By Iwalomhe Donald...

The President of the Ijaw Youths Council ( IYC ) , Eric Omare recently said that the ownership issue of Gelegele community in Edo State, if not properly handled may lead to a serious communal crisis. It is clear that the President of Ijaw Youth Council is ignorant of the ownership of Gelegele which was established by Oba Eware the Great of Benin Kingdom to facilitate trade between Benin Kingdom and European nations. Let me educate Eric Omare that Gelegele is not an Ijaw community. Gelegele is a Benin community. For the fact that we have some Ijaw people, Yoruba people and other tribes in Gelegele does not make it Ijaw community. I want to educate Eric Omare on Oba Eware the Great and the development of Gelegele. It took various Obas in Benin Kingdom to open up the various communities in Benin river including Gelegele to the Europeans.

There is no controversy and no dispute about the ownership of Gelegele. For the fact that Oba Eware II is calling for the development of Gelegele port since last year does not mean that there is a dispute over ownership of Gelegele. Gelegele is an historical port of Benin Kingdom that was opened by Oba Eware the Great before it became a major Oil and Gas producing community in Ovia North East Local Government Area of Edo State that hosted the philip’s oil company limited subsidiary of philip 66 of texas USA in 1963. The assets and liabilities of Philip oil company in OML 96 were divested to Dubri Oil Company in 1987. It has made Benin Kingdom and Edo state one of the oil and gas producing state in Niger Delta. THE Portuguese were the first European travelers to visit Benin through Gelegele, which they called Benin, this was during the reign of Oba Eware the great. The Portuguese admitted finding a highly developed kingdom with a very advanced system. This visit and subsequent interchanges led to King John II of Portugal who reigned between 1481 to 1495 exchanging correspondences with the King of Benin on a peer like basis. Between 1504 and 1550 AD, the Portuguese established diplomatic and trade relations with Oba Esigie and his kingdom of Benin


By the 16th century the Oba sent an ambassador to Lisbon and the king of Portugal reciprocated by sending Christian missionaries to teach the Binis the gospel.
Oba Eware II is pushing for the development of Gelegele port The Oba of Benin Kingdom, Omonoba N’Edo Uku Akpolokpolo, Ewuare II, has consistently expressed the desire for a Free Export Trade Zone at Gelegele Community in Ovia North-east Local Government Area of Edo State.
Oba of Benin, Oba Eware II has done very well to woo foreign businesses to Edo State. It is an imperative that Oba Eware II, has focused almost as vigorously as he pursued investments most especially in Gelegele. It is disheartening therefore to know that this effort does not seem to be meeting generally accepted objectives; and the desired level and types of new foreign investments are not materialising because of some uneducated Ijaw elements in Gelegele.
The development of Gelegele as a port and industrial zone is of high priority to Oba Eware II, Oba of Benin and the Government and people of Edo State, as it will improve the economic competitiveness of our state. Governor Obaseki has, therefore, set up a seven-member, high powered committee headed by Engineer Gregory Ero, to establish Gelegele as a foremost economic and industrial hub in Nigeria


It was towards the tail end of Oba Ewuare’s reign that the Portuguese first made their visit to West Africa in 1472. Oba Ewuare the great died in 1473. At the actuaries on the bank of what is today known as the Bight of Benin. When the Portuguese arrived in the kingdom of Benin through Gelegele, they were stunned by what they found on the ground in terms of level of administrative sophistication, social engineering and military activities. They found a monarchy dating back many centuries, with complex structure of chiefs and palace officials presiding over a kingdom that was expanding in all directions and a highly developed kingdom with unique and very sophisticated political, artistic, linguistic, economic, cultural and military traditions in the process of territorial conquests.
The English made their first call in 1 553. This visit was a harbinger of lucrative business, for significant trade relationship soon developed between England and Benin. The British anthropology writer and curator, Henry Ling Roth, described Bini as Great Benin. Other European visitors to Benin in the 16th and 17th centuries brought back to Europe tales of the Great Benin”, a fabulous city of noble buildings and efficient administrative system.
While alleging marginalization of the Ijaws in appointments and elected positions in Edo State, the IYC said the uproar that occurred mid way into the meeting with the Acting President in Edo State was not to be handled with levity as according to him,

CURRENT LEGAL OWNERSHIP STATUS OF GELEGELE PORT.

Some years ago,some Ijaw tenants- John Ikibor Dweye,Yiefabiri Bisin and Timothy Ofunana on behalf of themselves and Ijaws living in Gelegele communities brought an action for the High Court to vest ownership of Gelegele lands and port in Ijaw people. The High Court dismissed their case. They went to the court of Appeal and the court of appeal dismissed the appeal with punitive costs.

Not satisfied,they went to the ultimate court of the land-The Supreme Court. The Apex Court dismissed their appeal and awarded substantial costs against them. In giving their judgement, the Supreme Court affirmed that:

"GELEGELE LANDS AND PORT BELONG TO THE BENIN KINGDOM"

Find below an excerpt of the Supreme Court Judgement vesting ownership of Gelegele in Benin Kingdom in 1983.

In The Supreme Court of Nigeria
On Friday, the 19th day of August, 1983
Suit No: SC.131/1982

Before Their Lordships
CHUKWUWEIKE IDIGBE …… Justice of the Supreme Court
ANDREWS OTUTU OBASEKI …… Justice of the Supreme Court
ANTHONY NNAEMEZIE ANIAGOLU …… Justice of the Supreme Court
MUHAMMADU LAWAL UWAIS …… Justice of the Supreme Court

Between
JOHN IKINBOR DWEYE
YIEFABIRI BISIN Appellants
TIMOTHY OFUNANA
(For themselves and on behalf of Gelegele Community)

And

JOSEPH I. IYOMAHAN
OGBEFUN EGHAREVBA
UWUIGBUSUN NORAGBON Respondents
OMOGIATE OKUNHON
(For themselves and on behalf of Ugholo Village Community)

UWAIS, J.S.C. (Delivering the Leading Judgment ): By a writ of summons taken out on the 9th June, 1970 by the plaintiffs (now respondents ) from former Mid-Western State High Court, at Benin the plaintiffs claimed against the defendants (now appellants) as follows:

“1. A declaration of title to parcel of farm land known as ‘Gelegele land” in Benin West Division within the Benin Judicial Division the dimensions and abuttals of which are sufficiently shown in the plan to be filed later.

2. The sum of 500 pounds (N1,000.00) being damages for trespass on the said land in that between 1986 and 1970 the defendants by themselves, their agents or servant broke and entered upon the said land without the plaintiffs’ permission or consent and committed various acts of trespass and dealt with the said land in a manner inconsistent with the plaintiffs ‘ title thereto.

3.Perpetual injunction restraining the said defendants and their agents or servants from further acts of trespass on the said land.”
Pleadings were filed and delivered. Trial proceeded before Eberuche, J. (as he then was) and judgment was delivered by him on the 22nd December, 1978.

The plaintiffs’ claims were dismissed in their entirety
Dissatisfied with the decision the plaintiffs appeal to the Federal Court of Appeal. The appeal was heard and allowed in part by that Court on the 16th December, 1981 in the following terms (per Agbaje J.CA):


“In the results the appellants’ (plaintiffs’) appeal succeeds in part. The order of the learned trial judge refusing the plaintiffs a declaration of title to (the) land in dispute is hereby set-aside by me. In its place an order granting the plaintiffs a declaration of title under the Bini Customary law is hereby affirmed by me. The appellants (plaintiffs) are titled to their costs”

The defendants in turn being aggrieved by this decision appealed to this Court. They filed 8 grounds of appeal 7 of which were objected to in limine by learned counsel for the plaintiffs. The objection succeeded as we found the grounds to be incompetent since they raised issues of fact or mixed fact and law without the leave of the Federal Court of Appeal or this Court being obtained, as it is necessary, under section 213 subsection (3) of the Constitution.

The grounds were therefore struck-out. The only ground left to be argued and which was in fact argued by the learned counsel for the appellants reads:

“2. The Federal Court of Appeal erred in law in granting title to the land in dispute to the respondents (plaintiffs) according to native law and custom in complete disregard of the provisions of S. 40 of the land Use Act (sic) enshrined in the Constitution of the Federal Republic of Nigeria, 1979, s.274.”

Mr. Afuyah, learned counsel for the appellants said that it was clear from the pleadings filed and the evidence adduced at the trial of the case that the appellants were in possession of the land in dispute. He contended that the land was not part of the area of Bendel State which constituted the “urban area” designated under Bendel State Legal Notice No. 22 of 1978. Learned counsel argued that by reversing the decision of the High Court, the Federal Court of Appeal had deprived the appellants of the right to apply to the appropriate authority for the customary right of occupancy as provided under section 36 subsection (4) of the Land Use Decree, 1978 (1978 No.6). Consequently it was submitted that the Federal Court of Appeal failed to comply with the provisions of section 40 of the Land Use Decree, 1978.

Both sections 36(4) and 40 of the Decree state as follows-


“36(40) Where the land is developed, the land shall continue to be held by the person (in) whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of the customary right of occupancy issued by the Local Government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed the Local Government shall if satisfied that that person immediately before the commencement of this Decree has the vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the Local Government.”

“40.Where on the commencement of this Decree proceedings had been commenced or were pending in the court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order decision of the court shall only be as respect of such land as provided in this Decree.”

Chief Williams, learned counsel for the respondents submitted in reply that the decision of the Federal Court of Appeal did not deprive the appellants of their occupational rights on the land in dispute. He argued in the respondents ‘ brief and rightly in my view, that the question whether land is a subject of a statutory right of occupancy or customary right of occupancy does not depend upon any character of the tenure but rather on the location of the land. If the land is located in an area designated “urban area” by the appropriate authority under section 3 of the Land Use Decree, then rights in land within such area could be statutory right of occupancy. He contended that the appellants were therefore wrong when they assumed that the land in dispute is necessarily the subject of customary right of occupancy.

Learned counsel for the respondents submitted further that the issue of the application of the Land Use Decree was not raised in the High Court or before the Federal Court of Appeal and therefore the question ought not to be entertained by this Court. He cited in support Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at pp. 93-98.

I think the last point made by Chief Williams is well grounded. It has been well established by a line of authority starting with Abinabina v. Enyimadu, 12 W.A.C.A. 171 through to Ejiofodomi’s case (supra) that no substantial point which has not been taken in the courts below will be allowed to be raised for the first time before this Court except under special circumstances. It is true that the point of law now being raised by the appellants in the ground of appeal argued was not canvassed in either the High Court or the Federal Court of Appeal. Learned counsel for the appellants had however contended that he made the point in the High Court, but, with respect, this is not altogether correct. What in fact transpired was that the appellants filed an interlocutory application, in which they asked for an order-

“Striking out suit No. B/44/70 in that the plaintiffs have no locus standing (sic) to maintain the action in its present form in view of the provisions of the Land Use Decree 1978, or for such further order or other orders as to the court may appear just or proper in the circumstances.”

The affidavit in support of the application sworn to by the 3rd defendant – timothy Ofunama, who is now 3rd appellant, stated in part as follows:

“5. That the plaintiffs have concluded their evidence in this suit.

6. That the defendants had begun their defense having called four witnesses before the promulgation of the Land Use Decree. 1978.

7. That I have been advised by our solicitor H.O. Ofuyah Esq., and I verily believe him, that by virtue of section 1 of the Land Use Decree, 1978, the plaintiffs are precluded form maintaining this action against Gelegele Community in a representative capacity or at all on a claim based on customary tenancy.

8. That the inhabitants of Gelegele as well as Ughoton are occupiers of their respective lands within the meaning of section 50 of the Land Use Decree 1978 and are entitled to apply as individuals or organization to the appropriate authority in respect of the land they now occupy or use.

9. That I have also been advised by my solicitor H.O. Ofuyah, Esq., and I verily believe him, that any order made by this Honorable Court in contemplation of section 40 of the Land Use Decree shall be in conflict with s.36 (4) of the same Decree as it affects the rights of individuals in either Ughoton or Gelegele community and would therefore prelude the appropriate authority acting under s.6 of the Decree.”Needles to say the application was refused. At no other time did the appellants raise the issue of the applicability of the Land Use Decree to the case again;50 not even in the address of their counsel at the close of their case.

Furthermore, if we are to entertain the new point now being raised it is clear form the submissions of both counsel to the appellants and the respondents that the evidence of a surveyor will have to be adduced or a map tendered to explain the area designated “urban area” as contained in Bendel State Legal Notice No. 22 of 1978. This would be necessary in order to enable us determine whether the land in dispute was in fact situated outside the area declared “urban area” by the Legal Notice. Surely these are matters best considered by the courts below. It is not enough for counsel to merely say that Gelegele is not an “urban area”. To accept to deal with the new point will have the effect of this Court giving an important decision without having the benefit of the judgments of the courts below.

For these reasons I am of the opinion that the appellants’ argument in support of the sole ground of appeal should be discountenanced. The appeal therefore fails and it is dismissed with N300.00 costs to the respondents. The decision of the Federal Court of Appeal is affirmed.

Appeal dismissed.

OBASEKI, J.S.C. I have had the advantage of a preview of the judgment just delivered by my learned brother, Uwais, J.S.C. and I am of the same opinion on all issues raised before us in this court.
I would however observe that the appellants filed no counter – claim apart from setting up absolute title of ownership in the High Court. Their entitlement under the Land Use Act, 1978 cannot therefore be raised in this court.


I would also dismiss and I hereby dismiss the and affirm the decision of the Federal Court of Appeal with costs to the respondents assessed at N300.00. Opinion of Hon. Justice Idigbe, J.S.C. (deceased) Pronounced by Obaseki, J.S.C.

We have all lost through the cold hands of death a very distinguished and eminent member of this Court. He is my learned brother, the Hon. Justice Chukwunweike Idigbe, J.S.C., C.O.N., O.F.R. May his soul rest in peace.

My learned brother Idigbe J.S.C. of blessed memory was also of the opinion that the appeal be dismissed for the reasons stated in the judgment of Uwais, J.S.C. and I pronounce his decision dismissing the appeal with costs to the respondents fixed at N300.00.
ESO, J.S.C.: I had a preview of the judgment just delivered by my learned brother Uwais, J.S.C. and I agree entirely. I will also dismiss the appeal for the reasons which have been given by my learned brother.

ANIAGOLU, J.S.C. I have been opportune to read in draft the Judgment just delivered by my learned brother, Uwais, J.S.C.


I agree that for the reasons given by him in the said judgment this appeal should be, and is hereby, dismissed with N300.00 costs to the respondents.

Appearances
For the Appelants
H.O. Ofuyah
Chief F.R.A. Williams, S.A.N.


(with him K.S. Okeaya-Inneh and O.K. Aderinokun (Mrs.)] For the Respondents

THIS OUGHT TO HAVE PUT PAID TO THE MATTER BUT THE IJAWS JUST WONT LET MATTER BE.

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EDE N'ERHENA VBE EDO

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