Madam I. Arase V. Peter U. Arase (1981)

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IDIGBE, JSC. 

This is an appeal by the defendant, Madam Iserhienrhien Arase, from the judgment of the Federal Court of Appeal, (Omoigberai Eboh, Nnaemeka Agu, JJCA., – Agbaje, JCA., dissenssiente) dated the 23rd day of January, 1979, which confirms the decision of Obaseki, J., (as he then was) of the 24th day of July, 1975 in a matter which ordinarily should present little or no difficulty but, as is usual with cases involving the customary law relating to land transfer in Benin, has become complicated by Bini native law and custom on the subject.

These proceedings initiated by the respondent, the plaintiff Peter Uyi Arase, were commenced by a writ of summons of the 16th day of September, 1971 and the questions in dispute between the parties, really, are: which of them is entitled (1) to be declared ‘owner’ under the customary laws of the Bini people of the land and house thereon situated at 22 Ozah Street in Ward ‘C’ in Benin City (2) to possession thereof and (3) which of them is deserving of an order restraining the other from entering the said premises

The background to this unfortunate case and all the relevant facts appear to me to be sufficiently recounted in the lead judgment of Nnaemeka-Agu, JCA., in the Federal Court of Appeal – hereinafter referred to, simply, as ‘the Court of Appeal’ – that I feel justified in making reference only to so much of the facts as I consider necessary, in my view, to throw sufficient light on the questions for determination in the appeal before us.

The case of the respondent (plaintiff in the court of trial) is that he inherited the land in dispute in accordance with Bini native law and custom from his father, Uyi Arase. The appellant (defendant in the court of trial), claimed to have purchased the land from one Osazevbide (sometimes in these proceedings spelt as Osazenwinde) Ediae hereafter referred to, simply, as ‘Ediae’ – who himself inherited the land in dispute from his (Osazevbide’s) late father but who according to the plaintiff was permitted by Chief Arase (the plaintiff’s father) to live on the said land in his capacity of servant of Chief Arase. Uyi Arase never made a grant of either the land or the house to Ediae; nor did Chief Arase make any to Osazevbide’s father.

The house later became a subject of controversy between Uyi Arase ( hereafter referred to as ‘Uyi’) and Ediae who claimed ownership of it; this gave rise to proceedings in the Benin City Customary Court case No. 24/60 (Exhibit ‘C’ in these proceedings in which Uyi sought ‘an order of court on defendant (Ediae) to quit plaintiff’s inherited land situated at Oza Street’). Following an order of retrial, made in pursuance of an appeal by Ediae from the decision given against him on the 5th day of July, 1960, in Exhibit ‘C’, the Benin City Customary Court on 22nd November, 1961, by Exhibit ‘L’ in these proceedings, dismissed Uyi’s claim; he then applied for a ‘Review’, by the President of the Customary Courts, of the decision in Exhibit ‘L’. The President of the Customary Courts on 24th June, 1962, in a judgment (Exhibit ‘M’ in these proceedings), refused to ‘interfere’ with the judgment of the Benin City Customary Court in Exhibit ‘L’.

Before giving a summary of the case of the defendant (appellant herein) in the court of trial, I consider it necessary to refer to parts of the decision in Exhibit ‘M’ as I am of the view that they are bound to throw considerable light on both the argument of counsel here, in this court, as also on my judgment in this appeal. Part of the ratio of the decision of the learned President of the Customary Courts in Exhibit ‘M’ reads:-

“The trial court did not declare the defendant the owner of the plot in dispute. It carefully avoided making any finding of ownership but it found as a fact that defendant had lived on the land for 25 years since his father died….. Since the plaintiff’s father put the defendant’s father in possession to live there …………… as someone in need of accommodation it will be unreasonable to eject him or his descendants without good cause shown …………….. In the circumstances, I will not interfere with the judgment of the lower court.’ (Underlining supplied by me)

On the 1st February, 1952, however, Ediae by Exhibit ‘G’ in these proceedings applied to the Oba of Benin through the Ward G, plot (or land) Allotment Committee ‘for approval to survey the land’ in dispute; and the Oba gave his approval and, accordingly, endorsed Exhibit ‘G’ on 17th July, 1954. Pending the approval of the application in Exhibit ‘G’, Uyi sent a petition to the Benin City Council (IKOREDO) in which he opposed Ediae’s application.

The Ikoredo resolved on 1st May, 1954, that the land in dispute to which Exhibit ‘G’ refers is the property of the late Chief Arase the father of Uyi; and further that the property had been inherited by Uyi under Bini customary law. I pause to observe that there is no evidence that the resolution in Exhibit D was specifically brought to the notice of the Oba before he endorsed Exhibit ‘G’.

However, on the 5th day of March, 1955, the respondent applied through the Chairman of the same Ward ‘G’ Plot Allotment Committee by Exhibit ‘A’ ‘for approval to survey’ the plot in dispute which he described in that exhibit as ‘remnant of his late father’s plot’, that is, the property of Chief Arase. The Committee recommended the application for the Oba’s approval with the following endorsements ‘recommended for approval on the face of the Ikoredo’s judgment of 1st May, 1954.’ The Oba later endorsed his approval Exhibit ‘A’ on 3rd June, 1954.

While litigation between Uyi and Ediae, in respect of the plot in dispute raged in the courts (Exhibits ‘C’ and ‘L’ refer), the appellant negotiated with Ediae for purchase of the house on the said plot and paid 40pounds (N80.00) part of the total purchase price of 140pounds (N280.00) for the same on the 17th day of November, 1960. (Exhibit ‘H’ (1) refers.) Exhibit ‘H’ (1) dated 7th November, 1960 is titled ‘House Purchase Agreement’ and it is significant that part of it reads: ‘The said house will be handed over to the purchaser [Madam I. Arase, that is, the appellant herein] after I [Osazevbide] finish my case’ (NOTE: Square brackets and contents therein supplied by me for emphasis].

It was part of the respondent’s case that the appellant, when she bought the house on the land in dispute was aware of the court proceedings then pending in respect of the land in dispute and house thereon. After the court proceedings ended in November 1961, with the decision of the learned President of Customary Courts (Exhibit ‘M’ refers), Uyi with whom Ediae had pleaded to be allowed to continue in occupation of the house allowed Ediae to remain; he however, did so unaware of the fact that Ediae with whom the appellant lived in the said house had ‘sold’ the same to the appellant. Later, Ediae packed away from the house, but the appellant pleaded with Uyi, who agreed, that she be allowed to remain but to leave as soon as she could secure good accommodation elsewhere. Uyi died in 1967 and the respondent after inheriting the land in dispute under Bini customary law, yielded to the plea of the appellant that she be given further time to look for alternative accommodation; the respondent then was still unaware of the secret sale transaction between Ediae and the respondent.

I pause again to observe that on 16th October, 1962, the appellant while still living in the house and before the death of Uyi applied to the Ward ‘G’ Plot Allotment Committee for approval ‘to survey a plot …… with a house at Oza Street …… No.22 Ozah Street Benin City sold to me by Osazevbide Ediae’; this application was refused. When the respondent asked the appellant to vacate the premises she not only refused to do so but claimed the same; where-upon the respondent commenced these proceedings claiming:-