H.N.O. Awoyegbe & Anor V. Chief J. E. Ogbeide (1988)

LawGlobal-Hub Lead Judgment Report

B. CRAIG, J.S.C.

This is yet another case in the growing list of cases which has been accepted as establishing the customary law on land tenure amongst the Binis in Bendel State.

Some two decades ago, it was decided in the case of K.S. Okeanya v. Madam E. Aguebor (1970) 1 All N.L.R.1 that the customary laws governing the acquisition of land in Benin are as follows:-

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

2. In pursuance of the powers vested in him, the Oba divides the land into Wards and appoints Ward Allotment Committees whose duty it is to supervise the allocation of plots in their respective Wards.
3. Any person desirous of owning land would direct his application in writing to the Ward Allocation Committee in charge of the area where the land is located.
4. 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.”
5. 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.
6. The Oba would, as a rule, accord his approval to an application thus recommended, and thereafter, the applicant becomes the beneficial owner of the approved plot.
7. An approval once given remains valid until it is revoked by the Oba.
8. If the 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.
9. It is contrary to Benin custom to set aside an approval made in error upon an ex-parte application by one of the affected parties.”

Op. cit. at pp. 8 – 10.

Since then, other cases have confirmed that judicial notice can be taken of this custom.

See: Atiti Gold v. B Osaseren (1970) 1 All N.L.R. 132

O. Aikhionban & Ors. v. U. Omoregie & Ors. (1976) 12 S.C. 11 at p.28

Mrs. Aigbe v. Bishop J. Edekpolor (1977) 2 S.C. 1

I. Arase v. P. Arase (1981) 5 S.C. 33

V. Bello v. Magnus Eweka (1981) 1 S.C. 101.

In the instant case, the plaintiff was allotted a plot of land in the manner described above. His application, Exhibit ‘B’ for land in Ward H.17 was recommended for approval by the appropriate Ward Committee, and on 29th January, 1964 the Oba of Benin gave his approval to the allotment. The Oba later conveyed the land to him by a Deed of Conveyance Exh.C dated 11th November 1969.

Some years later, the Defendants were alleged to have trespassed on the land, and the plaintiffs challenged them. In their reply, they claimed that sometime in 1974 they too had applied to the Oba in the customary manner, for allocation of plots of land to them at Etete Village. The Oba approved of the allotment (Exs. G & J) and later executed the Deeds of Conveyance Exs. H & J respectively in their favour.

They further claimed that the plaintiff’s plot, was not located in Ward H17 as his papers portrayed but in Etete Village Settlement. When the matter could not be resolved, the plaintiff sued the Defendants, inter alia for: