingly resolved in the affirmative.

Issue No.4 deals particularly with Exhibit CU 2. It is true that the P.W. 1 did not testify on exhibit CU 2 nor did he seek that it should be declared null and void by the trial court. It is, however, true that exhibit CU 2 emanated from the evidence of the appellants. The appellants appeared to have exhibited the document marked exhibit CU 2 in order to substantiate the fact of his ownership of the land –

“… Measuring (150′ x 120′) one hundred and fifty feet by one hundred feet with beacon Nos. 29, 247, 116, 30 with the buildings thereon and known as No. 101 Forestry Road Benin City in Ward 7/E.”

It is sacred or bounden duty of the trial court to consider by way of evaluation all the items evidence  by whomsoever given before it could arrive at a just decision. It was in keeping with this principle that the learned trial Judge considered exhibit CU 2 along wide other items of evidence before him. I hold that that exercise was quite regular. The learned trial Judge observed that the land which is the subject of exhibit CU 2 was first acquired or allocated by Chief Usiobaifo from the Oba of Benin before he died in 1953. The subsequent allocation in the same land in 1974 therefore became suspect and it was in order for the trial court to rule on the propriety of exhibit CU 2. The land in question is in Benin. It is trite to say that the customs of land allocation in Benin are judicially noticed and such customs are enunciated in the cases of K.S. OKEAYA INNEH V. MADAM E. AGUEBOR (1970) 1 ALL N.L.R. 1 and AGBONIFO V. AIWEREOBA (1988) 1 N.W.L.R. (PART 70) 325 at 335 and 336. I shall reproduce the following pertinent six out of the nine customary ways of acquiring land in Benin as enunciated by those cases:

“1. All lands in Benin are vested in the Oba of Benin who holds such lands as trustee on behalf of the people of Benin.

2. Any person desirous of owing land would direct his application to the Ward Allocation Committee in charge of the area where the land is located.
3. When the application has been studied and processed, the committee would delegate some of their members to inspect the land within their area of jurisdiction and ascertain the plot to be granted with certainty with a view to finding out if it is free from dispute and whether or not it has previously been granted to some one else.
4. Upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is dispute free, the Committee would endorse the application with the above facts and forward it to the Oba of Benin for approval.
5. An approval once given remains valid until it is revoked by the Oba.
6. If evidence is subsequently produced of a prior approval for the same plot of land, then the second approval will be set aside by the Oba” (Underlining for emphasis)

It will be observed  from the foregoing in relation to the circumstances of exhibit CU 2 that there is evidence that as at the time in 1974 when the property situated at No. 101 Forestry Road, Benin City was purportedly given to the 1st appellant it had already been allocated to his father by the same Oba of Benin. The conclusion is that as at 1974 Clause No.4 (above) was not strictly complied with before exhibit CU 2 was issued and approved through a signature which is not discernible. The suspicion surrounding exhibit CU 2 therefore becomes obvious with regard to its authenticity. It is even more so when Clause 5 (above) is to the effect that an approval once given remains valid until revoked by the Oba. There is no evidence that the earlier approval given to Chief Usiobaifo over the same parcel of land Claimed by the 1st appellant had been revoked by the Oba of Benin before the second approval was given in 1974. The foregoing being an issue of law, it was in order for the learned trial Judge to make a finding by declaring exhibit CU 2 null and void. The trial court is not duty bound to make such pronouncement. The following principle enunciated in U.A.C. V. MACFOY (supra) and approved in the cases of SKENCONSULT NIG. LTD. V. UKEY (supra) and OLOWOFOYEKU V. A.G. OF OYO STATE (supra) allow it:

“If an act is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado; though it is some times convenient to have the Court declare it to be so and every proceeding which is found on it is also bad and incurably bad you cannot put something on nothing and expect it to stay there, it will collapse.”

What the learned trial Judge did with the finding on exhibit CU 2 was (exercise of judicial power by considering and pronouncing on all the issues in the case before him. Issue No. 4 is also answered in the affirmative.

In the final analysis, the appeal lacks merit and it is dismissed. The decision of the lower court is affirmed. The appellants shall pay the respondents costs N3, 000.00

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Other Citations: (2000)LCN/0796(CA)