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

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

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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.

  1. 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.
  2. 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 –

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“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.

Learned counsel for the respondents submitted further that the issue of the application of the Land Use Decree was not raised in the High Court or before the Federal Court of Appeal and therefore the question ought not to be entertained by this Court. He cited in support Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at pp. 93-98.

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I think the last point made by Chief Williams is well grounded. It has been well established by a line of authority starting with Abinabina v. Enyimadu, 12 W.A.C.A. 171 through to Ejiofodomi’s case (supra) that no substantial point which has not been taken in the courts below will be allowed to be raised for the first time before this Court except under special circumstances. It is true that the point of law now being raised by the appellants in the ground of appeal argued was not canvassed in either the High Court or the Federal Court of Appeal. Learned counsel for the appellants had however contended that he made the point in the High Court, but, with respect, this is not altogether correct. What in fact transpired was that the appellants filed an interlocutory application, in which they asked for an order –

“Striking out suit No. B/44/70 in that the plaintiffs have no locus standing (sic) to maintain the action in its present form in view of the provisions of the Land Use Decree 1978, or for such further order or other orders as to the court may appear just or proper in the circumstances.”

The affidavit in support of the application sworn to by the 3rd defendant – Timothy Ofunama, who is now the 3rd appellant, stated in part as follows:

“5. That the plaintiffs have concluded their evidence in this suit.

  1. That the defendants had begun their defence having called four witnesses before the promulgation of the Land Use Decree. 1978.
  2. That I have been advised by our solicitor H.O. Ofuyah Esq., and I verily believe him, that by virtue of section 1 of the Land Use Decree, 1978, the plaintiffs are precluded from maintaining this action against Gelegele Community in a representative capacity or at all on a claim based on customary tenancy.
  3. That the inhabitants of Gelegele as well as Ughoton are occupiers of their respective lands within the meaning of section 50 of the Land Use Decree 1978 and are entitled to apply as individuals or organisation to the appropriate authority in respect of the land they now occupy or use.
  4. That I have also been advised by my solicitor H.O. Ofuyah, Esq., and I verily believe him, that any order made by this Honourable Court in contemplation of section 40 of the Land Use Decree shall be in conflict with s.36(4) of the same Decree as it affects the rights of individuals in either Ughoton or Gelegele community and would therefore preclude the appropriate authority acting under s.6 of the Decree.”

Needless to say the application was refused. At no other time did the appellants raise the issue of the applicability of the Land Use Decree to the case again;

50 not even in the address of their counsel at the close of their case.

Furthermore, if we are to entertain the new point now being raised it is clear from the submissions of both counsel for the appellants and the respondents that the evidence of a surveyor will have to be adduced or a map tendered to explain the area designated “urban area” as contained in Bendel State Legal Notice No. 22 of 1978. This would be necessary in order to enable us determine whether the land in dispute was in fact situated outside the area declared “urban” by the Legal Notice. Surely these are matters best considered by the courts below. It is not enough for counsel to merely say that Gelegele is not an “urban area”. To accept to deal with the new point will have the effect of this Court giving an important decision without having the benefit of the judgments of the courts below.

For these reasons I am of the opinion that the appellants’ argument in support of the sole ground of appeal should be discountenanced. The appeal therefore fails and it is dismissed with N300.00 costs to the respondents. The decision of the Federal Court of Appeal is affirmed.

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Appeal dismissed.

OBASEKI, J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Uwais, J.S.C. and I am of the same opinion on all issues raised before us in this court.

I would however observe that the appellants filed no counter- claim apart from setting up absolute title of ownership in the High Court. Their entitlement under the Land Use Act, 1978 cannot therefore be raised in this court.

I would also dismiss and I hereby dismiss the and affirm the decision of the Federal Court of Appeal with costs to the respondents assessed at N300.00.

Opinion of Hon. Justice Idigbe, J.S.C. (deceased) Pronounced by Obaseki, J.S.C.

We have all lost through the cold hands of death a very distinguished and eminent member of this Court. He is my learned brother, the Hon. Justice Chukwunweike Idigbe, J.S.C., C.O.N; O.F.R. May his soul rest in peace.

My learned brother Idigbe, J.S.C. of blessed memory, was also of the opinion that the appeal be dismissed for the reasons stated in the judgment of Uwais, J.S.C. and I now pronounce his decision dismissing the appeal with costs to the respondents fixed at N300.00.

ESO, J.S.C.: I had a preview of the judgment just delivered by my learned brother Uwais, J.S.C. and I agree entirely. I will also dismiss the appeal for the reasons which have been given by my learned brother.

ANIAGOLU, J.S.C.: I have been opportuned to read in draft the judgment just delivered by my learned brother, Uwais, J.S.C.

I agree that for the reasons given by him in the said judgment this appeal should be, and is hereby, dismissed with N300.00 costs to the respondents.


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