Ayoade Babatunde & Ors V. Lasisi Adeyinka Akinbade & Ors (2005)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

This appeal is against the judgment of Olakanmi J (as he then was) on the 30th of July 1997 at the Ibadan Judicial Division of the High Court of Oyo State.

The plaintiffs who are the respondents herein claimed against the defendants who are appellants herein the following reliefs:

“(a) A declaration that the plaintiffs who are the descendants of Akinbade are the only persons entitled to the issue of Certificate of Occupancy to all that piece or parcel of farmland situate, lying and being at Akinbade Farm, Idi Mango along Idi Iroko Road, Ibadan which is more particularly delineated on Plan No. EFUN/12/0Y/88 drawn by Debo Adedeji Licensed Surveyor on 10/12/88 and is therein edged “RED”.

(b) Declaration that the 1st, 2nd and 3rd defendants as tenants of the plaintiffs have forfeited their rights to remain on the land as a result of the purported sale of the land to 4th – 7th defendants and other purchasers without the knowledge and consent of the plaintiffs who are their overlords.

(c) N10, 000.00 general damages against the 4th – 7th defendants for acts of continuing trespass committed on the said land between 1986 and up to today.

(d) Perpetual injunction restraining all the defendants their servants, agents or anybody claiming through them from committing any further acts of trespass on the said land.”

And in the amended statement of defence and counter-claim the 1st – 7th defendants also counter-claimed the following reliefs:

“(a) A declaration that the 1st, 2nd and 3rd defendants are the true and natural descendants and are therefore entitled to certificate of statutory rights of occupancy in respect of all that land lying and situate at Idi Mango Idi Iroko Road Ibadan which is more particularly delineated on Plan No. AD/58/89 drawn by A. Adeoti, Licensed Surveyor on 19/5/89 and is therein edged “RED”, excluding the portion already sold out to the 4th, 5th and 6th defendants.

(b) Declaration that the sale of the portion of land verged YELLOW on Plan No. AD/58/89 dated 19/5/89 by the 1st, 2nd and 3rd defendants to late E. O. Ashamu is legal, valid and lawful and he is therefore the only person entitled to the issue of Certificate of Statutory Right of Occupancy in respect of the said portion of land.

(c) Declaration that the sale of the portions of land marked “1” by the 1st, 2nd and 3rd defendants to the 5th and 6th defendants respectively is legal, valid and lawful and are therefore the only persons entitled to the issue of Certificate of Statutory Right of Occupancy in respect of the said portions of land.

(d) N10,000.00(ten thousand naira) as general damages for the continuous acts of trespass of the plaintiffs on the said land in dispute.

(e) An order of perpetual injunction restraining the plaintiffs, their agents, servants, privies or howsoever from committing any further acts of trespass on the said land.”

Pleadings were filed and exchanged. Each of the pleadings underwent several amendments. The trial itself involved the testimony of the 1st plaintiff and five other witnesses for the plaintiffs’ case. The 1st, 2nd and 3rd defendants and six other witnesses testified for the defence.

In the judgment delivered on the 30/7/97, the learned trial Judge allowed the plaintiffs’ claim in its entirety and granted all the four reliefs claimed. He dismissed the defendants’ counter-claim.

The notice of appeal filed about the 31/7/97 contained three grounds of appeal. On the 31/10/02 the appellants sought and were granted the leave of this court to file and argue six additional grounds of appeal. Before this court, the parties through their counsel filed and exchanged their briefs of argument. The appellants’ brief was prepared by Chief Afe Babalola SAN and same was filed on the 12/11/02. The respondents’ brief was prepared by Ademola Adegbola and it was filed on the 16/6/04. In their brief, the appellants raised four issues for determination, namely:

“1. Whether the plaintiffs are entitled to the declaration of title and damages in the face of available evidence that the 1st – 3rd defendants/appellants have not only been in possession but have been exercising rights of ownership over the land without any challenge by the plaintiffs from time immemorial.

2. Whether the conclusion of the learned trial Judge that the evidence of the 1st defendant is full of contradictions and as such that the 1st defendant did not establish that he was the true descendant of Akinbade did not occasion a miscarriage of justice.
3. Whether the learned trial Judge can rely on the purported weakness of the defendants’ case in giving judgment to the plaintiffs in an action for declaration of title to land.

Whether the learned trial Judge was right to make case for the plaintiffs by holding that the various amendments by the defendants in the statement of defence showed that they had problem with their case when there was no evidence before him to support the pronouncement.”

In their own brief of argument, the respondents formulated the following three issues for determination:

“1. Whether having regard to the pleadings and evidence led in this case, the learned trial Judge was right to have entered judgment for the plaintiffs.

2. Whether the trial Judge was right in dismissing the defendants’ counter-claim.
3. Whether the observation by the learned trial Judge that the various amendments by the defendants to their statement of defence showed that they had problem with their case occasioned a miscarriage of justice.”

In my view the first issue formulated by each set of the parties would effectively dispose of this appeal. All other issues proposed can be subsumed under that single issue. And that issue is:

“Whether having regard to the reliefs claimed in the claim and counter-claim, the pleadings and the evidence on record the learned trial Judge was right in granting the plaintiffs’ claims and dismissing the defendants’ counter-claim.”

I shall therefore adopt that single issue, as under it all other issues proposed by the parties can be considered and dealt with.

The substance of the arguments of the appellants is as follows: It was the submission on behalf of the appellants that in view of the evidence of the DW2 supported by that of the 1st and 3rd defendants and the DW3, DW4, DW5 and DW6 there was no basis for the trial court’s preference of the plaintiffs who never came to the land in dispute until 1986. It was pointed out that Adisa and Olawusi whom the plaintiffs claimed were their agents on the land sold same land to Ashamu as beneficial owners. This piece of evidence, it was submitted, contradicted the plaintiffs’ assertion as to the payment of tributes by Adisa and Olawusi. It was further submitted that no single piece of evidence was adduced to establish the 1st-3rd defendants’ customary tenancy as alleged. The appellants referred to the evidence of their long possession of the land in dispute and the acts of ownership like building houses, planting cash crops, burying their dead thereon and selling parts thereof unchallenged, and submitted that the evidence entitled them to the title of the land. They relied on Maskala v. Silli (2002) 13 NWLR (Pt. 784) 216 at 229-230; Ibrahim v. Mohammed (1996) 3 NWLR (Pt. 437) 453 at 467. It was submitted that a court faced with evidence of conflicting traditional history by both parties ought to resolve the conflict by reference to facts in recent years and that the failure of the trial court so to do led to a wrong decision and relied on Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 at 18.

With respect to contradictions it was the submission of the appellants that there were no such material contradictions as to be fatal to the defendants’ case. On the question of materiality of contradictions in a case, appellants referred to Jolayemi v. Olaoye (1999) 10 NWLR (Pt. 624) 600 at 617 and Emiator v. The State (1975) 9-11 SC 107 at 111. It was their contention that besides dwelling on the alleged contradiction of the 1st defendant, the learned trial Judge never bothered to evaluate the consistent and credible evidence of the other defence witnesses contrary to the settled principle in evaluation as laid in cases like Mogaji v. Odofin (1978) 4 SC 91; Lawrence Nwankpu & Anor v. Dennis Ewulu (1995) 7 NWLR (Pt. 407) at 269.

The substance of the submissions of the respondents is as follows: It is a common ground, they pointed out, that Akinbade founded the land in dispute and that both sides traced their ancestry to Akinbade. They referred to the consistent evidence of their lineage to Akinbade through the testimonies of the PW 1 and 1st plaintiff and the consistency of same with the pleadings and submitted that they discharged their burden of proof. They cited in support the cases of Raimi Sanni Alias A. A. Aderibigbe v. Jimoh Olanrewaju Oki Majorie Oki (1971) 1 ALL NLR 116 at 120; Akinloye & Anor v. Eyiyola & Ors. (1968) NMLR 92 at 95; Lawai v. Olufowobi (1996) 10 NWLR (Pt. 477) 177 at 187-189; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265 at 276; Inyang v. Eshiet (1990) 5 NWLR (Pt. 149) 178 at 182-183. They referred to the genealogical tables drawn by the learned trial Judge and his finding based thereon and submitted that the appellants did not challenge that important aspect of the judgment and are deemed therefore to have accepted same. They relied, for this submission, on Adejumo v. Ayantegbe (1989) 3NWLR (Pt. 110) 417; P.N Udoh Trading Co. Ltd. v. Abere (2001) FWLR (Pt. 57) 900 at 924; (2001) 11 NWLR (pt. 723) 114, Biariko v. Edeh Ogwuile (2001) FWLR (pt. 51) 1849 at 1872; (2001) 12 NWLR (Pt. 726) 235, Musa Umaru Kasa v. State (1994) 5 NWLR (Pt. 344) 269 at 289.

With respect to possession and acts of ownership, they relied on the evidence about Adisa and Olawusi being their caretakers on the land and who paid N120.00 annual tribute and that the appellants did not commit any act of trespass until 1986 when they started selling the land. It was further submitted that the appellants’ plea of long possession does not avail them since as customary tenants under Yoruba Native Law and Custom they were entitled to enjoy their tenancy/occupation in perpetuity subject to good behaviour. They relied on Isiba v. Hanson (1968) NMLR 76.

On the contradictions in the case of the appellants, it was their submission that the contradictions, though conceded by the appellants, were not explained. It was argued that the appellants who were adjudged customary tenants by the trial Judge admitted the sale of portions of the land to the 4th, 5th, 6th and 7th defendants without the knowledge and/or consent of their overlords which therefore earned them the forfeiture of their tenancy.

On the appellants’ complaint of improper evaluation, the respondents relied on the principle in Dakur v. Dapal (1998) 10 NWLR (pt. 571) 573 at 589 and argued that the appellants failed to identify or specify the evidence improperly or not evaluated and further show convincingly that, but for that improper or failure of evaluation the judgment would have been otherwise. The respondents urged finally that the appeal be dismissed.

I shall now deliberate on the issues raised in this case by first determining the cases presented by the parties to the lower court for trial. The substance of the plaintiffs/respondents’ case can be seen from paragraphs 6, 8, 9, 15, 16, 17, 30, 32 and 33(b) of the last amended statement of defence filed on the 7/3/94. The said paragraphs state:

“6. The piece or parcel of land in dispute is situated at Idi Mango along Idi Iroko Road, Ibadan Oyo State of Nigeria and the same is particularly delineated on Plan No. EFUN/12/0Y/88 drawn by Debo Adedeji Licensed Surveyor and is thereon edged Red which plan is already attached to the original statement of claim.

8. That later in time his junior brother called Ige (the ancestor of the 3rd defendant who was then a youngman came to join Akinbade in Ibadan and he Akinbade allotted him a portion of his land in the Akinbade compound to build his house.
9. Ogunsile lived in Akinbade compound till his death. Later in 1938 one Adefi grandson of Ogunsile on request was allotted a portion of land in Akinbade compound to build a house by Adeyinka grandson of Akinbade.
10. That very few, if any of the kola nut trees and orange trees still stand on the farm land as a result of the acts of trespass of the defendants.
11. That when the plaintiffs do not engage in active farming, one Adisa was appointed as care-taker by the plaintiffs’ family and he Adisa used to give the plaintiffs’ family a sum of N120.00 annually as crops yields.
12. That Akinbade granted a portion of this farm land to his junior brother Ige and the portion so granted for farming purposes only is marked “H” and edged Green and Yellow on Plan No. EFUN/12/0Y/88 aforesaid. The 3rd defendant who represents Ige’s descendants still holds on to this portion.
13. That at all times material the 1st, 2nd and 3rd defendants have no right to sell any part of the land in dispute including the portions marked ‘G’ and “H” on which they have only farming rights.
14. That the portion of land in dispute allotted to Ogunsile the ancestor of the 1st and 2nd defendants and Ige the ancestor of the 3rd defendant was for farming purposes only and could not be sold, transferred or alienated to any other person without the consent or knowledge of the Plaintiffs who are the descendants of Akinbade family.

33(b) which is the relevant relief states:

Declaration that the 1st, 2nd and 3rd defendants as tenants of the plaintiffs have forfeited their right to remain on the said land as a result of purported sale of the land to 4th to 10th defendants and other purchasers without the knowledge and consent of the plaintiffs who are their overlords.”

The substance of the case of the plaintiffs/respondents contained in the foregoing and other paragraphs of the amended statement of claim was this: That the area in dispute which is occupied by and in the exclusive possession of the defendants was granted to the ancestors of the 1st and 3rd defendants by Akinbade, their progenitor under and by virtue of a customary tenancy agreement which restricted them (1st – 3rd defendants) and who, by sales of various portions of the land to various persons, including the 4th – 10th defendants without their consent and authority, have committed breach of the customary tenancy and which breach earns them the forfeiture of their holding on the land.

The substance of the case of the defendants/counter-claimants contained in the 50-paragraph amended statement of defence and counter-claim was as follows:

That their exclusive possession of the land in dispute, conceded and/or admitted by the plaintiffs, is not by virtue of their being customary tenants to the plaintiffs but rather by virtue of their absolute title to the land in dispute and which absolute title devolved upon them from their ancestors Olawusi and Ige who had inherited same from their father and founder of the land Akinbade. They claimed further that it was in exercise of their rights as such absolute owners by inheritance that they sold some portions of the land to Chief E.O. Ashamu and others who therefore acquired valid titles.

These are the respective cases of the parties presented at the lower court for trial. From the pleadings, the plaintiffs have conceded or admitted the defendants’ exclusive possession and user of the land in dispute right from the time of Akinbade, the founder of the land about the middle of the 19th century which is about 150 years ago. However, whereas the plaintiffs’ claim is that such defendants’ exclusive possession of the land in dispute for such long period was by virtue of their being customary tenants to them (plaintiffs), the defendants’ assertion, on the other hand, is that their possession and use of the land was by virtue of their inheritance of same from Akinbade. The key issue therefore is whether or not the defendants’ holding on the land in dispute was under and by virtue of a customary tenancy.

At the trial, the parties were at pains to establish their relationship with Akinbade the original founder of the land. The plaintiffs were focused at establishing that the 1st defendant’s ancestor Ige was only a junior brother of Akinbade who was therefore not entitled to inherit Akinbade’s property. Ogunsile, who, according to the plaintiffs, was the ancestor of the 1st and 2nd defendants was only a neighbour and therefore not entitled to inherit Akinbade’s property. On their part the defendants/counter-claimants also tried to establish that their ancestors Olawusi and Ige were the children of Akinbade. The learned trial Judge’s evaluation also focused almost entirely on the determination of who, among the plaintiffs and the 1st-3rd defendant, are the true descendants of Akinbade and based his resolution of all other issues on it. He found in favour of the plaintiffs and held in conclusion that the 1st-3rd defendant were the customary tenants of the plaintiff and consequently granted all the reliefs claimed.

He thus failed to evaluate the evidence in the light of the legal consequences of a claim founded on customary tenancy. It is a settled principle of law that a claim, such as this, which seeks a declaration that the defendants are customary tenants of the Plaintiffs and a forfeiture of the customary tenancy, postulates, in unequivocal terms, that the defendants are in exclusive possession of the land in dispute.

And by the operation of section 146 of the Evidence Act Cap. E14 of the Laws of the Federation 2004, they are presumed to be the owners of the land in dispute until the contrary is proved to rebut the presumption. And the only way to rebut the presumption is by strict proof of the alleged customary tenancy. That is the dangerous legal consequence of a claim, such as this, founded on allegation of customary tenancy.

The principle was restated by the Supreme Court in the case of Raphael Udeze & Ors. v. Paul Chidebe & Ors. (1990) 1 NWLR (Pt. 125) 141 at 160-161. There, the court, per Nnaemeka-Agu, JSC stated.

“It is left for me to mention that the courts below also found that although the appellants pleaded that the respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to prove such a tenancy. It is significant to note that a customary tenant is in possession of his holding during good behaviour, and until it is forfeited for misbehaviour. Once it is the case that such a person is a customary tenant, and, therefore, in possession, then, like any other person in possession of land, there is a presumption of ownership in his favour. Although that presumption is rebuttable, by due proof of a tenancy the onus is on his adversary to rebut it, if he can. Where, as in this case, the customary tenancy is not proved, such a pleading may turn out to be a dangerous admission of possession in the opposite party, upon which the trial court may base a presumption of ownership, unless, of course, it is rebutted.

Since the plaintiffs’ case was that it was Akinbade himself that granted the land to the defendants it did not, in my humble view, really matter what the relationship between Akinbade and the defendants was. After all, Akinbade being the original founder of the land in dispute, had unfettered rights to make grants of parts of same to anybody. He could make grants even to strangers. He therefore had unfettered rights to make grants also to Ige who, according to them, was his younger brother and Ogunsile his neighbour. Thus, in so far as the plaintiffs’ case is concerned the key issue for trial was the ascertainment of the status of the grant through proof of the alleged customary tenancy. In my consideration, the learned trial Judge ought to have directed himself at the legal burden on the plaintiffs to prove the alleged customary tenancy. His failure so to do would probably have occasioned some injustice to the defendants/appellants.

The question is, did the plaintiffs prove the alleged customary tenancy to rebut the presumption of the defendants’ ownership of the land in their possession? On this question, it is settled that the main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour. See Ejeanalonye v. Omabuike (1974) 4 ECSLR 435 at 438; Lasisi v. Tubi (1974) 1 ALL NLR 438 at 441-442.

On the printed record there is no evidence of the alleged customary tenancy that has entitled the 1st – 3rd defendants’ possession of the land in dispute for about 150 years. There was no evidence of any tribute in whatever form paid by the 1st-3rd defendant and their forefathers to the plaintiffs and their forefathers. Nor was there any evidence that the alleged customary tenancy was one without the payment of tributes as was pointed out in Andu Makinde & Ors v. Dawuda Akinwale & Ors (2000) 2 NWLR (P1. 645) 435 at 452. There was no evidence that the defendants or their predecessors in title ever recognized the plaintiffs as their overlords.

The only consistent evidence from the plaintiffs (and which was categorically denied) was that the land was given to the 1st – 3rd defendants for farming purposes only. But that evidence, without more, is no proof of the alleged customary tenancy. There was also the evidence that one Adisa was appointed caretaker of the land by the plaintiffs and that he paid the plaintiffs N120.00 per annum for taking care of the land. This does not advance the case of the plaintiffs on proof of the alleged customary tenancy. There was nothing that linked that evidence to the defendants since it was not their case that the said N120.00 was tribute or customary rent paid by the defendants to the plaintiffs through Adisa. All told, there was, in my view, no proof of the alleged customary tenancy which was the very foundation of the plaintiffs’ claim.

Despite this clear lack of proof of the customary tenancy, the learned trial Judge, relying entirely on the evidence of traditional history of the parties linkage with Akinbade, adjudged the defendants to be customary tenants of the plaintiffs. And in reaching that conclusion, he preferred the traditional evidence of the plaintiffs because of what he considered as contradictions in the evidence of the 1st defendant. The Supreme Court has always advised that in assessing evidence of traditional history, the courts should be wary in concluding that a party’s version is improbable simply because of some minor inconsistencies in it vis-Ã -vis the facts pleaded, unless the inconsistencies render the evidence materially at variance with the pleadings. See Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR, (Pt. 341) 676 at 699. In Andu Makinde & Ors v. Dawuda Akinwale & Ors. (supra) at 447 Belgore JSC spoke of inconsistencies in traditional evidence and their effects as follows:

“The claim of plaintiffs and their witnesses (except PW2) was that the ancestor was Odede who begat Aso, the PW2 however tilted this by testifying that Aso was the father of Odede. This contradiction, the Court of Appeal held, was material enough to vitiate the case of the plaintiffs on traditional history. Upon all the evidence before the trial court, I believe the Court of Appeal was in grave error. Whichever way it was, the plaintiffs claim to descend from the two … whether Aso or Odede was the father or son. Such lapses are not unusual in traditional history where we have absence of written records and parties depend on oral accounts passed from generation to generation. The case perhaps would have been different if PW2 did not mention Aso or Odede but other names entirely different …”

And still on the effect of minor inconsistencies in traditional evidence Uwaifo, JSC at pages 450-451 said:

“It is not that Odede and Aso, who were pleaded among a long line of ancestors of the appellants were shown not to have existed. The averment was that Odede begat Aso. But in evidence, the witness who testified on the point in juxtaposition said Aso begat Odede. All other numerous ancestors were named in the order they were pleaded. No other fact was available either in cross-examination or as adduced by other witnesses for the appellants or by the respondents to show that that witness was unreliable. That singular evidence on that point cannot be other than a result of a slip by a man over 70 years of age.”

See also Jolayemi v. Olaoye (1999) 10 NWLR (pt. 624) 600 at 617. In this case, having regard to the common ground by the parties that Akinbade the original founder of the land was the very source of the defendant’s holding on the land in dispute, the vital issue for determination was the status of the grant. It is my view therefore that one or more slips in the evidence of the 1st defendant about the intervening ancestors from Akinbade to the 1st-3rd defendants, is not so material as to defeat the presumption of ownership that inures in favour of the defence for their possession of the land right from the time of Akinbade some 150 years ago. In fact the totality of the evidence is even more consistent with the defendants’ claim that their title to the land in dispute is absolute. The result is that I resolve this all embracing first issue in favour of the appellants. As I indicated earlier, this issue determines the appeal as all the other issues have been subsumed in its deliberation.

On the whole, it is my conclusion that in the absence of proof of the alleged customary tenancy, which is the foundation of the plaintiffs/respondents’ claim, the presumption of ownership which inures in favour of the defendants/appellants remains unrebutted.

The result is that the plaintiffs/respondents’ claim fails and is liable to be dismissed. I hold that the counter-claim succeeds. I would however not grant the N10, 000.00 general damages relief in the counter-claim since there was no evidence of the plaintiffs’ continuous acts of trespass.

In conclusion I set aside the judgment of the lower court and substitute therewith a judgment dismissing the plaintiffs’ claim in its entirety and granting the defendants’ counter-claim, save and except relief (e) for N10, 000.00 general damages. I assess the costs of this appeal at N5, 000.00 in favour of the appellants.

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Other Citations: (2005)LCN/1820(CA)