B.A. Bokinni V. O. Olaleye (1994)

LawGlobal-Hub Lead Judgment Report

I.C. PATS-ACHOLONU, J.C.A. 

By a writ of summons dated 4th March, 1985, the Plaintiff claims against the defendant as follows:-

(1) A declaration that the Olaleye Family as customary tenants of the Plaintiff on a parcel of land at Olaleye Village, Lagos State have incurred forfeiture of the said tenancy.

(2) Possession of the said land.

(3) A statement of all monies collected by the defendants, their servants and/or agents from their tenants and/or grantees and occupiers whether as rent, premium, levy or otherwise on the said land and

(4) Payment over to the Plaintiff of the gross sum so collected and by which the defendants have unjustly enriched themselves.

Pleadings were filed and served and delivered.

The facts of the case are straightforward. The Plaintiff bought a parcel of land from Oloto Chieftaincy Family who happened to be the over lord of the defendant’s family and to and to whom the defendants and their ancestors have been customary tenants since 1860 or thereabout. When the Plaintiff who it would appear by a purchase, has now become more or less the overlord of the estate having taken as it were, the position of Oloto Chieftaincy Family, sought to register his title i.e. deed of conveyance, the defendant’s family who he claimed were at all times very much aware of the sale entered caveat. However after the hearing before the Registrar of titles, he granted the Plaintiffs application, whereupon the defendants then appealed to the High Court which allowed the appeal only to the extent of registering the possessory rights and interests of the Defendants Family but without prejudice to the registration of the Plaintiffs title.

The Plaintiff claims that by the caveat and the alienation in various forms by some members of the Defendants family by which they unjustly enriched themselves they have incurred the forfeiture of their tenancy. The defendant even counter-claimed to be relieved of the forfeiture if the court so found.

The Plaintiff sought to show how the defendant’s family had in unison proceeded to sell and partition the area of land over which they enjoy customary tenancy-acts which he regarded as being inconsistent with his proprietary right and interest as the overlord. The defendants deny that the family who are customary tenants have gone out to dispose of the property pointing out that if there has been any act of impropriety on the part of one or two of their relations such malfeasance cannot be visited on the whole family and thereby be made to suffer forfeiture when they had neither acquiesced to such untoward acts nor approved of them. After hearing evidence and considering the case as put forward by the parties, the court dismissed the action.

Dissatisfied with that judgment, the Plaintiff appealed to this court and filed 6 grounds of appeal. Both parties later exchanged briefs of argument. The issues set out for determination by the Plaintiff are as follows:-

1. Did the defendants on the pleadings and evidence, deny the plaintiff’s title to the land in dispute and as their overlord in respect of their customary tenancy of the land in dispute?
2. If the above is answered in the affirmative, were the defendants thereby not in breach of their customary tenancy enough to warrant forfeiture of the same.
3. Whether on the totality of the evidence the defendants were not guilty of breaches of their customary tenancy amounting to misconduct that warranted forfeiture of the tenancy?
4. Should the learned trial judge have made an order for possession and an account of monies collected from the alleged breaches by the defendants of the customary tenancy?
5. Should the learned trial judge have determined the defendants counter-claim by dismissing the same?

The respondent on the other hand formulated only one issue i.e. whether the respondent was in breach of its customary tenancy in a manner sufficient enough to warrant forfeiture.

In my view there is really only one issue that calls for determination by this court and that is as formulated by the respondent. It cannot be denied that the cornerstone of the Plaintiff/appellant case is based on this premise that is to say:-

1. That the defendant’s family having entered a caveat and raised objection to the registration of his title that they have called into question his title to the land.
2. That the defendant’s family have acquiesced or conspired or given tacit approval to the sale of the land legally belonging to him without his consent and thereby have done an act inconsistent with his ownership as it impliedly means that he is not their overlord not withstanding that he has replaced Oloto Chieftaincy family.
3. That the defendants pocketed the proceeds of the sales made from the land.
4. That the defendants partitioned the lands of which they are mere customary tenants and even leased out some of these partitioned lands.

Now the defendant’s family represented by Olatunde Olaleye while acknowledging that they are the customary tenants of Oloto Chieftaincy family in his testimony during the cross-examination, he emphatically stated that his family were not aware of the sale made by the Oloto family to the Plaintiff – adding further that they received no letter in any form from the Plaintiff intimating them of the alleged misconduct by the members of their family. He explained that though they had been customary tenants for many years the Oloto Chieftaincy family never communicated to them of any sale of the land to the Plaintiff. He further said that while he was aware that some members of their family sold some portions of the land they occupy by reason of the customary tenancy, that such sales were wholly wrong and that he would certainly have raised an objection if he knew before hand. He admitted that they partitioned the land for developmental purposes. In his brief of argument supplemented by an oral address Fashanu Esq. for the appellant stated “It is submitted that the learned trial Judge, having disbelieved the only witness for the defendant D.W.1 as to knowledge of the defendant’s family of the sale, should have held that the family knew of the sale and gave their consent at the time in accordance with P.W.1’s evidence and this court is urged to so hold, on the evidence on record. Furthermore the fact that the Plaintiff’s conveyance was registered, was enough notice off the sale to the defendants….” Wetsters New Universal Unabridged Dictionary defines the term forfeiture in the following terms – “the losing of some right, privilege, estate, honour, office or property by an offence, crime, breach of condition or other act.” At common law where a tenant or lessee has been in breach of some essential covenant that expressly stated in an agreement or implied, the right of re-entry by the landlord arises and the lessee may then be liable to forfeiture. The respondents in this case are customary tenants. What does it connotes. Let me recapitulate some important averments in the Plaintiff/Appellant amended statement of claim: