Clara Erewa for herself & Erewa Maggison Family v. J. I. Idehen (1971)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C 

The appellant, who was the plaintiff in the High Court, Benin City (suit no. B/32/64), has appealed against the judgment of Ighodaro, Ag. J. (as he then was) in an action in which she had sued the respondent, then defendant, for declaration of “possessors title” to a piece of land at Ikpoba Road, Benin City, possession of the said piece of land, and an injunction to restrain the defendant and his agents and servants from entering on the land and committing any acts of trespass thereon.

In the High Court, the plaintiff pleaded and adduced evidence which may be summarised as follows. Her father, an Itsekiri by name Erewa Maggison, first came to Benin during the Benin expedition of 1897. After the expedition, he stayed on in Benin as an interpreter; sometime after this, he asked the then Oba of Benin for a plot of land on which to build a house. He was accordingly allotted a plot for this purpose at Ewaise Street and he built a house there. That house still stands. Later still, Erewa Maggison again approached the Oba for land on which to establish a rubber plantation. After he had chosen a spot himself, a surveyor was commissioned by the Oba to mark out the area of the land. The surveyor duly marked out the land along the slopes of the Ikpoba River and produced the sketch plan Ex. “B” which the Oba (Eweka II) duly endorsed on 12th November, 1926. He then planted rubber, cocoa and coffee on the land. Nobody disturbed Erewa Maggison on the plantation until his death in 1946. He was survived by sixteen children one of whom is the present plaintiff.

In 1959, that is, about 13 years after Maggison’s death, Solomon Jegede, the caretaker of the plantation, informed the plaintiff that the Benin city council had directed that the trees in the plantation which was then bush should be cut down because they wanted to “plot” the area after paying compensation to the family of Maggison. The plaintiff, through her solicitor, wrote to the members of ward 10 of the council asking them to stop cutting down the trees and informing them that the laying out of the plantation in plots would be undertaken by the children of Erewa Maggison themselves. When the activities of the members of ward to of the council did not cease, the plaintiff reported to Oba Akenzua. The Oba thereupon wrote to the committee on 19th October, 1960. The letter (Ex. “K”) addressed to the chairman and members of the Building Plots Allocation Committee of Ward two reads:

“I send you, attached herewith, the copy of the letter dated 19/10/60. I have addressed to the members of the family of the late Erewa Maggison, government interpreter of Benin city, regarding their father’s rubber plantation on Benin-Agbor road on the slopes of Ikpoba River. No plots should be allocated to any persons in the aforementioned rubber plantation for the building of dwelling and/or residential houses unless the receipts for the purchases of and/or documents showing that the rubber trees and/or other crops on the plots to be acquired in the aforementioned plantation have duly and properly been transferred by the owners of the plantation aforementioned have been presented to and verified by you. When you are satisfied that the rubber trees and/or other crops on the plots to be acquired have been duly and properly sold or transferred by the owners of the aforementioned plantation you can proceed to allocate such plots for the building of dwelling or residential houses accordingly.”

(The italics are ours).

On the receipt of the letter (Ex. “K”) the committee stopped all activities on the land.

After this, the plaintiff instructed a surveyor to divide the whole of the rubber plantation into plots but before the assignment was completed she had to go to Lagos because her husband was seriously ill there. On her return to Benin city about nine months later she noticed that the plantation had been cleared and some buildings erected thereon. When she asked her two brothers Humphrey Erewa and Zaccheus Erewa, both of whom have since died who was responsible, they both replied that they knew nothing about it. Later, however, they both admitted at a meeting of the members of the family that they had sold plots on the plantation to some people including the defendant who now has a sawmill on the portion sold to him. The plaintiff then testified about the sale as follows:

“Zaccheus was not authorised by plaintiff’s family to sell any family land. The family asked Zaccheus who authorised him. He said no one did. Humphrey told the members of the family that he was at Ologno whilst Zaccheus carried on the sale of the plot.”

Under cross-examination, the plaintiff admitted that both Humphrey Erewa and herself were administrators of the estate and that the letters of administration were granted to three of them. To further questions, the plaintiff replied as follows:

“My late father was a foreigner in Benin city. The land given to him was not merely for farming. My father paid a year for the houses in Benin but not for the plantation. He did not pay anything for the plantation Humphrey Erewa and Zaccheus Erewa admitted selling a plot of land to Idehen. It was the plot of land and not the rubber trees that Humphrey Erewa and Zaccheus Erewa deceased sold.”

In his defence, Idehen admitted knowing the father of the plaintiff, the late Erewa Maggison. He also admitted that the Oba of Benin gave Erewa Maggison land to plant rubber trees. Regarding the transaction about the rubber plantation, he testifed that in 1961, he approached Humphrey Erewa and Zaccheus Erewa in the presence of Jegede (the caretaker) with a view to purchasing the rubber trees on their land at Ikpoba Slope hill. He paid 610Pounds for the rubber trees and obtained a receipt (Ex. “E”) dated 9th January, 1961 from Humphrey and Zaccheus Erewa. On seeing an advertisement in the midwest echo of 2nd December, 1961 (Ex. “F”) by Humphrey and Zaccheus Erewa stating that they had finished selling the rubber trees on their plantation on the slopes of the Ikpoba River, he applied (See Ex. “D”) to the Oba of Benin through the Building Plots Allotment Committee of Ward 10/E for a plot of land measuring 200 ft by 500 ft for building purposes. The application was duly approved by the Oba on 28th August, 1962 as shown in Ex. “D”. According to the defendant the area approved for him by the Oba is on Ikpoba slope and that after the approval he erected a sawmill on the land. When he was cross examined about the authority of those who sold to him, the defendant replied:

“I know Erewa before he died. I knew he had many children. I got a receipt for 610Pounds which I paid. I did not ask for the other children of the late Erewa but they confirmed they had authority to dispose of the land. Jegede was present.”

The defendant then called one Hawdon Omoregbe Uwaifo, (1st DW) aged 71 years, and a former customary court member who testified as to the Benin customary law relative to the transaction as follows: