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



Madam I. Arase v. Peter U. Arase (1981) – SC

by NSA PaulPipAr

⦿ TAG(S)

– Approval by the Benin Oba;
– Benin city counsel;
– Evidence in customary law;
– Amendment of records of appeal by the Supreme Court;



Madam I. Arase


Peter U. Arase


(1981) LPELR-534(SC);
(1981) 5 S.C. (REPRINT) 21;


Supreme Court


C. Idigbe, JSC.



– S. S. G. Enemeri.


– M. S. Okeaya-Inneh.


⦿ FACT (as relating to the issues)

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.

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’.

The case of the appellant, in the main, was that she purchased part of the property in dispute from Ediae on 17th November, 1960, for 40, (N80.00) and later on 9th January, 1971, she brought the balance, that is, the remaining portion of the property, 40pounds and paid 100pounds (N200.00) being balance of the purchase money as agreed in Exhibit H(1)’. She testified that she lived on the property and had, since the purchase of the property, erected three additional rooms to the house thereon; in addition she always paid water and development rates due on the property as well as the electricity bills due on the house thereon. She denied she asked, from the respondent, to be allowed to stay in the house.

In between the dispute, there were series of pronouncements made by the Oba of Benin and the council (Benin Council) as regards the land dispute.

The learned trial Judge in the court below after listening to the evidence and examining the exhibits in these proceedings entered judgment for the respondent in terms of his claims; on appeal by the appellant the said judgment was, as stated earlier, confirmed by the Court of Appeal.



1. Whether on the evidence before him it was right for the learned trial Judge to make a declaratory award to the respondent in terms of the claims on his writ?

2. Whether there is enough evidence to support the finding of the trial court that the land and property in dispute belongs to the respondent?




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i. Although the eldest son (i.e. the respondent herein) claimed in his evidence that on completion of the father’s second burial ceremonies, there was distribution of the property and he was given the land and property in dispute (according to him, the distribution of property took place on 14th May, 1947), his second witness (P.W. 2 Micheal Osagie) said in evidence that up till the time he gave evidence there has been no distribution of the property of the deceased. Now, the evidence of Michael Osagie is undoubtedly in conflict with that of the respondent on a most material issue; and there is nothing in the judgment of the trial court to show that that court adverted to this contradiction much less which of the contradictory evidence was preferred or accepted; and it is not within the province of any other court to decide on this issue, that is, of preference.

ii. This court is empowered, in circumstances, where the justice of the case demands it to amend any defect or error in the record of appeal “and generally it has full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court …” (See Section 22 of the Supreme Court Act 1960). I incline, therefore, to the view taken, in a similar situation, by the West African Court of Appeal in Divisional Chief Gbogbolulu of Vakpo v. Head Chief Hodo (1941) 7 WACA 164, and will amend the award by the trial court, in this case, to reflect the interest of the privies of the respondent as the evidence on record truly justifies, that is, an award of title to the respondent and members of the family of the late Uyi Arase.


i. I also bear in mind that the learned trial Judge, quite rightly in my view, found as a fact that the defendant (i.e. the appellant) bought the land from Osazevbide Ediae a tenant who was not granted possessory title but lived on the land by virtue of the occupational rights granted by plaintiff’s father (i.e. respondent’s predecessor-in-title) to his (Osazevbide Ediae’s) father. I am satisfied that there is, in the circumstances, enough evidence on record to justify the conclusion that as between the parties to these proceedings the land in dispute and property thereon belonged to the predecessor-in-title of the respondent.

The Supreme Court ended the judgement by stating:
The plaintiff Peter Uyi is hereby awarded:
(a) as trustee for and on behalf of members of the Uyi Arase family a declaration of title, under Bini Customary Law, to the land and property together with the house thereon lying and situate at Ward G in Benin City and known as No. 22 Oza Street in Benin shown verged pink on Survey Plan No. OM3616 prepared by Obediah E. Omoregie, licensed surveyor dated 8th October, 1971, and countersigned by the Surveyor General of Midwestern Nigeria as No. 115/1613 on 18th October, 1971, evidence in these proceedings as Exhibit B.
(b) It is hereby ordered that the plaintiff may recover possession of the land and property described in (a) above for the Uyi Arase family as trustee thereof; and
(c) It is hereby ordered that the defendant be and is hereby restrained from entering the land and property described in (a) above.




Mbanefo, F.J., (as he then was) on this issue in Agidigbi Uwagboe & Ors. v. Evhuomwan (1959) 4 FSC 91 at 92, and particularly, on the powers, if any, of the Ikoredo ( i.e. the Benin City Council) with regard to plot allocation under Bini customary law and the position of conflicting approvals by the Oba in respect of land allocated to individuals; said the learned Judge: “The question then is which of this contention is right according to Benin customary law? Is the appellant correct in contending that there could be no proper approval by the Oba unless the application was recommended by the Ward Council? Where the Ward Council failed to recommend can the Benin City Council [i.e. the Ikoredo] on its own initiative make recommendations to the Oba? What is the effect of the Oba’s approval on the prior approval given by him to someone else in respect of the same plot? What are the respective powers, if any, of the Ward Council and of the Benin City Council with regard to allocation of plots under Benin customary law, or if both were the creation of statutes, under the statutes creating them? What standing, if any, has the Benin City Council [i.e. the Ikoredo] in this matter? For a proper decision of this it is essential that these questions should be clearly investigated and answered. The learned trial Judge has not done that … I feel that in as much as these issues were not investigated the case should be remitted back for a new trial as they are in my view vital to a decision of the real issues in this case.”

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It is clear from all these cases that in proving title under Bini customary law title is not always established merely by production of a document to which the Oba’s approval has been endorsed, and this is particularly so where, as here, each of the parties can produce such a document, one of which even bears an earlier date of approval. For as was stated by Coker, JSC., in Atiti Gold v. Beatrice Osaseren (supra) at 134: “…The question at all times was which of the parties had made a good title to the land and certainly not which of them first obtained the Oba’s approval which, according to the evidence again rightly accepted by the learned Chief Justice, was but a single though culminating step in a whole chain of events and conditions to be strictly fulfilled by a prospective purchaser’ (and I would respectfully add that the production of the Oba’s approval sometimes and more so in cases of competing approvals by the Oba in respect of the same land, is only one of many steps though a culminating step in proof of title to the said land). – Idigbe, JSC. Arase v. Arase (1981)

An important aspect of the evidence relating to the Bini Customary law of inheritance which was received in these proceedings is to this effect: the eldest son of a deceased person does not inherit the deceased’s property until after the completion of the second’ or secondary burial ceremonies that is, funeral obsequies. The completion is marked by a ceremony by members of the family called UKPOMWAN’; this ceremony is performed by the members of the deceased’s family for the eldest son at the latter’s request. It is only after this ceremony of Ukpomwan that the family distributes the property of the deceased. Upon distribution, all property of the father, that is, all the property owned by the deceased, automatically’ become that of the eldest son. Some of the personal effects are distributable to the other children but that only takes place after the principal personal effects have been given to the eldest son. The principal house in which the deceased lived in his lifetime and died is called the Igiogbe’; that always passes by way of inheritance on distribution to the eldest son. However, until the exercise of distribution under customary law has been performed, the eldest son retains all the property of the deceased in trust for himself and the children of the deceased. – Idigbe, JSC. Arase v. Arase (1981)

It seems clear to me that title under Bini customary law is certainly much more than possessory title; nor is it founded on adverse possession. It is certainly not a freehold because the owner’s right of transfer of his interest therein is subject to this limitation that he must obtain the consent of the Oba; yet, it is not a leasehold. Tenure or Title under Bini customary law is, in my respectful view, sui generis; and hence I take the view that a claim for title to land based on Bini customary law and, ex hypothesi, an award therefor ought to be for a declaration of title under Bini customary law.’ – Idigbe, JSC. Arase v. Arase (1981)

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In the olden times, the Oba of Benin used to grant land himself directly. Later on a new system was devised by which application for grant of land is usually submitted through either the Benin City Council or the Ward Allotment Committee for submission for approval by the Oba. – Sowemimo, JSC. Arase v. Arase (1981)

Succession to land and building in Benin had been through family to succeeding family. In distribution, the eldest son succeeds to the house and premises of the head of the family. – Sowemimo, JSC. Arase v. Arase (1981)

It ought to be borne in mind always that at common law, where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B, he (party A) is entitled to succeed. – Bello, JSC. Arase v. Arase (1981)

I am unable to find anything from the recorded evidence in these proceedings either in support of the view expressed by them in that part of their judgment set out above and to the margin of which is endorsed the letter (Q) to the effect that the facts before the trial court show (i) that the parties concerned with Exhibit’ D’ (i.e. Ediae and Uyi Arase) appeared before the Ikoredo, (ii) that they each gave evidence before that body, (iii) that the people of the relevant Ward appeared and testified before that body in the presence of the parties concerned; or to justify the inference made by their Lordships that there is a strong probability’ (a word which imports speculation’ on the part of their Lordships) that at the time of the inquiry and resolution, to which Exhibit D’ relates, the Benin City Council, that is, the Ikoredo, and NOT the Oba (and this part of their inference undoubtedly runs counter to the evidence of custom relevant on the issue as accepted by this court in Okeaya Inneh v. Aguebor (supra) see (1970) 1 All NLR 1 at pp. 9-10 paragraph (j)) was the appropriate forum for resolving issues of claims to land involving conflicting approvals by the Oba … It is a matter of customary law on which the lower court must receive evidence before taking a decision on the precise value and effect of the Resolution of the Ikoredo in Exhibit D’. – Idigbe, JSC. Arase v. Arase (1981)

There is no evidence as to what exactly is a ‘competent body’ or what it comprises or consists of , under Bini customary law and/or whether it has powers to set aside a prior approval; nor is there evidence as to whether it is the Plot Allotment Committee for the Ward concerned or the Ward itself that may, in circumstances stated in the evidence of Dickson Idiaghe, entertain a subsequent application in respect of a plot in the Ward; and if it is the latter (i.e. the Ward itself) and not the Allotment Committee, there is no evidence as to how exactly such an imprecise body is to operate or discharge this particular duty under customary law. It follows from the foregoing observations, therefore that the Court of Appeal must, in my respectful view be wrong in their view that Exhibit G’ was set aside by Exhibit A’. – Idigbe, JSC. Arase v. Arase (1981)




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