Idowu Adeagbo Ajao & Ors. V. Arasi Obele & Anor. (2004)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This is an appeal against the judgment of Oyo State High Court of Justice, Ibadan Judicial Division, delivered on the 26th day of July, 1991. At the trial court – the plaintiffs Arasi Obele and Alhaji Fatai Akande representing the Obele family – sued the defendants – Idowu Adeagbo Ajao, Iyiola Adeagbo Ajao, Poju Adeagbo Ajao, Luku Adeagbo Ajao, Lasupo Adeagbo Ajao for and on behalf of the Ajao family for the under-mentioned reliefs:
“1. Declaration that the plaintiffs are entitled to be granted customary right of occupancy for and on behalf of themselves and Obele family in respect of all that piece or parcel of land situate, lying and being at Iyana Ibare village, along Ibadan/Ijebu road, Ibadan.
- N500 for trespass committed by the defendants on the said land which trespass still continues.
- Perpetual injunction restraining the defendants, their servants, agents and privies from committing further acts of trespass on the said parcel of land.”
Parties filed and exchanged pleadings. The defendants pursuant to an order of the trial court made on the 26th of February, 1991, filed an amended statement of defence and counter-claim seeking reliefs as follows:-
- Declaration that they are entitled to customary right of occupancy in respect of the land in dispute.
- Perpetual injunction restraining the plaintiffs, their servants, agents from further trespassing on the land in dispute as shown on plan ADAKS/844/0Y/89.
- Forfeiture of the plaintiffs’ holding at Ajao village.
Nine witnesses gave evidence for the plaintiffs and ten witnesses for the defendants during the trial of the case. The brief facts of the case are that the plaintiffs claimed that Obele their ancestor was a warrior who fought in the wars between Ibadan, Egbas, Ijebus over 100 years ago. The land in dispute is at the junction of Bare, near Obele family land. Obele settled and farmed on the land after the inter-tribal wars during his life time. They gave the names of his children, who succeeded him and also farmed on the land. The villages within the land in dispute are Iyana Bare, Aladorin, Araoye and Yanbule – they used to pay Ishakole to the descendants of Obele. The family also gave portions of land to people to build houses.
Obele gave land to the ancestors of the Ajao family – Babarinde and Abiola – who were both paying Ishakole to Obele. The boundarymen to the land in dispute are Alomaja family, Oyelami family, Ekefa family, Onigaa family land and Asegun stream. The plaintiffs claimed that the defendants trespassed on the land in dispute in 1984, by bulldozing the land and buildings with caterpillar. When the defendants were challenged, they told the plaintiffs that the land in dispute belonged to Adeagbo Ajao, one of their forefathers. The defendants on the other hand gave evidence that Ajao their forefather was a hunter and farmer who settled at Ajao village and later installed Pegun shrine there. Ajao was said to have planted cocoa, kolanut and palmtrees on the land on which he settled. It was the contention of the defendants that Obele was from Olodo and that he had his farm at Felele Ibadan. As Obele was a hunter he used to hunt at Ajao village and used to stay with Ajao for about four days at a time before going back to Felele. Since Obele had no house at Ajao, village, Ajao granted him land at Ajao village to build a house. Ajao gave land to a number of people to build houses, and to organizations to build churches and schools. The boundarymen of the defendants in the area of the land in dispute are Araoye village, Aladorin village, Yanbule village, Atilara village, Alomaja village and Oyelami village.
At the close of trial, the learned trial Judge in a considered judgment dismissed the plaintiffs’ case and granted the counter-claim only in respect of two plots of land which the Ajao family had not given out of the entire area claimed by them. The defendants’ claim for forfeiture was also dismissed. As the defendants were aggrieved by the judgment of the lower court – they filed their notice of appeal on the 16th of October, 1991.
Briefs were exchanged in accordance with the rules of court, 2002. At the time of the hearing of this appeal, the appellants adopted and relied on their briefs filed on 15/5/95 and the appellants reply brief filed on 21/10/03. The respondents’ adopted and relied on the respondents’ brief deemed filed on 29/10/03.
The appellants settled two issues for determination as follows:
i. Whether it is not open to a landlord under native law and custom to claim declaration for customary right of occupancy just because part of the land he is claiming customary right of occupancy has been granted to some people.
ii. Whether the learned trial Judge was right in refusing the grant of forfeiture against the 1st plaintiff/respondent on the ground that there was no proof that he is a customary tenant. In other words, is it the only person who pays Ishakole that can be called customary tenants against whom forfeiture and perpetual injunction can be granted.
The respondent in his brief deemed filed on 29/10/03 formulated two issues for determination as follows:
- Whether the learned trial Judge was right in refusing to grant the appellants declaration of customary right of occupancy in respect of the land as contained in the appellants’ counter – claim.
- Whether learned trial Judge has misdirected himself by refusing to grant the appellants’ claim for forfeiture against the respondents.
I intend to consider the issues for determination raised by the appellants for the purpose of this appeal.
It is however observed that the plaintiffs/respondents raised preliminary objections on the competency of this appeal relying on the following ground:
(1) That there is no proper counter-claim before the court having regard to Order 4 rule 2(1),(2),(3) and or Order 25 rule 16 of the High Court (Civil Procedure) Rules of Oyo State, 1988. The appellants did not join the counterclaim with the statement of defence. The learned trial Judge referred to amended statement of defence in his judgment, there here is no where in the records where such an order to amend statement of defence and counter-claim was granted. In effect there is no counter-claim filed before the court.
(2) Furthermore, the issues formulated are not related to the grounds of appeal. While there is no issue formulated to cover ground two – the ground shall therefore be deemed abandoned.
(3) Ground 3 is equally defective in that when a ground of appeal alleges misdirection, the portion where the misdirection occurs must be quoted and particulars of misdirection must be given.
The appellants have failed to quote the portion of the judgment where the misdirection occurs which is fatal to the ground of appeal. This court is urged to strike out the appeal. Bulet (Nig.) Limited v. Adamu (1997) 3 NWLR (Pt. 493) 348, (1997) 7 SC 135; Joseph Mangtrip Din v. African Newspapers of Nigeria Limited (1990) 3 NWLR (Pt. 139) 392, (1990) 5 SCNJ 209; Mrs. F. M. Saraki & Anor. v. N.A.B. Kotoye (1992) 9 NWLR (Pt. 264) 156, (1992) 11/12 SCNJ 26; Hon. Emmanuel Oselaka Araka v. Ambrose Nwakwo Ejeagwu (2000) 15 NWLR (Pt. 692) 684, (2000) 12 SC (Pt. 1) 99; Messrs N. V. SCHEEP & Anor. v. The M.V.S.ARAZ & Anor. (2000) 15 NWLR (Pt. 691) 622, (2000) 12 SC (Pt.1) 164; Dr. M.G.O. Iweka v. SCOA (Nig.) Ltd. (2000) 7 NWLR (Pt.664) 325, (2000) 3 SC 21.
The appellants’ counsel replied to the objection in the appellants’ reply brief filed and submitted that the appellants filed a statement of defence and counter-claim out of time. The word plan instead of claim on page 37 of the record is a typographical mistake. The statement of defence and counter-claim was filed pursuant to the order of court at page 40 of the record. The case before the lower court was fought as a counter-claim and judgment was given to that effect. There was no objection raised by the counsel appearing for the defendants then, while the new counsel is not in a position to file this objection since he had by consent agreed that there was a counter-claim before the court. This issue having not being raised before the trial court cannot now be raised at the appellate level.
On the issue formulated relating to ground 2 of the grounds of appeal – which is refusal to grant – perpetual injunction – the issue as formulated has covered that ground. The respondent clearly misconceived the issue. The appellant cited the cases of Ajayi v. Jolayemi (1996) 1 NMLR (Pt. 1) 125 at 175 SC; T.O. Kuti v. Mrs. Balogun (1978) 1 SC 53; T. O. Kuti (Trading as Abusi Odumare Transport Service v. Jibowu (1973) 1 NMLR 90.
I have considered the objection raised by the respondents’ counsel and the reply by the appellants’ counsel. I have to clear the point at this stage that this objection on the competence of this appeal relates to the issue of jurisdiction of this court to adjudicate on this appeal. The issues of this appeal not being properly before the trial court, or that the grounds of appeal not being properly set up or not relating to the issue formulated – challenges the competence of the appeal before this court. The issue of jurisdiction is a fundamental prerequisite in the adjudication of any matter. Where a court does not have jurisdiction to entertain a suit before it the proceedings however well conducted will be a nullity. Oloba v.Akereja (1988) 3 NWLR (pt. 84) 508; Ogunmokun v. Military Administrator Osun State (1999) 3 NWLR (Pt. 594) 261; Federal Govemment of Nigeria v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305. A court is competent:
(a) When it is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another;
(b) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case comes before the court initiated by due process of law and upon fulfillment of any conditions precedent to the exercise of jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Skenconsult v. Ukey (1981) 1 SC 6.
Since any pronouncement by a court or tribunal without jurisdiction is an exercise in futility, an issue of jurisdiction can be raised at any stage of the proceedings in the court of first instance or even for the first time in the appeal court or Supreme Court. The objection is therefore competent – at this stage, being brought before an appellate court. I shall now have to delve into the substance of the preliminary objection. Firstly – that there was no valid counter-claim before the court. This calls for an inspection of the record of proceedings before the trial court. It is however noteworthy that Order 4 rule 1 of the High Court (Civil Procedure) Rules of Oyo State, 1988, relates to filing of a counter-claim by a party who has a claim against the plaintiff and does not wish to proceed by bringing a separate action. Where he makes a counter-claim – this shall be added to his defence. Order 25 rule 16 of the High Court (Civil Procedure) Rules of Oyo State, 1988, stipulates that – “where a defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence state specifically that he does so by way of set – off or counter-claim as the case may be and the particulars of such set-off or counter claim shall be given.”
It is imperative from the foregoing that a defendant wishing to make a counter-claim must follow this course. Rules of court are meant to be obeyed. Pages 34-36 of the records show that the defendants filed their statement of defence. On page 37, the defendants filed a motion on the 17th of April, 1989, asking for an extension of time to file their statement of defence and counter-claim. The motion was granted by court on 17/4/89 same day. On pages 42 – 45, the defendants filed their statement of defence and counter-claim. The plaintiffs on pages 46-47 filed a reply. Pages 68-69 reflect an application filed on 22/2/91, by the defendants asking for leave to amend their statement of defence. This application to amend the statement of defence per the schedule of amendment attached was heard and granted by court on the 26th of February, 1991. The case of the defendants was heard on the amended statement of defence and counterclaim pursuant to the order of court made on 26th day of February, 1991, and not on the 21st of February. The order of court to this effect can be found at page 71 of the record. The case was heard by the trial court on the amended statement of defence and counterclaim of the defendant/appellants. The objection of respondent is misconceived on this ground. The 2nd leg of the objection relates to the grounds of appeal and the issues formulated for determination therefrom – and further more, that in the ground alleging misdirection, the particulars of the misdirection was not properly set out.
The simple reply to this objection stems from my observation of the notice of appeal and the grounds of appeal at pages 134 – 135 of the record where the grounds alleging error of law had the alleged errors specifically stated, and that alleging misdirection had particulars of the misdirection clearly specified. Adeleke v. Asani (1994) 1 NWLR (Pt.322) 536. If a ground of appeal has no issue formulated on it, when the appeal is argued it shall be deemed to be abandoned. I shall not hesitate to deem ground 2 of the grounds of appeal on the issue of perpetual injunction, as abandoned- it is consequently struck out. In sum I cannot find any substance in the objection raised. It is overruled and consequently struck out.
Issue No. one asks whether it is open to a landlord under native law and custom to claim declaration for customary right of occupancy just because part of the land he is claiming customary right of occupancy had been granted to some people.
The appellants submitted that the learned trial Judge erred in law on that issue of not granting declaration in respect of the whole plan No. ADAKS/844/OY/89 as the entire land belongs to the appellants as previously held by him on pages 126-128 and 129 of the record. In law the appellants are the owners of the entire land, while the grantees are tenants having license to be on the land. The grantees are on the land subject to good behaviour and once any of them is guilty of a serious misconduct, he will be ejected out and the land never to revert to the owner – in other words, the appellants have reversionary interests and hence, they are entitled to customary right of occupancy. There was no sale of the land as in the case of Sanyaolu v. Coker (1983) 1 SCNLR 168, (1983) 3 SC 124 at 163. The appellants are the owners of the land under native law and custom. The respondent claimed the land as original settler and not grantees the issue of nature of grant did not arise to refuse declaration. The court has to resolve the issue whether the respondents are not customary tenants against whom declaration would be obtained just because he was granted land to build a house. Secondly, whether payment of Ishakole must be established against the respondents to grant declaration against them, whereas customary tenancy applies to dwelling house, and where no rent is paid at all. The Land Use Act, 1998, defines the relationship of customary tenant and his landlords. A customary tenant acquired right to occupy and use land on terms- including right to tribute if agreed upon, and also the recognition of the reversionary right of the owner and the right of forfeiture.
The appellants referred to the cases of Aderawos Timbers Co. Ltd. v. Adedire & Ors. (1963) 1 ANLR 429 at 437; Tijani Oladejo v. Chief Gbadamosi Ojo (1975) 6 WACA 48 at 54; John Falaju v. Samuel Amosu (1983) 2 SCNLR 209, (1983) 1 SC 10; Chief Odunsi v. Pereira (1972) 1 SC 52 at 53 & 61-63.
The respondent replied by submitting that the appellants referred to exh. E – the plan ADAKS/844/0Y/89 and paragraph 28 of the amended statement of defence – pleaded that lands were granted to a number of people – the plan of the land shows their respective buildings on the land. There was evidence of grant and sale of land to people. The appellants did not show that these people to whom land were granted were their customary tenants that they were collecting Ishakole from various grantees. The reasons given for refusal to grant the declaration sought by the trial court is tenable. The appellants also failed to identify the land.
The respondent cited the cases of Are v. Ipaye (1986) 3 NWLR (Pt. 29) 416; Sanyaolu v. Coker (1983) 1 SCNLR 168, (1983) 3 SC 124; Alham Oduola & Ors. v. John Gbadebo Coker & Ors. (1981) 5 SC 197; Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484 at 485; Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101; Oyetunji v. Akanni (1986) 5 NWLR (Pt. 42) 461 at 971.
Issue two is whether the learned trial Judge was right in refusing the grant of forfeiture against the 1st respondent on the ground that there was no proof that he is a customary tenant. The appellants submitted that the learned trial Judge had adjudged the appellants as owners of Ajao village (pg. 129 of the records), and that Adeagbo Ajao granted land to the 1st respondent. The respondents had challenged the title of their grantor – which amounts to a serious misconduct. He is liable to forfeiture if declaration is sought by the appellants. The learned trial Judge did not dispute this on pg 131 of the record.
Breach of tenure by the head of the family involves the whole family – as in this case. The appellants supported this submission with the cases of – Madam Safuratu Salami v. Sunmonu Emiola Oke (1987) 4 NWLR (Pt.63) 1, (1987) 9-11 SC 43 at 49; Inasa v. Oshodi 10 NLR 4; Adegun v. Fagbola 11 NLR 110; Eyamba v. Moore 5 NLR 85; Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; Onisiwo v. Fagbenro 21 NLR 3.
The respondents contended that the onus is on the appellants to prove that the respondents are their customary tenants, or that they pay Ishakole. It was not established that the grant made to Arasi was made to him as a customary tenant who will be expected to pay Ishakole – or whether it was an outright grant. If land was not granted to him as a customary tenant, he would not be expected to pay Ishakole and the court will not be in a position to order forfeiture against him – or in respect of any land on which they are farming unless they are subject to the payment of Ishakole. The appellants claim for forfeiture against the respondents should fail. I have carefully considered the issues involved in this appeal and the submission of both parties. The gravamen of issue one is whether it was proper for the learned trial Judge in the circumstance of this case to have refused to grant the appellants declaration of customary right of occupancy in respect of the land as contained in the appellants’ counter-claim. It is pertinent to look into the judgment of the learned trial Judge and his reasons for his findings. The land in question is the area verged red on plan No.ADAKS/844/0Y/89 in exhibit E. The learned trial Judge held as follows:
“I accept the evidence of the 3rd PW that the land in dispute at Ajao village belonged to Ajao.
(a) There is convincing evidence, which I accept as true that Aransi Obele who had a building in Ajao village was granted the land on which the house was built by Adeagbo Ajao.
(b) By virtue of section 45 of the Evidence Act found that the two plots of land subject-matter of the dispute between the parties belonged to the defendants – now appellants’ family.
The court refused to grant declaration in respect of the land edged red in exh. E in favour of the defendants/ appellants according to their counter-claim because:
(b) The defendants have granted the areas located in the plan exhibit E except where crops were still standing.
(c) The defendants by the granting of these areas have divested themselves of the ownership of such pieces of land and it will not be in the interest of these grantees to grant a declaration to the defendants in respect of such land.
The important question which arises from the foregoing is whether the grant of such land, pieces of land were made to members of Ajao family or to strangers and what was the nature of the grant -if made to strangers.
The learned trial Judge held at page 129 that:-
”There is no doubt in my mind that many other members of Ajao family had buildings scattered round Ajao village and that the two plots of land marked “Yellow” in the plan exhibit E and marked Green in the plaintiffs’ plan exhibit B are within Ajao Village which the village owned by the defendants’ family from time immemorial.”
There is a building to show that land was granted to Arasi Obele by Adeagbo Ajao to build a house – vide pages 126, 128. There is evidence of sale to Dr. Doherty by exh. D. Exhibits D, D1, D3 and D4 were conveyances executed in respect of sale of land to people. Ralifu Adeniran 9th PW gave evidence of a piece of land sold to him by Adeagbo Ajao and tendered exhibit H to that effect. The other purchasers of land from Ajao family were Lasupo, Latundun, Arasi and Laditi. Land was granted to St Andrews Church Araoye by Adeagbo Ajao. As pleaded in paragraph 128 of the amended statement of defence and counter-claim some tenants were granted land – who paid the family annually. There is over-whelming evidence of land sold to people – pieces of land occupied by tenants and also members of the Ajao family. It would have been totally wrong of the learned trial Judge to grant a customary right of occupancy, in favour of the appellants when total ownership of the entire area was not vested in the Ajao family. Though, each case must be examined against its own peculiar facts, it is trite that a person cannot claim a declaration of title to land which he once owned but of which he had divested himself of the ownership by sale to a purchaser. The effect of such declaration if granted would have nullified the deed of conveyance executed in favour of the purchasers which are exhs. D, D1, D3 and D4 and H. Sanyaolu v. Coker (1983) 1 SCNLR 168, (1983) 3 SC 124; Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484. The learned trial Judge had no evidence before the court that all those people on the area verged Red in exhibit E hold the land under customary law.
The position in law is that when the original owner has granted rights of occupation to another either to farm or to build a house, – the possession of the other is not adverse possession and the owner’s acquiescence thereon is part and parcel of the grant and cannot affect the owner’s reversionary rights, should the grantee deny title, or abandon or attempt to alienate, possession is an incident of customary tenancy. Suleman v. Johnson (1951) 13 WACA 213; Sagay v. New Independent Rubber Ltd. (1977) 5 SC 143; Chikere v. Okegbe (2000) 12 NWLR (Pt. 681) 274.
The learned trial Judge cannot rely on the reversionary interest of the Ajao family in respect of land granted to tenants to grant title in respect of land sold out entirely. The appellants have to differentiate and ascertain clearly which lands belong to them absolutely – which they had failed to do in this case. Though where land is granted to a grantee for a particular purpose or limited purpose – can never ripen into an absolute ownership of the land, adverse to the ownership of the grantors. Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647.
I find the findings of the trial Judge in respect of issue one unimpeachable. Issue one is resolved against the appellants.
In issue two, I have to consider whether the learned trial Judge was right to have refused to grant forfeiture against the 1st plaintiff/on the ground that he is a customary tenant. The learned trial Judge found in his judgment at page 132 of the record that there is no evidence led by the defendants to establish that the land granted by Adeagbo Ajao to Aransi Obele was granted to him as a customary tenant who would be expected to pay Ishakole. If Aransi Obele was not granted the land on which he built a house at Ajao village as a customary tenant; the court will not be able to grant an order of forfeiture against him.
Does Obele have to pay Ishakole to establish that he is a customary tenant of the Ajao family in respect of the land granted to him?
In the case of Oshoboja v. Dada (1999) 12 NWLR (Pt. 629) 102 – it was held that – these are occasions where a grantor secured land under a customary grant, an arrangement which enables the grantee to pay tributes by way of Ishakole, but this is not an invariable practice.
In Yoruba customary law, a tenant is allowed to remain on the land in perpetuity subject to good behaviour.
The 1st respondent denied being a customary tenant – but was claiming as owner of land. The trial court found that Aransi Obele was granted land to build house on Ajao family land by Adeagbo Ajao. He did not need to establish payment of Ishakole to hold that he is a customary tenant. He may be enjoying gratuitous grant – that does not remove him from the category of a customary tenant as he has an overlord in the Ajao family. I shall now amplify on Ishakole. Ishakole is the tribute paid to the overlord by tenants put on land under Yoruba native law and custom – and this varies from locality to locality. It could be in cash or in kind, such as farm product or recent times money or both. Akanbi v. Salawu (2003) 13 NWLR (Pt.838) 637 SC.
Once the traditional history pleaded by a party is proved, the proof of or failure to prove payment of Ishakole by the tenant will not affect the fact of ownership of the land as claimed. In other words, it is not helpful to consider the failure to prove the said Ishakole as having adverse effect on the proof of the traditional history and customary tenancy. It is not unknown that there can be customary tenancy without the payment of tribute. As long as the owners accept or permit the use and occupation or possession of their land. Oshoboga v. Dada (supra).
Forfeiture is the usual mode of determining a customary tenancy. The real basis of the misconduct or misbehaviour which renders the tenancy liable for forfeiture is the challenge to the title of the overlord. This may be by:
(a) Alienation of part of the land; or
(b) A claim of ownership; or
(c) Refusal to pay the tribute due; or
(d) Direct denial of overlord’s title by setting up a rival title in the customary tenant himself.
Although, non-payment of rent or tribute is not necessarily inconsistent with the ownership of the over-lord, the circumstance and the reasons for the refusal to pay tribute may determine whether there is a denial of the title of the overlord. Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514; Oladipupo v. Olaniyan (2000) 1 NWLR (Pt.642) 556; Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435 SC.
In most cases forfeiture is not automatically granted. The trial court will have to exercise its judicial discretion. In the instant case, the Respondents have denied the title of their landlord by claiming title to the land on which they were allowed to build house and farm which amount to a clear case of misconduct to which they are entitled to forfeiture. The learned trial Judge accepted that the Ajao family granted them land. As I have observed earlier on in this judgment long possession can never ripen into ownership vide Dokubo v. Omoni (supra). Contrary to the decision of the learned trial Judge – the land granted to Obele family subject-matter of dispute is to revert to their grant or the Ajao family. This issue is resolved in favour of the appellants.
The appeal succeeds in part. Judgment of the lower court is affirmed on issue one. No order as to costs.
Other Citations: (2004)LCN/1621(CA)