Vincent I. Bello V. Magnus A. Eweka (1981)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

In the High Court of Bendel State, holden at Benin City, the Plaintiff had, in a writ of summons, claimed-

“(a)   A declaration of title of ownership in fee simple of all that piece or parcel of land at Ward A Benin City demarcated by beacons Nos. 220-221, 236-237 and by pillars or blocks No. 2817, 2820 MT MB928 and edged RED on Plan No. M/GA 535/73 dated 20th day of November, 1973 and attached to a Deed of Conveyance dated 25th day of November, 1974, registered as No. 32 at page 32 in volume 262 of the Lands Registry in the office at Benin City

(b)N1,000.00 damages for trespass committed by the defendant upon the said piece or parcel of land.

(c)An order of perpetual injunction to restrain the defendant his servants and or agents from further re- entering the said land and committing further acts of trespass thereon”.

The learned trial Judge, Akpata, J., ordered pleadings, and they were accordingly settled. The case proceeded to trial, and the learned trial Judge, in a considered judgment, gave judgment for the plaintiff. Before making reference to the relevant portions of the judgment, I would like to set out some paragraphs of the pleadings, especially those that were referred to in, and which I consider relevant for consideration of, this appeal before us.

Both parties pleaded that title was originally in a common vendor. The plaintiff averred in his  statement of claim-

“6.    By an agreement dated 20th December, 1972, Sunday Orhue Edokpaye (deceased) agreed to sell and did sell the land in dispute to one Alfred Usiobaifo Eweka (the predecessor-in-title of the plaintiff) for N1,600.00 and thereafter the documents relating to the land passed between them and Alfred Usiobaifo Eweka was put in possession thereof.” (Underlining mine)

This paragraph, the defendant unequivocally admitted in paragraph 4 of the Statement of Defence. Be it noted that the operative words in the above paragraph are those underlined. Paragraphs 11, 12 and 13 of the Statement of Defence are also of importance for the defendant’s acknowledgement of this  common vendor to both parties, was pleaded specifically therein. The defendant averred that-

“11.  ……… he will at the trial rely on the doctrine of priority in so far as the transaction in respect of the said land is concerned either between Alfred Usiobaifo Eweka, the common vendor to plaintiff and defendant or/and in respect of respective Customary Grants from the Oba of Benin Akenzua II, C.M.G. the Traditional Trustee of all Communal land in Benin City in respect of the said land in dispute to the plaintiff and the defendant respectively.”

“12.  ……… apart from the  fact that he obtained prior title, right, interest and possession from the common vendor Alfred Usiobaifo Eweka to the said land in dispute, it is also Bini Custom (sic) that a prior grant from the Oba in respect of the same parcel of land. These customary facts will be established by evidence at trial and relied upon.”
“13.  He will rely “in his defence on the Doctrine of the Priority in respect of the land in dispute both at Law and  by Bini Native Law and Custom.” He “will produce letter or its copy of KSO/108/75 of 17/3/75 and rely on same”.

As the land in dispute is situated in Benin City, the nature of the Benin land tenure was, as such, in evidence, and the facts of the case, as they appertain to that tenure were averred in the plaintiff’s statement of claim as follows:

“4.    The land in dispute was formerly part of Benin Communal land vested in the Oba of Benin as trustee by virtue of Bini customary law, and also with power to allocate any part thereof to any applicant on application through the Ward Allocation Committee.

5.      By an application dated 28th August, 1961 and made by one Sunday Orhue Edokpaye (deceased) through the Ward “A” Allocation Committee to the Oba Akenzua II, the Oba of Benin the said Sunday Orhue Edokpaye (deceased) got the said land allocated (sic) by him by the Oba on the 2nd September, 1961 and took possession thereof.”