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Micheal O. Igbinosa Vs Cole E. Aiyobagbie (1969) LLJR-SC

Micheal O. Igbinosa Vs Cole E. Aiyobagbie (1969)

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In the High Court, Benin City, Mid-Western Nigeria, the appellant as plaintiff issued a writ (Suit No. B/55/64) against the defendant, now respondent, and the writ of summons was endorsed as follows:-

“The plaintiff’s claim against the defendant is (1) Recovery of possession of that piece or parcel of land lying and situate at 10, Sakpoba Road, Benin, in the Benin Judicial division, which parcel of land is shown more clearly in a plan edged PINK to be filed in this action.

The annual rent of the piece of land is £2.10s.0d. (2) £200 damages for trespass in that on or about 4th of November, 1964 defendant without plaintiff’s consent first obtained, entered the said parcel of land which is part of a larger tract of land in plaintiff’s lawful possession, and commenced to clear the site for building purposes. (3) An order of perpetual injunction to restrain the defendant, his agents and servants from further entering the said land and committing further acts of trespass thereon.”

The straight issue from the pleadings filed is as to the owner-ship or possession of a piece of land edged pink on the plaintiff’s plan exhibit ‘A’ (plan No. AR27 of 17th December, 1964) and lying at the back of the parcel edged yellow on that plan. The land edged pink was apparently vacant until the matters giving rise to the present litigation occurred, the cause of the dispute being that the defendant, on the strength of a grant of that portion to him by the Oba of Benin, has claimed that portion as his own. The plaintiff maintained that he, like his ancestors and predecessors-in-title, has always been in continuous, uninterrupted and undisputed possession of the areas edged pink and yellow.

It appears that the defendant throughout the trial admitted that the plaintiff was, as claimed by him, in exclusive possession of the yellow area and it was not sought before us to challenge his possession with respect to that area.

The plaintiff’s claim to have always used the pink area in conjunction with the yellow area is seriously disputed and indeed it was contended by the defendant that neither did the plaintiff own the Pink area nor has he ever been in possession thereof. It was common ground between the parties that the Oba of Benin was a competent authority to execute formal assurances of Benin lands after a recommendation to the Oba to that effect by the Ward G Plot Allocation Committee of Benin City.

According to the defendant the pink area was the private property of the Oba of Benin and was so “allotted” to him by Oba Akenzua II of Benin on the 3rd November, 1964. On the other hand the plaintiff maintained that as far back as the 22nd October, 1963 he had obtained a deed of grant from the Oba of Benin, that the grant relates to the entire area shown on the plan accompanying it (formal deed of grant dated the 22nd October, 1963, i.e. exhibit `C’) and that such area included both the pink and the yellow parcels. One of the witnesses for the defendant was Oba Akenzua II: he testified that the pink area in the plan exhibit `A’ comprised the Overamwen’s Pond; that the area was his own private property and that if he had realised that the plaintiff’s plan attaching to the deed of grant executed by him, that is exhibit `C’, included the pink area he would not have executed it. He claimed that he never did intend to part with the pink portion in exhibit `A’ to the plaintiff and that he thereafter had assented to its allocation to the defendant.

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In his judgment, Begho, J., as he then was, took the view that the Oba was induced to execute the deed of grant exhibit `C’ either by fraudulent representations by the plaintiff or due to a mistake on the Oba’s part. He observed, inter alia, as follows:  “Here therefore is the case of a man signing away his property under the impression that he was signing the property alleged inherited by the plaintiff. This impression was known to and fostered by the plaintiff especially having regard to exhibit `F’ his application to extend his property to cover the area now in dispute which application was not countenanced by the Plots Allocation Committee. The legal situation arising from this aspect of the case is rather intriguing. Where a contract is void ab initio, as I hold it is in this case, it is not necessary to take an action for recession or declaratory judgment that the contract is not binding.

I find as a fact that the disputed piece of land verged pink in the plan exhibit ‘A’ is a separate and distinct piece of land from plaintiff’s land which lies to the north of it, and that His Highness Oba Akenzua 11 who owns the land did not intend to grant it to the plaintiff.” The learned trial judge then dismissed the plaintiff’s case with costs. Against this judgment the plaintiff has appealed to this Court and the main complaint canvassed on his behalf is that the learned trial judge took a mistaken view of the legal effect of the facts found by him in as much as fraud as found by him was neither pleaded nor proved against the plaintiff by the defendant.

It is trite law that fraud must be pleaded (where necessary with supporting particulars) and proved before it can be upheld. (See George v. Dominion Flour Mills [1963] 1 All N.L.R. 71). It is not in doubt that in this case the defendant nowhere pleaded fraud, let alone supplied particulars of it. Learned counsel for the defendant has urged us to infer that the plaintiff had acted fraudulently in asking the Oba of Benin to execute for him a deed of grant comprising land which he knew or ought to have known was not recommended to be or indeed granted to him. We do not think we can do this.

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Even if we are entitled to form our own views of the evidence before the learned trial judge we do not think that fraud was proved. As it was not pleaded it was improper in any case to have allowed any evidence to be given concerning fraud. If, as indeed it was, the evidence of the Oba of Benin was accepted, there can be no doubt that he always knew he was signing a deed of grant, a formal assurance of land, and if all he complained of was that the plan attaching to it was false it cannot be said that the con-tract embodied in the deed of grant was void. Where a person of full age and discretion executes a formal deed in full knowledge of the nature of the document, it will not avail him to seek to nullify the contract by complaining that he did not know the contents of the deed. See Hunter v. Walters (1871) L.R. 7 Ch. App. 75.

In such a case even where fraud is established the contract may be voidable but it is certainly not void. It seems to us very clear therefore that at the highest the deed exhibit ‘C’ is voidable and not void. A voidable contract enures until it is validly set aside. This has not been done in this case and the learned trial judge erred in our view in treating the deed exhibit ‘C’ as a void contract.

It is not void. The judgment of the learned trial judge is based on this erroneous view of the nature of the contract and the same notion runs throughout the entire judgment. The plaintiff’s case was dismissed on the ground that the formal grant of the land to him was void and that he had no land. This was a serious error and on that point alone the appeal must succeed.

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On the claims before the court the defendant never had any chance of success. He had come on the land without any title whatsoever since a formal grant by the acknowledged owner was subsisting in the plaintiff at the time of the defendant’s entry. The learned trial judge found that the plaintiff had all along used the pink portion as a dump for refuse. He stated as follows in the course of his judgment: “The act of possession alleged by the plaintiff is dumping refuse in the pit on the disputed land. I am of the view that dumping refuse in an adjoining piece of land does not put one in possession of the land to give the right to sue in trespass.”

With respect, this is an erroneous statement of the legal position. Any form of possession in as much as it is unambiguous and exclusive and exercised with the intention of continuing to do so is good against a trespasser and we think that the possession alleged and proved by the plaintiff is sufficient to ground trespass. The plaintiff is entitled at the least to nominal damages of £25. He is also entitled to an injunction in the terms of his writ.

We will therefore allow this appeal and the judgment of the High Court, Benin City in Suit No. B/55/64, including the order for costs, is set aside and it is ordered that:-

(i) judgment be entered for the plaintiff against the defendant for possession of the piece and parcel of land lying and situate at 10, Sakpoba Road, Benin, which parcel of land is shown edged pink in the plan exhibit ‘A’;

(ii) £25 damages for trespass to be paid by the defendant to the plain-tiff; and

(iii) an injunction do issue to restrain the defendant his agents and/or servants from further trespassin The respondent will pay to the appellant the costs of this appeal fixed at 73 guineas and will also pay the costs of the appellant in the court below fixed at 85 guineas.

Other Citation: (1969) LCN/1714(SC)

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