Pastor S. G. Adegboyega & 2 Ors V. Peter Otasowie Igbinosun & Ors (1969) LLJR-SC

Pastor S. G. Adegboyega & 2 Ors V. Peter Otasowie Igbinosun & Ors (1969)

LawGlobal-Hub Lead Judgment Report

Per Coker, J.S.C.

The respondents in this appeal were the plaintiffs in Benin High Court Suit No. B/57/67, where their writ of summons was endorsed as follows:- The Plaintiffs claim from the defendants is as follows:-

l. A declaration that the premises situated between Apostolic Lane, Igbesamwan Street, and Aruosa Street, Benin City which will be sufficiently delineated in a plan to be filed in this suit is the property of Apostolic Church Benin City.

2. Possession or the whole of the said premises by the Plaintiffs.

3. And an injunction restraining the defendants their servants and or agents from further acts of trespass upon the said premises. The appellants were the defendants to the action.

PAGE| 2 The pleadings on both sides were unnecessarily prolix having regard to the issues to be decided and the facts actually canvassed at the trial. As the writ shows, the plaintiffs claimed to be acting as registered trustees of the Apostolic Church, Benin City, Mid-western Nigeria. They had sued the first and second defendants in the capacities in which they are shown in the writ and the third defendant individually. The controversy ranged around the ownership of a piece of parcel of land in Benin City (on which the Apostolic Church is stated to be standing) the land itself being shown on the plan produced at the trial as exhibit N I and therein edged red.

The plaintiffs aver in paragraph 21 of their statement of claim as follows:- ‘The plaintiffs aver that the land upon which the Church stands has been acquired by them in accordance with Bini customary laws and that same was later conveyed to them by His Highness Akenzua II, Oba of Benin, the trustee of all lands in Benin’.

The plaintiffs gave evidence at the trial to the effect that the land was first acquired by the Apostolic Church, Benin City (then the Faith Tabernacle) in 1929 from the then Oba of Benin, Eweka II; that the Church had thereafter been built on the land and they had been in undisturbed and continuous possession ever since; that they later (on the 17th April, 1967) received a formal conveyance of the land and that the defendants belonged to a different section of the Apostolic Church from which from time to time only the plaintiffs had received assistance by way of the supply of religious leaders to lead them in their worship.

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The defendants resisted the whole of this story and stated that what the plaintiffs described as the autonomous Apostolic Church in Benin City was no more than a branch of the Apostolic Church, Ilesha; that since its founding in 1926 it has always been part of the Ilesha Church; that the land in dispute was in 1933, or thereabouts, given by the then Oba of Benin to the Apostolic Church, Ilesha, albeit for the use of the branch at Benin City. The defendants also stated that the plaintiffs were seceders from their Church who, as a result of schism introduced by them into the parent Church, were seeking to get themselves established as an autonomous Benin Church.

There is a large body of oral evidence taken at the trial and some forty-five exhibits were tendered. In a reserved judgment, Irikefe, J. acceded to the claims of the plaintiffs observing inter alia, as follows:- ‘My finding. is that although the plaintiffs and the defendants with effect from 1951 until 1966 n co-operated in religious matters and that the plaintiffs by getting themselves incorporated as a distinct religious organisation in 1967 may be deemed technically to have seceded from the defendants church, The property in dispute w as never owned by or vested in the defendants at any time…. In view of all the foregoing there will be judgment for the plaintiffs for possessory title under Bini customary law for the land in dispute shown verged in pink on the survey plan No. A.R. 573 dated 3/3 /67 and attached to the conveyance exhibit C in this case. PAGE| 3

The plaintiffs are also granted possession of the entire premises in dispute as per the survey plan No. A.R, 5n of 3/3/67 as against the defendants jointly and severally, The defendants by themselves, their servants and or agents are hereby restrained from entering on the premises in dispute as per the survey plan No. A.R. 573 of 3/3/67 for any purpose whatsoever as from the date of this judgment’, The defendants are dissatisfied with this judgment and have appealed to this Court A number of grounds of appeal were filed and argued but in substance the points canvassed before us were two, namely:-

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(i) Whether on a proper appraisal of the evidence the plaintiffs did make out a case for the reliefs which were granted to them; and (ii) Whether the real issue postulated by the case of both sides as to there being only one Apostolic Church from which the plaintiffs have seceded or as to there having always been an autonomous Apostolic Church in Benin City of which the plaintiffs are the accredited representatives and registered trustees was in fact determined, In connection with the first point taken on appeal, it was submitted to us by learned counsel for the defendants that the claims of the plaintiffs were not proved, The claims for possession and injunction pre-suppose that the claim for title was proved and if the latter fails the others must of necessity fail. In awarding title to the plaintiffs the learned trial judge adjudged them to be entitled to ‘possessory title under Bini customary law for the land in dispute … ‘,

At this stage, it must he observed that the declaration sought by the plaintiffs in their claim was different from that granted; the pleadings were nowhere amended, or even sought to he amended and no opportunity was given, as indeed it should have been given to, counsel on both sides to address the court on the propriety or otherwise of granting a type of declaration different from that claimed.

Be that as it may, in arriving at the conclusion to make a declaration in favour of the plaintiffs the learned trial judge reasoned as follows:- ‘The case of Agid

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Other Citation: (1969) LCN/1733(SC)

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