Chief Adefioye Adedeji V. J. O. Oloso & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The appellant was the plaintiff at the Ilesha High Court and the respondents were the defendants. The appellant (herein after referred to as ‘plaintiff’) in his amended statement of claim dated 16/11/88 claimed against the respondents (hereinafter referred to as ‘the defendants’) the following reliefs:

“(i) A declaration that the Risawe of Ilesha by virtue of his office under Ijesha native law and custom and by the provisions of the Chiefs Law of Oyo State is the only person entitled to a statutory right of occupancy in respect of all the land situate within his palace or official residence called Akodi/Ereja quarter, Ilesa.

(ii) A declaration that the rooms occupied as shops by the defendants at 18, Ereja quarter, Ilesa are situate within Risawe chieftaincy palace (Akodi), lsida, Ilesa.

(iii) Forfeiture of the 2nd defendant’s right of user, licence or tenancy conferred under native law and custom.

(iv) Ejectment of the defendants from aforesaid rooms or shops.

(v) Account and payment to the plaintiff of all rents paid or payable in respect of the rooms or shops at the rate of N50 per shop per month as from 1st January, 1973 until the final determination of this suit.”The parties later filed and exchanged pleadings. The suit was heard by Ademakinwa, J. On the state of pleadings upon which the suit was heard, the defendants called evidence first. They called two witnesses in addition to the 1st defendant. The plaintiff testified in support of his claims. On 26-06-96, the trial Judge in his judgment dismissed the plaintiff’s suit. The plaintiff was dissatisfied with the judgment. He brought an appeal before the Court of Appeal, lbadan (herein after referred to as ‘the court below’). The court below, on 3-4- 2001 in a unanimous decision dismissed plaintiff’s appeal. Still dissatisfied, the plaintiff has come on a final appeal before this court. In his appellant’s brief, plaintiff’s counsel formulated for determination in this appeal four issues which are:

“(1) Whether the learned Justices of the Court of Appeal were right in affirming the findings of the court of first instance that there was no settlement of issues at the proceedings of 6/2/90 amounting to a consent judgment in respect of the issue of ownership of the land-in dispute.

(2) Whether the learned Justices of the Court of Appeal were right in affirming the judgment of the court of first instance that the transaction between the appellant’s grandfather and the 2nd respondent’s father amounted to a sale of the land-in-dispute.

(3) Whether the learned Justices of the Court of Appeal duly and sufficiently considered issues numbers 3 and 4 submitted to the court for adjudication.

(4) Whether the learned Justices of the Court of Appeal were right in raising suo moto and deciding the issue of laches and acquiescence without the parties being heard on the issue, and if so, whether the appellant was in fact guilty of laches and acquiescence.”The respondents, by their counsel adopted the four issues formulated by the appellant for determination. I intend to consider the issues serially. It is helpful to expose fully the facts pleaded by the parties in their pleadings for an appreciation of the issues as discussed in this judgment.

The plaintiff pleaded that the 1st defendant was a tenant in two of the plaintiff’s shops within Risawe chieftaincy palace. He further pleaded that the 2nd defendant’s father, Samuel Olowofoyeku was a licensee to his father, Chief Omole Adedeji in respect of an apartment containing the shops now in dispute. The apartment was situate on a stool land belonging to the Risawe chieftaincy family. Being a stool land, no member of the Risawe family could alienate it. The stool land was identified as being at Isida/Ereja quarters, Ilesha. The plaintiff pleaded the history of the devolution of the land in the Risawe family. It was pleaded that the 2nd defendant’s senior brother as head of the 2nd defendant’s family continued to pay traditional tributes to the successors to plaintiff’s grandfather as Risawe after the death of both plaintiffs’ grandfather and the defendant’s father. There arose a dispute within the Risawe chieftaincy family as to succession to the stool. The dispute was the subject of court litigation which lasted between 1975 and 1985. The Risawe chieftaincy stool as a result could not be filled. The 2nd defendant’s senior brother continued to acknowledge the Risawe family ownership of the land until his death in 1972. The plaintiff succeeded to the Risawe stool in 1985. The 1st defendant however refused to acknowledge the plaintiff as the owner of two shops in the apartment in respect of which the defendant’s father had been a licensee to the Risawe family. Rather, he acknowledged the 2nd defendant’s family as his landlord.

The plaintiff caused letters to be sent to the 2nd defendant protesting the development and asking for his reaction. The 2nd defendant reacted claiming that the land belonged to his family. The plaintiff then brought his suit claiming as earlier stated above.

In his statement of defence, the 1st defendant pleaded that he became a tenant to 2nd defendant family in 1963 and that he had since been paying rents to the family. The 2nd defendant pleaded that the shops in dispute were built by his father Samuel Olowofoyeku between 1910 and 1911 on a piece of land granted to him in perpetuity by a plaintiff’s grandfather. The 2nd defendant’s father in ‘thankful consideration’ gave 3,000 cowries and two bottles of gin to plaintiff’s Grandfather. These were shared amongst members of the RISAWE family. The family of the 2nd defendant succeeded into the interest of Samuel Olowofoyeku at his death and had since remained on the land. They also put tenants in some of the shops. The 2nd defendant’s family has since not paid any tribute or rent to the plaintiff’s family.

The 1st defendant was a tenant to the 2nd defendant’s family in two shops now in dispute. The 2nd defendant pleaded that the shops in dispute belonged to his family. He finally pleaded laches, acquiescence and the limitation law.

The suit was tried on this state of pleadings. I now proceed to consider the issues for determination as identified by parties.

On the first issue, the plaintiff contended that the court below in the determination of the question whether or not the parties had in the course of proceedings before the High Court come to a settlement of issues, relied on a wrong and inappropriate part of the proceedings of the High Court and in the process denied itself the opportunity to fairly determine the matter. Counsel relied on Bello & Ors. v. The State (1994) 5 NWLR (Pt. 343) 177 at 186; Maximum Insurance Co. Ltd. v. Owoniyi (1994) 3 NWLR (Pt. 331) 178 at 195. Counsel further referred to the proceedings of the High Court on 6/ 2/90 and Order 34 rules 1-4 of the Oyo State High Court Rules in order to support his contention that there was indeed a consent judgment submitted to by parties. In order to appreciate the contention of the plaintiff, it is necessary for me to reproduce the relevant proceedings of the High Court on 6/2/90 before Oloko, J. The proceedings read:

“Court: Both sides agree that the land on which the shops stand is within Risawe chieftaincy family land. The main issue is whether the land on which the shops stand was granted to the grandfather of the 2nd defendant by the then Risawe (Chief Omole) and as a subsidiary issue whether 2nd defendant’s ancestor built the two shops in dispute or whether the two shops were built by the plaintiff’s ancestor.

Court: At this stage Chief Adefioye Adedeji says that on the pleadings, the defendants should first open their case since they admitted on the pleadings that the plaintiff’s family is the original owner of the land on which the shop stands.

Plaintiff refers to the case of G. Onobruchere & Anor. v. Esegine & Anor: (1986) 1 NWLR (Pt. 19) p. 799,805 in support.

Refers to paras. 6,7 and 8 of the 2nd defendant’s statement of defence.

Chief Olowofoyeku replies and says that the legal citation has been misapplied. Refers to para. 4 and 15 of S/C. Refers to para. 5 of the statement of defence. Says the issue is ‘who built the shops’

Ruling:

I have no doubt in my mind that where there is a straight forward case in which a defendant admits that the ownership of the land resides in the plaintiff, the onus will shift to the defendant to establish a change of ownership – See the cases (1) Onobruchere & Anor. v. Esegine & Anor. (1986) 1 NWLR (Pt. 19) p. 799; (2) Bello Isiba & ors .v. J. T. Hanson & Anor. (1967) 1 All NLR p. 8; (3), Thomas v. Holder (1946) 12 WACA 78. On a thorough reading of the pleadings filed by both parties and especially by para. 28 of the statement of claim which contains the relief being sought from the court, it is clear that the main issue to be decided by this court is ‘who built the shops in dispute’ In the light of the above it is my view that the plaintiff shall have to start to lead evidence as to who built the shops in Issue.

I am also reinforced by this contention by the equitable defences which are averred by the defendants. In the circumstance asking the defendants to stm1, may deprive them of the application of the equitable defences so pleaded.

In the peculiar nature of this case on the pleadings, I hope that the plaintiff should start. I now call upon the plaintiff to open his case.”

Now Order 35 rules 1 – 4 of the Oyo State High Court Rules provides:

” 1. At any time before or at the hearing, the court may, if it thinks fit, on the application of any party, or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce such questions into writing and settle them in the form of issues which issues when settled may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.

The court may, if it thinks fit, direct the parties to prepare such issues, and the same shall be settled by the court.

The issues may be settled without any previous notice at any stage of the proceedings, at which all the parties are actually present, or at the hearing. If otherwise, notice shall be given to the parties to attend the settlement of the issue.

At any time before the decision of the case, if it shall appear to the court necessary for the purpose of determining the real question or controversy between the parties, the court may amend the issues or frame additional issues on such terms as it shall seem fit.”

Oloko, J., in the application of the provisions of Order 35 rules 1 – 4 above on 6-2-90 in the course of the proceedings before him isolated the issues for determination as made manifest in the parties’ pleadings. By that process, he wanted to determine which of the parties bore the burden or onus of leading evidence first. An ‘issue’ in a civil proceedings conducted by pleadings in the High court emerges where, the court upon a comparison of the averments in the statement of claim, and the statement of defence identifies the matters really in dispute between parties and upon which it is necessary to lead evidence. It is a well established principle of pleadings that

there is no dispute between parties on matters which have been admitted on the pleadings and generally, evidence on such admitted matters is to be excluded. See section 74 of the Evidence Act; The British India General Insurance Company and Nigeria Ltd. v. Thmwardas (1978) 3 SC 143; and Okparaeke v. Egbuonu & Ors. (1941) 7 WACA 53 at 55. The isolation of issues, truly in dispute, from those not in dispute, enables the court to save valuable time and cost. It is, by this process, that the court is enabled only to receive evidence on matters in respect of which the parties are in dispute.

Having regard to what I have said above, it is clear that the isolation of issues for determination from the pleadings is not and cannot amount to a consent judgment as was argued by the plaintiff’s counsel in his written brief before us. It is only one, of the ordinary methods, employed by the court in the resolution of issues between the parties to a dispute and to which attention must be directed in the judgment after the parties shall have led evidence. Even if the court below had mistakenly referred to another passage in the record of proceedings before the High Court instead of those of 6-2-90, I do not see how that could have caused a miscarriage of justice to any of the parties. The mistake in my view has no effect of any kind on the judgment of the lower court. I decide issue 1 against the plaintiff.

On issue 2, the complaint of the plaintiff is quite substantial and important for the determination of this appeal. It is, that the court below, was in error to have affirmed the judgment of the High Court and in particular, that part of it which held that the transaction between the plaintiff’s grandfather and the 2nd defendant’s father concerning the land in dispute amounted to a sale of the land in dispute on the 2nd defendant’s father. In resolving the issue, it is necessary to give special attention to the pleadings of parties.

Paragraphs 3, 4, 5, 6 and 28(i)-(iii) of the plaintiff’s statement of claim read:

“3. The 2nd defendant is a licensee by privy whose father, late Samuel Olowofoyeku was given a licence by the plaintiff’s grandfather, late Chief Omole Adedeji the then Risawe of Ilesa, to occupy some apartment within the plaintiff’s palace to enable the 2nd defendant’s father carry on some trading at the time on a friendly basis and free of any charges except periodical traditional payment of tributes like kola nuts or drinks (schnapps or gin).

4. The plaintiff avers that the apartment containing the shops the subject matter of this action are situated within Risawe chieftaincy compound (Akodi) Isida Quarters, Ilesa the official residence of the plaintiff and not at ldasa ward which is some distance away from the plaintiff’s compound.
5. The plaintiff avers that no Risawe had ever owned or had anything to do with any land at ldasa ward which could have been acquired from him by anybody whomsoever.
6. The stool land herein-before-mentioned was first vested some 600 years ago in Chief Olubikin Ganfiran, the first Risawe of Ilesa by Owa Oyiarere and has since remained in the exclusive and undisturbed possession of the descendants of the first Risawe of Ilesa till today.x x x x x x x

On receipt by the plaintiff of the court order aforesaid the plaintiff went to the High Court Registry and discovered that the 15th defendant herein swore to an affidavit and exhibited the aforementioned exchange of correspondence between the plaintiff and the 2nd defendant regarding the title to the land in question. The plaintiff shall contend at the trial of this action:

(i) That under ljesa native law and custom and by virtue of the provisions of the Chiefs Law of Oyo State all land within Risawe traditional palace or official residence (known as Akodi Oloyo) is vested in the Risawe chieftaincy titleholder for the time being, and the plaintiff will rely on the provisions of section 15 of the Evidence Act at the trial of this action.

(ii) That under Ijesa native law and custom no traditional title-holder can validly sell , mortgage or in any way whatsoever alienate the whole or any part of his palace or official residence as opposed to ordinary chieftaincy land outside his palace; the greatest he can give is a licence because the palace belongs to the past, present and the future.

(iii) That even if any part of the plaintiff’s palace was ever alienated to the 2nd defendant’s father (which the plaintiff hereby denies) such alienation would be null and void ab initio and of no effect whatsoever.”

The 2nd defendant in paragraphs 6, 7, 8, 9, 13 and 25 of his amended statement of defence pleaded thus:”

6. At the material time, the land was part of lsida under the control of the Risawe chieftaincy family, and was allotted to Samuel Olowofoyeku by his personal friend, Chief Omole the then Risawe of Ilesa, with the knowledge and consent of members of his family and the Isida people. It was open bush land not far from the Risawe’s thatch-roofed house, and surrounded by bush on three sides and market place in front.
7. On the occasion of the allotment which was, and intended to be, in perpetuity, Samuel Olowofoyeku gave in thankful consideration some 3,000 cowries and two bottles of gin to Chief Risawe Omole which the Chief shared with his family and the Isida people.
8. Samuel Olowofoyeku was duly let into possession of the land in the presence of Isida people and members of both Risawe and Olowofoyeku families; he built two shops thereon which he roofed with iron sheets and completed about 1911; he thereafter used the shops for his trade until he died in 1917 without paying rent or tribute to either the Risawe or to anybody else.
9. After the death of Samuel Olowofoyeku, his family succeeded to the shops, and they have been continuously occupying the same by themselves or their tenants until today without paying rent or tribute to anybody.

x x x x x x

x x x x

13. Apart from the initial consideration given to Risawe Omole in 1910/1911, neither defendant’s father nor his elder brother Joseph Olowofoyeku (who died in 1972) paid in their life time any tribute or rent to Risawe Omole or any other Risawe. If they gave any present to any Risawe, which is not admitted, it would be in token of the friendship existing between Risawe Omole and Samuel Olowofoyeku.

x x x x x x x x

x x x x

25. The defendant avers that it is contrary to ljesha custom for the Risawe chieftaincy family to seek to deprive [2007] 5 NWLR Adedeji v. Oloso (Oguntade, J.S.C.) 163 defendant’s family of the building erected on a plot allotted to them since about 80 years, or proceed to do so without notice. He will counter the contention which plaintiff wishes to advocate at the end of this claim.”

The plaintiff filed a reply to the 2nd defendant’s amended statement of defence. Paragraphs 1 and 2 of the reply read:

“1. With reference to paragraph 6 and 7 of the 2nd defendant’s statement of defence the plaintiff avers that the plaintiff’s grandfather never allotted to the defendant’s father with the knowledge or consent of plaintiff’s family any land in perpetuity in consideration of some 3,000 cowries and 2 bottles of gin or for any other valuable consideration whatsoever.

With reference to paragraph 10 of the defendant’s statement of defence, the plaintiff avers that at no time since 1917 was any land or building within the plaintiff’s official residence or akodi allotted in perpetuity to anybody within or outside plaintiff’s family.”

The summary of the averments pleaded in the plaintiff’s statement of claim may be itemized thus:

“1. That the plaintiff’s grandfather granted a licence in respect of a portion of Risawe chieftaincy stool land to the 2nd defendant’s father on a friendly basis and the defendant’s father was to make periodical traditional payment of tributes like kola nuts or drinks (i.e. schnapps or gin) on the land.

2.That under Ijesa native law and custom, the land with Risawe chieftaincy palace (as the one in dispute in this case) is vested in the Risawe chieftaincy title holder for the time being and that, being a stool land, is not alienable.

3.That the plaintiff’s grandfather never sold the land in dispute to the 2nd defendant’s father for a consideration of 3,000 cowries and 2 bottles of gin with the knowledge or consent of the plaintiff’s family as pleaded by the 2nd defendant.

4. That the plaintiff’s Risawe chieftaincy stool land is not allotted in perpetuity to anybody outside the plaintiff’s family.”

The averments in the 2nd defendant’s amended statement of defence may be distilled thus:

“1. That the land in dispute was allotted to the 2nd defendant’s father by plaintiff’s grandfather (who was 2nd defendant’s father) in perpetuity and this was done with the knowledge and consent of the members of the plaintiff’s family.

2. That in consideration for the allotment, the 2nd defendant’s father gave 3,000 cowries and two bottles of gin to plaintiff’s grandfather and these were shared by members of plaintiff’s family.
3. That the 2nd defendant’s father later built two shops on the land around 1911.
4. The 2nd defendant’s family has since not paid any tribute or rent to plaintiff’s family.
5. That it is contrary to Ijesa custom for plaintiff’s family to take back from 2nd defendant’s family a plot allotted to them 80 years ago without first giving a notice to that effect.”

It is clear, that, on the state of the pleadings, the contention of the 2nd defendant was that the land granted to his father although belonging to plaintiff’s Risawe chieftaincy family was not stool land. The 2nd defendant also made the case that the land was outrightly sold to his father around 1910 upon payment of 3,000 cowries and 2 bottles of gin.

It is helpful to analyze the case of the plaintiff as pleaded. It is clear that the plaintiff clearly made the point that the land in dispute being stool land was never sold and could not be sold. In addition he pleaded that the land was never outrightly sold to the plaintiff.

At the close of pleadings, and having particular regard to the 2nd defendant’s case as pleaded, it was made manifest that the original owner of the land was Risawe family of the plaintiff. The central issue of the day emerging from the pleadings was whether or not the said family outrightly sold the land to the 2nd defendant’s father or merely granted him a licence to use the land upon payment of customary tributes.

Now, in George Onobruchere & Anor. v. Esegine & Anor: (1986) 2 SC 385 at Pp. 397 – 398; (1986) 1 NWLR (Pt. 19) 799 at page 806, this court per Oputa, JSC restated the principles guiding the court in deciding the party that bears the onus or burden of proof in a civil case. The court said:

“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the court has to look critically at the pleadings. Where for instance the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possession but adds that the land was given to the plaintiff on pledge, then the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land his possession of which had been admitted. Once the defendant admits the plaintiff’s possession of the land in dispute in his statement of defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and section 145 of the Evidence Act, Cap. 62 of 1950 will impose a burden on the defendant to p rove the negative – namely that the plaintiff is not the owner. See Lawrence Onyekaonwu & Ors. v. Ekwubiri (1966) 1 All NLR 32 at p. 35. In such a case, it is the defendant who will begin and if at the close of his case he fails to prove that the plaintiff is not the owner, the plaintiff’s claim succeeds without even the plaintiff giving any further evidence.”

And at pages 400-401; (1986) 1 NWLR (Pt. 19) 799 at page 807, of the same report Oputa, JSC said:

“To hold otherwise will be to ‘overlook the established rule that once it is proved (here it was admitted by the defendants and found by the trial court) that the original ownership of property is in a party the burden of proving that that party has been divested of the ownership rests upon the either party’ – per Coker, JSC in Bello Isiba & Ors. v. J.T. Hanson & Anor. (1967) 1 All NLR 8. The same principle was applied in the case of Samson Ochonma v. Asirim Unosi (1965) NMLR 321.

Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice. To go further would be to speculate. How can the appellate court determine, for instance, the part such a misdirection played in the trial Judge’s assessment and evaluation of evidence and on the witnesses who testified Ground 1 of the additional grounds of appeal therefore succeeds.”

In the pleadings before the trial court, the 2nd defendant admitted that the land in dispute had previously belonged to plaintiff’s family.

Having so admitted, the onus of proof was cast upon the 2nd defendant to show that the title to the land in dispute which was previously in plaintiff’s family had been transferred to (his) 2nd defendant’s family.

How did the trial court approach this aspect of the case It seems to me that the High Court in its judgment clearly demonstrated an awareness and understanding of the principles of law involved here. At page 51 – 53 of the record of proceedings the trial Judge stated that the 2nd defendant having admitted that the land in dispute previously belonged to the plaintiff’s family bore the onus of showing that the plaintiff’s grandfather sold the land to (his) the 2nd defendant’s father.

The trial Judge in the above passage stated that applicable principles governing the sale of land under customary law. He also cited the relevant judicial authorities. He also correctly stated the requirements for a valid sale under customary law as these:

1. There must be payment of money or agreed consideration.
2. The transaction must be witnessed by witnesses.
3. The actual handing over of the land must be done in the presence of the same witnesses.

At page 52 of the judgment the trial Judge said:

“It is, no doubt, the correct statement of the law that for a sale of land to transfer title to a purchaser, under customary law, the transaction must have been concluded in the presence of persons who also witnessed the actual handing over of the land sold. (See Cole v. Folami (1956) 1 FSC 66; (1956) SCNLR 180; Erinosho v. Owokoniran (1965) NMLR 429) There is the requirement that the names of such witnesses and the facts of their having witnessed the sale transaction and the handing over of the land to the purchaser must be pleaded and evidence adduced thereon. (See:Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351; Igbokwe v. Nlemchi (1996) 2 NWLR (Pt. 429) 185.”

The 2nd defendant did not plead the names of persons who witnessed the transaction. Neither did he also plead the names of such persons who witnessed the handing over of the land. At the trial the 1st defence witness Hon. Justice Abayomi Olowofoyeku in a part of his evidence testified thus: “It was an out and out allotment that was made to my grandfather for which he paid some consideration of 3,000 cowries and two bottles of gin. The members of Risawe family were present at the allotment and shared the consideration among themselves. Members of my grandfather’s family were also present. After the consideration has been paid, my grandfather was put in possession in the presence of members of Risawe family and members of my grandfather’s family.”

The question that necessarily arises is: if 1st DW knew so much about the transaction why could the 2nd defendant not plead and lead evidence as to the names of persons who witnessed the sale, transaction and the handing over of the land in dispute. In Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351, this court said at page 366:

“Now the sale of the land in dispute to Ramota Adeoye, to qualify as a valid sale transferring title under the English law, there needed to be a deed of conveyance in English form. None was pleaded, nor was proved, as none was in fact executed. Now again, for the self same sale to transfer title to Ramota Adeoye under the customary law, the transaction needed to be concluded in the presence of witnesses who witnessed the ‘actual handing over of the property’. Lydia Erionosho v. Tunji Owokoniran & Anor. (1965) NMLR 479. This incident of customary law was neither pleaded nor proved. It is also a pre-requisite to a valid sale under the customary law that the purchaser be let into possession – Cole v. Folami (1956) 1 FSC 66 at p. 69;(1956) SCNLR 180. It may well be argued that ‘handing over of the property’ and ‘being let into possession’ imply one and the same thing. That may well be. But in this case there was no evidence that Ramota Adeoye was either let into possession or that the land in dispute was handed over to her. Being let into possession is but a symbolic handing over of the land to the vendee. The end result is that under either law – Customary or English, Ramota Adeoye had no legal estate in the land in dispute. She was not the owner either under the English law nor was she the owner the under customary law. This case demonstrates the necessity of accurate pleading in cases dealing with sale of land and the transfer of the title by

such sale to the purchaser.”

The High Court having stated the applicable principle of law correctly did a somersault by finding an excuse that was wholly unsolicited and unnecessary for the 2nd defendant’s inability to plead the names of the persons who witnessed the transaction and the handing over of the land. The trial Judge said at pages 52 – 53:

“It seems to me however that the foregoing principle is only applicable to cases involving recent purchase of land under customary law where the persons who witnessed the transaction would be available to give the required evidence. In a case like the present one which involves a sale transaction which was concluded over 30 years ago before any of the existing witnesses were born, it only stand to reason that the facts that could be honestly pleaded are as to the traditional history relating to the sale transaction. What the court should be concerned with in such a situation is the well established principle that generally, the onus of proof on a party in civil proceedings is on the preponderance of evidence or on the balance of probabilities.”

The trial court was clearly wrong in granting the 2nd defendant a reprieve for the consequences at law attending upon his failure to plead and testify as to the names of persons who witnessed the sale transaction and the handing over of the land. Even if such witnesses were dead and could not be called as witnesses, the obligation to plead their names and testify concerning them was not removed. It was the particularity with which their names and description were pleaded and given in evidence that would assist the court in determining whether the evidence was credible. It seems to me that in the circumstances, the inevitable conclusion to be arrived at is that the 2nd defendant failed to prove that the land was sold to his father under customary law.

The trial court later went on to consider whether the land in dispute was Risawe chieftaincy stool land or Risawe chieftaincy family land. The High Court concluded that it was Risawe chieftaincy family land. I think that it was in the circumstance immaterial whether the land was a stool land or a family land. If it was a stool land, it meant that it could not be sold at all; See Apoesho v.Awodiya (1964) 1 All NLR 48; Olusesi v. Oyelusi (1986) 3 NWLR (Pt. 31) 634. The relevant fact is that the 2nd defendant having admitted that had belonged to Risawe chieftaincy family, needed to show that the land was validly sold to his father. If the trial court had found on the evidence that the land was stool land it would only have concluded that the land could not be sold. The admission by the 2nd defendant that the land had once belonged to Risawe chieftaincy family had dwarfed into insignificance the fact that the land was stool land. The court below in the lead judgment at pages 103 – 104 of the record said:

“The main question raised under these issues deal with whether the respondents led sufficient evidence in support of the essential ingredients required in proving sale and transfer of land under customary law. The respondents as defendants, pleaded and led evidence to the effect that Chief Risawe Omole made an outright grant of the land in which the shops in dispute were built to Samuel Olowofoyeku, the father of the 2nd respondent around 1910. That the said Samuel Olowofoyeku was duly let into possession of the land after the grant and the two shops now in dispute were built on the same land shortly after the grant and had been under the control of the Olowofoyeku family ever since they were built. The 1st defendant/respondent gave evidence at the hearing. He told the court inter alia, that he had rented and occupied the shops in question from the 2nd defendant/respondent for the past 33 years and that he had been paying rents to the Olowofoyeku family since then. He said further that none of the Chief Risawes before the plaintiff/appellant had ever disturbed him or challenged the title of the 2nd defendant/ respondent until the present appellant’s installation as the Risawe. He specifically named three people who held the title of Risawe immediately before the appellant’s installation. He told the court that none of them disturbed him in the shops or challenged the title of the 2nd respondent over the shops.

Apart from the evidence given by the 2nd defendant/appellant, there was also the testimony of Michael Dupeolu Turton (DW2). The witness told the Court that he was a member of the Risawe chieftaincy family. He said further that the land on which the shops in dispute were built was allotted to the 2nd defendant’s father by the Risawe’s family.

It is clear from the evidence placed before the court that the Olowofoyeku family had been in possession of the land and the shops built thereon now in dispute for quite a long time unchallenged by any member of the appellant’s family until the present appellant was recently installed as the Risawe. The appellant failed to lead any evidence as to why none of his predecessors in office failed to challenge the title of the 2nd respondent. The law is long settled that the Court, in the exercise of its equitable discretion, will not give effect to the rules of native law if invoked simply to support a claim to title as against possession which has been acquiesced in for an adequate period of time. A court may refuse to enforce a claim based upon native law and custom where the passage of time has weakened the rule of native law. See Awo v. Cookey-Gam (1913) 2 NLR 100; Eyamba v. Moore (1924) 5 NLR 85. Similarly where a party in a land dispute has successfully traced his title to a party whom both parties admitted as holding the original title, he is entitled to be declared the owner of the land. See Ekpo v. Ita (1932) 11 NLR 68; Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; and Runsewe v. Odutola (1996) 4 NWLR (Pt. 441) 143.”

I think with respect that the court below was in error not to have adverted its mind to the failure of the 2nd defendant to plead and establish in evidence the fact that the plaintiff’s grandfather sold the land in dispute to the 2nd defendant’s father. The formalities for a valid sale under customary law were not established. See Cole v. Folami (1956) 1 FSC 66; (1956) SCNLR 180. Rather than consider this serious lacunae in the case of the 2nd defendant, the court below concerned itself with the fact that the 2nd DW testified that the previous holders of the Risawe title had not demanded nor collected customary rents or tributes from the Olowofoyeku family of the 2nd defendant; and that the 2nd defendant family had been in possession of the land for a long time. It is apparent that the court below fell into that error’ because it did not sufficiently advert its mind to the nature of customary tenancy under the native law and custom. In Chief Machiku Waglzoregho & Ors. v. Josiah Aghenghen

(1974) 1 SC 1, this court stated that a customary tenant in customary land law parlance is not ‘gifted’ the land. He is also not a ‘borrower’ or lessee. He is a grantee and holds a determinable interest which may be enjoyed in perpetuity subject to good behaviour.

The court below should have borne in mind that the case of the plaintiff was that the 2nd defendant’s father was a customary tenant to the Risawe family. It was the 2nd defendant who claimed that his family had in fact bought the land in dispute. However, the 2nd defendant by not naming persons who witnessed the sale transaction and the handing over of the land had failed to prove a sale under customary law. In his evidence-in-chief, the plaintiff at page 27 of the record testified thus:

“The former head of the Olowofoyeku family late Mr. J .A. Olowofoyeku and father of 1st DW was paying tributes in form of drinks, kolanuts and other gifts to my predecessors in office including my own father. Some other persons were allowed to occupy shops built by my grandfather on similar terms of paying tributes in the form of drinks and other gifts were late Ariyo Abede, late Anjorin and late Omirin.”

The 2nd defendant having admitted the previous over lordship of the Risawe family having failed to establish a sale of the land under native law and custom could only have been on the land by the grace and permission the Risawe family as a customary tenant.

In Sanni v. Oki (1971) 1 All NLR 116 at 119 – 120, this court per Coker JSC stated the principle applicable where a defendant admits the over lordship of the plaintiff of the land in dispute thus:

“On that state of evidence, surely the learned trial Judge should have directed himself on the lines indicated in the judgment of the West African Court of Appeal in Thomas v. Preston Holder (1946) 12 WACA 78 where it was laid down that in a claim for title, as in the present case, when one of the parties had established a root of title emanating from an agreed original owner, the burden cast upon the other party is substantial and it is difficult if possible at all to find any instances in which that other party can ever obtain a declaration of title.”

The fact that the 2nd defendant’s family had not been paying rents as pleaded and given in evidence by the 1st DW does not by itself lead conclusively to the fact of the 2nd defendant’s family’s ownership of the land. Having failed to prove a sale to his family, the 2nd defendant has only exposed himself to the inference that his family had over the years been in default of their obligations as – customary tenant. See Okuojeror & Ors. v. Sagay & Ors. (1958) WRNLR 71;(1958) SCNLR 188. It did not establish ownership of the land. The court below in the lead judgment stated that the 2nd defendant’s family had been in long possession of the land. But it failed to bear in mind that the said long possession could not on the state of pleadings be considered adverse to the plaintiff’s title. The concerning opinion of Adekeye, JCA at pages 107 – 108 would appear to come close to the correct state of the law. She said:

“Occupation of the land for a long time may operate to oust the title of the real owner, where the occupation is adverse and the owner has been guilty of laches and acquiescence. Akpan Awo v. Cookey-Gam (1913) 2 NLR p. 100; Oshodi v. Balogun (1936) 4 WACA 1.

It is noteworthy however that acquiescence may not bar a claim unless certain conditions are fulfilled –

(1) Adverse possession by the person in occupation, that is a possession inconsistent with that of the owner (Maji v. Shafi (1965) NMLR p. 33 at p. 37). The appellant as the incumbent Risawe insisted that the respondent’s family cannot possibly own shops within the ‘Akodi’ the official residence of Risawe.

(2) The possession must have lasted for a long time. The respondent came upon the land Adedeji v.Oloso (Oguntade, J.S.C.) by a grant in 1910.

The real owner must have been guilty of acquiescence or laches, where upon the person who relied on it must have altered his position. Taiwo v. Taiwo (1958) 3 FSC 80; (1958) SCNLR 244. Aquiescence means conduct from which it can be inferred that a person has agreed to a certain state of affairs affecting his legal right. If a person has agreed to his rights being taken away, he should not afterwards complain about it, he would be estopped by the fact of his having consented to the act complained of. Since acquiescence operates by way of estoppel it is a weapon of defence under which the respondents can take refuge.

The appellant is estopped from challenging the rights of the respondents to a portion of his chieftaincy family property which members of his own family had by prior arrangement abandoned or relinquished as his family had delayed in putting up these claims against the respondents. The other three legs of the claim cannot stand as the respondents are not mere customary tenants.”

In the circumstances of this case, the long possession of the 2nd defendant’s family could not be adverse to the plaintiff’s title since the case made by the plaintiff was that the 2nd defendants came only on the land in dispute as a tenant to plaintiff’s family. Adverse possession by a defendant is one which derogates from and is inconsistent with the ownership title of a person who claims to be true owner of the land. A tenant’s possession cannot be adverse to the ownership of his landlord. From what I have said above, it is manifest that the High Court erred in holding that the 2nd defendant’s family had bought the land in dispute from plaintiff’s family when clearly the requisite formalities of a valid sale under customary law were not established. The court below was also in error to have affirmed the judgment of the High Court.

The plaintiff had in his claim, asked for a declaration of title or entitlement to a statutory right of occupancy. The plaintiff is clearly entitled to this. Under the 2nd claim, the plaintiff asked for a declaration that the land in dispute with shops at BI8 Ereja Quarter, Ilesa is within Risawe chieftaincy palace (Akodi), Isida, Ilesa. It seems to me that this claim is inconsequential having regard to what I have said as to claim 1 above. Obviously, this claim was made to show that the land in dispute was the stool land of Risawe chieftaincy family. In the light of the fact that the suit was initiated and pursued by the plaintiff in his capacity as the Risawe of Ilesa, I have no need to declare that the land in dispute is a stool land. The important thing is that the 2nd defendant had agreed that the land belonged to Risawe family.

The plaintiff on his 3rd claim asked for a for future of the rights of the 2nd defendant’s family as customary tenant on the land. In Chief Mojolagbe Ashogbon v. Saidu Oduntan 12 NLR 7, the court per Graham Paul, J., stated the necessity to consider the particular circumstances of each case to see whether forfeiture or a suitable penalty would be the proper remedy to grant.

The court said:

“I wish to make it clear that in my opinion where a native custom is invoked in SUPPORT of a forfeiture of a right, this court will as a court of equity consider in the particular circumstances of each case whether forfeiture or a suitable penalty would be the proper course. I regard this court in its equity jurisdiction as in some measure by virtue of the jurisdiction sections of the Supreme Court Ordinance ‘the keeper of the conscience’ of native communities in regard to the absolute enforcement of alleged native customs.”

In Asani Taiwo & Ors. v. Adamo Akinwunmi & Ors. (1975) 1 All NLR 202 at 228 (Reprint) this court said:

“Again in Okota & Ors. v. Oba Falolu 1 & Ors. (Unreprinted but see WACA 2879 delivered on 28th April, 1940), the court observed: ‘As to whether an order of forfeiture of the defendants’ rights as customary tenants should have been made; it was agreed that, under native customary law as recognised by the courts, serious misconduct of various kinds by a tenant may be a good ground for evicting him, though, as was pointed out in Chief Mojolagbo Ashogbon v. Saidu Oduntan 12 NLR 7, the grant of an order of forfeiture is a matter for consideration in the

Adedeji v. 0loso (Oguntade, .J.S.C.) 175 circumstances of each particular case and is not an invariable consequence of misconduct. It depends on the degree of misbehaviours.”

Undoubtedly, under customary law, a challenge by the tenant to his landlord’s title is regarded as a serious misbehaviour. In Onisiwo v. Gbamgboye (1941) 7 WACA 69 at 70, the court said: “The real foundation of the misbehaviour which involves forfeiture is the challenge to the overlord’s rights. This is commonly shown by some form of alienation and such alienation may take the form, as in this case, of 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 overlord’s right and consequently involve no misbehaviour or forfeiture. Every case must be considered on its own facts.”

Finally, the 2nd defendant’s family may stay on the land as customary tenant but must pay the customary rents to plaintiff’s family. I accordingly grant to 2nd defendant’s family a relief against for feature on these terms and conditions. They must go and sin no more.

Under claim (iv) the plaintiff asks that the 2nd defendant’s family be ejected from the land in dispute. In view of what I said above in relation to claim (iii), claim (iv) which means the same thing must be and is refused.

And finally, under claim (v) the plaintiff claims for “account and payment to the plaintiff of all rents paid or payable in respect of the rooms or shops at the rate of N50.00 per month as from 1st January, 1973 until the final determination of this suit.” This claim in my view is grossly untenable having regard to the basis on which the action was conceived and fought in court. It was an action predicated on plaintiff’s right as a landlord under customary tenancy. The plaintiff himself pleaded that the terms of the tenancy were that the 2nd defendant’s family would make “periodical traditional payment of tributes like kolanuts or drinks (schnapps or gin). That is all that the plaintiff is entitled to. The 2nd defendant’s family was not brought on the land as plaintiff’s monthly tenant or debt collector. The 2nd defendant’s family cannot therefore be made a person to account to the plaintiff’s family for income derived from the land in dispute.

In the final conclusion, this appeal succeeds. The judgment at the trial court and the court below are set aside. Plaintiff’s claim I succeeds. I accordingly grant it. Plaintiff’s claims (ii) to (v) are refused. I award in favour of the plaintiff N2,500.00, N5,000 and N10,000 respectively for appearance in the High Court, court below and this court. This makes a total of N 17,500.00

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SC.60/2002