Adekola Mustapha V. Corporate Affairs Commission (2008)

LAWGLOBAL HUB Lead Judgment Report

JUDGMENT G. A. OGUNTADE, JSC 

The appellants were the plaintiffs at the Oshogbo High Court of Osun State where they claimed against the respondent as the defendant the following reliefs:

“(i) A declaration that the Plaintiffs are the persons entitled to a statutory Right of Occupancy to the piece or parcel of land consisting of an area approximately 9.865 hectares, verged Blue and shown on plan No. OMS/OS/MISC/08/91 drawn by E.O. Omisola & Associates, Licensed Surveyor and bounded as follows:

(a) On the front side or Northern side by Osogbo to Iwo Road

(b) On the Eastern side by Adegoke Family landed property

(c) On the Southern side by Onifade Family land and

(d) On the Western side by Yemoja Stream

(ii) Five thousand naira (N15,000.00) General damages for trespass committed by the defendant on Plaintiff family land at Yemoja area, Oyatedo.

(iii) Perpetual Injunction restraining the defendant, his servants, agents or privies from committing any further acts of trespass on the said piece or parcel of land. The rateable value of the said land is (Nl00.00) (one hundred Naira)” Parties filed and exchanged pleadings after which the case was heard by Ademakinwa J.

The appellants called five witnesses including the 2nd appellant. Similarly, five witnesses including the defendant testified in support of the defence case. In a well-written judgment delivered on 17-03-74, the trial judge concluded as follows: “The conclusion I have therefore reached in this case is that by entering the land in dispute to erect a signboard thereon, the defendant has committed an act of trespass against the Plaintiffs’ exclusive possession of the said land. The Plaintiffs have however claimed N5,000.00 as general damages for the trespass committed by the defendant. It is well known that in the absence of any special damages arising from the trespass committed only nominal damages could be awarded in the form of general damages. I would therefore allow N5,000.00 as general damages. Since the Plaintiffs are entitled as customary tenants to remain in possession, I think there is a need to protect their possession, of the land in dispute until their customary tenancy is properly determined. I would therefore grant the order of injunction sought. In the result, the Plaintiffs’ claims succeed in part and they are hereby granted N5,000.00 as general damages for the trespass committed by the defendant on the land in dispute and an order of injunction restraining the defendant, his servants, or agents from further acts of trespass on the land in dispute while the customary tenancy of the plaintiffs subsists.” The respondent was dissatisfied with the judgment of the trial court. He brought an appeal against it before the Court of Appeal, Ibadan (hereinafter referred to as ‘the Court below’).

Before the court below, the three issues submitted by both parties to the court for determination are:

“(1) Whether the trial (sic) judge was not wrong in holding that the plaintiffs action for declaration of title to statutory right of occupancy is respect of the parcel of land in dispute;

(2) Whether the Learned trial Judge had not committed error of law in holding that the previous decision by the Supreme Court in respect of the same parcel of land between the same parties did not constitute estoppel.

(3) Whether learned trial judge was not wrong in holding that the Plaintiffs had LOCUS STANDI to institute the suit against the defendant.

” The Court below in its judgment on 14-06-01 held: “As Respondents failed to establish lawful and cogent evidence of possession, the finding of fact of possession was perverse and hereby set aside. As damages for trespass is rooted in possession which Respondents failed to establish, the Order for damages for trespass for the sum of N5,000.00 as general damages is hereby set aside, so also the order of injunction which is granted at the discretion of the Court acting judicially and judiciously.”

The Court below in effect allowed the respondent’s appeal and set aside the judgment in favour of the appellants. The appellants were dissatisfied with the judgment of the court below. They have come before this court on a final appeal against the said judgment. In their appellants’ brief, the solitary issue for determination in this appeal was identified to be: “Whether the Court of Appeal was right to have set aside the finding of the trial Court on possession and the status of the Plaintiffs which entitled them to be in possession and to maintain an action for trespass against the defendant.” The respondent in his brief formulated the issue for determination in the appeal differently thus: “Whether the learned Justices of the Court of Appeal were not right in upholding the Respondent (sic) appeal before it when the appellants evidence of possession on which the claims for damages and Injunction were granted by the trial Court were found not to be rooted in the traditional history of title as pleaded.”

In the consideration of the single issue for determination in this appeal, I intend to consider preliminarily the pleadings upon which the case was tried. The appellants pleaded in their Further Amended Statement of claim that the land in dispute was granted to their ancestor BAMIGBOLA by OBA ADEGBOYE ATOLOYE, the Olofa of Ofatedo over two hundred years ago. It was pleaded that the descendants of BAMIGBOLA including the appellants had from their generation to generation exercised acts of possession and ownership over the said land. In paragraphs 21-23 of the Further Amended Statement of claim, the appellants pleaded thus: “(21) The Plaintiffs and members of their family are still farming on the land in dispute, planting cocoa, kola nuts, oranges and other crops like yams, cassava, sweet potatoes without any hindrance or disturbance from anyone until 1982. (22) The Plaintiffs are the descendants of their ancestors called BAMIGOLA and they derived their respective inheritance titles under Native Law and Custom. (23) Sometime in 1982 the Defendant visited the land in dispute and started erection of sign posts on the land, the 2nd plaintiff uprooted the sign posts and 2nd Plaintiff together with others were charged to the Senior Magistrate’s Court, Ede. In charge Number MED/6C/83 the 2nd plaintiff pleaded not guilty and after the trial he was fined a sum of Nl00.00 which fine was paid by the 2nd Plaintiff.”

The Respondent in paragraphs 6, 9, 10, a and b, 22 and 24 of his Further Amended Statement of defence, pleaded thus: “(6) With further reference to paragraph 7 of the Amended statement of claim, the Defendant states that the Olofa of Ofatedo is a Tenant of the Timi of Ede and has got no right to grant land without the knowledge and consent of the Timi of Ede. PAGE| 6 (9) With further reference to paragraphs 9, 10, and 11 of the Amended Statement of claim the Defendant avers that the land in dispute forms part of a larger area of land acquired by conquest by Timi Ajeniju about 200 years ago. 10(a) That since the conquest referred to above, the Timi of Ede (Timi Ajeniju) and all other succeeding Timis became owners of all parcel of land in Ede and District or what is now known as Ede and Egbedore Local Government Areas; 10(b) Timi Ajeniju settled many people as customary tenants parts of the conquered Areas such as Awo, Iwoye, Ara, Oloki, Iddo-Osun, Ofatedo, Okinni, etc. (22) With reference to paragraph 28 of the statement of claim, the Defendant avers that he had been the owner long before 1982 and that the Plaintiffs are duly aware of the Defendant’s ownership of the land in dispute. (24) With reference to paragraph 30 of the Statement of claim the Defendant states that he had been in possession since he bought the land in dispute from Oba John Laoye in 1975 or thereabout.” It is apparent from the extracts of the parties’ pleadings above that the appellants traced their title to their ancestor BAMIGBOLA who was said to have been granted the land in dispute by Oba Adegboye Atoloye, the Olofa of Ofatedo who himself received the grant of the land from the then Olubadan of Ibadan. The appellants claimed to be in possession of the land in dispute and that the respondent came to disturb their possession when in 1982 he came on the land and erected sign posts thereon. The respondent on the other hand claimed that he had been in possession of the land since 1975 when he purchased it from Oba John Laoye, the Timi of Ede whose ancestor Oba Timi Ajeniju acquired the land by conquest 200 years ago. It was pleaded that the Olofa of Ofatedo whose title the appellants relied upon was in fact a tenant to the Timi of Ede. On this state of pleadings, the trial court needed to determine the party whose traditional history was superior to the other, and the tangential question as to who of the parties was in possession of the land. It must be stated here that the respondent did not file a counter-claim. He merely came to defend the appellants’ suit. The trial judge in his judgment came to the conclusion that the appellants did not call satisfactory evidence in support of the traditional history they pleaded. He dismissed the 1st leg of their claims which was for a declaration of title. As to the person who was in possession of the land in dispute, the trial judge at pages 61 – 62 of the record found as follows: “The Clear evidence before the Court which I accept (and this much was admitted in the document Exhibit ‘H’ and recognized in the Judgments Exhibits ‘E’ and ‘F’) is that the Ofatedo people (including the plaintiffs) have all along been in exclusive possession of a much larger area of land (of which the land in dispute forms part) as customary tenants of the Timi of Ede. Indeed this was the case made out for the Defendant in his pleadings. That being the case the Plaintiffs family were lawfully in exclusive possession of the land in dispute as customary tenants, although the title to the reversion remained vested in the Timi of Ede as their customary landlord. It is trite law that customary tenants are, subject to good behaviour entitle to enjoy their use and possession of the land in perpetuity until forfeited by order of Court, (see Owoade v. Omitola (1985) N.W.L.R. 1 at page 9 Nwawuba and Othoera v. Eremuo and others (1988) 5 S.C.N.J. 154 at page 168 and Abioye v. Yakubu (1991) 5 N.W.L.R. (Pt 190) 130 at pages 201 – 202. It is pertinent to emphasise that even where a customary tenant is alleged to have committed an act amounting to misbehaviour it does not necessarily follow that his tenancy would automatically be forfeited.

There is the need for the customary landlord to institute appropriate proceedings in Court for that purpose, (see Aromolaran v. Waddel (1958) S.C.N. L.R. 267; Abioye v. Yakubu (1991) 5N.W.L.R. (Part 190) 130 at pages 245 – 246. There is no evidence that before the Timi of Ede (3rd D.W.) executed the deed of conveyance transferring the title to the land in dispute to the Defendant the customary tenancy of the plaintiffs thereon had been properly terminated by order of Court. It follows therefore that all that the Defendant had been able to obtain from the Timi of Ede by virtue of the deed of conveyance Exhibit ‘D’ was the reversionary title to the land in dispute, while the possessory title still remains vested in the Plaintiffs as customary tenants. It is therefore clear that as at the time the Defendant entered the land for the purpose erecting signboard thereon, the Plaintiffs were in exclusive possession thereof. The principle has always been stated that a trespasser in possession of land can maintain an action in trespass against all persons except the true owner or someone claiming through the true owner (see: Aromire v. Awoyemi (1972) 1 All N.L.R. 101 at 112; Fabunmi v. Agbe (1985) 1 N.W.L.R. 299; Mogaji v. Cabdury (1986) 2 N.W.L.R. 9 (Part 7) 393 at page 432). The exception created with regard to the inability to maintain an action in trespass against the true owner or someone claiming through the true owner is, of course predicated on the finding that the person seeking to maintain the action is himself a trespasser. It has, nevertheless been long recognized that a tenant lawfully in possession, could in certain instances maintain an action in trespass against his landlord. As stated by the Learned author of Halsbury’s Laws of England it is trespass for a landlord to levy an illegal distress or having rightfully entered on the land for the purpose of distress to remain there when the distress was become wrongful, (see: Halsbury’s, Laws of England (3rd Edition) Vol. 38 page 741 paragraph 1206. Afortiori, a person claiming through a customary landlord, who unlawfully purported to have terminated or forfeited the interests of the customary tenant in the land and proceeded to enforce the illegal forfeiture or termination by seeking to take possession of the land and erecting signboards thereon, has committed an act of trespass. The conclusion I have therefore reached in this case is that by entering the land in dispute to erect a signboard thereon, the defendant has committed an act of trespass against the Plaintiffs’ exclusive possession of the said land.” In the extract from the passage of the trial court’s judgment reproduced above, the trial judge stated that the appellants were in possession of the land in dispute when the respondent entered thereon; and further, that there was evidence which he accepted that the appellants’ family had been on the land as customary tenants of the Timi of Ede and further that such customary tenancy was not determined before the land was sold to the respondent. PAGE| 9 The Court below in its judgment on 14-06-01 overturned the judgment of the trial court on the ground that the appellants had not in the case they made before the trial court admitted that they were customary tenants of the Timi of Ede. The court below in its judgment said: “Applying Woluchem v. Gudi 1981 5 SC 291 the finding of possession in favour of Respondents who never agreed to being customary tenants of TIMI OF EDE was perverse and as an appellate court I set aside and disturb the finding of possession in favour of Respondents and state that applying section 135, 136 and 137 EVIDENCE ACT Cap 112, Laws of the Federation of Nigeria 1990 that plaintiffs/respondents failed to establish exclusive possession as the court below found that contrary to their case to be customary tenants with reversionary interest vested in TIMI OF EDE. As Respondents failed to establish lawful and cogent evidence of possession the finding of fact of possession was perverse and hereby set aside. As damages for trespass is rooted in possession which Respondents failed to establish the order for damages for trespass for the sum of £1500.00 as general damages is hereby set aside, so also the order of injunction which is granted at the discretion of the court acting judicially and judiciously. The attitude of appellate court is well settled as the rule in Univesity of Lagos & Anor v. M.I. Aigoro (1985) 1 NWLR pt.l page 143 SC. As the grant of injunction to Respondents was based on wrong principle of law in exercise of judicial discretion an appeal court can set aside the grant based on wrong principle of law. The order of injunction granted by the lower court is set aside and the prayer refused.” Was the Court below right in its approach to the matter? I think not. There is no doubt that on the pleadings, the appellants had pleaded that their ancestor BAMIGBOLA had been granted the land in dispute by the Olubadan of Ibadan and that they were in possession of the land in dispute as the descendants of Bamigbola, their ancestor. The respondent on the other hand relied on the title of the TIMI OF EDE from whom he claimed to have purchased the land in 1975. He claimed to be in possession of the land. The trial court in its judgment came to the conclusion that the land in dispute belonged to the Timi of Ede but that the appellants as well as all the people of Ofatedo had PAGE| 10 from several years back been the customary tenants of the Timi of Ede. As a result of these findings, the appellants’ claim for declaration of title was dismissed. In addition to the appellants’ claim for declaration of title however, they had sued in trespass for damages and an injunction. Now in Oluwi v. Eniola (1967) N.M.L.R. 339 at 340 – 341, the Supreme Court per Lewis JSC discussed the approach of the court to a situation where a plaintiff who has sued for declaration of title and trespass fails to sustain his claim for declaration of title. He said:

“The claim for trespass, however is not in our view dependent on the declaration of title as the issues to be determined on the claim for trespass were whether the plaintiff had established his actual possession of the land and the defendant’s trespass on it, which are quite separate and independent issues to that on his claim for a declaration of title.” In this case the trial court having dismissed the appellants’ claim for title was right to have proceeded to consider the claims for trespass and injunction. The grouse of the court below was that the appellants had not in their Further Amended Statement of claim relied on the title of the Timi of Ede for their possession. It seems to me that the court below by dwelling so much on the failure of the appellants to rely on a customary tenancy with Timi of Ede as their over lord failed to detach the claim for declaration of title from the claim for trespass and injunction. It is the law that even a trespasser in possession can successfully maintain an action in trespass against all the world except the true owner. See Amakor v. Obiefuna (1974) 3 SC 49 at 56 (Reprint) where this court per Fatayi Williams JSC (as he then was) said: “……. a trespasser in possession of land, as against everyone but the true owner, can devise or convey his interest in the land or transmit it by inheritance (see Asher v. Whitlock (1865)L.R 1 Q.B. page 1). In this connection, we refer, with approval, to the statement of Cockburn, C.J., at page 5 of the judgment in the Asher case. It reads – “But I take it as clearly established, that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine. Doe v. Dyeball Mood and M 346, one year’s possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him, ‘you have no more title than I have, my possession is as good as yours,’ surely ejectment could have been maintained by the original possessor against the defendant.”

“It only remains for us to add that, on the authority above an original trespasser, s against every one but the true owner, can, if he is in exclusive possession of the land, maintain an action in trespass against a later trespasser whose possession, whether taken by force or not, would be clearly adverse to that of the original trespasser. Therefore, assuming, without deciding, that the plaintiff/appellant in the case in hand is also an original trespasser, it seems to us that he can maintain an action for trespass against the defendant/respondent who has disturbed his possession.” It is to be emphasized here that the trial court found that the appellants were in possession of the land. Even if the appellants were not able to show a good title to the land, they were still entitled to remain thereon unless and until someone with a better title challenged their possession. The question that the trial court had to decide is -Did the respondents show a better title? It is the answer to this question that spelt the death knell to the respondent’s case. The respondent claimed to have purchased the land in dispute from the Timi of Ede in 1975. The said Timi of Ede as found by the two courts below had the radical title to the land. But the land as found by the trial court had been granted to the Ofatedo people of which the appellants formed a part under a customary tenancy. There was no evidence before the trial court to suggest that the customary tenancy of the appellants’ Ofatedo people had been forfeited or brought to an end. It seems to me in the circumstances that the respondent had not adverted his mind to the nature of a customary tenancy under customary law before he bought the land in 1975. This case falls on all fours with Lasisi v. Tubi (1974) 12 S.C. 62 (Reprint) at pages 64-66, where this Court per Dan Ibekwe JSC stated the position of the law on customary tenancy as follows: “We wish to begin by emphasizing the fact that, under our law, the customary tenant enjoys a most enviable position. Once in possession, he is always in possession; for, time does not run against him. It is settled law that the possessory right of a customary tenant goes on and on, in perpetuity, unless and until the tenancy is forfeited. Be it noted also that the courts in this country are very slow in granting forfeiture. Indeed, it will be more correct to say that, in so far as customary tenancy is concerned, our courts have always been willing and ready to grant a relief against forfeiture, except in an extreme case, where the refusal to grant it would tend to defeat the ends of justice. But such cases are few and far between. They are, therefore, very difficult to come by in our law reports. The theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and use, they are entitled to continue in peaceable enjoyment until they forfeit their rights on such grounds as, e.g. alienating a portion of the land to others without the prior consent of the grantors, or by putting the land to uses other than those originally agreed upon, or by failure to pay the customary tribute, or by denying the title of the overlord. The list is not exhaustive, though it is important to observe that it is also well-established that customary tenants should not suffer forfeiture for minor acts of misbehaviour, and that the courts are loath to order forfeiture except in the most exceptional circumstances. See Ashagbon v. Oduntan 12 NLR 7, and Ogbakumanwu & Ors. v. Chiabolo, 19 NLR 107 It is therefore obvious that, neither the overlord, nor his successor-in-title, could dispossess a customary tenant, except it be by means of an action for forfeiture. It is, of course, always open to the customary tenant to abandon his tenancy if he so desires, but that is another matter.

We think that we should point out here that customary tenancy has no equivalent in English law. It is neither a lease-hold interest nor a tenancy at will, nor a yearly tenancy. The main incident of such tenure is the payment of tribute, not rents, by the customary tenant to the overlord. It is no longer in doubt that a customary tenant remains in possession in perpetuity, provided that he is of good behaviour see Ejeanalonye & Ors. v. Omabuike & Ors. (1974) 2 S.C. 33, at 39 where this court put the law succinctly as follows:- ‘………. .The customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour, which means in practice that he may forfeit his holding only as a result of an order of court for forfeiture at the instance of the customary landlords.’ It therefore follows that, whoever deludes himself into pur-chasing the overlord’s radical title will soon discover that he has to take the land as he finds it. Such purchaser might have acquired titled, but never in the least, possession which, at all times, is reposed in the customary tenant until forfeited.” And at page 67, the learned JSC added: “We think that we should also draw attention to the fact, that as far as the customary tenant is concerned, the question of title seems to be academic. As a matter of fact, the customary tenant is concerned only with possession simpliciter which, in the absence of any misbehaviour on his part, is indefeasible. It is also pertinent to stress the fact that a purchaser from the overlord will simply step into the shoes of the vendor. The rule is “Nemo dat quod non habe” – “no one gives what he does not have” in other words, a purchaser can never get what the vendor himself did not possess. We accordingly take the view that just as the overlords, the Oloto Chieftancy Family, are without power to dispossess the customary tenants in the present case so also their successors-in-title (the respondents) are completely devoid of any such right. In short, we are of the view that the respondents in the present case bought the disputed land, subject to the unextinguished possessory title of the appellants – the customary tenants.” It is this point that the trial court eloquently made in the passage of its judgment reproduced earlier in this judgment that since the Timi of Ede, the overlord of the land in dispute had not determined the customary tenancy of the appellants’ Ofatedo people, the land could not have been validly sold to the respondent. The court below was in error to have set aside the judgment of the trial court. The only way the respondent could have acquired a valid title was to have got the Timi of Ede to first revoke the customary tenancy of the appellants’ Ofatedo people. This is a case which clearly demonstrates the logic of the principle that a trespasser in possession of land is entitled to keep his possession against the whole world except a person who can show a better title than himself (i.e.trespasser -in-possession). In concluding its judgment, the Court below said: “as it has been a pyrrhic victory for the parties, each party should bear his or their own costs in the court as no order of costs is made in favour of any of the parties.” It is patent that the respondent could not have had anything but a ‘pyrrhic victory.’ The judgment of the court below which on its face was in favour of the respondent could not have conferred any advantage on the respondent since the said judgment still left the appellants in possession of the land in dispute, a situation which makes it inevitable for the respondent to first get his overlord to bring the appellants’ customary tenancy to an end before the appellants could be evicted from the land. This was what the High Court did by protecting through the grant of an injunction the possessory rights of the appellants. This appeal is meritorious. It is allowed. The judgment of the Court below is set aside and the judgment of the High Court is restored. The appellants are entitled to costs in the Court below and this court which I fix at N25,000.00 and N50,000.00 respectively.

SC.417/2001