Nigerians operated customary land tenure system according to their custom. This varied from place to place before the advent of the British government in 1861. Indigenous people accepted this customs as “a mirror of accepted usage” and attached much importance to the practice. From time immemorial, the Benin people have peculiar land tenure system, which forms part of their tradition and custom. Although, the system is an intriguing one the people uphold it with reverence.
Prior to the promulgation of the land use art in March 1978, the title to Benin land was vested in the Oba of Benin whom the people have very high regards for. He held Benin land as the overlord and trustee for the Benin people, therefore whatever power he exercised in the control of the land was unquestionable and when he made a grant of any parcel of land to anybody, he did so as a matter of favour in the exercise of his prerogative
Procedure for obtaining grants by Oba of Benin prior to 1978
It is commonplace and an accepted custom that for under Benin native law and custom, that for under Benin native law and custom, all Benin land are communal property of the entire Benin land are communal property of the entire Benin people but the legal estate in such land is vested and resides in the Oba of Benin as trustee for the Benin people. A Benin man or woman (including other persons) that desired for a land on which to build applies for it to the Oba of Benin (who is the only authority competent under Benin customary law to make allocation or grant of Benin land in or outside Benin City through the appropriate ward plot allotment committee in which the land is situated. The committee makes recommendations of the application to the Oba of Benin. The committee carries out an inspection of the site in order to ascertain its location and in order also to be able to recommend to the Oba whether the plot desired should be granted to the applicant, is free of dispute. Upon receipt of such recommendation, the Oba gives his approval to the applicant who thus becomes the beneficial owner thereof in accordance with the Benin custom. The Oba signifies his approval by writing “Approved” in the body of the application, followed by his signature on the grantee’s written application immediately transfers to the purchaser or grantee the plot for land involved. This approval remains valid until set aside by the Oba of Benin when it is proven subsequently by evidence that a prior approval for the same land had been given by the Oba, but not when made unilaterally, i.e. in the absence of the parties concerned. In this case, the Oba of Benin invites the two parties affected by the conflicting grants to appear before him, where his decision must be communicated to them after an open hearing at the Oba’s palace, which decision must also be communicated to ward allocation committee where the two conflicting grants emanated. See Arase v. Arase (1981)5SC.35. The said grant cannot be vitiated just because one of the parties was granted approval earlier than the other, but prior on the date of the Oba’s approval would depend on whoever show better title when both parties appear before the Oba at his palace, to prove their case.
By the promulgation of the land use decree in 1978 the law of priority under Benin customary land tenure system has been overtaken by events but the court of law now accurately considers the evidence of parties and puts same on an imaginary scales of justice as enunciated in Mogaji v. Odofin (1978)4SC.91 before coming to the conclusion that a particular party had proved a better title to the land. In the early times, the Oba divided Benin into quarters, which were headed by chiefs appointed by him and later about 1947 created ward councils whose duty was to recommend to the Oba application for plot of land. The said ward councils were replaced with building plots allotment committee whose main function was to receive and recommend application for building plots to the Oba for approval. However, before such application was forwarded to the Oba, the committee ensured that the plot of land was not encumbered in any form by inspecting same. See Okeaya v. Aguebor, (1970) 2 S.C 1AII NLR where the supreme court of Nigeria outlined the established principles governing the acquisition of land under Benin customary law, which are not different from those stated below.
The case of Okeaya v. Aguebor supra as decided by the Supreme Court has become the focus classicist of Benin of Benin custom relating to land ownership.
Fundamental principles governing acquisition of land under Benin native law and custom:
Applicant intending to acquire land must direct an application in writing to that effect through the plot allocation committee responsible for the ward in which the land intended to be acquired is situated.
Upon receipt of the application the plot allotment committee will delegate some of its members to carry out an inspection of the land and they in turn will report back to the committee on their inspection; the purpose of inspection being to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has been previously granted to someone else.
After being satisfied that the desired piece of land is dispute free the committee will endorse the application and forward it to the Oba of Benin. The Oba of Benin then grants his approval to the application in writing.
It is the approval given to an application by the Oba is all that is required by Benin customary law to vest title of land in the grantee, but does not mean that the title of the grantee is indefeasible when as a fact it is discovered that the land granted is encumbered even though the Oba had entered into conveyance with the grantee
It is trite that failure to fulfill a condition precedent, especially a prior visit to the land intended to be granted to an applicant, which a fortiori the approval of same nullified and vitiated the Oba’s approval to the grant. See; Gold v. Osaeren(1970) 1ALL N.L.R. 132
See also Okeaya v. Agubor- the visit and inspection of such proposed location by committee is imperative.
