ASANI TAIWO & ORS (APPELLANT)
v.
ADAMO AKINWUNMI & ORS (RESPONDENT)
(1975) All N.L.R. 202
Division: Supreme Court
Date of Judgment: 30th April, 1975
Case Number:
Before: Elias, C.J.N., Fatayi-Williams and Irikefe, JJ.S.C.
APPEAL from the High Court, Lagos State.
The Ijeshatedo people as plaintiffs sued in Ikeja High Court claiming against the Itire people as defendants, damages for trespass to land and injunction. In other suit, the Itire people as plaintiffs claimed against the Ijeshatedo people as defendants, a declaration that as their customary tenants under native law and custom, the Ijeshatedo people have forfeited for misconduct all their rights, etc. in the land as customary tenants. They also claimed damages for unlawfully cutting down the Itire people's palm trees and other economic trees on the land; and also claimed for recovery of possession of the land. Both suits were consolidated and heard together.
It was common ground that the Ijeshatedo people are the customary tenants of the Itire people, and that there had been a number of law-suits between the two communities over the said land between 1900-1948. After hearing evidence, the trial Court dismissed the Ijeshatedo people's claim for trespass and injunction and they did not appeal against that part of the judgment.
The learned trial Judge then found proved the claims of the Itire people and ordered forfeiture of the customary tenancy. He also made an order for possession and awarded them damages for unlawful cutting of their economic trees. On appeal to the Supreme Court;
HELD:
(1) That a claim by a tenant for relief from forfeiture should be commenced either by originating summons or by a counter-claim in an action brought by the landlord or simply by an application for a writ of summons in that action; that a request for relief should not be made in the averments in the statement of defence as had been done in the case in hand.
(2) That the learned trial Judge was right in his finding that the Itire people have twice waived their right to forfeiture of the customary tenancy of the Ijeshatedo People;
(3) That whether the act committed by a customary tenant constitutes a misbehaviour or not or whether such misbehaviour can incur forfeiture depends upon the particular circumstances of each case;
(4) That the list of such acts which constitute misbehaviour is not closed and that it is still open to the court in every case to consider the overlord's complaint against his customary tenant and to determine whether the complaint is well founded and whether, having regard to the circumstances, the acts complained of are serious as to warrant the forfeiture of the customary tenancy;
(5) That any of the acts complained of and proved by the Itire people in the present case would have supported their claim for forfeiture of the customary tenancy;
(6) That bearing in mind that since 1900, the Ijeshatedo people in one form or another have disputed the customary rights of the Itire people as their overlords, the cumulative and serious effect of the various acts of defiance established before the learned trial Judge cannot be too strongly stressed; and
(7) That this Court can scarcely conceive of any misbehaviour on the part of a customary tenant more flagrant and deserving of forfeiture of the customary tenancy than the ones resulting from the acts which have been ventilated in this case.
APPEAL dismissed.
Cases referred to:
Loufti v. Czarnikow Ltd. [1952] 2 All E.R. 823
Ladega v. Akinluyi [S.C. 1/67], (1975) 2 S.C. 1
Standard Pattern Co. Ltd. v. Ivey [1962] 1 All E.R. 452
Gill v. Lewis [1956] 1 All E.R. 844
Oriyomi v. Abioko & ors Suit No. 36/47
Chief Maduku Waghoreghor & ors v. Josiah Aghenghen [1974] 1.S.C.1
Onisiwo v. Gbamboye [1941] 7 W.A.C.A. 28, 79 delivered on the 28th April 1949.
Chief Majolagbo Ashogbon v. Saibu Oduntan 12 N.L.R.7.
Salami Sanni v. Alhaja Iyalode S.C. 238/1959 delivered on 10th May, 1960.
Nwankwo v. Okoye F.S.C. 254/62 delivered on 10th May, 1960.
Djukpan v. Orovuyovbe & anor [1967] 1 All N.L.R. 134.
Nwabuoku v. Otteh [1961] 1 All N.L.R. 481.
APPEAL from the High Court, Lagos
SUIT NO. S.A. 151/1974
Chief Obafemi Awolowo (J.A. Cole, Olaniwun Ajayi and A. O. Sogbesan with him) for the Ijeshatedo people (Appellants).
Mr H. A. Lardner for the Itire people (Respondents).
FATAYI-WILLIAMS J.S.C. (Delivering the Judgment of the court)-In Suit No. IK/174/63 which was commenced in the Ikeja High Court, the Ijeshatedo people, as plaintiffs, claimed from the Itire people and four others, as defendants, jointly and severally the sum of £500 as damages for trespass to their land at Abule Ijeshatedo, Itire, Ikeja District. They also asked for an injunction to restrain the defendants, their agents or servants from further trespassing on the said land.
Paragraphs 2 to 13 of the plaintiffs' amended statement of claim read:-
"2. The plaintiffs are people of Ijeshatedo Village and are suing for themselves and on behalf of the people of Ijeshatedo Village.
3. The 1st, 2nd and 3rd defendants were substituted by order of court vice one Chief Salawu Lawani as the overlord of the land situate at the said village whereon the plaintiffs are settled and are possessed thereof as customary tenants.
4. The several plots of land in dispute form portion of the said village and they are more specifically shown on the plan filed in this action within the are edged RED.
5. The Ijeshatedo people from whom the plaintiffs are descended have settled on the said land for more than 100 years past and the plaintiffs are possessed of the said land under the native law and custom of the Yorubas.
6. The rights and duties of the plaintiffs and the 1st, 2nd and 3rd defendants are clearly set out in the judgment in the consolidated Suits Nos. 292/47 and 222/48.
7. The plaintiffs have always complied with and exercised rights and performed their duties in respect of the said land in accordance with the said judgment.
8. The 1st, 2nd and 3rd defendants had always disregarded the said judgment and acted against the rights of the plaintiffs by leasing the said land to strangers without the authority or consent of the plaintiffs.
9. The 4th, 5th, 6th and 7th defendants who are not descendants of Ijeshatedo people about the month of June, 1963, without any right whatsoever and without the authority or consent of the plaintiffs entered upon the land in dispute and began to dig up portions of it preparatory to laying foundations for the erection of buildings.
10. The 4th, 5th, 6th and 7th defendants were questioned by the plaintiffs as to their authority for digging up the said land and the plaintiffs were told by the said defendants that the late Chief Salawu Lawani had leased the said land to them in plots.
11. The first plaintiff made enquiries from the said Chief Salawu Lawani whether he had leased any portion of the said land in dispute to the 4th, 5th, 6th and 7th defendants and the said Chief Lawani affirmed to the 1st plaintiff that he had leased the said portions to the said defendants.
12. The said Chief Lawani added further that he had the right to lease the land at Ijeshatedo to strangers and that he would continue to lease the land to whomsoever he pleased.
13. Since the commencement of this action the 4th, 5th, 6th and 7th defendants had completed their several houses indicated on the plan."
In their own amended statement of defence, the defendants averred in paragraphs 2-9 thereof as follows:-
"2. With reference to paragraph 1 and 4 of the amended statement of claim the defendants are unable to identify the land described as "the subject matter of the Suit" and deny that the area edged in RED on plan SEW/W/409B was the subject matter of any grant by the Onitire Family to the plaintiffs.
3. The defendants deny paragraph 7 of the amended statement of claim and aver that contrary to the terms of the grant to the Ijeshatedos they have been leasing portions of the land granted to them to strangers cutting and destroying economic trees and crops on the land, selling same and appropriating the proceeds to themselves.
4. The defendants deny paragraphs 2, 4, 8, 9, 10, 11, 12, and 13 of the amended statement of claim and put the plaintiffs to strict proof.
5. With reference to paragraph 3 of the amended statement of claim, the defendants admit only that the 1st, 2nd and 3rd defendants were substituted vice the original first defendant, Chief Salawu Lawani deceased.
6. The defendants further aver that the Onitire Family are the owners of a vast area of land in Itire including the land granted by their family to the Ijeshatedos, namely Ijeshatedo Village as customary tenants.
7. The defendants aver, with reference to paragraph 6 of the said amended statement of claim that the rights and duties of the Onitire Family and their grantees are to be found in the judgment in Suits 2920/47 and 222/48 and the other incidents of customary tenancy recognised by native law and custom.
8. The defendants will contend that the grantees of the Onitire Family have never been content with the terms of their grant and have in recent years, in view of the enhanced economic value of land, been arrogating to themselves the right of owners and have granted innumerable leases of Onitire Family land contrary to their grant.
9. The Onitire Family have instituted an action in his honourable court Suit No. IK/204/63, for forfeiture of the plaintiffs' interest in the land granted to them and recovery of possession thereof."
As could be gathered from paragraph 9 of the amended statement of defence quoted above, the defendants, before filing their amended statement of defence, had instituted a separate action in Suit No. IK/204/63 against the plaintiffs and thirteen others in the same Ikeja High Court. In that suit, the defendants (that is, the Itire people) claimed against the Ijeshatedo people who are the plaintiffs in the earlier case, that is in Suit No. IK/174/63, a declaration that as customary tenants under native law and custom, the Ijeshatedo people have forfeited for misconduct all right, title and/or interest in all that piece or parcel of land lying and being at Itire and shown on survey plan No. A156/1942. In addition, they claimed £1,000 as general damages for unlawfully cutting and destroying the plaintiff's palm trees and other economic trees and crops on the land. Thirdly, they asked for recovery of possession of the said land.
Pleadings were also ordered and duly delivered in this second case, that is, in Suit No. IK/204/63. Paragraphs 2-6 of the amended statement of claim, filed by the Onitire Family on 24th April, 1965, and in which the claims for declaration and for £1,000 general damages were repeated read,:-
"2. The said land is vested by native law and custom in the Onitire Family and the plaintiffs herein have been authorised by the Onitire Family to continue these proceedings following the death of Salawu Lawani Onitire of Itire who was head of the said family.
3. The Onitire Family have exercised maximum acts of ownership over the said land for very many years and have granted a portion thereof to the Ijeshatedo people as customary tenants under native law and custom.
4. The defendants have, contrary to native law and to the terms and conditions of their occupational rights:
(i) granted various pieces of land which they occupied as the plaintiffs' customary tenants to strangers without the consent and against the wishes of the plaintiffs;
(ii) by themselves and/or their grantees destroyed palm trees on the land;
(iii) cut economic trees on the land;
(iv) gone outside the area originally granted to them and trespassed on portions of the land belonging absolutely to the plaintiffs; and
(v) denied the title of the plaintiffs to grant portions of the land which were not included in the portion originally granted to the defendants.
5. By native law and custom if tenants commit the acts specified in paragraph 4 above they are liable to forfeit the land granted to them and to be evicted therefrom.
The plaintiffs will rely on the judgments in the following cases:-
Suit No. 405/41-Oriyomi v. G. Abioko
Suit No. 36/47-Oriyomi v. G. Abioko
Suit No. 61/1900-Ejiosu v. Abioko
Suit No. 222/48-Oriyomi v. Abioko."
While admitting the averments in paragraphs 3 of this amended statement of claim, the Ijeshatedo people (who are now the defendants in this second action) denied the other averments in their statement of defence which they filed on 13th May, 1965. They then pleaded in paragraphs 2, 4, 5 and 6 thereof as follows:-
"2. The defendants admit paragraph 1 of the statement of claim only to the extent that the area in dispute is edged GREEN on the plan filed by the plaintiffs and deny that there is any dispute in regard to any portion of the land outside the area edged GREEN.
4. The defendants deny paragraphs 4 and 5 of the statement of claim and put the plaintiffs to the strict proof of the allegations therein contained.
5. In further denial of paragraph 4 of the statement of claim, the defendants say that none of the Ijeshatedo people has granted leases to strangers, or cut down palm or economic trees or gone outside the area of the grant to Ijeshatedo people or denied the Onitire's title to portions of land outside their holding.
6. The defendants further aver that the action of the plaintiffs is motivated by an urge for revenge because the Ijeshatedo people were the first in time to take out an action against Chief Salawu Lawani now represented by the plaintiffs among others in Suit No. IK/174/63 for trespass and damages."
On a close perusal of the pleadings filed in Suit No. IK/174/63, it seems to us that the misconduct complained of by the Itire people in paragraphs 4 (iv) and (v) of their statement of claim in Suit No. IK/204/63 is based on the claim which the Ijeshatedo people brought against them for damages for trespass and injunction in Suit No. IK/174/63.
However, having filed their defence to the statement of claim of the Itire people in Suit No. IK/204/63 on 13th May, 1965, the Ijeshatedo people later on 23rd February, 1967, filed the following reply to the amended statement of defence of the Itire people in the earlier action in Suit No. IK/174/63:-
"The Reply to amended statement of defence
The plaintiffs in answer to paragraph 2 of the amended statement of defence rely on the plan filed in Suit No.405/41-Oriyomi Bale of Itire v. Gbadamosi Abioko as well as the evidence of Oriyomi Bale of Itire in Suit No. 65/43-Tiamiyu Fagbayi v. Oriyomi Bale of Itire which case was based on the same plan filed in Suit No. 405/41.
The plaintiffs for this purpose will rely on the proceedings in the two Suits.
2. With reference to paragraph 6 of the amended statement of defence, the plaintiffs say that the land granted by the defendants to the ancestors of the plaintiffs has always been known as Ijeshatedo and Oriokiti and is represented in the plan exhibited in Suit No. 405/41. Ijeshatedo Village forms a small part of the said land.
3. Paragraph 8 of the amended statement of defence is denied and the defendants are put to the strictest proof thereof."
After a number of adjournments, the trial Court, on 4th April, 1972, granted an application for accelerated hearing of the two cases and fixed May 30th, 1972 to June 2nd, 1972 for the hearing. On 30th May, 1972, when the case was called, the plaintiffs in Suit No. IK/174/63 were absent and the learned trial Judge thereupon struck out that case and adjourn the other case (Suit IK/204/63) for hearing on the following day. The second case did not go on that day. Instead an application to relist the earlier case which had been struck out was granted on 12th June, 1972, when the learned trial Judge ordered as follows:-
"The suit is relisted forthwith for hearing and it is consolidated with IK/204/63."
After the order for consolidation, the two cases were first adjourned to 10th October, 1972, and then to 3rd January, 1973, when the hearing eventually commenced.
At the hearing, the Ijeshatedo people (that is, the plaintiffs in Suit No. IK/174/63) began and adduced evidence, not only in support of their claim in that suit, but also partly in answer to the complaints of the Itire people in their claims in Suit No. IK/204/63. Thus, Karimu Ogunlana, the Bale of Ijeshatedo (1st PI/W), testified in part as follows:-
"There had been a dispute between us and the Itire people prior to the institution of this action in 1963. I am referring to the two consolidated cases of 1947 and 1948. This is the judgment in Suit Nos. 292/47 and 222/48 (tendered, no objection, admitted and marked Ex. 'A'). In Exhibit 'A', the Itire people were declared the owner of the land in dispute and we were declared customary tenants on the land
After the judgment Exhibit 'A' was delivered, the defendants brought some people to the land and we did not know the strangers who were building houses on our land. These strangers were destroying our crops on the land and anything sown such as our coconuts on the land. About 20 coconut trees were destroyed. Kolanut trees, orange and banana trees were also destroyed on the land. About 200 kolanut trees were destroyed. About 100 orange trees were destroyed. We have also been sued with respect to the land by the Oba and people of Itire on the ground that as customary tenants we have been selling and leasing the land to strangers but we have never sold any land. Those living in Ijeshatedo and owning houses there are our children. All our people and descendants are living in Ijeshatedo. Among them are farmers and civil servants.......It is not correct that we have always sold or leased land to strangers who are not members of the Ijeshatedo people. We have always complied with the terms set out in Ex. 'A'."
The 1st PI/W was then cross-examined at length about the particulars of those to whom the Ijeshatedo people have granted land and he replied as follows:-
"We do not keep a bank account but we keep accounts of our transaction. We have a record of those to whom lands have been allocated. I cannot remember off hand the number of those who had been granted permission to build in Ijeshatedo for the past ten years, but there are about 200 people to whom we have given permission as well as those living in Ijeshatedo at present. The list of those to whom we have given permission to build is kept by our secretary Mr Esilokun. He lives in Ijeshatedo. He has been our secretary for the past five years. I can take the book from our secretary and bring it to court tomorrow."
Having admitted the execution of certain documents (Exhibits B, C-C2) which he referred to as conveyances in favour of certain persons to whom they had granted land, the 1st PI/W testified as follows:-
"Those who built on the land in dispute are no strangers but members of the Ijeshatedo Community. We have never cut down any economic trees on the land. The Itire people have trespassed on the land."
The court then adjourned to the following day, presumably to enable the witness to produce the book containing the names of those to whom land had been granted. When he was cross-examined about the book at the resumed hearing, the 1st PI/W replied:-
"I cannot produce the list of those granted land by the Ijeshatedo Community because the list is with my son-SIKIRU who is away to Mecca on pilgrimage."
We think we should point out at this stage that the book containing the list of grantees was never produced and neither Esilokun (referred to as the Ijeshatedo Community Secretary) nor Sikiru to whom the 1st PI/W said he gave the book was called to testify as to why it could not be produced.
Another member of the Ijeshatedo Community who testified for the plaintiffs is Raimi Aguntasolo (2nd PI/W), a builder who admitted that all the houses he built for people on the land in dispute "were not with approved building plans." The witness also admitted that he knew of the grant of land by the Itire people to Adekoya (4th Dft.), Shobade (5th Dft), and Mutairu (7th Dft.), that they objected to the grant, and later sent delegation to the Onitire (Alhaji Abin Saibu 3rd Dft.) about it. The Onitire saw the delegation but refused to do anything about the grants. The witness described their course of action thereafter as follows:-
"On reporting the result of the meeting to our Bale, the Bale said that we should not allow the persons to whom the Itire people had allocated land to build and if the matter resulted into quarrel, the police would intervene. We later fought on the matter and we were taken to the Police Station. The police advised both sides to keep the peace and await the decision of the court. We went to the police station on the matter over six times."
The surveyor, one Augustine Seweje (4th PI/W) produced the plan of the land in dispute and which the Ijeshatedo people instructed him to make for them. The plan is No. SEW/W/409A of 23rd May, 1965, and admitted as Exhibit 'D'. The surveyor said that that the 1st PI/W showed him the portion edged RED and marked 'B' in Exhibit 'D' and said that that was their family land. The surveyor also admitted that it was the 1st PI/W who showed him the properties of Adekoya, Sobade (5th Dft.), Ahoko (6th Dft.) and Mutairu (7th Dft.) in the northern part of the portion edged Red in Exhibit 'D'. About the survey plan Ex. 'D', the surveyor testified under cross-examination as follows:-
"While I was preparing Exhibit 'D', I discovered from the Survey Department that the portion marked 'Government Acquisition' had been acquired by the Government. The Surveyor-General (West) at the time-Mr W. Gasgoyne told me about the acquisition. The plaintiffs showed me the area marked 'A' and 'B' on Exhibit 'D' as their own land. They did not tell me that 'A' had been acquired."
After the Treasurer of the Ijeshatedo Community (5th PI/W had testified and had admitted that although he was the Treasurer and kept all their money, he was an illiterate and kept no book of accounts, learned Counsel for the plaintiffs, no doubt with the second case in mind, made an application which was granted by the learned trial Judge. The application is as follows:-
"In view of what has transpired during the trial and the pleadings in IK/204/63, I intend to call one more witness who is not here at present. I am therefore respectfully asking for an adjournment."
The last witness for the plaintiffs is one Gafari Thanni (6th PI/W). He is also a member of the Ijeshatedo Community. He stated that there were many palm trees on the land in dispute, and that if a person wanted to build a house on a piece of land where there were palm trees or kolanut trees, the trees would be cut down if they were in the way. The witness was then cross-examined about the penalty which a customary tenant would incur if he attempted to sell or lease the land held by him as customary tenant and he replied as follows:-
"I am aware that under Yoruba customary law, a customary tenant who attempts to sell or sells the land granted to him by his overlord means forfeiture of that tenure. I am also aware of the fact that if the customary tenant leases or attempted to lease the land to another without the consent of his overlord he incurs forfeiture of his tenure."
The Itire people, in their defence to Suit No. IK/174/63 and in support of their own claims in Suit No. IK/204/63, called a number of witnesses. One such witness is Alhaji Aliu Isiba (3rd D/W). He is member of the Onitire Family. He is also the 3rd defendant in Suit No. IK/174/63 and the 3rd plaintiff in Suit No. IK/204/63. In his evidence on 6th April, 1973, (that is, about ten years after the actions commenced), this witness testified inter alia as follows:-
"The Itire people have never leased out any portion of the land involved in the 1941 case to any one............ It is not correct that the Ijeshatedo people are still farming on the land in dispute up till today. They are in fact at present leasing out the land selling some portions............ As a Yoruba man and an Awori, I am conversant with the native law and custom relating to customary land tenure. According to the said custom, if a customary tenant grants portions of his customary tenure on lease or sale to an outsider the customary tenant would forfeit his tenure. If such tenant contrary to his tenure cut down economic trees, such as kolanuts, cocoa trees, he would pay for those economic trees cut down and forfeit his tenure. The Ijeshatedo people as our customary tenants have no right to cut down our economic trees like palm trees and others on our land. They did so before and the court ordered them to pay for the trees cut down...........Since this case was instituted in 1963, so many houses had been built on the land in dispute. The cutting of our economic trees like palm trees and others started before this case was instituted in 1963 and it still continues by the Ijeshatedo people."
To questions asked in cross-examination, the witness replied:-
"We are not allowed to visit Ijeshatedo because if we do, we may be murdered. I have not been to Ijeshatedo for the past ten years............The population of Itire is more than that of Ijesha. Apart from the twenty-two persons present in court who claim to be Ijesha people, there could not be more than ten others left in the village who are descendants of the Ijeshatedo original settlers."
The other witnesses called by the defendants were mostly persons to whom the Ijeshatedo people had granted land within the land in dispute. One such witness is Raufu Bankole (1st D/W). He described how the land referred to Exhibit 'B' was sold to him. He also admitted that he was not a member of the Ijeshatedo Community, and that when he discovered that