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BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, F.J. (Presided)
JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)
SIR VAHE BAIRAMIAN, F.J.
(for and on behalf of ONIGBESA family)
CUSTOMARY LAW – Conflicting traditional history – What test to apply in choosing the most probable.
CUSTOMARY LAW – Forfeiture of customary tenancy – How effected.
CUSTOMARY LAW- How established.
EVIDENCE – Native law and custom – How established.
EVIDENCE – Native law and custom – When evidence not required in proof of.
LAND LAW – Customary tenancy – Breach of – Need for declaration for forfeiture.
LAND LAW – Proof of ownership – Conflicting traditional history – Test to apply in choosing the most probable.
LAND LAW – Title to land – How established.
PRACTICE AND PROCEDURE -Customary tenancy -Forfeiture of- Procedure to be followed.
PRACTICE AND PROCEDURE – Declaration of title – Customary grant – Issues to be resolved.
E.A. Peter Thomas -for the 4th & 5th Respondents.
TAYLOR, F.J. (Delivering the Judgment of the Court): The action, the subject matter of this appeal, was brought by one Sunmonu Agedegudu “as Head of and for and on behalf of the Onigbesa family” against Sanni Ajenifuja, Kasumu Oshodi and Salawu Almaruf “for and on behalf of the Descendants of Oshodi (deceased)”. Before any evidence was heard in the matter, an application was made under Order 4, rule 3, to add two other persons as co-defendants to wit Shafari T. Oshodi and Raji Disu Oshodi. The order was made accordingly. Sanni Ajenifuja is now dead but this in no way affects the appeal.
The claim was for a declaration that the plaintiff family is the owner of the land in dispute situate at Orile Oshodi in Ikeja District and recovery of possession of such portion of the land as is in the possession of the defendants on the following three grounds:
Paragraph 15 of the Statement of Claim avers a further violation of the terms of their tenure by the defendants by causing palm trees to be uprooted on various parts of the land, but it has not been argued that this was sufficient to entitle the plaintiff family to recover possession and I do not intend to deal with the point in this judgment.
The learned trial Judge, after hearing evidence, dismissed the action with costs holding as follows:
I have therefore on the evidence before me arrived at the following conclusions.
(1) That there was a grant by the Onigbesa family of the land in dispute to the Defendants’ family.
(2) That I am unable to find as a fact whether this grant was made by the Onigbesa family of Igbesa or by the Plaintiffs, the Onigbesa family from Isolo.
(3) That in any event I am satisfied from the evidence that this grant was an absolute grant and that the Oshodi family now hold the land in dispute as owners and not as customary tenants.”
From this Judgment the plaintiff family has appealed to this Court. There were ten grounds of appeal filed with the Notice of Appeal, but at the hearing grounds 6 and S were not pressed by learned Counsel for the appellant and were abandoned. The main ground argued before us is the first ground of appeal. The appellant’s case on the pleadings was that Chief Olushi settled on the area in dispute as a small portion of a larger whole about 300 years ago. He later became the first holder of the title Onigbesa of Igbesa. The appellant and his family are the descendants of Chief Olushi in whom the property is now vested according to Native Law and Custom. The presence of the respondents on the land in dispute is explained away in paragraphs 3 and 9 of the Statement of Claim which aver that
“3. The defendants are sued as representatives of all the descendants of Oshodi(deceased).”
“9. One Ogundamija, a descendant of the said Chief Olushi, at a time when he was head of the Onigbesa family gave the portion of the land which is now the subject matter of this action to Oshodi as a customary tenant for purposes of farming.”
The pleadings then go on to allege the payment of tribute in addition to other matters already referred to earlier on in this judgment. The original first three defendants rely mainly on the averment contained in paragraph 4 of the Statement of Defence which states that:
“4. The defendants aver, in answer to the plaintiff’s claim, that about 200 years ago, Chief Oshodi Tapa, their ancestor, was given a large area of land at Oshodi, near Lagos, in recognition of his military prowess and assistance during the Slave Trade given to the Awori people who were the indisputable owners of land in the area from time immemorial, not as customary tenant but as absolute owner thereof, as was customary in those troublous days.”
The Statement of Defence then states that the defendants and their predecessors in title have as from that day exercised maximum acts of ownership on the said land. The Statement of Defence filed by the defendants joined by order of Court does not, in substance, differ from that of the defendants except in the admission of the appellant’s plan and the land in dispute. It puts the date of the grant to Chief Oshodi Tapa as some 133 years ago instead of 200 years as alleged by the other defendants. As I have said, there is no substantial difference in the defences for paragraphs 4 and 5 of the first three defendants’ Statement of Defence are more or less identical with 5 and 6 of the fourth and fifth defendants’ Statement of Defence.
At the hearing of the suit in the High Court, both parties adduced evidence of traditional history covering their respective versions in addition to leading evidence as to past and recent acts of ownership and or possession exercised on the land in dispute. During that hearing it became clear that apart from the appellant and his family who are said to be the Onigbesa family from Isolo, there was another family known as the Onigbesa family of Igbesa or Ado Igbesa. The third defendants’ witness, the Oba Onigbesa of Igbesa gave evidence that the grant to Chief Oshodi was made by his ancestor. Mr. Kotun for the appellant urged that the existence of another Onigbesa family, other than the appellant’s family, was never pleaded in the Statement of Defence; that it was not put to the appellant and his witnesses when giving evidence and that it came out for the first time when the defendants were giving evidence. The trial Judge had reason to comment on this laxity of pleading on the part of the defence and I need say no more on this point. In fairness to the defendants, however, mention should be made of an application, made before hearing commenced, by Counsel for Plaintiff in the High Court to strike out some infringing paragraphs of the Statement of Defence of the defendants. As a result of this application, Counsel for the defendants is recorded as saying:
“Can only plead to extent of his knowledge. Paragraph 1 covers denial of the Statement of Claim. Paragraph 4 – the paragraph is clear. That land given by Awori people . . . . . . . “
At the hearing, the plaintiff/appellant himself deposed as follows on this point:
“I am an Awori man. All the inhabitants of this area are called Aworis. Those people at Oshodi Village and Oshodi himself are not Aworis.”
A little later on and still under examination in Chief he said that: –
“Awori people have not got a common head, everyone has its head in its own town. I am the head of Igbesa today.” Under cross-examination he said as follows:
“I know of two Igbesas; one is far off. And the 2nd Igbesa’s is my father’s farmland. When I refer to Olushi Onigbesa, I refer to my father’s farmland. I do not even know the other Igbesa.” Speaking of the other Igbesa this witness under further cross-examination said that:
“I agree that the Igbesa near Ado is a town of Aworis.”
In my view, even though the Statement of Defence did not disclose who were referred to as Aworis, it became clear while the appellant himself was in the witness box, and not when the defence opened, that the defendants were relying on a grant from the Aworis at Igbesa near Ado. The first ground of appeal states that:
“The learned trial Judge erred in Law in holding that he was unable to make a definite finding on one of the main issues raised in the suit viz:- whether it was Plaintiff’s Onigbesa or the Onigbesa called by the Defendants as a witness who owned the land in dispute originally whereby he failed to resolve a basic issue in the proceedings.”
Learned Counsel for the appellant drew our attention to the case of Okpiri and ors. v. Jonah and ors. [196111 SCNLR 174;  All N.L.R. part 1 page 102 where, at page 105 this Court held that:
“Turning to the present appeal, however, it is clear from the record of appeal that ample evidence was before the learned trial Judge, but it appears clear from his Judgment that he could not evaluate the evidence before him so as to form an opinion on the case as a whole.
Throughout the judgment the learned Judge avoided making specific findings of facts on issues before him, nor did he make any attempt to draw inferences from facts before him. I am satisfied from the whole record that he has not taken proper advantage of having seen and heard the witnesses in the case, and in my view this is a proper case to be sent back for a hearing.”
Learned Counsel contended that there was ample evidence on which the trial Judge could have decided one way or the other whether the grant was made by the appellant’s family or by the Onigbesa family of AdoIgbesa; that failure to make such a finding as to ownership was fatal in a claim such as this based on forfeiture through denial of the overlord’s title. Counsel argued that in such a claim, it was essential that the trial Judge should first make a finding that the title was or was not in the appellant and that only if he found in the appellant’s favour on this issue did he have to proceed to the other issues raised in the case. Learned Counsel urged that the appeal should be allowed and the case sent back to the Court below for a retrial. In order to meet this new request, Counsel sought and obtained leave to amend the relief asked for in his Notice of Appeal.
In every case of this nature there are normally three stages in the proceedings. In the first place the question of title should first be settled. If it is settled in the plaintiffs’ favour then the case proceeds to the second stage. If, however, it is resolved against the plaintiff there will be no need to decide the other issues of tenancy and/or forfeiture. Taking a case which develops as far as the second stage, the Court then has to resolve the issue of whether the defendants are customary tenants of the plaintiff. If this issue is resolved in favour of the plaintiff the case then goes on to the third and last phase of whether there has been a breach of such customary tenure which amounts to a misbehaviour entitling the plaintiff to recover possession of the land by way of a declaration that the tenant has forfeited his holding. If, on the other hand, the Court holds that the defendants are not customary tenants of the plaintiff, the other questions do not arise; and in my view they do not arise in this case on appeal before us. It cannot be said that the trial Judge in this case failed to make specific findings of facts on issues before him. In short, the only matter he was unable to make a specific finding on was whether title was originally in the plaintiffs Onigbesa family or the Onigbesa family of the third defendants’ witness. The facts of this case on appeal are peculiar to itself in the sense that the evidence showed that the original owner of the land in dispute was the Onigbesa family; that there were two such families going by the same name, living some distance from each other, both aware of the other’s existence but apparently, from the evidence, unaware of the identity of the head of the other family; that both families were from a stock called the Aworis who, on the evidence of the appellant had a head in every town but no common overlord to whom they all owed allegiance. It was not therefore the usual type of case deciding whether title was in the plaintiff or in another different family altogether. In my view, the case of Okpiri and Ors. v. Jonah and Ors. is distinguishable from the present one now on appeal.
It has been said times without number that in such cases of declaration of title to land the onus is on the plaintiff, to use the words of Webber, J., in Ekpo v. Jta 11 N.L.R. 68 and 69:
“to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners – if the evidence of traditions is inconclusive the case must rest on question of fact.”
In the case of Kojo II v. Bonsie and Anor.  W.L.R. 1223 and 1226 very much the same thing was said by their Lordships of the Privy Council in these words:
“The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever.
Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.”
In the case on appeal the learned trial Judge held that:
“The evidence as to the traditional history of the land is confusing and I am unable to arrive at any definite conclusion as to what really took place. The Plaintiffs claim that their family came from Ife and not from Igbesa. On the other hand, I believe that the present Oba Onigbesa of Igbesa and the Revd. Ogundipe did give a truthful account of the family history as it has been handed down. The truth probably lies somewhere between both accounts” .
After this, the learned trial Judge then went on to review the facts and the acts of both parties within living memory and held that:
“I am quite satisfied from the evidence that the Oshodi family have for a considerable period of well over a hundred years been in possession and occupation of the land in dispute and have during this time openly exercised acts of ownership over the land without protest from the Plaintiffs. I do not accept the Plaintiffs case that the Defendants’ family have been regularly paying tribute for the land in dispute. I believe and accept the defence that they have occupied the land in dispute including Oshodi Village without payment of rent or tribute.”
The learned trial Judge would seem to be doing just what their Lordships suggested in the case of Kojo II v. Bonsie and Anor., and in my view, after such definite findings of facts which were opposed to the appellants’ traditional history that the land was given to Oshodi as customary tenant for farming on payment of tribute, but which on the other hand lent colour and support to that of the defendants that it was an absolute grant for services rendered by Oshodi, the conclusion was inevitable that the action must be dismissed. If, in a claim for declaration of title to land, the learned trial Judge is, at the end, unable to hold that title is in the plaintiff, then on my understanding of the authorities, the plaintiff must fail for he has not discharged the onus placed upon him.
This by itself is sufficient to dispose of this appeal for there is little or no substance in the arguments of Counsel urged in support of the remaining grounds of appeal. Perhaps two points should be shortly dealt with. The first is Mr.. Kotun’s contention that at the time when the grant was made to Chief Oshodi, there was no such thing as an absolute grant, and that this favoured the traditional history of the appellant. Our attention was drawn to the cases of Oloto v. Dawuda 1 N.L.R. 57 and Onisiwo v. Fagbenro 21 N.L.R. 3. I had reason to deal with these two cases on a similar point raised by Mr.. Kotun in the case of Liadi Giwa v. Bisiriyu O. Erinmilokun  1 SCNLR 377; (1961) All N.L.R. Part 2, page 294; where I said at page 296 that:
“The learned trial Judge has found, and it is not contested, that the Aromire Chieftaincy Family at one time were the owners of the land in dispute; further that it was granted to Saba through Dosumu. The substantial issue before us, at least as far as the first part of the claim on the summons is concerned, is – whether the grant to Saba was an absolute grant or one that carried with it a reversion in the grantor.”
and a little later on that:
“It is a well established principle of law that native law and custom is a matter of evidence to be decided on the facts presented before the Court in each particular case, unless it is of such notoriety and has been so frequently followed by the Courts that judicial notice would be taken of it without evidence required in proof.”
In the case on appeal, evidence was led by both sides as to the nature of the grant made to the defendants’ ancestor, Chief Oshodi, a warrior Chief. Evidence was led of acts of ownership exercised on the land within living memory by the descendants of Chief Oshodi, and finally the appellant’s case that tribute was paid and that one Alfa used to bring the tribute to the appellant was exploded by the evidence of the 5th defendants’ witness who denied ever taking such tributes to the appellant. All this led the trial Judge to the conclusion which, in my judgment, was irresistible that:
“The preponderance of evidence would support the view that the grant to the Defendants’ family was an absolute grant and not on customary tenancy.”
The only other point in the argument of learned Counsel worthy of separate treatment is his submission in respect of the 2nd, 3rd and 4th grounds of appeal to the effect that support can be found to their version of the ownership of the land in dispute by the fact, undisputed, that they own lands on the East and some on the North and South of the land in dispute. Had the area in dispute in this case on appeal been enclosed within the land owned by the appellant, certain presumptions of ownership by the appellant of the land in dispute might be drawn in the appellant’s favour. But it should be borne in mind that even if this were the case, it would not affect the case for the defendants which is to the effect that an absolute grant was made to them and not that they were the original settlers on the area in dispute.
This appeal must be dismissed and I do so with costs assessed at 33 guineas in favour of the respondents.
BRETT, F.J.: I concur.
BAIRAMIAN, F.J.: I concur.