B.A. Bokinni V. O. Olaleye (1994)

LawGlobal-Hub Lead Judgment Report

I.C. PATS-ACHOLONU, J.C.A. 

By a writ of summons dated 4th March, 1985, the Plaintiff claims against the defendant as follows:-

(1) A declaration that the Olaleye Family as customary tenants of the Plaintiff on a parcel of land at Olaleye Village, Lagos State have incurred forfeiture of the said tenancy.

(2) Possession of the said land.

(3) A statement of all monies collected by the defendants, their servants and/or agents from their tenants and/or grantees and occupiers whether as rent, premium, levy or otherwise on the said land and

(4) Payment over to the Plaintiff of the gross sum so collected and by which the defendants have unjustly enriched themselves.

Pleadings were filed and served and delivered.

The facts of the case are straightforward. The Plaintiff bought a parcel of land from Oloto Chieftaincy Family who happened to be the over lord of the defendant’s family and to and to whom the defendants and their ancestors have been customary tenants since 1860 or thereabout. When the Plaintiff who it would appear by a purchase, has now become more or less the overlord of the estate having taken as it were, the position of Oloto Chieftaincy Family, sought to register his title i.e. deed of conveyance, the defendant’s family who he claimed were at all times very much aware of the sale entered caveat. However after the hearing before the Registrar of titles, he granted the Plaintiffs application, whereupon the defendants then appealed to the High Court which allowed the appeal only to the extent of registering the possessory rights and interests of the Defendants Family but without prejudice to the registration of the Plaintiffs title.

The Plaintiff claims that by the caveat and the alienation in various forms by some members of the Defendants family by which they unjustly enriched themselves they have incurred the forfeiture of their tenancy. The defendant even counter-claimed to be relieved of the forfeiture if the court so found.

The Plaintiff sought to show how the defendant’s family had in unison proceeded to sell and partition the area of land over which they enjoy customary tenancy-acts which he regarded as being inconsistent with his proprietary right and interest as the overlord. The defendants deny that the family who are customary tenants have gone out to dispose of the property pointing out that if there has been any act of impropriety on the part of one or two of their relations such malfeasance cannot be visited on the whole family and thereby be made to suffer forfeiture when they had neither acquiesced to such untoward acts nor approved of them. After hearing evidence and considering the case as put forward by the parties, the court dismissed the action.

Dissatisfied with that judgment, the Plaintiff appealed to this court and filed 6 grounds of appeal. Both parties later exchanged briefs of argument. The issues set out for determination by the Plaintiff are as follows:-

1. Did the defendants on the pleadings and evidence, deny the plaintiff’s title to the land in dispute and as their overlord in respect of their customary tenancy of the land in dispute?
2. If the above is answered in the affirmative, were the defendants thereby not in breach of their customary tenancy enough to warrant forfeiture of the same.
3. Whether on the totality of the evidence the defendants were not guilty of breaches of their customary tenancy amounting to misconduct that warranted forfeiture of the tenancy?
4. Should the learned trial judge have made an order for possession and an account of monies collected from the alleged breaches by the defendants of the customary tenancy?
5. Should the learned trial judge have determined the defendants counter-claim by dismissing the same?

The respondent on the other hand formulated only one issue i.e. whether the respondent was in breach of its customary tenancy in a manner sufficient enough to warrant forfeiture.

In my view there is really only one issue that calls for determination by this court and that is as formulated by the respondent. It cannot be denied that the cornerstone of the Plaintiff/appellant case is based on this premise that is to say:-

1. That the defendant’s family having entered a caveat and raised objection to the registration of his title that they have called into question his title to the land.
2. That the defendant’s family have acquiesced or conspired or given tacit approval to the sale of the land legally belonging to him without his consent and thereby have done an act inconsistent with his ownership as it impliedly means that he is not their overlord not withstanding that he has replaced Oloto Chieftaincy family.
3. That the defendants pocketed the proceeds of the sales made from the land.
4. That the defendants partitioned the lands of which they are mere customary tenants and even leased out some of these partitioned lands.

Now the defendant’s family represented by Olatunde Olaleye while acknowledging that they are the customary tenants of Oloto Chieftaincy family in his testimony during the cross-examination, he emphatically stated that his family were not aware of the sale made by the Oloto family to the Plaintiff – adding further that they received no letter in any form from the Plaintiff intimating them of the alleged misconduct by the members of their family. He explained that though they had been customary tenants for many years the Oloto Chieftaincy family never communicated to them of any sale of the land to the Plaintiff. He further said that while he was aware that some members of their family sold some portions of the land they occupy by reason of the customary tenancy, that such sales were wholly wrong and that he would certainly have raised an objection if he knew before hand. He admitted that they partitioned the land for developmental purposes. In his brief of argument supplemented by an oral address Fashanu Esq. for the appellant stated “It is submitted that the learned trial Judge, having disbelieved the only witness for the defendant D.W.1 as to knowledge of the defendant’s family of the sale, should have held that the family knew of the sale and gave their consent at the time in accordance with P.W.1’s evidence and this court is urged to so hold, on the evidence on record. Furthermore the fact that the Plaintiff’s conveyance was registered, was enough notice off the sale to the defendants….” Wetsters New Universal Unabridged Dictionary defines the term forfeiture in the following terms – “the losing of some right, privilege, estate, honour, office or property by an offence, crime, breach of condition or other act.” At common law where a tenant or lessee has been in breach of some essential covenant that expressly stated in an agreement or implied, the right of re-entry by the landlord arises and the lessee may then be liable to forfeiture. The respondents in this case are customary tenants. What does it connotes. Let me recapitulate some important averments in the Plaintiff/Appellant amended statement of claim:

(6) At the time of the sale to the plaintiff, the Chief Oloto invited the representatives of the Olaleye Family to his Palace and in the presence of the plaintiff informed them of the proposed sale of his family’s interest in the land to the plaintiff.

(7) The defendants made no objection in fact.

(8) The plaintiff avers that following the conveyance of the said land to him, he lodged an application under the Registration of Titles Law to register the said land in his name.

(9) The defendant, Olatunde Olaleye, and other members of his family lodged an objection to the application.

(10) After a hearing, the Registrar of Title granted the application.

(11) The defendant appealed to the High Court where an Order was made in the following terms:-

“In the result the appeal will be allowed only to the extent that the possessory rights and interests of the Olaleye Family are clearly protected by registering same against the rights or title registered in favour of the respondent”

The plaintiff will rely on the record of proceedings and judgment dated 15/4/75 in Title No. MO 9334 and judgment in suit No. LD52A/76 dated 20/3/78.

(12) The plaintiff avers that it is a notorious fact of Yoruba native law and custom that a customary tenant who alienates the land subject matter of his tenancy or any part thereof to third parties commits an act of misconduct or breach of the tenancy, the penalty for which is the determination or forfeiture of the tenancy.

(13) The defendants have incurred forfeiture of their customary tenancy by selling, leasing and conveying various portions of the land in dispute to third parties. The plaintiff will rely on relevant receipts leases, agreements and conveyances.

Now it is long settled by a long line of cases in this country that for purposes of forfeiture alienation incontestably includes, sale (in all that it connotes) pledge or mortgage and therefore a breach of the tenants obligation as a customary tenant automatically renders him liable for forfeiture. See Inasa v. Oshodi (1934) A.C. 99 (Privy Council). Isiba v. Hanson (1968) N.M.L.R.76, Awani v. Akom (1928) 8 N.L.R., Akinrinlowo v. Anwo (1959) W.R.N.L.R. 178. However in Onisiwo v. Gbamgboye (1941) 7 W.A.C.A. 69 at 70 and quoted with approval in Dabiri v. Gbajumo (1961) 1 All N.L.R. 225 at 731, the court held as follows:-

“The real foundation of the misbehavior which involves forfeiture is the challenge to the overlords rights. This is commonly shown by some form of alienation and such alienation may take the form, as in this case leasing under claim of ownership. But it is not difficult to imagine cases in which the granting of a lease e.g. for a short period would carry with it no challenge to the overlords right and consequently involve no misbehaviour or forfeiture. Every case must be considered on its own facts.”

Indeed no two cases are the same. What does the court consider in arriving at the truth of the case. In its efforts to determine preponderance in any case and therefore arriving at the truth of the matter not necessarily with absolute certainty which is impossible the court shall consider the character and quality of each of witnesses testimony, as well as all the exhibits received, facts admitted or stipulated as well as those judicially noticed by the court and applicable presumptions if any. The court would equally consider the reasonableness of any testimony regards being had to the prevailing circumstances, inherent probabilities, lack of corroboration where necessary or desirable, accuracy and truthfulness of the witness. Although it is the general role that uncontradicted and undisputed testimony i.e. testimony from which reasonable minds can draw but one conclusion, may not be disregarded by the court but must be accepted as true and would therefore control the decision. See Isaac Omeregbee v. D.P. Lawani (1980) 3 – 4 S.C. 108 at 117; See Odulaja v. Haddad (1973) 11 S.C. p.35. It has also been held that the trial court is not under all circumstances required to accept as true testimony of a witness even though it is not contradicted as where it is wilfully and corruptly false, unreasonable, improbable or in-consistent with other evidence in which case it may be given such weight as may be deemed proper or be wholly disregarded.

Now from the nature and trend of the case as made out by the appellant, it would seem to me that the issue of forfeiture will arise where the respondents family were privy to the sale to the plaintiff i.e. that they were duly informed by Oloto Family, and the defendant family made no objection and yet commenced exercising some acts on the land which are inconsistent with the plaintiff’s ownership.

The learned trial judge stated in respect of the issue as to whether or not the defendant was informed, as follows in his judgment:

“I think that the issue as to whether or not the defendants family was consulted when Chief Oloto wanted to sell the land in dispute to the Plaintiff had been overtaken by events. The title of the Plaintiff to the land was registered under Title No. MO.9334 Exp.3. The High Court held in suit No. LD/52A/76 upon the defendants objection to the Registration of the Plaintiff’s title that the interest of the Olaleye family be protected by registering it against the title registered in plaintiff’s favour. I hold in view of Exp.7 See Law 48(i)(9) of the Registration of Title Law that the Plaintiff became the overlord of the family. The issue of consultation of the family by Chief Oloto is irrelevant to the issue in the suit.”

The question then is this, with the registration of the Plaintiff’s title which was to the knowledge of the defendant’s family, did they continue to agitate or behave or pretend that the Plaintiff did not assume the position formerly held by Chief Oloto Chieftaincy family, in respect of that land. It is not in doubt that a few members of the family of defendant purportedly sold some portions of the land – a fact which the defendant as a witness condemned in no uncertain terms. Were these sales made with approval by the totality of their family.

In other words did the defendant’s family approve of it. Now the learned trial judge had in his judgment stated as follows:-

“The plaintiff only produced at the trial Exh.P9 and P.10 on selling by conveyance on Title No. MO.,9635 and evidence, on partitioning. The plaintiff’s claim is against the Olaleye Family. The onus of proof on the plaintiff therefore is that the Olaleye Family committed breaches of the customary tenancy by selling, leasing, partitioning etc. as alleged. There was no documentary evidence before the court that the Olaleye Family alienated part of the land in dispute by selling, leasing etc. Exh.P.9 was a conveyance by one Tesilimi Ishawu to the purchasers. The 1st D.W. denied knowing Tesilimi Ishawu as a member of the family although he conceded that if Tesilimi Ishawu was the Son of Mola Lagbo he would be a member of the family. The recital in Exh.P and the evidence of Jimoh Akanbi at P.530 of Exh.P.4, one of the two purchasers of Tesilimi Ishawu showed that Tesilimi was a member of Olaleye Family. I refer to Exh.P.9 Tesilimi did not convey the land either as head or for and on behalf of Olaleye Family but as the vendor by inheritance after partitioning by the Olaleye Family. Exh.P.9 may therefore be used against Tesilimi Ishawu but not against the Olaleye Family. It was not established that the family authorized the sale by Tesilimi Ishawu.”

The court then re-stated a portion of the D.W.1 evidence in the proceeding leading eventually to Registration of the Title of the Plaintiff, where the defendants raised a caveat.

“Individual members of Olaleye Family could on their own sell land within the area apportioned to them without the consent of Oloto Chieftaincy Family. More over when the conveyance in respect of such sales are to be executed the family of Olaleye would go to Oloto Chieftaincy Family to ratify the sale.”

Having regards to the testimony of D.W.1 in the proceeding connected with the objection to the Registration of the Title Deed of the Plaintiff, it is indeed mind boggling that the true nature of the tenancy of the Olaleye Family was not canvassed in the trial court so as to enable that court understand and appreciate fully the relative strength of the defendant’s family that impugned the proprietary right and interest of the Plaintiff and/or even his predecessor in title i.e. Oloto Chieftaincy Family. This no doubt must have prompted the court below to state as follows:

“The nature of the customary tenancy between the Oloto Family and the Olaleye Family was not canvassed before this court to enable the court determines whether the Olaleye Family could partition the land”.

The land mine in this case which the Plaintiff had to clear in most succinct terms i.e. through the evidence of a member of Oloto Family is the nature of customary tenancy enjoyed by the defendants/respondents. It cannot be gain said that there was an element of uncertainty. The defendant/respondent had stated that a couple of the members of the family might have disposed portion of the land partitioned to them, i.e. a partition made for developmental purposes. Shall the court then impute a breach of the condition of the customary tenancy not alienate or to dispose committed by one or two members of the Olaleye Family, which is a large indeed, to a breach committed by the whole family. I am of the view that where there are many members constituting customary tenants within a family complex and one or two of them did an act on the land apportioned to those individuals respectively, which has the obvious character of alienation, it is fair to say that a prayer for forfeiture should be made against those individuals and not to the whole family who neither approved nor acquiesced in such an act. I would like here to restate the view expressed by Fatayi-Williams in Asani Taiwo & 4 Ors v. v. Adamo Akinwunmi & 6 Ors. (1975)Â Â S.C. 143 at 183.

“Moreover, we are of the view that whether the act committed by the tenant constitutes a misbehaviour or not or whether such misbehaviour can incur forfeiture depends on the particular circumstances of each case. The list of such acts which constitutes misbehaviour is not disclosed. It is still open to the court in every case brought before it to consider the complaint of the overlord against his customary tenant and to determine whether the complaint is well founded and whether having regard to the circumstances the acts complained of are so serious as to warrant the forfeiture of the customary tenancy.” The conduct of Tesilimi was a very serious one but he is just one person amongst myriads others in Olaleye Family.

The learned counsel for the appellant had in his brief argued that there is abundant evidence of the defendant/respondent family acquiescence in individual sales. I am at a loss as to how he came to this conclusion, seeing that the defendant/respondent condemned such sales by any members of the family pointing out that no one in the family could have sanctioned such a sale. With greatest respect to the argument of the learned counsel for the appellant, ingenious his argument may sound, to wit, that a breach of a condition of customary tenancy by a lone tenant amongst many others shall be construed to imply acquiescence and tacit approval by the rest of the family, it is important to state here the illuminating observation of the Supreme Court in Wagboregbor and Ors. v. Josiah Agbenghen (1974) 1 S.C. 1 at Page 8. There the court pointed out “In customary land law parlance, the defendants are not gifted the land they are not borrowers or lessees; they are grantees of land under customary tenure and hold as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviour. This interest has in practice now been regarded by the courts as practically indefeasible once permanent building or other form of improvements like extensive commercial farming and/or occupation have been established thereon by the grantees. Any proved misbehavior is usually punished now by a fine as has happened in the present case.”

What I fail to understand is why the plaintiff did not think it worthwhile to pursue against Tesilimi. Besides it is not in my view enough to insinuate or, speculate that the ignoble act of Tesilimi had the tacit approval of the defendants family; the onus is on the appellant to prove this issue. Merely asserting so does not amount to a proof.

In his evidence in Chief he testified as follows in this connection:

“They (defendants) continued to sell, lease, and transact any business they like on the land…”

However the person whose act proved odious was that of Tesilimi. How could the singular become plural number.

I am afraid the nigger in the woodpile is Tesilimi and not any other person. In considering the substantiality of the Plaintiff’s case the court would carefully analyze the evidence adduced along the line of the pleadings to determine whether there was been proof to determine preponderance. A careful reading and synthesis of the case of Idewu Inasa v. Sakariyawo Oshodi; (1934) A.C. 99 shows that the landlord could only validly and lawfully evict the culprit and those who side or support him and none other; which is why the Privy Council had to add for emphasis this:

“The Judicial Committee were not prepared without further argument to uphold the custom so far as it was stated to include a right to evict all the relations; that extension was not necessary for the decision of the case.”

It must be pointed out that the uniqueness of the defendant/respondents tenancy was responsible for their possessory interest being equally registered, and confirming more or less what the Supreme Court had postulated in the case of Wagboregbor v. Agbaenghen Supra that long possession or the tenants had conferred inelastic and therefore indefeasible interest on the land. I therefore hold that the finding by the lower court in this direction is correct.

The appellant sought to make great issue of partitioning to be fully understood must be considered in the light of the length of time the defendant’s respondents -family have been there and also the purpose of the partition and what it connotes. The Plaintiff was not able to state the motive behind the partitioning but the respondents said it was merely for developmental purposes and not for alienation. Once again the onus to prove that the entire family embarked on partition with a view to dispossess same rests squarely on the appellants. In Dabiri & Ors. v. Gbajumo (1961) All N.L.R. 225 or 228, Taylor F.J. delivering the judgment stated in respect of the claim of the appellants;

“The Claim for possession or forfeiture is based in accordance with para. 9 above on the appellants breach of their tenancy of occupation by partitioning the property at 136 Great Bridge Street and denying the title of the respondents family… Be that as it may, I find it difficult to agree with Mr. Augusto’s contention that an action for partition between occupiers of property under native law and custom without more would amount to a denial of the title of the overlord. I find it nothing repugnant to the title of the overlord in such a step taken by the tenants to decide which of them shall occupy certain rooms in the building the subject matter of such tenancy under native law and custom nor in any view does the fact that such tenants oppose successfully the application of the landlord to join in the action make such opposition a breach of their tenancy provided title was not in issue.”

It is pertinent at this junction to state that the court will not grant a prayer for forfeiture against an entire family who had for years enjoyed a customary tenancy through their ancestors on the premise that one or two members of the family had purportedly sold a portion allotted to him by the family who had neither consented nor ratified, approved or acquiesced in the sale. Where a culprit of such an alienation is known justice demands that the overlord pursues him and those adherents who give him support thereby encouraging him to do an act that is manifestly inconsistent with the overlord’s title. It would have been in my view sheer perfidious and I dare say apostatic and unbridled truncation of justice had the court below granted the declaration sought in the claim having regard to the circumstances and attendant peculiarity, to wit, where the punishment for the sins of one or two people is visited on the entirety of a whole family clan.

In the circumstances the appeal fails and is hereby dismissed. The appellant shall pay costs to the respondents assessed at N1,500.00.

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Other Citations: (1994)LCN/0217(CA)