John Ikinbor Dweye & Ors V. Joseph I. Iyomahan & Ors (1983)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

By a writ of summons taken out on the 9th June, 1970 by the plaintiffs (now respondents) from the former Mid-Western State High Court, at Benin the plaintiffs claimed against the defendants (now appellants) as follows:

“1. A declaration of title to that piece or parcel of farm land known as ‘Gelegele land’ in Benin West Division within the Benin Judicial Division the dimensions and abuttals of which are sufficiently shown in the plan to be filed later.

2. The sum of 500pounds (N1,000.00) being damages for trespass on the said land in that between 1966 and 1970 the defendants by themselves, their agents or servants broke and entered upon the said land without the plaintiffs’ permission or consent and committed various acts of trespass and dealt with the said land in a manner inconsistent with the plaintiffs’ title thereto.
3. Perpetual injunction restraining the said defendants and their agents or servants from further acts of trespass on the said land.”

Pleadings were filed and delivered. Trial proceeded before Ekeruche, J. (as he then was) and judgment was delivered by him on the 22nd December, 1978.

The plaintiffs’ claims were dismissed in their entirety.

Dissatisfied with the decision the plaintiffs appealed to the Federal Court of Appeal. The appeal was heard and allowed in part by that Court on the 16th December, 1981 in the following terms (per Agbaje J.CA):

“In the result the appellants’ (plaintiffs’) appeal succeeds in part. The order of the learned trial judge refusing the plaintiffs a declaration of title to (the) land in dispute is hereby set-aside by me. In its place an order granting the plaintiffs a declaration of title under Bini Customary law is hereby entered in favour of the plaintiffs. The learned trial judge’s judgment dismissing the claims for damages for trespass and an injunction is hereby affirmed by me. The appellants (plaintiffs) are entitled to their costs ”

The defendants in turn being aggrieved by this decision appealed to this Court. They filed 8 grounds of appeal 7 of which were objected to in limine by learned counsel for the plaintiffs. The objection succeeded as we found the grounds to be incompetent since they raised issues of fact or mixed fact and law without the leave of the Federal Court of Appeal or this Court being obtained, as it is necessary, under section 213 subsection (3) of the Constitution. The grounds were therefore struck-out. The only ground left to be argued and which was in fact argued by the learned counsel for the appellants reads:

“2. The Federal Court of Appeal erred in law in granting title to the land in dispute to the respondents (plaintiffs) according to native law and custom in complete disregard of the provisions of S. 40 of the Land Use Act (sic) enshrined in the Constitution of the Federal Republic of Nigeria, 1979, s.274.”

Mr. Afuyah, learned counsel for the appellants said that it was clear from the pleadings filed and the evidence adduced at the trial of the case that the appellants were in possession of the land in dispute. He contended that the land was not part of the area of Bendel State which constituted the “urban area” designated under Bendel State Legal Notice No. 22 of 1978. Learned counsel argued that by reversing the decision of the High Court, the Federal Court of Appeal had deprived the appellants of the right to apply to the appropriate authority for a customary right of occupancy as provided under section 36 subsection (4) of the Land Use Decree, 1978 (1978 No.6). Consequently it was submitted that the Federal Court of Appeal failed to comply with the provisions of section 40 of the Land Use Decree, 1978.

Both sections 36(4) and 40 of the Decree state as follows –

“36(4) Where the land is developed, the land shall continue to be held by the person (in)whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the Local Government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed the Local Government shall if satisfied that that person immediately before the commencement of this Decree has the land vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the Local Government.”

“40. Where on the commencement of this Decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decision of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary, in respect of such land as provided in this Decree.”

Chief Williams, learned counsel for the respondents submitted in reply that the decision of the Federal Court of Appeal did not deprive the appellants of their occupational rights on the land in dispute. He argued in the respondents’ brief and rightly in my view, that the question whether land is a subject of a statutory right of occupancy or customary right of occupancy does not depend upon the character of the tenure but rather on the location of the land. If the land is located in an area designated “urban area” by the appropriate authority under section 3 of the Land Use Decree, then rights in land within such area could be statutory right of occupancy. He contended that the appellants were therefore wrong when they assumed that the land in dispute is necessarily the subject of customary right of occupancy.