Samuel Umoru V. Dr. F. A. Akinyede (2006)
LawGlobal-Hub Lead Judgment Report
OGUNWUMIJU, J.C.A.
This is an appeal against the decision of the High Court of Ekiti State holden at Ado Ekiti delivered by D. F. Babalola on the 30th day of July, 2003. Therein the court dismissed on all grounds the appeal filed by the appellant against the judgment of the Customary Court of Ado Ekiti holden at Ado Ekiti delivered on 26th of April, 2000.
The facts leading to this appeal as can be ascertained from the records of proceedings are as follows:
The appellant in this court and also the appellant in the lower court was employed to farm and harvest the respondent’s family palm oil plantation situate at Omioloko farm via Igirigiri, Ado Ekiti.
He worked on the oil plantation from 1976 till 1995 when at a meeting of the family and in the absence of the family head the family decided to order him to vacate the farm. The family purportedly dispensed with his services because of allegations that he had been fighting, threatening people with cutlass and he had not been giving the family their expectation or satisfying the conditions of the contract. His refusal to vacate the farm prompted the action at the trial court. The original plaintiff sued on behalf of the Fasuru family.
An application was made by the family and an order granted to substitute the present appellant for the former plaintiff since the latter was found to be frail and old.
At the trial customary court the plaintiff now respondent had claimed as follows:
“1. Possession of a piece of land (oil palm plantation) situate lying and being at Omioloko farm, via Igirigiri Ado Ekiti.
2. Injunction restraining the defendant, his servants or agents from further staying on the farm for any purpose.”
At the trial court, the plaintiff gave evidence and called one witness. In his evidence-in-chief, he amplified the claim as follows:
“1. I am going to talk on four principal points. (1) Ownership of the land (2) The eligible members of the community who owns the land (3) Administration of the resources (4) Decisions of external intervention such as Ewi in council and others …”
The plaintiff went on at length to give evidence on these points and he was thoroughly cross-examined on them. His witness also gave evidence along these lines. Pages 37 to 40 of the records.
The defendant at the trial gave evidence and called two witnesses. Chief John Babafemi Akinyede the Asamo of Ado Ekiti swore that he put the defendant on the farm to produce palm oil for the Fasuru family. He was not told nor did he consent to any of the family member’s decision to send the appellant away from the farm.
The Customary Court after hearing the parties and their witnesses visited the locus in quo on 24/3/2000 and on 26/4/2000 gave judgment inter alia as follows:
“There is no evidence before this honourable court that there is dispute in the ownership of the land … at Omioloko farm, Ado Ekiti … The imposition of Imoru Samuel on the family is another cause for the misunderstanding between the family … “See page 6 of the record of proceedings.”
The court then set up and named members of a caretaker committee to administer the palm oil farm in question. It also stated the method of distribution of the resources of the farm. The court ordered Samuel Imoru to leave the farm within twenty days of the judgment.
The defendant was dissatisfied with the judgment and appealed to the High Court on the following grounds:
1. That the decision of the lower court is erroneous on point of law.
Particulars of error
(a) By giving judgment not in respect of matters given in evidence before it and thereby came to a wrong decision.
(b) By not taken into consideration and cognisance the evidence of defendant’s first witness Chief J. B. Akinyede who is the head of the Fasuru family who said in evidence that he put the defendant on the family farm in 1976, with the concurrence of all the members of the family and that defendant served the family well and did not commit any offence to; warrant his being asked to vacate the family land, without his knowledge, consent and approval.
2. The lower court erred in law in not evaluating properly the evidence adduced in court by the defendant, and his witnesses and thereby came to a wrong conclusion.
3. The lower court erred in law, and all the facts by not holding that the action for possession against the defendant must fail in that it was commenced in court without the knowledge and consent of the head of the Fasuru family in person of Chief J. B. Akinyede the Asamo of Ado-Ekiti who is the accredited head and representative of Isamo people, Fasuru Chieftaincy family, Famugbode family and Akinyede family respectively.
4. The lower court erred in law in considering estraneous facts and factors not given in evidence before the court and thereby came to a wrong decision.
5. The lower court erred in law in giving judgment on relief not sought before the court and not contained in the claim before the court by imposing a committee on the family for the administration of the family resources, without consulting the head of the family.
6. That the judgment violates the rules of natural justice and equity and fairplay in that the defendant who had been in possession of the Omioloko farm since 1976, or a period of over 24 years to vacate the place within 20 days, when no proper notice was served on him in accordance with the provision of the law.
7. That the judgment is against the weight of evidence as it is misconceived, mischievous having regard to the evidence adduced before the court by the defendant and his witnesses. See page 3 of the record of proceedings.
The appellant’s counsel at the lower court also argued that the appellant did not receive proper notice in accordance with sections 6, 7 and 8 of the Recovery of Premise Law of Ondo State now applicable to Ekiti State.
The court below in dismissing the appeal on 30/7/2003 held:
1. That the Recovery of Premises Law of Ondo State applicable to Ekiti State was inapplicable to this case because it was not a case of landlord and tenant.
2. That even though the action against the appellant was instituted without the consent of the family head, it is a well established principle of law that a member of a family can sue a stranger to protect the interest of the family over family property.
3. That the trial court’s order that a caretaker committee be set up to manage the family oil farm was a consequential order which was made to give effect to the judgment of the trial court.
It is against the above judgment of the Ekiti High Court per D. F. Babalola that the appellant has further appealed to this court. Two grounds of appeal were filed before this court. They are:
1. The lower court erred in law in affirming the decision of the trial court which awarded the plaintiff/respondent a relief which he did not claim.
2. The lower court erred in law when it gave its judgment on 30th July, 2003 outside 3 months after conclusion of hearing in the appeal which is a breach of the Constitution of Nigeria, 1999 and thereby occasioned miscarriage of justice.
No issue was formulated on ground two and it is presumed dropped.
The parties through their counsel and in accordance with the rules of this court filed and exchanged briefs of argument wherein they identified the issues for determination arising from the grounds of appeal.
The appellant’s brief was dated 21/9/04 and was filed on 29/11/04. The respondent’s brief was dated 08/6/05 and deemed filed on 28/11/05.
The learned appellant’s counsel identified the following issues for determination by this court:
“A. Whether or not the lower court was right in upholding the judgment of the trial court when plaintiff failed to prove his case.
B. Whether or not the lower court was right in upholding the judgment of the trial court which gave the plaintiff what he did not ask for.
C. Whether or not the judgment of the lower court is in consonance with the evidence led before the trial court.”
The learned respondent’s counsel on the other hand condensed the issues into two and stated them as follows:
“1. Whether or not the judgment of the lower court is in consonance with the evidence led before the trial court – grounds 1 and 3 of the appeal.
2. Whether the lower court awarded the respondent a relief which he did not claim – ground 2 of the appeal. I am inclined to decide the appeal on the two issues as distilled by learned respondent’s counsel since they encapsulate the learned appellant’s counsel’s issues.
On issue one, learned applicant’s counsel based his argument on the premise that the appellant was a customary tenant whose grant must be forfeited on grounds of misconduct. He argued that none of the alleged grounds of misconduct were well proven against the appellant nor did the trial court make any finding to that effect.
He argued that the appellant’s witnesses were able to show that he did nothing to offend the family. He argued that the lower court should not have upheld the decision of the trial court which was perverse. He cited Edosomwan v. Ogbeyfun (1996) 4 NWLR (Pt. 442) pg. 266 at 278, Bamgboye v. Olarewaju (1991) 4 NWLR (Pt. 184) pg. 132 at 148, Nwoke v. Okere (1994) 5 NWLR (Pt. 343) pg. 159 at 176.
On issue one, the learned respondent counsel’s submission is that there is copious evidence on the record of the plaintiff/respondent’s family displeasure with the appellant over his behavior and the improper distribution of the palm oil produce on the farm. He also argued that the issue of forfeiture does not arise since the parties have always been ad idem as to the status of the appellant. He was not a customary tenant but a caretaker of the farm.
It is important before determining the issues in this appeal to settle the question of the correct attitude of appellate courts to the proceedings and judgment of customary courts or other inferior native courts.
The attitude of appellate courts to proceedings in customary courts have long been decided. Appellate courts are enjoined to look at the substance rather than the form or technicalities in a customary court proceedings and judgment. I cannot find a better elucidation of the reasoning and exhortation of the correct perception and attitude towards native courts than the opinion of Akintan J.C.A. (as he then was) in Adegoke v. Adesina (2001) 9 N.W.L.R. (Pt. 718) page 494 at 503 cited by respondent’s counsel wherein he said:
“The position of the law is that since pleadings are not filed in the Customary or Native Courts and technicalities have no place with their adjudication of cases, the attitude of the appellate courts to their decisions is that it is not the form of an action but the substance of the claim that is the dominant factor. Similarly, the entire proceedings before such courts have to be carefully scrutinised to ascertain the subject matter of the case and the issues raised therein. In doing this, the entire records have to be perused carefully in ensuring exactly what was in dispute in the action before the court.”
His Lordship also referred to Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) pg. 238; Onyah v. Ikalile (1995) 7 NWLR (Pt.406) pg. 150. In deciding cases in the Customary Court, it is not enough to hold on to what is shown as the claim in the record of appeal. This is because one needs to take into consideration that what appeared on the record could probably have been written down by the court clerk after the plaintiff must have told him why he wanted to sue the defendants in the case. Such might not necessarily be the exact claim of the plaintiff. Rather, his entire case could later emerge in the course of the hearing.
With that at the back of my mind, I will consider the issues for determination in this appeal.
On issues one, was the judgment of the lower court in consonance with the evidence led at the trial court as upheld by the High court? The respondent’s claim as earlier indicated in this judgment has been amplified by his evidence in court. The plaintiff/respondent at the trial said that he would talk on four principal points which to my mind constituted his claims before the court.
He broke down the claim into four heads:
1. The ownership of the land: The plaintiff/respondent on this then led evidence that the land belongs to the wider Fasuru family. The Asamo being the family head of all the various quarters and the Eleriebi being the chairman of Fasuru commoner’s meeting.
2. The eligible members of the family: He gave evidence extensively on the rights and privileges of all title holders in the family. Issues were joined on this and he was cross-examined on it.
3. The administration of the recourses of the oil farm: He said that it had been decided by the family at various meetings both the meetings of 23/3/95 and 23/4/95 that in sharing proceeds from the farm special consideration be given the Asamo as head of the family and the rest shared according to age.
4. He relied on the arbitration of the Ewi in council and tendered identification B which was admitted. The summary of the Ewi of Ado Ekiti in council’s decision was that a committee be set up to supervise the resources from the farm, while Chief Asamo should be given a percentage to maintain his chieftaincy rights.
The above constituted the claim and evidence of the plaintiff/respondent at the trial court.
The appellant had attacked the judgment of the lower court on the basis that there was no evidence led nor any finding of misconduct against the appellant at the trial court. He based this argument on the premise that the appellant was a customary tenant of the respondent’s family.
The status of customary tenant is both a question of fact and of law. On page 20 of the record of proceedings, the appellant deposed to a counter affidavit during the course of the trial. Paragraph 5 states as follows:
“That I was put in possession and occupation of Omioloko farm settlement by Chief John B. Akinyede in January 1976 for harvesting palm produce, that is palm oil and palm kennel for the benefit of himself, myself as well as the members of Fasuru Family, jointly and severally.”
In the appellant’s evidence in chief at the trial court, he said:
“… Chief J. B. Akinyede employed me in the farm where I am … “Page 42 of the records. Under cross-examination, the appellant said further.
” … I am their worker and servant. There is no agreement that there will be a duration of time when I shall leave the farm …” Page 43 of the records.”
The appellant’s case as argued by his counsel at the trial court was that:
” … He was brought there to harvest palm oil fruits and he has been doing so since 1976 …” Page 45 of the records.
The finding of the trial court as contained in lines 19 – 22 of page 47 of the records was that the appellant was a mere employee.
His case in the trial court and lower court was fought on that premise.
Customary tenancy is also a matter of law. The grant or allotment of a land under Yoruba native law and custom was in perpetuity unless the grantee committed a heinous offence against his overlord. See Adeyemo v. Ladipo (1958) WRNLR 138. In Ojomu v. Ajao (1983) 2 SCNLR page 156 per Aniagolu JSC at page 166 the Supreme Court held thus on what legally constitutes customary tenancy:
“It appears to me that the legal relationship between the plaintiff and the Ojora chieftaincy family is not one to be determined or defined by formal English law legal terms of “lease” or ‘legal estates’ or ‘equitable estates” and various legal interests thereon as appellant’s counsel tried to apply. The relationship may be defined as belonging to that class in which, under customary law, a landlord makes a grant of a piece of land to a tenant who pays a yearly rent to him and utilizes the land for the purposes for which they agreed (such as for residential, or for cultivating seasonal crops etc.) and remains on the land, paying the rents thereof, in perpetuity, subject to good behaviour, and subject to forfeiture upon bad behaviour, such as refusal to pay rents or the denial of the Landlord’s ownership of the land.”
It is quite clear that the appellant at the trial court never claimed possessory title as customary tenant whose position was unassailable and could only be shifted by any act of disobedience to the overlord. The appellant was an employee pure and simple. With the greatest respect, I am of the view that the whole premise and basis of appellant’s counsel’s argument on issue 1 that the respondent must have legal reason to reposess the land and that there must be proof and a finding by the trial court of the appellant’s misconduct is completely misconceived. A servant in a household can be disengaged without any finding of misconduct whereas a wife cannot be so lightly dismissed without proof of misconduct. In any event the case of the appellant at the trial court and lower court was not fought on the basis that he was a customary tenant. It was fought on the basis that he was legally employed by the head of the family who was the only one with authority to dismiss him. It is my humble view therefore, that it is incompetent in the circumstances to contest this appeal other than on the premises it was contested at the lower court. See Societe Generale France v. Societe Generale Bank Nig. Ltd. (1997) 4 NWLR (Pt.497) 8, (1997) 4 SCNJ 60.
The other point raised on this issue is that the trial court did not make a specific finding of fact on the allegations levied against the appellant. As said earlier in this judgment, the trial court is not bound to do so considering the relationship of master and servant existing between the parties.
The first issue is resolved in favour of the respondent.
On issue 2, the appellant argued that the judgment of the lower court should be set aside. The argument proferred is that the respondent claimed for possession and injunction simplicita and that he did not ask for an order of administration of the farmland. The court cannot award what is not claimed by the respondent. He cited (1) Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) page 53 at 87. (2) Attorney-General Fed. v. A.I.C. (2000) 10 NWLR (Pt. 675) page 293 at 308. (3) Oduwole v. Aina (2001) 17 NWLR (Pt.741) page 1 at page 33-34. Learned counsel also argued that the order for administration of the property by a caretaker committee was not consequential order flowing from the judgment of the trial court.
The argument of the respondent’s counsel is that the judgment of the lower court must be examined as a whole to determine whether their decision was in accord with justice and common sense devoid of any legalistic entrapment. He argued that the need for a committee to take immediate decision regarding the proceeds of the farm was paramount in the minds of the trial court. He argued that the order setting up the committee can be supported by the evidence of the trial court which is a court concerned with substance rather than the form of litigation. The decision was taken and the orders given in good common sense to protect the farm produce from waste.
I agree that it is trite law that a court should not award what was not claimed before it moreso where parties to be affected have not been afforded a chance to air their views in respect of such award. See Ganiyu Badmus & Anor v. A. O. Abegunde (1999) 7 SCNJ 96, (1999) 11 NWLR (Pt.627) 493. Be that as it may, I do not feel that general statement of the law is applicable to the circumstances of this appeal.
In Peter Adegboye Odofin v. Jimoli Oni (supra) (2001) 3 NWLR (Pt.701) 488 at 506, (2001) 1 SC page 129 at page 129 at 141. It was held that:
“It is important that superior appellate courts in relation to matters relating to customary courts should focus their attention to the substance of the judgments or decisions in those courts rather than the form. This is so because customary courts – be they Area Courts or whatever name they are christened in our various judicial jurisdiction – are generally presided over by laymen without even rudimentary exposure to legal principles. An appellate court should in all circumstances strive to get to the bottom of the decision of a customary court. This can only be achieved by considering the import of a decision of a customary court not in fragments or in isolation of excerpts thereof but must be read harmoniously as a whole in order to capture its import. In otherwords, when greater latitude is accorded to the interpretation of the decisions of customary courts, it will be sufficient if such decisions are seen to accord with the view of persons of good common sense and reason completely devoid of legalistic entrustments. This, to my mind, is what can be distilled from a long line of judicial authorities on the limit to which superior appellate courts are cautioned to go in any attempt to decipher the true meaning of decisions of customary courts presided over by non-legal practitioners. It is only by heeting such caution that the painstaking adjudicatory functions of customary courts as they relate to their decisions can be meaningfully comprehended and harnessed in the attainment of substantial justice in contradistinction to undue reliance on technicalities.”
On close examination of the record of proceedings, the issue of who had a right to sue and the status of the eleriebi vis-a-vis the family head was addressed by both counsel on the 22/5/98. The appellant’s counsel had also observed that the issue of the administration of the farm had been in dispute for over seven years.
See page 12 of the record of proceedings.
Part of the respondent’s evidence before the trial court is as follows:
“… Eleriebi is the chairman of the Fasuru Commoners Meeting. The function of Eleriebi are stated in one of the document submitted but it is taken as an identification’ A’. It is this meeting that the management of the farm is discussed and decision taken …” Line 17 page 37 of the record of proceedings.
The respondent stated further:
“… The sharing special consideration is given to Asamo as head of the family and the rest are shared according to ones age… Ewi in council had one time set up arbitration comprising of six chiefs …” Line 7 page 38 of the record of proceedings.
The witness tendered identification ‘B’.
The respondent said that the summary of the decision of the customary arbitration set up by the Ewi’s in council was:
“… that there should be a committee to supervise the resources of the farm. Chief Asamo should be given a percentage to maintain chieftaincy rights. The rest should be sold to maintain the family. These three points were unanimously agreed by the family” See lines 12-15 page 38 of the record of proceedings.
The arbitration proceeding or decision admitted as Identification ‘B’ by the court was not opposed nor were the contents controverted during the cross-examination of the respondent.
The raison d’etre of a court is to determine all the issues in controversy between the parties. There is no doubt that the issue of the administration of the resources of the farm to the satisfaction of both sides was part of the respondents claim before the trial court. The trial court in its judgment on this point stated:
” … He also mentioned the sharing of their resources. He went further how Ewi in council set up a panel of chiefs to look into the matter. An identification of the report was submitted as an exhibit and taken by the court. The report in part read that Chief Asamo should be given a percentage to maintain his chieftaincy rights and the rest to be sold and maintain the family … while this was unanimously agreed by the family in dispute …” Line 19 page 47 of the record of proceedings.
The trial court subsequently gave the following order:
“The following are to serve as the committee members for the administration to the farm in question:
1. Representative of Chief Asamo to be Chief Olu Akinyede.
2. The Elerebi to be represented by Dr. Francis Akinyede.
3. The Secretary to Isamo Arin meeting by Mr. J. Ojo.
4. Representative of Fasuru Executive Mr. Laisi Ojo.
5. Representative of Babasola Unit Mr. Babasola.
6. Representative of Fagbusi Atekuta Unit Mr. Lucas Ogunrinde.
Total members to be six (6)
Chief Asamo to be given 10% of the farm resources for the maintenance of his chieftaincy rights. Chief Elerebi to be given 8% of the farm resources. The rest may be divided by the family or used for the development of the family all with the order of the family meeting. All family to meet for their meeting in the chieftaincy house.”
From line 1 page 49 of the record of proceedings:
All the documents referred to in the judgment of the customary court even though they were referred to as identification ‘A’ or ‘B’ are deemed to have been properly admitted by the court. See Anyim Mba & Ors. v. Agbafo Agu & Ors. (1999) 12 NWLR (Pt.629) 1, (1999) 9 SCNJ 84.
It is my humble but firm view that the trial court merely gave legal backing to the decision of the arbitration committee set up by the Ewi of Ado Ekiti to settle the crisis in the Fasuru family. The issue of the administration of the farm was brought before the trial court by the respondent. As pointed out earlier, it is the duty of a trial court to determine all matters in controversy brought before it. The trial court had rightly observed that the dispute regarding the administration of the farm was tearing an otherwise unified family apart. Who and how to administer the farm was a matter agitating the respondent’s family. The settlement of that issue was a claim before the court. That to my mind was what the trial court tried to do in setting up the committee to administer the farm, See Owodunni v. Registered Trustees of Celestial Church of Christ & Ors. (2000) 10 NWLR (Pt.675) 315, (2000) 6 SCNJ 399; Okonji v. Njokanma (1999) 14 NWLR (Pt.638) 250, (1999) 12 SCNJ 259. The second issue is resolved in favour of the respondent.
For reasons given above, the appeal is hereby dismissed.
N5,000.00 costs is awarded against the appellant for the respondent.
Appeal dismissed.
Other Citations: (2006)LCN/1920(CA)
