Louis Oniah & Ors. V. Chief Obi J.i.g. Onyia (1989)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

This is an appeal in which both parties in this case have challenged the judgment of the Court of Appeal delivered on the 5th May, 1985. The defendants appealed against the whole decision whereas the Plaintiffs have appealed against that part of the judgment affirming the refusal of the trial Judge of their claim for forfeiture. Thus, this Court has before it both an appeal and a cross-appeal.

This also was the pattern in the Court of Appeal. However, in that Court, the defendants/appellants withdrew their appeal before the conclusion of argument. The cross-appeal of the Plaintiff was fully argued and judgment was delivered on the basis of the arguments before the Court. The appeal of the defendants was dismissed. The cross-appeal of the Plaintiffs was partially successful. Both parties have now appealed to this Court.

I think it is necessary for a clear understanding of the issues canvassed in this court in the grounds of appeal filed by both parties to restate in a fairly summary manner the facts which have led to this litigation.

Plaintiffs who brought this action in a representative capacity as representing themselves and the Umuezei family of Asaba, sued the defendants also in a representative capacity, representing themselves and the people of Okwe; and claimed as follows-

“1. Declaration that the defendants as the customary tenants of the plaintiffs have forfeited their rights to occupy a portion of plaintiffs’ piece or parcel of land situate and lying at Asaba within Asaba Judicial Division which said piece or parcel of Land as to its true position and boundaries will be shown in the plan to be filed by the Plaintiffs in Court.

2. Recovery of possession of the said portion of land from the Defendants.
3. Customary Tribute of 500 yams from the Defendants for the year 1975 or their value N500.00 (Five Hundred Naira).
4. N2,000.00 (Two Thousand Naira) being general damages suffered by the plaintiffs as a result of the defendants trespassing on the land outside the area allowed them to settle upon.
5. Injunction restraining the defendants by themselves, their servants and/or agents from:

(i) unlawfully entering the plaintiffs’ land, and (ii) doing any act which challenged the plaintiffs’ rights to possession of the said land.”

Plaintiffs claim to be the owners of ANIOLU land verged green in their plan No. MWC.893/176 filed with the statement of claim and also an extensive area of land known as ANIOCHA land. Both lands were inherited, they claim, from their ancestors who founded and first settled in these lands and have ever since been in undisputed ownership and possession of same.

Plaintiffs have continued, as their ancestors, to exercise the same rights of ownership and possession exercised by their ancestors over the land. The portion of the land now in dispute is verged pink in the said plan No.MWC893/76 and is known and called UWATU land. This UWATU land forms part of ANIOCHA land. The defendants and their ancestors were granted a portion of ANIOLU land verged Blue in plaintiffs’ said plan, and were accordingly the tenants of plaintiffs in accordance with Native Law and Custom.

In consideration of the land so granted defendants paid and were paying till 1974 annual tribute of 500 yams or their value to plaintiffs. Plaintiffs have enforced default in the payment of such tributes in the Native Court, Asaba in 1905. Similarly in 1931 and 1941 plaintiffs have enforced their claim to ownership and possession in the courts against other communities. In 1975 plaintiffs said that the defendants by themselves, their servants and agents broke and entered, without first obtaining the consent of the Plaintiffs, the piece of land in dispute which was outside the area granted them by the plaintiffs and commenced farming, building operations, and diverse acts without the consent of the plaintiffs. On being confronted by the plaintiffs, defendants claimed to be owners of the entire land shown PINK and BLUE in plaintiffs’ Plan aforesaid.

In their own defence, defendants deny that they have at any time been the tenants of the plaintiffs. They claim that the entire ANIOLU and ANIOCHA land belonged to their ancestors from time immemorial, who first settled in those lands and did not belong to plaintiffs’ ancestors as claimed by the Plaintiffs. Defendants stated that plaintiffs’ ancestors settled at Asaba by the grace of defendants’ ancestors who provided them with shelter against Bini warriors. They denied that plaintiffs possessed any fishing rights in defendants’ fish ponds. They say that their ancestors before them and subsequently they have been exercising maximum acts of possession and ownership over the entire piece or parcel of land. The defendants deny that they were parties to any litigation in respect of the land in dispute, and have been in continuous occupation of the land and exercised numerous acts of ownership and possession.

The above account is from the averments in the pleadings filed and exchanged by the parties. They also filed and exchanged plans of the area claimed by them. At the trial each of the parties called oral evidence tracing their ownership of the area and the exercise of acts of ownership and possession. There was also traditional evidence of their ownership and of the incidents of customary tenancy. In his judgment the learned trial Judge found that the evidence including the several judgments tendered by the plaintiffs established conclusively that title to ANI-OLULAND is vested in plaintiffs. He also found that the Defendants were the customary tenants of the plaintiffs. The learned Judge held that the fact that plaintiffs did not take any action to repossess the land even when they were aware of the acts of defendants inconsistent with their tenancy did not confer title to the land on the defendants. It was also held that although the entire ANIOCHA land was vested in the plaintiffs, and that UWATU land in dispute is part of ANIOCHA land, plaintiffs did not strictly delimit the area which they gave to the Defendants. He therefore held that the expansion into ANIOCHA land by Defendants did not thereby amount to an act of trespass. He rejected the traditional history of the ownership of the land by the defendants.

On the claim for forfeiture, the learned Judge held that Defendants were customary tenants, and were liable to the payment of customary tributes. He however was not sure whether the tributes were regularly demanded by the plaintiffs or paid by the defendants. He held that evidence of regular payment of tributes up to and including 1974 was not satisfactory. The learned Judge observed that although defendants had not asked for relief for forfeiture and had denied the title of the plaintiffs…. he was “constrained to refuse the claim for forfeiture and recovery of possession of the portion of land occupied by the defendants.” Citing Ladega v Akinliyi (1975) 2 S.C.91, at p.96 Taiwo & Ors. v Akinwumi & Ors. (1975) 4 S.C.143, 171 William Ladega & Ors. v. Durosimi & ors. (1978) 3 S.C.91 at p.98 which are clearly against his position said; at p.170

“This opinion is founded on the fact that I am not very much convinced that Obi Akaraiwe and others of Okwe village went to Umuezei people to ask for permission to move to Aniocha land.

In the circumstances I cannot see my way clear in granting the first and second reliefs nor do I find it necessary to discuss the claim for an injunction as that claim is also refused.”

The learned Judge granted the claim for payment of customary tributes. Although plaintiffs claimed for payment of tribute only for 1975, the learned Judge granted them for the years, 1976, 1977, 1978, 1979, i.e. four years more than the plaintiffs had claimed.

The judgment of the Court of Appeal was concerned only with the appeal by the plaintiffs. Defendants’ appeal having been withdrawn, was dismissed. The grounds of appeal of the plaintiffs alleged that the trial Judge

(a) failed to evaluate properly or at all the evidence before him and therefore came to a wrong conclusion, that Plaintiffs did not delimit any portion of Aniocha land for defendants to occupy,

(b) erred in law in refusing to make an award in favour of Plaintiffs for damages

(c) having found that defendants are customary tenants of the Plaintiff and have denied the title of their Landlords, refused to order forfeiture.

(d) refused to order injunction when there was sufficient material before him to make the order.

On the first ground, the Court of Appeal accepted the submission of counsel to the Plaintiffs/Appellants and evaluated the evidence by setting out the evidence of the Plaintiffs and observed that all the learned Judge said of the evidence was that he did not believe the witnesses; and that the plaintiffs’ gave land to the defendants in Uwatu land. He gave no reasons why he did not believe the plaintiffs’ witnesses. The Court of Appeal further observed that the learned Judge did not come to his conclusion after weighing the evidence adduced by the parties on the issue, but made a finding based on his conjecture of what might have taken place. The Court of Appeal could not find any reason why plaintiffs’ witnesses should have been disbelieved and held that the learned Judge did not properly evaluate the evidence before him. In their judgment the Court held that on the evidence, there was ample proof that the defendants were granted a specified area in UWATU LAND. It was also held that the acts of trespass were not denied by the defendants. Since they went outside the area granted them by the plaintiffs and used plaintiffs’ land as it pleased them these were sufficient acts of trespass – Okagbue v. Romaine (1982) 5 S.C. 133 at 144 and Solomon v. Mogaji (1982) 11 S.C. 1 at 40 were cited and’ relied upon. Following upon this, it was held that the refusal to grant the injunction sought was wrong.

The Court of Appeal observed that the learned Judge had taken into account considerations other than legal for refusing to grant forfeiture. His reason was that “to forfeit the land in this action would amount to creating more social and economic problems in the community.”

The Court of Appeal observed, and rightly in my view, that the grant of remedy for forfeiture is not discretionary. It is a remedy which follows upon the breach of the condition of customary tenancy. – See Dokubo v. Bob Manuel (1967) 1 All N.L.R. 113, Onisiwo v. Fagbenro (1954) 21 N.L.R.3. After referring to the refractory conduct of the defendants the court said;

“An order for forfeiture may be harsh, but the defendants asked for it, and I do not see that the learned Judge was right in refusing to make it,”

However, the Court of Appeal was persuaded by the argument of counsel to the respondents to hold that Appellants with knowledge that respondents had done acts which entitled them to forfeit the customary tenancy, demanded fresh rent from the respondents and also claimed in the action for the said rents. It was held that by this claim appellants had waived their right to forfeiture. In addition, the Court held that appellants had received without protest rents for 1976-1979 awarded by the High Court. Appellants therefore cannot be heard to say that respondents are not their tenants. For these reasons, the Court of Appeal affirmed the refusal of the learned Judge to grant the claim for forfeiture.

The Court of Appeal therefore granted the claims for damages for trespass, and for an order for injunction but dismissed the claim for forfeiture. The appellants and Respondents appealed against the judgment. The respondents, whose appeal to the Court below was withdrawn and consequently dismissed appealed against the whole judgment. Plaintiffs whose appeal to the court below was allowed except on the ground of forfeiture where the learned Judge was affirmed, appealed against the judgment on that ground.

Defendants/Appellants filed four grounds of appeal which allege errors in the judgment of the Court of Appeal for their findings in trespass, possession, and challenging the right of the court to evaluate the evidence and reverse the findings of fact made by the learned Judge. The order for injunction was also challenged on the ground that the claim for forfeiture had been dismissed.

The only ground of appeal filed by the plaintiffs in their appeal related to the dismissal of the claim for forfeiture. The contention was that defendants did not claim relief for forfeiture and that waiver was not a defence by the defendants in the trial Court;

and that the purported waiver was an award by the trial Judge and not claimed by the Plaintiffs/Appellants. The claim for possession was a clear intention to insist on the forfeiture, since the acts of misbehaviour on which the claim for forfeiture was based remained a continuing and persisting nature.

Counsel to the parties filed and exchanged their briefs of argument on which they relied in oral argument before us. Before argument in this appeal, counsel to the Appellants argued the notice of preliminary objection to the cross-appeal of the plaintiffs, on the grounds that since the ground of appeal involved issues of mixed law and facts leave of the Court of Appeal was by 5.213(3) of the Constitution 1979a condition precedent. It was also submitted that there was no application for extension of time within which to apply for leave.

Counsel to the Respondent/Cross-appellant, in his reply pointed out that no issues of fact or mixed law and fact were involved, and that the only ground of appeal was on law in respect of which leave was not required under section 213(2) of the Constitution 1979.We dismissed the preliminary objection.

Both counsel to the Appellants and for the Respondents have formulated the issues for determination in this appeal. We have on several occasions in appeals coming before this court pointed out that counsel should exercise more diligence in formulating the issues. It seems to me necessary to point out again that the issues to be determined are not the same as the grounds of appeal filed. Whereas the grounds of appeal filed accentuate the defects in the judgment sought to be set aside, the issues for determination accentuate the crux of the reasons encompassing one or more grounds of appeal for the determination of the appeal. Hence, merely to repeat the grounds of appeal as counsel to the Defendants/Appellants has done in this case, is not an acceptable formulation of the issues. However, only issues formulated within the parameters and con of the grounds of appeal and raising issues determined in the judgment appealed against can come within the purview of issues to be determined – See Att.-Gen. Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 N.W.L.R. (pt.66) 547. Issues even if in the judgment but not encompassed by the grounds of appeal filed do not fall within the scope and meaning of issues to be determined.

Counsel to the Respondent has pointed out, and I agree with him that the issues arising for determination as formulated by appellants are merely a reproduction of the grounds of appeal. They are for ease of reference reproduced as follows –

“(a) The learned Justices of the Appeal Court erred in law in holding that the defendants/appellants were trespassers when that remedy only avails a person in possession and the evidence was that at the time plaintiffs went to court the defendants/appellants were in possession of the disputed land.

(b) The learned Justices of the Appeal Court erred in law and fact when they failed to hold that the claim for recovery of possession is a negation of the very facts on which that for trespass must be founded and that consequently there was a fatal misjoinder in the entire cause of action.

(c) The learned Justices of the Appeal Court erred in law when they proceeded to question the trial Judge’s evaluation of the testimony of witnesses made in the course of the trial and upon which evaluation findings of fact were made by the trial Judge and thus exceeded the functions of an appellate court.

(d) The learned Justices of the Appeal Court erred in law in making an order for injunction when they failed to consider that the only right remaining in the grantor of a customary tenancy is that of reversion and that possession at all times is reposed in the customary tenant until tenancy is forfeited, since the trial Judge had found as a fact that the defendants/appellants were the customary tenants in the disputed land, and their Lordships of the Appeal Court had themselves dismissed the claim for forfeiture.”

It is obvious that (a) and (b) deal with the grounds of appeal against the finding of trespass and possession, whereas (c) concerns the evaluation of evidence and (d) the issue of injunction. Counsel to the Respondents has argued in his brief that only (c) is an issue arising from the appeal, and that (a), (b) and (d) were not issues at the trial and were not issues in the Court of Appeal. With due deference to learned Counsel this is a clear misconception of the principles governing appeals. The grounds of appeal are based on the judgment of the court appealed against. A fortiori the issues necessary for the determination of the appeal. The judgment of the court below is only relevant in so far as the issues contested are the same. Hence, the only pertinent factor is that the issues to be determined relate to the grounds of appeal which raise issues determined in the judgment appealed against.

I shall for the purposes of this judgment formulate the issues to be determined concisely as follows-

1. Were the learned Justices of the Court of Appeal right in holding that a customary tenant in possession can be made liable in trespass
2. Whether the Justices of the Court of Appeal can reverse the finding of fact on the evidence of the witnesses made by the trial Judge
3. Whether the Justices of the Court of Appeal are right in law to grant injunction to a customary landlord whose only interest in the land is the reversion

These three issues in my opinion cover the issues to be determined in this appeal on the grounds of appeal filed by the defendants/appellants.

Arguing the first issue, counsel to the defendants/appellants submitted that an action in trespass cannot succeed unless plaintiff establishes that he is either in actual possession or is entitled to possession of the land in dispute. There must be a definite finding of possession Oladimeji v. Oshode (1968) 1 ALL N.L.R 417 at p 423. Title without possession is not sufficient because- trespass is a violation of mere possessory right – See Omoni v. Biriyah (1976) 6 S.C. at p 49; Ayoola v. Adebayo (1969) 1 ALL N.L.R.159 Coker v. Adeyemo (1968) 1 ALL N.L.R.18. It was submitted that the Court of Appeal made no finding that plaintiffs/appellants were in possession. On the contrary the evidence was that defendants/appellants were in possession as customary tenants. Plaintiffs/Appellants did not prove exclusive possession necessary for an action in trespass – See Okoye v. Kpajie (1972) 6 S.C. 176 at p.188. The Court of Appeal made no such finding.

It seems to me that counsel to the defendants is arguing the appeal from the wrong end. The real issue before the court is the disputed area verged Yellow granted to the Defendants, and not the whole of ANIOCHA and ANIOLU land which the defendants subsequently by their defence brought in. They then claimed all lands including the area in dispute. I agree with counsel to the Respondents that the claim for trespass, damages and injunction excludes the area granted to defendants. The claims are only in respect of those areas outside the area verged Yellow, into which defendants entered without permission.

It is pertinent to mention that the learned trial Judge found that title to all ANIOCHA and ANIOLU land was vested in the plaintiffs and that Defendants were customary tenants of the plaintiffs. It is settled by a respectable line of judicial decisions which are not necessary to be cited here, that where two persons claim to be in possession of the same piece of land, the person with the superior title is ascribed by the law, to be in possession. Both courts have found title to be in the plaintiffs.

The Court of Appeal has also found that on the evidence Plaintiffs have delimited the area verged yellow as the area granted the defendants – See Mogaji & ors v. Odofin & ors. (1978) 4 S.C. 91 at p.96. Defendants have admitted entry into other places outside the area verged yellow on their own and without permission by the plaintiffs/appellants. They relied for this on the defence that they had title to the entire ANIOCHA and ANIOLU land.

Having failed in their claim to establish title the defendants became trespassers the moment they left the areas granted them – See Akanni & Ors. v. Makanju & ors. (1978) 11-12 S.C. 13 at p.20. Trespass however long cannot be converted to title. It remains adverse nevertheless. However, in the instant case the trespass was committed the moment defendants left the area granted to them and entered the areas under dispute without the permission of the plaintiffs. The Court of Appeal was therefore right in holding that the action of defendants constituted trespass.

Counsel to the appellants/defendants has conceded that trespass may be committed against a person in possession or who has a present right to possession. Plaintiffs undoubtedly by their title to the entire area in ANIOCHA land have a right to possession. Grounds 1 and 2 of the grounds of appeal covered in the first issue to be determined therefore fail. The answer to the first issue is in the affirmative.

I now turn to the 3rd ground of appeal covered in the second issue to be determined. This ground complains against the evaluation by the Court of Appeal of the findings of fact already made by the learned Judge. The contention is that the findings having been based on the credibility of witnesses ought not to be interfered with by the court of Appeal. The general principle is that it is pre-eminently the duty of the trial Court to appraise and evaluate evidence given at the trial, and the Court of Appeal may not disturb such evidence merely because it would have arrived at a different conclusion on the same facts. See Ogundulu v. Phillips (1973) N.M.L.R.267 Okoye v. Ejiefo (1934) 2 W.A.C.A. 130. The Court of Appeal is however entitled to interfere when it is satisfied that the decision of the trial Court is wrong -See Onowan v Iserhien (1976) 1 N.M.L.R. 263. In the instant case the Court of Appeal had observed that the trial Judge stated that he did not believe plaintiffs’ witnesses on the question of delimiting the area granted to the defendants without giving reasons why the witnesses should not be believed.

They have accordingly rejected the finding and I think they were right to have done so. The issue of the delimitation of the area granted is not merely one to be founded on the credibility of the witnesses. They are matters of evidence based on facts which were ascertainable and dependent on the plans filed by the parties. In addition there have been decided cases on the ownership and title of the Plaintiffs.

If the trial Judge had carefully evaluated the evidence before him rather than rely on the assumptions he made of the improbability of a delimitation of the area at the time beyond living memory when the ANIOLU land was granted to defendants he would not have come to his wrong conclusion. Having himself rejected the traditional evidence of the defendants of how they come to settle on the land, the only evidence extant and available was that of the Plaintiffs which stand uncontradicted.

Especially relevant is the fact that the evidence of the plaintiffs was directed at establishing the grant of UWATU land which is a recent event. There is no doubt that his approach to the question was wrong and the Court of Appeal was right to evaluate the evidence as it did – See Akinloye v. Eyiyola (1968) N.M.L.R. 92 & Ebba v. Ogodo & ors. (1984) 4 SC. 84 at 90.

There was ample evidence before the trial Court from which the Court of Appeal could evaluate the evidence and make proper findings. As I have already said, the credibility of the witnesses was not in issue merely because the trial Judge had said so. The facts themselves should lead to the conclusion. In the instant case the facts did not in any way lead to the conclusion reached by the learned trial Judge. I again answer the question in the affirmative. This ground of appeal therefore fails.

In the fourth ground of appeal which is the third issue formulated, appellant is complaining that the injunction ought not to have been granted since appellant was a customary tenant to the Respondent who was entitled only to possession at the reversion of the tenancy by forfeiture. The decision of this court in Sagay v. New Independence Rubber Ltd. (1977) 5 S.C. 143 was cited and relied upon for this submission. It was submitted that the claim for injunction in an action for trespass envisages where the claimant is in possession and seeking to restrain the trespasser from further trespassing on the land. In this case defendants have always been in possession as customary tenants whereas plaintiffs are not and have never been in possession.

I think counsel making this submission is still under the same misconception that Defendants are the customary tenants of the Plaintiffs outside the area verged yellow. The Court of Trial held that although the Defendants were granted the area verged yellow, there was no accurate delimitation of the boundaries. The reversal of this finding by the Court of Appeal inevitably leaves one with no other conclusion than that any of the lands outside the area verged yellow, in respect of which defendants were not the customary tenants of the plaintiffs were in the possession of the Plaintiffs.

Accordingly me Plaintiffs were entitled in law to protect that possession by an action in trespass and to seek for an order of injunction. It is a fundamental rule that the court will grant an injunction to support a legal right. The legal right of the plaintiffs to the area of the Uwatu land having been infringed, the Court of Appeal was right to have granted the order of injunction asked for. The answer to this is also YES.

The ground of appeal therefore fails and is dismissed. All the grounds of appeal of the defendants/appellants, therefore fail and their appeal is hereby dismissed.

I now turn to the cross-appeal of the Plaintiffs/Respondents who had appealed against the judgment of the Court of Appeal for affirming the judgment of the trial Court dismissing the claim for forfeiture.

Counsel to the plaintiffs has submitted that the grounds of waiver upon which the Court of Appeal affirmed the judgment was not a ground canvassed by the defendants in the court below and was not pleaded by them in their pleadings. Counsel cited Abowaba v. Adeshina 12 W.A.C.A., 18 and Total Nigeria Ltd. v. Nwako & anor.(1978) 5 S.C.1 for the contention that the issue cannot be relied upon. Defendants did not claim relief from forfeiture. The ground of appeal states as follows –

“The Court of Appeal erred in law in dismissing the appeal against the refusal of the High Court to grant the claim for forfeiture on the ground that the Appellants had waived their right to forfeiture, when:-

(i) The respondents did not claim relief from forfeiture;

(ii) Waiver was not pleaded or made an issue in the High Court;

(iii) Waiver operates only in respect of known breaches and not to breaches which were unknown at the time’ the act of waiver was said to have taken place;

(iv) The appellants had by the unequivocal act of issuing and serving their writ claiming possession against the respondents indicated their intention to insist upon the forfeiture.

(v) The purported act of waiver was the award of the High Court in this action in lieu of forfeiture after the appellants had elected to forfeit the respondents’ tenancy.

(vi) The acts of customary misbehaviour on which claim for forfeiture was based were of a continuing nature and persist.”

The issues to be determined as formulated by counsel reads as follows-

“Was the Court of Appeal right in dismissing the appeal in respect of the trial Judge’s refusal to grant the claim for forfeiture on the ground that the plaintiffs had waived their right to forfeiture when the defendants did not claim relief from forfeiture AND waiver was not pleaded or made an issue in the High Court,”

Counsel for the plaintiffs submitted that it is the duty of a defendant who seeks relief from forfeiture not only to raise it but to raise it in proper form. Since the defendant did not claim relief from forfeiture at all, the Court of Appeal was not competent to decide the question which was not raised and on which issue was not joined. There is considerable force in this last submission. It is well settled that a judgment must be confined to the issues raised on the pleadings. Where it is otherwise the court will be making a case for the parties by formulating its own case from the evidence and then proceeding to give judgment. This approach has always been rejected. – See Ochonma v. Unosi (1965) N.M.L.R. 321. A judgment must be based on a consideration of all the issues properly raised and in respect of which evidence was led – See Ojogbue & Anor,. v Nnubia & Ors.(1972) 1 ALL N.L.R. (pt.2) 226. No gratuitous awards are to be made by the court.

Counsel for the defendants in supporting the judgment of the Court of Appeal has submitted in his brief that even if defendants did not make a claim for relief from forfeiture and did not plead waiver, in considering the I claims for forfeiture the court should examine the entire circumstances surrounding the matter and decide the case on its merits. It was contended that there was no hard and fast rule in determining whether the acts of a tenant can result in forfeiture, and that each case should be considered on its merits.

The Supreme Court decisions in Taiwo v. Akinwumi(1975) 4 S.C.143, 183 and Ladega v. Akinliyi & Ors. (1975) 2 S.C.91, 97 were cited and relied upon. Counsel then stressed the question of hardship to those affected the forfeiture which he submitted was the strongest point in favour of the Defendants. He argued that the fact that defendants did not claim relief from forfeiture was of secondary importance – The case of Oduaran v. Asarah (1972) 5 S.C.272 was cited.

It was submitted that waiver was pleaded. This was by the plaintiffs demanding rent for 1975 in paragraph 26(3) of their amended statement of claim after being aware that defendants were disputing their title. Defendants by pleading the defences of laches, acquiescence and estoppel may be said to have adopted the issue of waiver. Plaintiffs are estopped from denying the tenancy of the defendants having waived their right to forfeiture. Counsel supported the view of the Court of Appeal that having accepted the gratuitous award of rent from 1976-1979 plaintiffs cannot be heard to say that they had not waived the claim for forfeiture by accepting defendants as their tenants. The Court of Appeal was therefore right in refusing plaintiffs’ claim for forfeiture.

It is important to state very concisely the general principles of law governing the claim for and relief from forfeiture. It is well settled that forfeiture is the usual mode for determining a customary tenancy. The real basis of the misconduct or misbehaviour which renders the tenancy liable to forfeiture is the challenge to the title of the overlord. This may be by alienation of part of the land, under claim of ownership, refusal to pay the tribute due or indeed, direct denial of overlord’s title by setting up a rival title in the customary tenant himself, as in the instant case. Although it has been held in Alade v. Aborishade (1960) 5 F.S.C.167 that the non-payment of rent or tribute is not necessarily inconsistent with the ownership of the overlord, the circumstances and the reasons for the refusal to pay tribute may determine whether there is a denial of the title of the overlord.

The generally accepted view is that despite the established misconduct of the customary tenant, forfeiture is not as of course or automatic, The dictum of de L’estang C.J., in Coker v. Jinadu (1958) L.L.R.77 sums it up admirably when he said,

“There is no such thing as automatic forfeiture; misbehaviour does not automatically involve forfeiture; it merely makes the culprit liable to forfeiture at the will of the landlord.”

Hence the overlord must take the necessary steps to enforce his debt of forfeiture for the misconduct in the Courts – See Lawani,v. Tadeyo (1944) 10 W.A.C.A.37, 39. The forfeiture claimed must also be pleaded. Similarly, it is vital to plead the claim for relief from forfeiture contrary to the submission of counsel to the defendants/respondents- Failure to plead either is fatal to the claim. However, where a grantor claims for recovery of possession and pleads the grounds upon which the right to recovery is based, the action is not incompetent because forfeiture was not specifically claimed. As was said in Dabiri v. Gbajumo (1961) 1 ALL N.L.R.225 – “The mere absence of the technical word “forfeiture” from the pleadings cannot be fatal in the circumstances where, as it is here, the nature of the claim is abundantly clear, and it is this respect that this case on appeal is to be distinguished from Lawani v. Tadeyo”

Forfeiture lies primarily against individuals and in exceptional cases against the community. The Court has been very restrained, wary and cautious in granting forfeiture against an entire community, especially where the misconduct has been caused by a few members – See Uwani v. Akom (1928) 8 N.L.R.19, Inasa v. Oshodi (1934) A.C.99.

Notwithstanding the harshness of the operation of the law the Courts in the exercise of equity jurisdiction has introduced some relief founded on the circumstances of the particular case. In Ashogbon v. Oduntan (1935) 12 N.L.R.7 Graham-Paul J. stated the attitude thus;

“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……..the keeper of the conscience of native communities in regard to the absolute enforcement of alleged native customs.”

Though a salutary approach, its limitation to alleged native customs is curious. Forfeiture does not arise only from the invoking of native customs.

Although the principles governing grant of relief from forfeiture are not clearly defined, it is however clear that the tenant seeking relief must plead it. The absence of such a claim is fatal. It would seem to me from the decided cases that the Court will refuse to grant relief where misconduct has been established and the defendants have persisted and remained refractory and obdurate in the conduct complained of – See Onisiwo v. Fagbenro (1954) 21 N.L.R.3. The court will also take into account the protection of the grantor’s reversion and the consideration that forfeiture is the only effective and adequate remedy. The Court will take into’ account any mitigating factors in the degree of inconvenience to the tenants considering the length of time he or they had been in possession and the improvements already made on the land – See Uwani v. Akom (1928) 8 N.L.R.19 and Okota v. Falolu (1949) W.A.C.A,. (unreported).

It is clear from the proceedings in this case that Defendants did not claim any relief from forfeiture. They remained throughout the trial obdurate in the challenge of the title of their overlord and denied ever paying tribute. They admitted their egregious acts of trespass based on their claim to title and even claim to have sheltered their overlord. Their conduct remained unrepentant.

Plaintiffs claimed for forfeiture and expressly pleaded it and established the claim on the evidence. They are therefore entitled to the claim for forfeiture. The ground of social problems which were likely to arise if the claim was granted relied upon by the trial Court is merely a ground enabling grant of relief from forfeiture where this has been claimed. It is not a consideration for refusing a claim for forfeiture established on the evidence.

The Court of Appeal in refusing the claim relied on the Issue of waiver which it was submitted was not part of the case of the defendants. The waiver relied upon was based on the conduct of the plaintiffs in claiming for rent for 1975 after the action bad been instituted, when they were aware that defendant were denying their title – a conduct which rendered the customary tenancy liable to forfeiture. The Court of Appeal also relied on the acceptance by the plaintiffs of the gratuitous award by the trial Judge of tributes for the years 1976-1979 not claimed by the plaintiffs. It was the contention of counsel for the defendants that once plaintiff has claimed for forfeiture in his action he should regard the tenancy as terminated and was no longer entitled to claim tribute thereafter.

Where he claims any tribute after the issue of the writ claiming forfeiture this is a waiver of the right. Counsel for the plaintiffs has submitted that an allegation for non-payment of rent as an alternative ground for forfeiture is not a waiver of the claim for forfeiture. Similarly receipt of rent accrued due before the act of forfeiture is no waiver -See Matthews v. Smallwood (1910) 1 Ch.777 at 786-7.

It was submitted that the issue and service of writ claiming possession is an equivocal act in a claim for forfeiture. It was further submitted that the receipt of the award by the High Court, which was not part of the claim by the Plaintiffs is not a waiver of the forfeiture – the claim for forfeiture having already been clearly indicated by the claim.

The issue of waiver which featured prominently in the judgment of the Court of Appeal would seem to me to have been misunderstood. The meaning of the word was stated in Ariori v. Elemo (1983) 1 S.C.N.L.R.1. In this case Aniagolu, J .S.C. after referring to the Dictionary meaning of the word in the “Concise Oxford Dictionary” 6th Edition, said,

“Whether one was dealing with waiver or with such other principles of equity as laches, acquiescence and a variety of estoppel, one common feature running like a connecting thread in all of them is the element of volition, express or implied, coming from the party against whom the doctrine is raised. It is his knowledge and acquiescence that make it unjust and inequitable that he should turn to resile from the situation. Brikom Investments Ltd. v. Carr & Ors. (1979) Q.B. 467; (1979) 2 All E.R. 753, is a good example. Whether the waiver be express or implied, the party against whom the doctrine is raised

(i) must be aware of the act or omission and

(ii) must do some unequivocal act adopting or recognising the act or omission.

Both elements must be present to constitute a waiver.”

I think the above is as fair as any definition of the concept of waiver can be. The concept of waiver presupposes that a person who is to enjoy a benefit or who has the choke of two benefits is fully aware of the benefits and has either neglected to exercise his right to the benefit, or where there is choice has preferred one. The exercise must be voluntary.

Now then, it is clear from the facts of this case that the plaintiff cannot be said to have waived his claim for forfeiture since it was a claim in the writ of summons and in the statement of claim. Plaintiff was no doubt entitled to tribute in 1975. Besides, the non-payment of tribute is not the only ground of misconduct relied upon for the claim for forfeiture.

I have found it difficult to comprehend and appreciate how the Court of Appeal could come to the conclusion that the acceptance of an award by the Court constitutes a waiver of a claim for forfeiture before the Court. A waiver presupposes a choice between anticipated benefits, and cannot be a conduct exercised ex post facto. In any event the offer of a gratuitous award after the claim has been made, and established in Court cannot in law constitute a waiver.

In this case the two essential elements to constitute waiver spelt out in Ariori v. Elemo (supra) are not present at the same time. Plaintiffs were aware of the misconduct but have not done any unequivocal act to recognise it and that they were prepared to condone. On the contrary it is the subject-matter of the appeal before us. I am therefore satisfied that the Court of Appeal was wrong to hold that plaintiffs/appellants by accepting the award of damages made by the trial Judge which was more than the claim made, had waived the right to forfeiture. The claim for forfeiture therefore succeeds. The cross-appeal succeeds.

The claim for forfeiture by the plaintiffs/respondents/cross-appellants having succeeded, and the incurred forfeiture of their rights to occupy that portion of ANIOLU land verged BLUE and YELLOW on plaintiffs/respondents/cross-appellants’ plan No. MWC.893/76 Exhibit D in this case; are hereby ordered to deliver up possession to the plaintiffs/respondents/cross-appellants within 12 months from today, unless amicable settlement has been effected between them and their overlords to mend the breach of the customary tenure.

Defendants/Appellants shall pay costs assessed at N500 to the plaintiffs/respondents/cross-appellants.

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SC.70/1986