Chief S.O. Ogunola & Ors V. Hoda Eiyekole & Ors (1990)

Chief S.O. Ogunola & Ors V. Hoda Eiyekole & Ors

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C. 

This is an appeal against the decision of the Court of Appeal. Ibadan Division, dated 20th day of January, 1987 which affirmed the decision of the High Court of Ogun State dated 29th December, 1982.

The appellants who were the plaintiffs took out a writ of summons against the respondents who were the defendants and claimed after an amendment as follows:-

“(1) Declaration that the plaintiffs are entitled to the customary right of occupancy to the piece or parcel of land situate, lying and being at Soki-Ere, Ado-ado, Ogun State.

(2) Declaration that the defendants have forfeited their right to harvest palm fruits on the plaintiffs’ land as customary tenants of the plaintiffs’ family.

(3) Injunction restraining the defendants, their agents, servants and privies from going on the plaintiffs’ land reaping palm fruits therefrom.”

Pleadings were ordered, filed, delivered but were later amended. The amended pleadings were prolific. I will in the course of this judgment refer to some of the paragraphs which are relevant to the two reliefs which form the basis of this appeal. The simple and brief facts relied upon by the appellants were that they own the piece or parcel of land deriving title from their ancestor one ARILEGBOLOROSI who came from Ile-Ife more than 200 years ago.

He first of all settled at Isolo and later settled at SOKI ERE. It was at this latter place he established his farmland and planted various crops: palm trees, beans, pepper, yam and other crops. Their ancestor was in possession and he exercised various acts of ownership. He had a shrine called YEWA OLISA in his house which he built on his land. He and his family worshipped this shrine annually. The appellants are the descendants of the founder ARILEGBOLOROSI.

On the other hand, the appellants described the respondents as Eguns who were from Dahomey and who later came on the land as labourers and worked for ARILEGBOLOROSI. The Eguns were permitted to plant food crops such as yam, maize and cassava but were also to harvest palm fruits and make palm oil. They are tenants of the plaintiffs/appellants.

On the other hand the defendants/respondents claim the land in dispute as their own through their ancestor one AGENGE who migrated from DAHOMEY to the land in dispute about the same time the ancestors of the plaintiffs/appellants got to the land in dispute i.e. about 200 years ago. His descendants who are his relations and friends settled on the land on his invitation. They planted various crops, built houses and founded some villages which are still on the land in dispute.

Both parties led evidence in support of their amended pleadings. Both counsel also addressed the court.

In a judgment which examined every aspect of the pleadings, the evidence led and the submissions made, the learned trial Judge Delano, J. found for the plaintiffs/appellants in respect of the first claim and dismissed the other two claims. The appellants were dissatisfied with the judgment of the learned trial Judge and appealed to the Court of Appeal.

As pointed out earlier the appeal was dismissed on 20th day of January, 1987. On 20th February, 1987 the appellants filed 4 grounds of appeal. By a motion dated 22nd September and filed on 30th September, this court on 30th January, 1989 granted the appellants leave to file and argue additional grounds 1 and 3 exhibited to the motion. Ground 2 of the additional ground was then struck out.

On 13th April, 1989 the appellants filed another application seeking other prayers: leave to amend the notice of appeal, leave to amend the appellants brief of argument and leave to file and argue additional grounds of appeal. These prayers were granted on 11th September, 1989.

The grounds of appeal in respect of which leave was granted are:

“1. The lower court erred in law in its consideration of the Land Use Act, 1978 as it relates to the interest or the appellants vis-a-vis the interest of the respondents.

2. The Court of Appeal erred in law when it held that the defendants/respondents ought to have/been sued as representatives of the Egun community when the acts of forfeiture were those of defendants/respondents simplicita as customary tenants in the land in dispute.
3. The Court of Appeal erred in law in rejecting the grant of forfeiture.
4. The Court of Appeal erred in law in granting customary right of occupancy to unspecified and unidentified parcels of land in dispute.

PARTICULARS

(i) The respondents filed no plan and only the appellants filed a plan.

(ii) The respondents gave no oral evidence as to the identification of portions of the land in dispute occupied by them.

(iii) The court accepted that there was no dispute on the identification of the land in dispute.

5. The learned Justices of the Court of Appeal erred in law when they held that S.36 of the Land Use Act was applicable to this case.

PARTICULARS

(a) The interest of the respondents relate to the harvesting of palm fruits on the land in dispute and not to the land.

(b) S.36 deals with occupation of the land and not to any other interests.

(c) The Court of Appeal confirmation of the trial Judges interpretation of S.36 deviates from the true meaning of the section.

6. The learned Justices of the Court of Appeal erred in law when they held that the representative capacity of the defendants/respondents ought to have been established.

PARTICULARS

(a) The issues as joined in the pleadings relate to the respondents simplicita and not in any representative capacity.

(b) At no stage did the plaintiffs/applicants base their case on any representative capacity of the respondents.

7. The Court of Appeal erred in law in failing to consider whether the respondents were not precluded from acquiring interest or right in law by virtue of Native Land Acquisition Law Chapter 8 of Western Region applicable in Ogun State.”

The appellants amended brief is dated 13th April, 1989. Chief Debo Akande the learned senior advocate relied on this brief. In his oral submission the learned senior advocate pointed out that the issues before the court are those of forfeiture and injunction; he referred to claims 2 and 3 on page 250 of the record of appeal. These claims are already set out above. Learned counsel then submitted that the two lower courts missed the points in issue. Counsel then pointed out that it was not a question of agricultural land, but the right to harvest the palm fruits that the appellants sought to forfeit. Learned counsel then referred to the relief granted by the learned trial Judge on page 150 of the record where the learned trial Judge said:

“It is therefore declared that the plaintiffs are entitled to a customary right of occupancy in respect of that piece and parcel of land situate, lying and being at SOKI-ERE, Ado-ado, Ogun State, as on plan No.A.8546/OG drawn by licensed surveyor A.B. Apatire and dated April 27th, 1981 but subject to the fact that the defendants are deemed to have been granted customary right of occupancy not the portion used for agricultural purposes.” (Italics supplied for the purpose of emphasis).

Learned counsel then submitted that the respondents were not granted land for agricultural purposes and cited Salami and Ors. v. Oke (1987) 9-11 S.C.43 at 56; (1987) 4 NWLR (Pt.63) 1. It was also submitted that there was ample evidence of misconduct on the part of the respondents such as denial of the appellants’ title, pulling down of the appellants’ shrine and the respondents’ petition to the police. He finally urged that the appeal be allowed.

In his own reply Chief Odunaiya the learned counsel for the respondents relied on his brief dated 9th October, 1989. Learned counsel referred to the respondents’ brief and submitted that the pleading is at variance with the evidence with respect to the use of the land. Learned counsel conceded that the appellants own the land and would like the court to hold that the respondents are on the land as the appellants tenants and that they should be allowed to reap the palm fruits. He finally urged that the claims for forfeiture be rejected and that the appeal be dismissed.

It is now convenient to refer to some paragraphs of the amended pleadings not only to bring out clearly the case of each side but to focus attention on the area of disagreement. In their amended statement of claim the appellants in paragraphs 9-13; 15-17; 23; 25; 26; 34; 45 and 55 averred as follows:

“9. The original owner of the land in dispute was Arilegbolorosi who came from Ile-Ife to settle on the area in dispute more than 200 years ago at a place now called Isoki Ere (Isoki means Iso Iki where Iki is sold and Ere is derived from Olisa Ere – goddess of the mud).

10. When Arilegbolorosi first came, he settled at Isola Ado Odo where he built his house and was living with his family.
11. It was after Arilegbolorosi had settled at Isola that he went to Soki Ere where he established his farmland and was planting various crops like palm trees, beans, pepper, yams, vegetables and other crops.
12. After some years Arilegbolorosi had planted a very extensive area of his farmland at Soki Ere with palm trees and the palm trees flourished.
13. Arilegbolorosi was in possession and was exercising all acts consistent with ownership until he died over 100 years ago.
14. Arilegbolorosi also had the shrine of Yewa Olisa in his house on the land in dispute and he and his family worshipped Yewa Olisa annually until he died.
15. After the death of Arilegbolorosi his family continued to worship Yewa Olisa until now every year.
16. After the death of Arilegbolorosi his children and grandchildren inherited the land in dispute and were cultivating and using it jointly.
17. After the death of Arilegbolorosi his children started to hire out the palm trees to tenants and it was when Adejiyan was head of the family that the palm trees were first let out to tenants for the purpose of harvesting.
18. Adejiyan first let out palm trees to Ipokia people among whom were Alaran, Adebowale and Raji.
19. After the Ipokia people, the palm trees were let out to the Eguns who came over to Nigeria in search of employment and many Eguns later came in and because they provided cheaper labour and terms the Arilegbolorosi let out more palm trees to Eguns.
20. While the Eguns stayed on the land to harvest palm trees they were permitted only to plant food crops like yam, maize and cassava on “AROJE” basis and they were forbidden from planting economic crops.
21. The defendants are tenants of the Arilegbolorosi family for the purpose of harvesting palm fruits and making oil.
22. By a letter written to the Public Compliant Commissioner on the 14th of July, 1980 and also a letter written to the Divisional Police Officer dated 2nd July, 1980, also by the 6th defendant, the defendants thereby denied the plaintiffs’ title to the land in dispute and the plaintiffs will rely on and tender the documents.
23. In August, 1980 the defendants destroyed the plaintiffs’ house on the land in dispute and also destroyed the shrine of Yewa Olisa placed on the house.”

The respondents averred in paragraphs of their amended statement of defence i.e. 4, 5, 6, 11 (without the particulars) 13, 14, IS, 16,22,23,31:-

“4. The defendants state that Agenge migrated from Dahomey to the land in dispute about 200 years ago.

5. Agenge was a fisherman, he came through the lagoon and settled at a place now called Ere which is near the lagoon. Agenge started fishing on the lagoon and also cultivated crops like maize, cassava, sweet potato, beans, groundnut and vegetables.
6. Agenge migrated unto the land with his wife and a child. All of them lived in the house built by Agenge at a place now called Ere. Agenge begat more children after he settled at Ere. The children of Agenge were Godenu, Hunwanu, Hodonu, Vothunnu and Ohesu.
7. The defendants state that Arilegbolorosi was not known on the land in dispute and no descendants of his had ever farmed, built any house or had any palm oil industry on any portion of the land in dispute.
8. The defendants aver that as the descendants of the original settlers they have been on the land, living in the villages which bear Egun names and have been cultivating the land planting maize, cassava, yams, sweet potato, groundnuts, vegetables, kola trees in scattered places and coconut trees which are in plantations.
9. The defendants aver that palm trees usually grow wild in the bush and deny that the palm trees on the land in dispute which the defendants harvest were planted by Arilegbolorosi.
10. The defendants deny being tenants of Arilegbolorosi family and state that they harvest the palm trees as of right as descendants of original settlers on the land.
11. The defendants deny ever paying any rent to the plaintiffs’ family either in kind or in cash. Osanyin Aminu has never collected or demanded any rents from any of the defendants.
12. The defendants state that Arilegbolorosi did not build any house on the land in dispute. Yan who founded Soki which is the village of the sixth defendant.
13. There is no Yewa Olisa shrine at Soki or at Ere and Arilegbolorosi did not during his lifetime worship any shrine there. Even Arilegbolorosi never lived there because he had no house there.
14. That the Eguns on the land resisted any attempt by the plaintiffs to sell the land and this had caused a petition to be written to the Public Complaint Commissioner.”

The learned trial Judge made some far reaching findings of fact:

1. “I believe and accept the evidence of 13th P.W. that the Arilegbolorosi family owns the land in dispute. I therefore hold as a fact that the land in dispute belongs to Arilegbolorosi family.” (page 132 of the record of appeal).
2. “I therefore accept and believe his evidence that the owners of the land are the owners of Yewa Olisa which is the Arilegbolorosi family” (page 135 of the record of appeal).
3. “I have no doubt in my mind that the defendants are tenants of the plaintiffs despite the fact that it is rent they paid and no tribute.”
4. “I therefore hold the view that this land apart from being a developed land is also being used for agricultural purposes. This means that the land in dispute although a developed land, some portion of it is being used for agricultural purposes.”
5. “From the evidence, there is no doubt, at least, that the defendants are occupiers of a portion of land in dispute immediately before the commencement of the act. They are therefore entitled to possession of the land for agricultural purposes as if a customary right of occupancy has been granted to them. My interpretation of this section is that since the commencement of this act, defendants have been granted a customary right of occupancy; that it is not necessary for them to apply for a grant again. The procedure for application in my view is just a formality to determine specifically the right occupier of the land and the area of the land involved.”

I will quickly add that (5) above cannot strictly be a finding of fact, it is an interpretation placed on section 36 of the Land Use Act in view of the findings 1-4 above.

In the Court of Appeal, the learned Justices of the Court of Appeal agreed with these findings and specifically found also that the respondents are the tenants of the appellants. In his lead judgment, Omololu- Thomas, J.C.A. observed”-

“The point here is that the trial Judge found as a fact that the respondents were tenants and there has been no cross appeal on the issue. All the respondents arguments, pertaining to issues on title resolved in the first leg to (sic) no issue in this appeal and will therefore be ignored.

(See p.255 of the record of appeal).

It is only fair to add that even before us the learned counsel for the respondents conceded this fact.

There is no doubt that from the pleading and the evidence the respondents have denied the title of the appellants which is an act of misconduct under customary law. It is an act of misbehaviour which attracts the penalty of forfeiture Ojomu v. Ajao (1983) 2 SCNLR 156; Josiah Aghenghen & Ors. v. Chief Maduku Waghoreghor (1974) 1 S.C.1, Ajani Taiwo & Ors. v. Adamo Akinwumi & Ors. (1975) 4 S.C. 143.

The Court of Appeal had this in mind when the learned Justice in his lead judgment said:

“Without doubt, the principle of customary law is well settled that a customary grantee is only entitled to continue his occupation of land only during the period of his good behaviour, and that he is liable to have his interest terminated for forfeiture if he is guilty of acts amounting to serious misconduct or misbehaviour.”

I agree. The most serious misconduct which is rarely overlooked is denial of the landlord’s title as it is the case in this appeal. Coupled with this was the act of the respondents by pulling down the shrine worshipped annually by the appellants. The shrine is on the land in dispute. In so far as the appellants are concerned, that was an act of desecration.

In settling the issues for determination, the respondents agree with the issues formulated by the appellants. These issues are:

(a) Whether the Court of Appeal could rightly confirm the refusal of forfeiture made by the learned trial Judge;

(b) Whether the consideration and interpretation of the Land Use Act, 1978 by the Court of Appeal was correct,

(c) Whether the Court of Appeal was right in not treating the issue of the respondents being foreigners is right, and if so what should be the consequences, if it is correctly found that they are foreigners under our law.

(d) Whether the Court of Appeal was right in confirming the right of the respondents to customary rights of occupation in respect of portion of land not shown on any plan.”

I will quickly deal with issue (d) which is covered by ground 4 in the amended grounds of appeal. The appellants had wrongly assumed that the respondents filed a cross action. What they did was to file a defence to the action. In describing the land in dispute, the appellants in paragraph 8 of the amended statement of claim averred:

“8. The land in dispute is at Soki Ere and is edged red on plan No.AB.546/OG drawn by A.B. Apatira Esq. and attached to this statement of claim.”

This paragraph in the respondents amended statement of defence was not positively denied. See paragraph 3 of the amended statement of claims where they averred that they are not in a position “to admit or deny” the said paragraphs. This is bad pleading and amounts to an admission. This not withstanding the judgment of the learned trial Judge was tied to the said plan. It is my interpretation that the respondents, if forfeiture succeeds, can only be restrained in respect of the land covered by the appellants plan which was admitted and marked Exhibit A without any objection.

I will now deal with the issue of forfeiture and whether the Land Use Act of 1978 has taken away that aspect of the customary land tenure. But before doing so I wish to state or re-emphasise that we cannot go outside the act to clothe it with the powers it does not possess. It is a wrong assumption that since the act came into force that all incidents of customary land tenure have been wiped off by the act. Though it is true one can no longer claim for declaration of title, as against the customary right of occupancy provided by the act, it is a misconception of the provision of the act to say that forfeiture does not apply to those who are customary tenants. I will come to this again when the issue of rent relied upon by the Judge is discussed.

The learned trial Judge in interpreting S.36(1) of the Land Use Act placed much reliance on the word ANY to include foreigners section 1 of the act specifically limits its benefits to NIGERIANS. It is my view that a non-Nigerian cannot apply for a statutory or customary right of occupancy because that section 36(1) provides for ANY PERSON: Aliens are not Nigerians. I reproduced section 1 of the act if only to re-emphasise that the act was promulgated for the benefit of Nigerians:

“1. Subject to the provisions of this decree, all land comprised in the territory of each state in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all NIGERIANS in accordance with the provision of this decree.”

It is my firm view therefore that the words “ANY PERSON” under section 36(1) of the Act refer to and mean ANY NIGERIAN. The Act has not abrogated any law which limits the rights of aliens to own property. I will however share the views of Omololu-Thomas, J.C.A. that any foreigner who has validly owned or occupied any land before the act is deemed to be an occupier under the act. This however must be in conformity with the definition of occupier under section 50 of the Land Use Act.

The limited qualification of a tenant as interpreted by the learned trial Judge because the respondents paid RENT and not TRIBUTE appears to me a narrow view of the duties imposed upon a tenant under customary law. That a tenant pays rent is no licence for misconduct or a licence to deny the landlord’s title.

I do not wish to comment on the interpretation placed on section 36 of the Land Use Act by the lower court which confirmed the views of the learned trial Judge on the same section in view of the decision of this court in Madam Safuratu Salami & Ors. v. Sunmonu Eniola Oke (supra) which was delivered on 2nd October, 1987, nine months after the decision of the Court of Appeal on 20th January, 1987. However, Omololu-Thomas, J.C.A. appreciated the point when the learned Justice said:

“It is not the intention of the act it seems to me to discriminate between owner as “holder” of the land and a previous tenant who holds as “occupier”, by divesting the owner of his native land and custom holding or by abrogating his right outright”

I do hold that possession under customary law in respect of the same piece or parcel of land can co-exist in the owner and the tenant. It is for this reason I adopt, with respect, the dictum of Obaseki, J.S.C. in Salami & Ors. (supra) when he said:

“The LAND USE ACT was not intended to transfer the possession of the land from the owner to the tenant by whom the owner is in possession.”

It would appear, as rightly pointed out by the learned senior advocate Chief Debo Akande, that both the trial court and the Court of Appeal lost sight of the claim by concentrating on whether the land is agricultural land or not. The issue was whether by the respondents’ misconduct they forfeited the right to harvest the palm fruits. After the interpretation placed on section 36 of the Land Use Act, the learned trial Judge concluded thus:

“From the evidence, there is no doubt, at least, that defendants are occupiers of a portion of the land in dispute before the commencement of the act. They are therefore entitled to possession of the land for agricultural purposes as if a customary right of occupancy has been granted to them”

Having declared that the appellants are entitled to customary right of occupancy, can section 6(1) of the Land use Act be invoked to grant the same piece of land to the respondents without the revocation of the customary right of occupancy I don’t think it can be done.

What is in issue is the claim of forfeiture. Forfeiture has not been abolished by the Land Use Act. In fact section 18 of the act recognises the right of forfeiture by the Military Governor. Obaseki, J.S.C. on page 49 of Oke’s case (supra leaves no one in doubt that the relief of forfeiture is not abrogated by the act).

The learned Justice puts it succinctly:

“It is a misstatement of law to say that the Land Use Act abolished the remedies or reliefs of forfeiture and injunctions. Forfeiture is available whenever a tenant disputes the title of the overlord or landlord or alienates without the landlord’s consent the whole or part of the parcel of land let out to him by the landlord, under customary law. See Akpagbue v. Ogu (1976) 6 S.C. 63 at 74. Taiwo & Ors. v. Akinwumi (1975) 5 S.C.143 at 120.”

There is evidence of misconduct and refusal of the respondents to pay the tribute or rent on record. It is manifest from their evidence and conduct that not only did they deny the title of the appellants they also refused to pay tribute or rent. The learned trial Judge ought to have granted the reliefs sought.

Chief Odunaiya has admitted before us that the respondents are tenants of the appellants. Since the judgment on customary right of occupancy in favour of the appellants has not been set aside, the appeal of the appellants must therefore succeed.

The judgments and costs of Delano, J. dated 29th December, 1982 and that of the Court of Appeal dated 20th January, 1987 are hereby set aside. The appeal is allowed. There will therefore be judgment for the appellants as follows:-

(i) Declaration that the defendants have forfeited their rights to harvest palm fruits on the plaintiffs’ land as customary tenants of the plaintiffs’ family.

(ii) Injunction restraining the defendants, their agents, servants and privies from going on the land in dispute reaping palm fruit therefrom.

Costs are assessed as follows:costs in the High Court assessed at N250; costs in the Court of Appeal are assessed at N300 and costs in this court are assed at N500 all in favour of the appellants.

SC.195/1987