Josiah Aghenhen v. Chief Maduka Waghoreghor & Ors (1974)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
This is an appeal from the judgment of Ogbobine, J., in Suit No. UHC/42/69 delivered in the Ughelli High Court on 29 May, 1970, wherein he found for the plaintiffs as per their writ which was endorsed as follows:
“(1) A declaration that the plaintiffs as the persons adjudged in both Suit No. W72/60: Chief Maduku Waghoreghor and Anor. v. Josiah.
Aghenghen and 11 ors. and Appeal No. S.C. 563/66: Josiah Aghenghen and 10 Ors. v. Chief Maduku Waghoreghor and Anor. to be the owners and/or owners in possession of Avbredja parcel of land verged Pink on Survey Plan No. G.A. 213/61 lying and situate within the jurisdiction of this Honourable Court are entitled to:
(a) all monies due from an payable by the 1st defendants as rent or rental and/or compensation for the 1st defendants’ user and/or occupation of, and their operations on and/or in, Avbredia parcel of land aforesaid;
and
(b) all monies and/or sums due from any payable by the 1st defendants in respect of plaintiffs’ communally owned economic trees growing on the said parcel of land which were destroyed by the 1st defendants during the decade 1959-1969.
(2) An order that the 1st defendants to pay over to the Plaintiffs the sum of 9,983:4 (nine thousand nine hundred and eighty three pounds four shillings) or any sum or larger sum due from and payable by the 1st defendants as claimed by the plaintiffs in (1)(a) and (b) above.
(3) Perpetual injunction restraining the 1st defendants their servants and/or agents from paying any monies as claimed by the plaintiffs in (1) and (2) above to any person or persons other than the plaintiffs.”
At the outset both parties agreed not to call any oral evidence but to rest their respective cases on documentary evidence consisting mainly of the transcripts of two previous judgments between the same parties and in respect of the same piece of land. The combined effects of both judgments, one of which was given by the Warri High Court in Suit No. W /72/60 (Exhibit B) while the other was given on appeal against that judgment by the Supreme Court in Suit No. W.C. 563/66 (Exhibit C), may be summarised as follows:
(i) That the land in dispute is owned by the plaintiffs through their predecessors from time immemorial;
(ii) That the defendants are the customary tenants of an adjacent piece of land to whom, or to individual members of whom, land rights of customary user in the disputed portion had been granted by the plaintiffs from time to time, and that the defendants have cultivated their various portions by inter alia planting them with economic and other permanent crops;
(iii) That the plaintiffs’ claim to forfeiture of the defendants’ land rights in the disputed portion was refused by the court on the ground that the denial of plaintiffs’ ownership by the defendants was not so serious as to warrant the exercise by the court of its equitable jurisdiction to grant a forfeiture, and that the imposition of a fine of 100 was sufficient: see Chief Uwani v. Akom & Ors. (1928) 8 N.L.R. 19 and Chief Etim & Ors. v. Chief Eke & Ors. (1941) 16 N.L.R. 43;
(iv) That the plaintiffs’ claim to an order of injunction restraining the defendants from further acts of trespass with respect to the land in question was similarly dismissed;
(v) That, accordingly, while the plaintiffs were granted a declaration of title to the land in dispute, the defendants were given possession of the land for continued occupation and user under customary tenure.
The learned trial judge, however, decided to give the plaintiffs judgment as per their Statement of Claim. The appellants have appealed to this Court from that judgment on the following grounds:
“1. The learned trial judge erred in law and on the facts in failing to observe that the appellants were customary tenants.
- The learned trial judge erred in law in holding that the appellants were not entitled to claim any of the compensation despite their right of user and their having been in possession at the time of acquisition even if they were not customary tenants.
- The learned trial judge erred in law in holding that the appellants must adduce evidence on the basis of computing the amount of compensation payable when he should have applied the equitable doctrine of ‘equality is equity’.
- Judgment is against the weight of evidence.”
Mr. Balogun, learned counsel for the appellants argued, his grounds of appeal, to which Mr. Cole, learned counsel for the respondents, replied. “It seems to us right to begin by drawing attention to the effects of the two judgments which we have stated above.” That is the legal situation with which Ogbobine, J., was faced in the case before him but, instead of coming to a conclusion based on them, he embarked on a re-assessment and evaluation of the evidence led in the two previous judgments to which he then gave an interpretation totally unjustified in law.
We think that when a case has to be tried on the basis of previous judgments tendered and agreed to by both parties, as in the present one, it is not open to the trial judge to go behind the judgment and quote evidence led in the case to support his own view of what he thought the case itself decided, but the learned trial judge should have confined himself to the substance of the decision contained in the judgment in question. He has no right to have treated the two previous judgments as if they were pieces of evidence adduced by the litigants before him, upon which he could proceed to make his own deductions. We have had occasion in recent months to warn High Court Judges against the practice of sitting on appeal, as it were, upon the judgments of other High Court Judges and to review and pass upon such judgments: see Okpa Orewere & Ors. v. Rev. Moses Abiegbe & Ors. (1973) 9 & 10 S.C.1; Akporue & Anor. v. Okei & Ors. (1973) 12 S.C. 137.
In the present case, Ogbobine, J., even purpoted to review and interprete a Supreme Court judgment in his own way. This is clearly insupportable. Thus it seems to us clearly incompetent for the learned trial judge to hold that the defendants are licencees with regard to the disputed land, a point never raised on the pleadings nor canvassed by either pany throughout both judgments on which the learned trial judge was asked to adjudicate.
If, as both parties rightly insisted before the learned trial judge, the only issue for determination is whether or not there should be an apponionment of the compensation money as between the plaintiffs and the defendants and, if so, in what proportion, then the preliminary and indeed crucial question is to delimit the precise scope of the nature of the land rights which the defendants have in the disputed land. If, on a strict view of the two judgments, it should be found that the defendants have nothing, then they would have no share in the compensation money. But, if on a true view of the matter, their customary land rights are found to be recognized in law, then they are entitled to a share proportionate to the extent of their legal interests.
The main question, therefore, is: What is the legal nature of the interests of customary tenant in the land granted to him Before, however, we attempt to answer it, we should first consider what the two previous judgments really decided. As we have seen, the defendants have at least as individuals through their predecessors in title been granted rights of user with respect to the land for which they had at all material times paid tributes, they have from time immemorial planted economic crops and other produce thereon and generally farmed them according to the ordinary course of husbandry practised in the locality, and there is no finding that the plaintiffs have either lives or farmed on the disputed land. No dispute would seem to have arisen as between both panies over all these years until the Shell BP began to explore for oil on this land.
There is neither authority nor warrant for the assenion by the learned trial judge that, in order to become customary tenants, the defendants must establish an express grant to them as a community, such as was presumed to have taken place in the undisputed potion of the land; customary tenants can and often have their parcels of land granted to them individually, provided they duly honour the incidents of tenure, especially the payment of tributes. It is not in dispute in this case that the defendants are lawfully on the disputed land.
If, as contended by the plaintiffs, the defendants are not customary tenants, what are they They occupy and use the land as ordinary customary tenants do, the plaintiffs have no concurrent rights of user with the defendants in respect of the disputed land, the defendants have duly been paying tributes, the 105 paid by Shell BP was compensation for user and economic crops, the acquisition has indeed displaced only the defendants who are in possession of the land, and the courts have in the two previous judgments refused to grant either forfeiture or an injunction against the defendants. The only reasonable conclusion to be drawn from these legal facts is that the defendants are either customary tenants of the disputed land or possess rights analogous to those of such tenants. All the incidents of customary tenure are present. The defendants cannot be regarded as licencees by arguments derived from English land law, as the learned trial judge has done.
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 buildings or other forms of improvements like extensive commercial farming and/or occupation have been established thereon by the grantees. Any proved misbehavior is usually now punished by a fine, as has happened in the present case.
They enjoy something akin to emphyteusis, a perpetual right in the land of another. A very important factor is that the grantor of the land, once it has been given to the grantees as customary tenants, cannot thereafter grant it or any part of it to a third party without the consent or approval of the customary tenants. The grantor is not allowed to derogate from his grant: Chief Sam Warri Esi v. ltsekiri Communal Land Trustees & Ors. (1961) W.R.N.L.R. 15, at p.21.
Although there is no specific finding to that effect in the judgments founded upon, the fact that the plaintiffs/respondents themselves described the appellants as their “customary tenants” in the first paragraph of their Statement of Claim and that they sued the appellants for forfeiture (and an injunction), which are remedies peculiar to disputes as between landlords and their customary tenants, leads us to the conclusion that the appellants were customary tenants of the respondents. Indeed, the Warri high Court did find that appellants were “a kind of tenants under customary tenure”, a fact which must have influenced the lower court to refuse to grant either forfeiture or an injunction against the appellants.
The result is that, in many ways, as with the customary tenant in this type of legal situation where the grantors do not live on the land or farm thereon, “possession is nine-tenths of the law”. It is they would would lose not only their means of livelihood, but also their very existence, by the compulsory acquisition of the land in question. With respect to the disputed land, we hold that the defendants are customary tenants, not licencees.
On the question of their proper share of the compensation money, we think that this must be decided by the Court, as contended for by the learned counsel for the appellants, in the exercise of its equitable jurisdiction. In Bassey & Ors. v. Eteta (1938) 4 W.A.C.A. 153, the plaintiffs were granted the two-thirds share of the rent received from the lessees of land to whom the defendant grantors had illegally leased part of the grantee’s land; the plaintiffs had there adopted or ratified the defendants’ illegal act. But in Chief Etim & Ors. v. Chief Eke & Ors. (1941) 16 N.L.R. 43, where it was an express condition of the original grant that the grantors should retain a concurrent right of exploitation of the resources of the farmland, the subject of the grant, with the grantees, the proceeds from reaping palm nuts and rents of the land were held to be apportionable equally. We are of the view that it is unnecessary to import the concept of a quasi-contractual obligation into this situation, as the court obviously did in Bassey v. Eteta (see at p.155 thereof). It is sufficient that, in the exercise of our equitable jurisdiction we consider what would be a fair distribution of the proceeds of the land, be they from lease or sale or compulsory acquisition. The main consideration is that the grantees would by the surrender of their possessory title, lose so much more than the grantors whose reversionary interests are now quite small, if not nebulous.
The practice regarding Itsekiri Land Trust furnishes an example of how the radical title of a piece of land could be in one entity while the possessory rights reside in anothers, there is also the principle of apportionment of the proceeds as between the two. In our quite recent decision in Itsekiri Communal Land Trustees v. Warri Divisional Planning Authority & Ors. (1971) 11 S.C. 235, we awarded one-third to the Itsekiri Land Trustees and two-thirds to the customary tenants as fair shares in the compensation money paid for the acquisition of land.
We think that, while no hard and fast rule can be laid down as to the exact proportion of the shares in every case, it is reasonable to suggest in this case that the customary tenants or grantees take two-thirds, while the grantors take the remaining one-third. It seems to use strange that the learned trial judge refused to entertain the defendants’ claim to apportionment on the sole ground that apportionment is unknown to customary law.
The principle of apportionment is part and parcel of every system of law that recognizes rights and obligations in relation to parties to a dispute. The High Court at Ughelli, like every other High Court in the Federation, is invested with equitable jurisdiction in all disputes before it which require the application of principles of equity. The case before the learned trial judge is one such, and it is not consonant with justice that the court should declare a not liquet in this matter. If apportionment is unknown to customary law, how does the principle of compulsory acquisition form part of customary law so as to be payable to the plaintiffs
Accordingly, the appeal succeeds, and it is allowed. The judgment of Ogbobine, J., in Suit No. UHC/42/69 delivered in the Ughelli High Court on May 29, 1970, is hereby set aside, including the order as to costs. We substitute an order that the compensation money be apportioned as between the appellants and the respondents in the proportion of two-thirds to the appellants and one-third to the respondents. We also order that the respondents pay to the appellants costs assessed at N120 in the Court below and at N180 in this Court.
Other Citation: (1974) LCN/1968(SC)
