Mohammed Ojomu V. Salawu Ajao (1983) LLJR-SC

Mohammed Ojomu V. Salawu Ajao (1983)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, JSC.

This is another of those cases in which a land-owning family in Lagos sells the same land to several purchasers leaving them to fight the issues in court as to the priorities of their competing interests in the purchased land.

The land involved in this appeal is situate at 8, Iya Ojo Street, Ajegunle Apapa, and was the subject of a survey, the plan of which was tendered before the trial court as exhibit C. The plaintiff contended that the land was ‘leased’ to him by the Ojora Chieftaincy Family in 1961 in which year he went into possession and paid his first rent for which a receipt (exhibit A) was given to him by the family and, thereafter, he paid, uninterruptedly, his yearly rents, enjoying peaceable possession, without let or hindrance, until the interference, by the defendants in October, 1976, complained of.

The plaintiff’s indorsed writ of summons claimed as follows: “The Plaintiffs claim is for:–N20,000.00 special and general damages for the wrongful entry by the defendants in or about October, 1976 on the land situate at 8 Iya Ojo Street, Ajegunle Apapa in the Plaintiffs peaceable possession and for the demolition of the plaintiffs uncompleted building thereon; and for an injunction restraining the defendants, their servants workmen and agents, or otherwise from further entry on the said land or from building any structure thereon.” Pleadings having been ordered, the parties delivered their pleadings which, by reason of their comparative shortness, are reproduced in full.

The statement of claim was dated 9th May, 1977 and reads: “Statement of Claim 1. The plaintiff was and is at all material times in possession of the piece or parcel of land in a place now called 8 Iya Ojo Street, Ajegunle, Apapa. 2. The plaintiff, through Alhaji Tunde, a runner for the Ojora Chieftaincy Family, the landlords, got a lease of the said piece of land from the landlords in 1961 under customary tenure. He paid rents annually and were given receipts all of which except that for 1966 were lost. The 1966 receipt and subsequent receipt will be founded upon.

3. At the time of acquiring the said parcel of land, the area in which it is situate was undeveloped, the only buildings there being Nos. 1, 4 and 10 Iya Ojo Street, Ajegunle, Apapa. 4. Having been put in possession, the plaintiff got the piece of land surveyed in 1964. The plan will be founded upon. 5. The plaintiff employed Alhaji Tunde as contractor to fill up the land which was very low lying and to construct a building thereon. He paid to the contractor the sum of 400 now 44 800.00 for the filling and the sum of £5,000 now N10,000.00 as part payment for the construction of the house. The contractor’s receipts for these sums will be relied upon.

6. The contractor filled the plot and constructed the building up to the window level in accordance with the building plan No. ROM/3/44 which will be founded upon. 7. In October, 1976 labourers were seen demolishing the uncompleted building. They said they were employed by the 1st defendant to do so. The 1st defendant confirmed this statement at the Police Station Ajegunle, The plaintiff did not permit anybody to enter on the land. The plaintiff caused photographs of the demolished building to be taken and this will be founded upon. 8. The plaintiffs building having been demolished, the 2nd defendant began to build a house on the land and is still building. 9. By reason of the above premises the plaintiff suffered loss and damage.

PARTICULARS DAMAGES: Special Cost of filling…………N800.00 Cost of building…………..N10,000.00 ………..N10,800.00 General……………..N9,200.00 Total ……………………………………………………………………N20,000.00 10. Wherefore the plaintiff claims from the defendant jointly and severally:- (a) The sum of N20, 000.00 being special and general damages for trespass. (b) An Injunction restraining the defendants their servants, agents or workmen or otherwise from further acts of trespass on the land or from building any structure thereon. Dated this 9th day of May, 1977. (Sgd.) M. NWOKEJI Plaintiffs Solicitor, 100 Bale Street, Ajegunle, Apapa.”

It was replied in a statement of defence dated 29th September, 1977 filed, pursuant to an order granted for extension of time within which to file the defendants’ statement of defence. This was the statement of defence which, again by reason of its relative shortness, is reproduced in full:

“STATEMENT OF DEFENCE FILED BY THE 1ST & 2ND DEFENDANTS 1. SAVE as herein expressly admitted the defendants deny each and every allegation of facts set out in the plaintiffs Statement of Claim as if each were set out and traversed in seriatim. 2. The defendants deny paragraphs 1, 2, 4, 6, 7, 8 and 9 of the Statement of Claim. 3. The defendants are not in position to admit or deny paragraphs 3 and 5 of the Statement of Claim but put the plaintiff to the strictest proof thereof. 4. The defendants aver that the plot of land in dispute was demised for a term of fifty (50) years by the Ojora Chieftaincy Family to the second defendant under and by virtue of a Deed of Lease registered as No. 45 at page 45 in Volume 1591 of the Register of Deeds at the Lands Registry, Lagos. 5.

The defendants aver that prior to the leasehold interest granted to the second defendant the land in dispute was in possession of the Ojora Chieftaincy family who sometime in 1976 put the second defendant into possession thereof. 6. With reference to paragraph 7 of the Statement of Claim the defendants aver that the plaintiff was never in possession of the land in dispute and that none of the defendants ever demolished any structure on the land.

7. The defendants aver that the first defendant is a principal member of the Ojora Chieftaincy Family the owners of the land in dispute and contend that the plaintiff has no cause of action against any of the defendants. 8. The defendants aver that the second defendant is the only tenant of the Ojora Chieftaincy Family who is in lawful and exclusive possession of the land in dispute and has now developed the land by erecting thereon building costing over N60,000.00 with the knowledge, consent and approval of the owners of the land. (EXHIBIT A REFERRED TO) WHEREFOR the defendants contend that the plaintiff’s case is mis-conceived and that the plaintiff is not entitled to the relief claimed.

Dated this 29th day of September, 1977. (Sgd.) FEMI ALOKOLARO & CO. Defendants’ Solicitors, 11, Martin Street, (3rd Floor), Lagos.” Each party gave evidence in support of his pleadings. The plaintiff, in addition to his evidence, called five witnesses which included the licensed surveyor (one MARCELIN AUGUSTINE SEWEJE P. W. 2) who surveyed the land for him and produced a plan, Exhibit C; two members of the Ojora Chieftaincy Family, JIMOH AKINDELE OJORA (P.W.3) and ABUDU YEKINI LAWANI (P.W.4); the PAGE| 3 mason who built the uncompleted house for him on the land, one ALHAJI GANIYU OLATUNDE, and a policeman, one David Afolabi Ojo.

The defendant, apart from his own evidence called a member of the Ojora Chieftaincy Family who described himself as ‘the Supervisor to the Ojora Chieftaincy Family Estate, ‘one ALHAJI ABDUL LASISI OJORA and his licensed surveyor, MICHAEL OLUDAYO AKANMU. Alhaji Lasisi testified to the Deed of Conveyance of the land in dispute to the defendant (Exhibit F) while surveyor Akanmu testified to a survey plan made by another licensed surveyor to whom he was attached, one A. B. Apatira, but who was not called -a survey plan rejected by court as inadmissible.

It is difficult to see why Apatira’s presence was considered necessary when the plan in question had gone in as part of the Deed of Conveyance, exhibit F, without objection. The position then was that whereas the plaintiff based his title upon a grant made by the Ojora Chieftancy Family in 1961, on payment of yearly rents coupled with his being let into possession, with his exercise of acts of possession by the building of an uncompleted house, the 2nd defendant based his own title on a Deed of Lease (exhibit F) dated 5th November, 1976 registered as No. 45 at page 45 in Volume 1591 of the Register of Deeds in Lagos State Land Registry, Lagos.

The matter came for adjudication in the High Court of Lagos, before Okuribido, J., who found for the plaintiff, holding that in the circumstances of the case, the plaintiff had acquired an equitable interest in the land having got his interest under customary tenure and having gone into possession since 1961. He held that although the plaintiff did not have a formal lease and there being no evidence that he had either surrendered his interest to the Ojora Chieftaincy Family or that steps had been taken by the said family for forfeiture and the land forfeited by the plaintiff, yet the plaintiff was entitled to continue in his possession and his interest preferred to that o£ the 2nd defendant under the Deed of Lease, Exhibit F.

The circumstances, he held, raised a presumption that he entered into possession under a contract from which arose an equitable interest by specific performance on the principle in Ogunbambi v. Abowaba (1951) WACA 222. On the issue of damages the learned trial judge found that the plaintiffs uncompleted building on the land was demolished by the 2nd defendant aided by the 1st defendant and therefore, they were liable in damages, which he assessed at N5,200.00 special damages and N3,800.00 general damages making a total of N9,000.00. He granted a perpetual injunction restraining the 2nd defendant from further entry on the land or building any structures on the same. He awarded the plaintiff his due costs.

Dissatisfied with the judgment, the 2nd defendant appealed to the Federal Court of Appeal on grounds of appeal which were later amended and finalised as follows: “AMENDED GROUNDS OF APPEAL The judgment is against the weight of evidence. The learned trial judge misdirected himself in law and on the evidence by failing to observe that the plaintiff did not establish by evidence what he pleaded, namely, ‘lease under customary tenure’.

Alternatively, if by ‘a lease under customary tenure’ the plaintiff was pleading that he was a customary tenant, he equally did not plead and prove by evidence the incidents of a customary tenancy and that his grant was a valid customary tenancy under Yoruba customary law. The learned trial judge misdirected himself in law and on the evidence in holding that the plaintiff had an equitable interest in the land because he produced some receipts to prove payment of rent and the 2nd defendant was not a bona fide purchaser of the legal estate without notice of the plaintiff’s equitable interest.

The learned trial judge misdirected himself in law and on the facts by failing to observe that the evidence against the 2nd defendant was different from the evidence against the Ist defendant and that the 2nd defendant although sued with the 1st defendant was entitled to have the case against him determined by the evidence against him and the lawful inference therefrom and that (ii) there was no evidence that the 2nd defendant had any notice of the alleged interest of the plaintiff in the land at the time of his entry thereon; (iii) There was no proof that the plaintiff had any interest in this land and that his possession (if any) could prevail over the 2nd defendant’s leasehold title by a registered lease from the Ojora Family.

The learned trial judge misdirected himself in law and on the evidence by failing to observe that there was no evidence or no credible evidence (a) that the plaintiff paid rents annually and was given receipts which were lost. (b) that the receipts exhibits A & B were referred to any lease by a customary tenant and that accordingly they must be construed and understood according to their clear terms; (c) as to the dimension of the land covered by exhibits A & B. The learned trial judge misdirected himself in law and on the evidence in finding the special damages proved when (i) there was no credible evidence in proof of such damages: the evidence of PW 5 (Olatunde) PAGE| 4 contradicted the plaintiffs pleading and the plaintiffs evidence (ii) the learned trial judge’s computation is not supported by the evidence. The plaintiff having claimed special damages, the award by the learned trial judge of general damages in the sum of N3,800.00 was manifestly excessive and erred in principle.’

The Federal Court of Appeal (Ademola, Nnaemeka-Agu, and Mohammed, JJCA) delivered a unanimous judgment on 30th June,1982 and dismissed the appeal in respect of trespass and injunction; varied the amount of the general damages from N3,800.00 to N1,000.00 and dismissed the appeal in respect of the amount awarded as special damages. In other words, instead of a total of N9,000.00 awarded by the trial judge, the Federal Court of Appeal awarded a total of N6,200.00. It was from this judgment that the 2nd defendant appealed to this Court initially on three grounds of appeal as hereunder:

“1. The Federal Court of Appeal misdirected itself in law in upholding the objection of the respondent and striking out additional grounds of appeal Nos. 2-6 on the ground that they were defective because there were no particulars given to the errors of law which were alleged and that the said grounds therefore offended the provisions of Order 3 Rule 2(2) of the Federal Court of Appeal Rules. 2. The Federal Court of Appeal misdirected itself in law in holding that ‘It is without doubt that the plaintiff entered into a lease agreement with the Ojora Chieftaincy Family in respect of the land in dispute’.

When there was no evidence whatsoever before the Court in proof of the grant of customary tenancy in favour of the plaintiff by the Ojora Chieftaincy Family. 3. The Federal Court of Appeal misdirected itself when it stated ‘This appeal has been brought by the appellants who were the defendants at the Court below against the decision of the learned trial Judge….’ When only the 2nd defendant appealed and the Court thereby failed to appreciate that the only appellant before them was the 2nd defendant and the appeal was confined to considering the contention of the said 2nd defendant against the plaintiff.’ By a motion dated 17th March, 1983 the 2nd defendant/appellant applied to amend the grounds of appeal into 7 amended grounds of appeal.

The 2nd defendant, however, failed to obtain leave either of the Court of Appeal or of the Supreme Court and most of the amended grounds of appeal which he was seeking to argue being either grounds of facts or of mixed law and facts, this Court refused to allow them. Some of the grounds being patently unarguable were withdrawn by the appellant.

Accordingly, grounds 1, 2, 3, 4, part of 5, and 6 were struck out. Remaining to be argued were part of ground 5 and ground 7. These grounds were as follows: ‘5. The Federal Court of Appeal misdirected itself in law in upholding the decision of the learned trial judge that the plaintiff had acquired an equitable interest in the land in dispute prior to the subsequent lease of the same land to the defendant……. PARTICULARS 1. It is not the plaintiff’s case on the pleading that he was an equitable owner or had an equitable interest. 2. …………………. 3. …………………. 4. …………………. 6. …………………. 7. The Federal Court of Appeal misdirected itself in law in not upholding the submission of learned counsel for the appellant that upon the relevant facts found and on the undisputed issues of fact, the 2nd defendant was entitled to judgment dismissing the claim against him. PARTICULARS The undisputed relevant and material facts are that the plaintiff only proved that he was a tenant for and up to the year 1976. (ii) The appellant’s entry on the land that year can at best ground only a claim for damages for trespass and not for an injunction, the writ being issued after the expiry of the plaintiffs tenancy.

(iii) The claim for damages for trespass failed because it was the 1st and not the 2nd defendant who PAGE| 5 evicted the plaintiff and it was the Ojora Family who put the 2nd defendant into possession.” Arguing the appeal before us based on his brief, counsel for the appellant, Mr. Lardner, S.A.N., contended that the plaintiff’s case was a lease under customary tenure. Nowhere, he argued, in the pleadings did the issue of equitable interest arise. If the estate pleaded by the plaintiff was established, he contended, it required nothing further to establish it to make it a legal estate.

He stated that after plaintiff had given evidence and amended his statement of claim to one of ‘customary tenure’, he did not go further to give evidence on customary tenure. Referring to the decided cases of EJEANALONYE and Ors. v. OMABUIKE and Ors. (1974) 1 All NLR 298, and UMOFIA v. NDEM (1973)12 SC.69 on the issue of pleadings, Mr. Lardner argued that the plaintiff proved, at best, only a yearly tenancy. In reply, Mr. Olajumoke, pointing to the pleadings and the evidence, submitted that legal terms in English Law did not feature in the case and that the nature of the grant to the plaintiff was simply one of ‘a lease under customary law’.

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.

The tenant, in those circumstances, holds a determinable interest in the land which he may enjoy in perpetuity subject to good behaviour. In practice, the relationship is one regarded by the Courts as practically indefeasible once permanent buildings or other structural improvements are erected on the land: JOSIAN AGHENGHEN and Ors. v. CHIEF MADUKU WAGHOREGHOR and Ors (1974) 1 SC.1; ASANI TAIWO and Ors. v. ALAMO AKINWUMI and Ors. (1975) 4 SC.143 at 183-184. The customary tenant remains in a fortified position once, being of good behaviour, he is fulfilling the conditions of his grant and may not be removed therefrom, especially after making substantial improvements, even where the Landlord sells the land to another Landlord. In that case the sale by the Landlord is subject to the rights and interests of the customary tenant (LASISI and Another v. TUBI and Another (1974)12 SC 71 at 74; (1974)1 All NLR (Pt.2) 438.

The cardinal point is that the possession of the good -behaving customary tenant is protected by law and dispossession is not allowed. In Aghenghen (supra) where the grantors do not live on the land or farm thereon, the possession of the customary tenants was described by Elias, CJN, at p.87 as being ‘nine-tenths of the law’; while in LASISI (supra) at p.442, this Court put it this way, namely, that a purchaser of the overlord’s radical title may no doubt have acquired title “but never in the least, possession which, at all times, is reposed in the customary tenant until forfeited.” The forfeiture may be incurred depending on the circumstances of each case. As stated in TAIWO v. AKINWUMI (supra), acts which may constitute mis-behaviour justifying forfeiture of the customary tenancy, may vary from one situation to another, depending upon the particular circumstances of each case. The Court has a duty to consider the complaints of the landlord against the customary tenant and to determine whether they are of such serious nature as to justify forfeiture.

The solid facts on which the plaintiff’s case was predicated and which were accepted by the learned trial judge were that the Ojora Chieftaincy Family made a grant of the land in dispute to the plaintiff in 1961. The plaintiff swore that he paid for the grant and received the receipt, exhibit A, in respect thereof. I have looked at this receipt. It is dated 17th June, 1955 and carried a sum of £4:-:-:

There is obviously a mistake as to date but that does not seem to make much difference in terms of the priorities of the competing interests of the plaintiff and the defendant since the grant to the defendant was made in November, 1976 for which exhibit F was made as his deed of lease. It would perhaps have been different if the defendant had claimed to have received his own grant at the same time as the plaintiff got his. As it was, the defendant was not making any claim to the ownership of his interest in the land earlier than November, 1976.

The learned trial judge was satisfied, on the evidence, that as far back as 1961, a faction of the Ojora Chieftaincy Family granted the land to the plaintiff, although no deed of lease was executed in his favour; that the plaintiff paid his yearly rent to the Ojora Chieftaincy Family for that year and subsequent years, evidenced by another receipt, exhibit B, carrying a payment of N60.00.

He found that the plaintiff engaged the contractor (5th PW.) to erect a building on the land and that he erected the said building to window level; that before he commenced the building he had to fill the ditch existing in the land; that the 1st and 2nd defendants demolished the said structure in 1976 before the 2nd defendant erected his own building costing him about N60,000.00 on the land. He, therefore, held that the plaintiff was in actual possession of the land in dispute before the 1st and 2nd defendants demolished his building in 1976. In the premises, he held that they were trespassers and liable in damages to the plaintiff for breaking his close.

In preferring the evidence of the plaintiff and his witnesses to that of the defendant and his two witnesses, he held the 1st defendant to be an untruthful witness and found him to be one of those people ‘peddling’ with family land without authority. He found him to have fraudulently deceived the accredited representatives of the Ojora Chieftaincy Family into making a grant of the same land they had granted to the plaintiff in 1961, to the 2nd defendant on 5th November, 1976 by a Deed of Lease, exhibit F.

He finally found that the receipts exhibits A and B were in respect of monies paid by the plaintiff to the Ojora Chieftaincy Family in respect of the land in dispute of which he became seized as a customary tenant. He held the plaintiff to have been in undisturbed possession of the land in dispute from 1961 until this possession was disturbed in 1976 by the defendants. He bemoaned the double dealing of the Ojora Chieftaincy Family in these words. “The conduct of the Ojora Chieftaincy Family in the whole transaction is to say the least inglorious. Like their counterpart, the Oloto Chieftaincy Family, they have either by mere inadvertence or design lease (sic) or purport to lease the same piece of land at different times to different persons.

It passes my comprehension how in these days when disputes of this nature have come before the Courts over and over again, any person will lease or purchase a piece of land from the Ojora Chieftaincy Family without the most careful investigation. In this, the second defendant aided by the first, in my opinion, saw the uncompleted building of the plaintiff and regardless of the consequences, demolished it and the second defendant commenced his own building thereon. It is (sic) clear therefore to the second defendant that what he had purported to lease by exhibit F is nothing but a law suit and that is all he has got.”

The Federal Court of Appeal, in its judgment, also accepted that it had been established that the plaintiff/respondent was possessed of the land as a customary tenant of the Ojora Chieftaincy Family, paying his rents in respect thereof from 1961 to 1976, and that the photograph (exhibit E) was a true picture of his demolished building on the land in dispute. In respect of these facts, therefore, there were concurrent findings of the courts below and unless some extraordinary circumstances are shown why these findings should be disturbed, it has been the standing practice of this Court, on a long line of authorities among the last batch of which were the cases of ETOWA ENANG and Others v. FIDELIS ADU (1981) 11-12 SC 25 and VICTOR WOLUCHEM and Others v. SIMON GUDI and Others (1981) 5 SC 318 at 326-330, not to disturb those concurrent findings. Mr. Lardner, in a careful argument for the appellant, had submitted in his Brief, that the Plaintiffs case on title was not based on equitable interest in the land and that equitable interest or title was not raised by the defendant and was not an issue during the trial.

What was in issue, he said, was that the plaintiff had a perfected or legal title, as distinct from an unperfected, or partly perfected, grant or equitable interest, from the Ojora Chieftaincy Family. If the estate pleaded by the plaintiff was established, he said, nothing further would have been required to make it a legal estate. Therefore, he contended, the Federal Court of Appeal was wrong in law to have found that judgment must be entered against the appellant unless he could establish that “he was a legal purchaser of the land for value and without notice of the plaintiffs possession and equitable interest”.

Interesting from point of view of abstract jurisprudence as this line of argument proved to be, another cardinal point is that in indigenous customary tenancy these abstract legal notions, as understood in English Law, hardly apply. Payment of rent or customary tribute as agreed, by a customary tenant following the grant made, coupled with going into possession, gives the customary tenant a right of possession which the law protects even against a subsequent purchaser of the radical title in the land.

Whether the tenancy be regarded as a customary tenancy in which case the respondent is regarded as a customary tenant, or the tenancy be regarded as a customary lease by reason of the yearly payments of rents by the respondent to the Ojora Chieftaincy Family, in which case the respondent is regarded as a cost

Other Citation: (1983) LCN/2176(SC)