D.M. Aigbe Vs Bishop John Edokpolor (1977) LLJR-SC

D.M. Aigbe Vs Bishop John Edokpolor (1977)

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DIGBE, JSC.

This appeal is from the judgment of the High Court of Bendel (formerly Mid-Western) State of the 2nd day of March, 1973, by which the appellant’s claims for declaration of title to land, damages for trespass and an order for injuction were non-suited. More particularly, the claims read:-  

“(1). The plaintiff seeks as against the defendant declaration of title as absolute owner according to BINI Customary Law or alternatively as owner in fee simple to all that piece or parcel of land (building plot) situate lying and being along Anglican Girls Church Grammar School Road Benin City registered as No 23 at page 23 in volume 70 of the land Registry in the office at Benin City per Deed of Conveyance filed with this Statement of Claim. (2). £N5 general damages for trespass to the said land.    (3). Perpetual injunction restraining the defendant whether by himself or his servantss or agents or otherwise howsoever from further acts of trespass to the said land (building plot)”.  

From the pleadings delivered in court and exchanged on both sides parties are agreed that His Highness the Oba of Benin (hereinafter referred to as ‘the Oba’) is the only Authority competent under Bini laws and custom to make allocation or grant of Bini lands in or outside Benin City to any individual purchaser of land; for under Bini native Law and Custom all Bini lands are communual property of the entire Bini people and the legal estate therein is vested in the Oba as trustee for the entire Bini people. Parties are also agreed that for this purpose (i.e. allocation of lands to purchasers) the Oba acts, in respect of lands in Benin City, through Plot Allotment Committee. For the purpose of allocation of plots, Benin City is divided into several wards and a plot allotment committee is appointed by the Oba in respect of each ward; each such committee has the authority of the Oba to allocate plots within its area of jurisdiction (but not outside it) to purchasers.

The procedure for purchase of land, as the evidence on record shows, is that an intending purchaser first applies in writing to the plot allotment Committee (hereinafter referred to as “the Plot Committee”) for the ward or area in which the plot he intends to purchase is situated. An investigation is subsequently carried out by members of the Plot Committee, who will visit the land and satisfy themselves that it is available for transfer to the applicant (i.e. free from any dispute or competing claims); thereafter the Plot Committee recommends to the Oba that the plot is free from dispute and available for transfer to the applicant, and the Oba will endorse his approval on the application.

Until the Oba endorses his approval aforesaid no legal estate can be transferred to an allottee or purchaser of a plot (i.e. Bini Lands); and an endorsement of approval by the Oba on an application, if made on the recommendation of a Plot Committee or Elders in respect of land outside their area of jurisdiction is invalid and does not convey any legal estate to the purchaser. Outside the metropolis (i.e. Outside Benin City) there are no plot committees and it is the Estate led by the Odionwere of each Bini village who carry out the duties of the plot committee.  

The parties in the present proceedings (i.e. the appellant and the respondent), however, are not agreed on the exact location in Benin City of the plot in dispute (hereinafter referred to as “the land in dispute”); for while the appellant claims that it is in Ward 17/H the defendant, the respondent herein maintains that it is located in a village called Idunmwunvbioto lying and situate almost outside Benin City which – according to the evidence of the Oba – “calls itself Ward 37/B”. Being a village outside Benin City, the Oba has not appointed a Plot Committee for the area and the Odionwere and elders of that village carry out the duties of Plot Committee in respect of allocation and ‘sales’ of plots in the village or Ward 37/B.

There was evidence adduced in support of the appellant’s case and which the learned trial Judge accepted (as appears in a later passage of the judgment) that even if the land in dispute were originally in Idunmwunvbioto village, that area (the right hand side thereof, as one travels from Benin to Sapele) was later merged with ward 17/H by the Oba.  Put shortly, the case for the appellant is that the land in dispute which measured about 100 feet by 300 feet) forms part of a larger area of land (300 feet by 300 feet) which was granted by the Oba on the recommendation of the Plot Committee for Ward 17/H to her cousin, named Ehigiamusoe Agbonavbare in May, 1961. At her request Ehigiamusoe gave her the land by a “deed of transfer” dated 23rd December, 1962. She later transferred parts of the entire area granted by Ehigiamusoe to other members of her family and in 1966, decided to have the portion of the land retained by her (i.e. the land in dispute) conveyed to her, in her own name by a Deed of Conveyance.

Accordingly, she applied in October, 1966, to the Plot Committee of Ward 17/H for transfer of the same, and, accompanied by Ehigiamusoe, members of the said Committee inspected the land dispute and thereafter recommended to the Oba that the land in dispute be transferred to her in her name; and the Oba duly signed in her favour a Deed of Conveyance dated the 30th day of March, 1969, which she subsequently duly registered as No 23 at Page 23 in volume 70 in the Register of Deeds kept in the Lands Registry at Benin City. Shortly after, the respondent trespassed into the said land, removed the survey beacons demarcating the boundaries of the land, cleared and levelled the said area preparatory to the erection of his own building thereon.   When she challenged the respondent, the latter claimed that he acquired the land in dispute in 1962, from the Elders of what the respondent described as Ward 37/B. In his pleadings and in his evidence in court the respondent claimed that the Odionwere and Elders of Idunmwunvbioto village recommended his application for purchase of the plot in 1962, to the Oba who duly approved the same. He had since remained in undisturbed possession of the same and has carried out various acts of ownership theron.

The land in dispute, according to the respondent, is only a small portion of a large area granted to him by elders of Ward 37/B; he had paid for a number of trees on the entire land and had cleared and built on a substantial portion thereof. There are a number of rubber trees still standing on the land in dispute and while the appellant states that she has not paid any one compensation for the said rubber trees the respondent claimed that he had paid compensation in respect of these rubber trees to their owners. Although he produced at the trial receipts which he claimed to have been issued by the owners of the said rubber trees, he never called any of them to testify; and, on the contrary, evidence was given on behalf of the appellant that the alleged owners of these rubber trees had died many years ago.   We pause, to observe that the significance of payment of compensation to owners of economic trees and crops on land in Benin City under settled and accepted principles of Bini Customary Laws and also as agreed by the parties hereto, is that under Bini Custom it is a pre-condition to the unfettered USE (not, ownership) of the land by a purchaser that he should pay monetary compensation to the owner of such crops and trees; transfer of legal estate in the land (i.e. ownership thereof) to the purchaser is made once the Oba endorses his approval following the recommendation of a Plot Committee or Elder of a village on the application therefor of a purchaser. Before the trial court concluded hearing the learned trial Judge accompanied by parties and their counsel (at their invitation) visited the locus in quo and made notes of his observations thereon.

At the close of evidence before him and after the address of counsel on both sides the learned trial Judge (Ighodaro, J.) made the following observations:   “It is clear from the pleadings that the substantial point at issue is whether the land in dispute is situate in Ward 17/H Benin City or in Ward 37/B Idumwunvbioto Village. The direct question is – which of these two Wards has the duty and responsibility of entertaining applications from applicants and making their recommendations to the Oba of Benin the trustee of Benin Communal Lands for the purpose of securing of his approval?”   The learned trial Judge then, once again, reviewed the evidence before him and made his findings and pertinent among them are, that:-

“(a) The Building Plot Allotment Committee was set up for Ward 17 in February, 1960………………………..  …………………………………………………………………. (b) Ehigiamusoe Agbonvbare applied for a plot 300 ft. by 300 ft. to Ward 17/H on April 1, 1961 and approved by the Oba on 6/5/61 (Exhibit E.). (c) Ehigiamusoe Agbonvbare made a ‘Deed of Transfer’ to the plaintiff on 23/12/62 of the whole land 300’ by 300’ for consideration (Exhibit F.). Out of this area, the plaintiff sold two plots . (f) The defendant applied to Ward 37B Benin City to the Elders of Idunmwunvbioto Village on 30/4/62 for a plot of 1500’ by 1500’. ………………. (g) The above plot 1500’ by 1500’ was conveyed by the Oba to the defendant – directly supported by Ward 37/B – on December 16, 1967 (Exhibit B). ………….. (i) The defendant paid for the rubber trees on the land conveyed to him in 1970 (Exhibits U-U6). (j) There was no evidence that the plaintiff paid for her rubber trees on the land acquired by her.   

Following the above findings of fact, the learned trial Judge drew the inferences set out in the passage of his judgment which we set out hereunder: “in view of my findings above, the answer to the question which of the two Wards had the duty of entertaining applications, I find that Ward 17/H was in 1962 competent to carry out the lay out as the Oba of Benin had approved a layout, and had appointed a Plot Allotment Committee, and ordered the merging (with ward 17/H) at the time some part of Idunmwunvbioto village including the area in dispute the right hand side of the Benin/Sapele Road (i.e. as one travels from Benin to Sapele) ……………. The main difficulty in this case was that no clear division of land was made between Ward 17/H Plot Allotment Committee and the Chiefs and Elders of Idunmwunvbioto village. This litigation is entirely the result of this unhappy situation …………………………….. one fact which has strongly militated against the plaintiff is that the plaintiff never paid for the trees on the land. There is authority that those seeking declaration of title to lands must have paid for the crops. Vide Clara Erewa and Ors v . J. L. Idehen and Ors S.C. 130/69 of 28th May, 1971.   It has not been proved to my satisfaction – hence she will be non-suited. I do not want to dismiss her case because it was not her own making. The only thing for which of course she could be blamed – was not ascertaining the owner of the rubber trees and paying for the rubber trees”.

Accordingly, the learned trial Judge entered a non-suit in respect of the claims of the appellant who now appeals from the judgment to this court. At the close of argument of counsel for the appellant and the respondent on the 10th January, 1977, we allowed the appeal, set aside the order of the trial court for a non-suit, ordered that judgment be entered in favour of the appellant’s claims and stated that we shall give our reasons therefor and we now do so. Several grounds of appeal were filed on behalf of the appellant but only two were argued before us, and these read:-   “(4) The learned trial Judge erred in law in holding that Clara Erewa and Ors v. J. L. Idehen and others S.C. 130/69 of 28th May, 1971 is an authority (for the legal preposition) that those seeking (a) declaration of title to land must have paid for the crops when: (i) Clara Erewa and others v. J. L. Idehen and others did not lay down such a general principle of law. (ii) There was no evidence that payment for crops on the land in dispute was a condition precedent to the acquisition of the land in dispute. (iii) There was no legal evidence that the defendant was the owner of the crops on the land in dsipute.   PAGE| 6   (6) Judgment is against the weight of evidence” .   These two grounds of appeal were argued together and the sum of the arguments of learned counsel for the appellant is this:

The evidence before the trial court justified the findings made by the learned trial Judge to the effect that the land in dispute is situate within Ward 17/H and that as between the plot committee for that Ward and the Elders and the Odionwere of the Village of Idunmwunvbioto (Ward 37/B), the former (and not the latter) had the competence to recommend to the Oba the allocation and transfer of the same to any purchaser. Having so found, the learned trial Judge, it was submitted, erred in law in holding in effect that until monetary compensation for the rubber trees on the land in dispute was made to the owners of the said rubber by the appellant, she was not entitled to the ownership of the same.

The case of Clara Erewa (supra), on which the learned trial Judge relied for the foregoing view was, according to learned counsel, no authority for any such proposition of law. Finally, it was submitted on behalf of the appellant that the learned trial Judge erred in law in entering a non-suit on the claims of the appellant in the circumstances in which the order was made.   We find considerable merit in the above contentions and submissions of learned counsel for the appellant. We think, with respect to the learned trial Judge, that he was misled into the rather unsatisfactory reasoning on the issue of ownership of land under Bini customary laws, as appears in the penultimate passage of his judgment quoted above following a farrago of erroneous and imperfect submissions from learned counsel for the respondent in the trial court. There was clear and unchallenged evidence that it is only the Oba who can, under Bini customary laws, transfer the legal estate in any given Bini communal land to a purchaser on the recommendation of his agents (the appropriate Plot Committee or the appropriate Village Elders); and that such a transfer of the legal estate is effected on the endorsement, by the Oba, of his approval on the purchaser’s written application (fully recommended by the appropriate Plot Committee or the appropriate Village Elders); and that such a transfer of the legal estate is effected on the endorsement, by the Oba, of his approval on the purchaser’s written application (duly recommended by the appropriate Plot Committee or the appropriate Village Elders). Payment of compensation for economic trees on the land purchased to the owners thereof is, according to the evidence and the settled customary laws of the Binis, only a precondition to USER of the land in question.

A proper and thorough reading of the case of Clara Erewa (supra) shows clearly that it was decided on the peculiar facts of that case (in which the Oba in Exhibit K – received in evidence in that suit – specially made the payment of compensation for economic trees on the land sold a precondition to acquisition of ownership of the said land).Clara Erewa’s   case (supra), therefore did not as the trial court erroneously stated lay down a general principle of Bini custom; indeed it would be contrary to the established customary laws of the Binis to regard the decision in Erewa (supra) as laying down a general principle on the effect of payment of compensation for economic trees on a piece of land which has already been legally transferred to a purchaser on the endorsement by the Oba of his approval to the transaction. Accordingly, we are satisfied that on the evidence before the trial court and on the findings of the learned trial Judge there was a complete transfer of the legal estate in the land in dispute to the appellant long before these proceedings commenced (i.e., when the Oba endorsed his approval, on the appellants’ application in respect of the said land, and, on the recommendation to him (the Oba) by the Plot Committee of Ward 17/H).    

It now only remains for us to make our observations on the order of non-suit made by the learned trial Judge. Order 28 rule 3 of the High Court Rules made pursuant to the High Court Law (Western Region of Nigeria) Cap 44 in Vol. II of the 1959 Edition of the Laws of Western Nigeria applicable, in the Mid-Western (now, Bendel) State, at the time of the trial of the present claim in the lower court provides as follows: “the court may in any suit, without the consent of parties, non-suit the plaintiff, where, satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court” (underlining supplied).  

Under the provisions of the above rule, once evidence has been taken and concluded, and the trial Judge has come to conclusions on the facts before him, he (the learned trial Judge) has unfettered discretion either to give judgment for the defendant or enter a non-suit for the plaintiff depending on his conclusions on the facts but before entering a non-suit he must hear counsel on either side on that issue. It would amount to wrong exercise of his unfettered discretion if he entered a non-suit (1) without hearing counsel on either side and (2) if on the evidence, the plaintiff was not entitled to judgment. Dealing with the same issue with respect to Order 23 rule 1 of the County Court Rules 1936 (which is almost in pari materia with order 28 rule 3, High Court Rules, Western Region of Nigeria quoted above), WILMER, LJ., delivering the judgment of a strong Court of Appeal / Hudson, Romer & Wilmer LJJ., made the following observations:   “In our view the judge’s exercise of discretion in this case was open to criticism in two ways. First he appears to have arrived at his decision to non-suit the plaintiff without hearing counsel on either side.

The possibility of a non-suit was not discussed in argument and, as we were informed, the order which the judge made took counsel on both sides completely by surprise. We do not think it is a judicial exercise to make an order of this kind without giving the parties affected an opportunity of being heard ……………………….For these reasons although the defendants have failed to satisfy us that under the rule it was not competent for the judge to non-suit the plaintiff, they are, in our judgment, entitled to succeed on this appeal on the ground that in the circumstances of this case he failed to exercise his discretion judicially doing so…………………….”    (See Clack v. Arthur’s Engineering Ltd. (1959)2 QB 211 at 224 – 225).   And this court has in recent times in very many decisions drawn the attention of trial courts to the principle of law relating to orders of non-suit – which is that although they have – where the Rules of Court provides them with powers to enter a non-suit-unfettered discretion to do so, it undoubtedly is wrong to do so without first hearing counsel on both sides; and especially more so in cases where counsel for the plaintiff has not asked for such an order (see Chief Dokubo Akile Asiemo and Ors. v. Chief Anthony Amos and Ors. (1975)2 SC 57).   We are satisfied that on the evidence before the trial court and more particularly on the findings of the learned trial Judge, the appellant acquired a legal estate in the land in dispute long before those proceedings commenced and that it was the learned trial Judge’s erroneous understanding and application of the decision in Clara Erewa’s (supra), that led him to enter a non-suit on the appellant’s claims. We are satisfied that on the evidence on record the damage done to the appellant was worth much more than £25 which she claimed.

We had no difficulty, therefore, in allowing this appeal immediately at the close of argument before us on the 10th of January, 1977.   Accordingly, the judgment of the High Court of Bendel (formerly Mid-Western) State in suit B/12/69 dated the 2nd day of March, 1973, is hereby set aside, together with the order as follows:

(1) There will be judgment for the plaintiff (the appellant herein) for a declaration of title under Bini Customary laws to all that piece or parcel of land situate and lying along Anglican Grammar School Road Benin City and covered by and described in the Deed of conveyance registered as No. 23 at page 23 in volume 70 of the Register of Deeds kept in the Lands Registry at Benin City. (2) There will be judgment for the plaintiff for N10 (£5) general damages; and (3) The defendant (the respondent, herein) his servants workmen and/or agents are hereby perpetually restrained from entering the land in dispute i.e. the land covered by and described in the Deed of Conveyance registered as No. 23 at page 23 in volume 70 of the Register of Deeds kept in the Lands Registry at Benin;   And it is hereby ordered that the above order shall be the judgment of the trial court.

The appellant shall have costs of this appeal assessed at N253.00 and costs in the lower court   PAGE| 9   fixed at 100 Naira (N100). Costs ordered by the trial court on 2nd March, 1973, if already paid by the appellant, shall be refunded to her by the respondent.

Other Citation: (1977) LCN/1942(SC)