[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]



(for himself and on behalf of the ITIRE family)


30TH OCTOBER, 1964

SUIT NO. SC 139/1963

3PLR/1964/3  (SC)




BEFORE THEIR LORDSHIPS                     






LAND LAW – CUSTOMARY TENANCY DENIED – absolute grant alleged – Long possession. – laches and acquiescence – assignment of portions to others by defendants – entitled to forfeiture for such act



Mr. A. Sikuade for the appellant

Mr. HA. Lardner for the respondent.


ONYEAMA, J.S.C. (Delivering the Judgment of the Court): This is an appeal by the defendant from the judgment of Ekeruehe, J., in the High Court of Western Nigeria declaring that the [tire family, represented by the plaintiff, were the absolute owners of the parcel of land [n issue and drawn on a plan No. K.1696/1 in evidence as Exhibit 3: and declaring forfeit the rights and interests of the defendant in that parcel of land.


The parties were agreed at the trial on the identity of the land in question and it was not in issue that the land originally belonged to the plaintiff’s family. What was in Issue was whether the defendant and his predecessors were customary tenants of the plaintiff’s family or whether an outright grant of the land had been made to them.


On this issue the plaintiff pleaded in his statement of claim that:


“5.     Portion of land in dispute was granted by the Itire family to one Adeniyi very many years ago as a Customary tenant under native law and custom subject to good behaviour.”


And the defendant [n his statement of defence replied:


“3.     In answer to pares. 5 and 8 of the statement of claim, the defendant avers that his grandfather Adeniyi migrated from the interior of Yoruba-land during the inter-tribal war and obtained grant of an area which later became known as Aden[y[ Village from the Awori people, and he settled there with his family and followers.


‘A.      The defendant further avers that the grant referred to above was an absolute grant and was not subject to the payment of tribute or rent, and asserts that neither his predecessors nor himself or his family had ever paid any tribute or rent in respect of their land to anyone.”


The case for the plaintiff was that he and his family are Awori people. Their predecessors had let an area of land to the defendant’s ancestors who were refugees from a tribal war. These ancestors settled on the land and paid customary tribute to the head of the plaintiff’s family. This payment was at first in kind but was later commuted into a money payment. A few years ago the defendant refused to pay the customary tribute which his own father had paid for the area of land let to his people by the Itire family. As owners of the expanse of land which included the area on which the defendant and his people were permitted to settle, the plaintiff a family granted leases of plots of the land to other people and to the Mushin District Council for a secondary school.


The defendant, however, maintained that the area on which his people settled was an outright grant made by the Awori people to his ancestors in return for’ Two bottles of gin, forty kolanuts, twenty alligator pepper and salt.” In another case in the Ikeja High Court he had given evidence and admitted that he was the plaintiff’s customary tenant, but according to him, he had gone to the court to lie on that occasion; the plaintiff who was his friend at that time had begged him to lie in court and he had lied.


The learned trial Judge found, against the contention of the defendant, that the land in question “was never given absolutely to the defendant’s ancestors In title, and that the defendant’s ancestors were the customary tenants of the plaintiffs.”


He further declared forfeit the rights and interest of the defendant in the land in question of which he was customary tenant under Native Law and Custom.


The defendant by his counsel had argued before us that the learned trial Judge was In error when he declared that title in the area in question was in the plaintiff, and when he decreed forfeiture, because the plaintiff had failed to discharge the burden of proving title to the land and because the learned trial Judge had not considered the defences “long possession, [aches, acquiescence and equity” put up in answer to the plaintiff’s claim.


It was conceded by Mr. Sikuade who appeared for the defendant on this appeal that once it was admitted by the defence that the plaintiff’s ancestors had put the defendant’s ancestors in possession of the land, the defendant had the burden of proving that the grant made to his predecessors was an outright one. He submitted, however, that the balance of probabilities tilted in favour of an outright grant when the plaintiff failed to prove that the defendant or his ancestors paid tribute, and the Issue should have been resolved in his favour.


His line of argument is as follows: the plaintiff had alleged that the defendant’s side had been paying tribute, but the trial Judge found against him; and as the plaintiff failed to prove an incident of customary tenure, he should not have a declaration of title.


We have observed that Mr. Sikuade concedes that a customary tenancy can exist without payment of tribute; and as the onus was on the defendant to prove on balance that the grant was absolute, he had to show that he and his ancestors had done acts which went beyond mere customary tenure and indicated an absolute grant. But the evidence accepted by the learned Judge is to the effect that as far back as 1934 the plaintiffs side had made grants to the knowledge of the defendant’s side, who, however, did not take the plaintiffs side to court; and that when recently the defendant began to grant leases, the plaintiff sued. Thus the defendant failed to discharge the onus of proving an outright grant, and unless there is some equity to disentitle the plaintiff, he should have his declaration of title But on the above facts the plaintiff was not guilty of standing by, and the defence of laches, acquiescence and equity’ must fail; and as to “long possession”, that of the defendant was not inconsistent with the possession of a customary tenancy and was not adverse to the plaintiffs right, so the defence of long possession must also fail.


As to forfeiture, there can be no doubt that the defendant assigned portions of the land of which he was customary tenant without the consent of his customary landlord. It was equally clear that he challenged the title of his landlord, and himself laid claim to the land. These were acts which, on the evidence at the trial, rendered the defendant’s interest in the land liable to forfeiture. There is no suggestion that the learned trial Judge in declaring the defendant’s interest in the land forfeit had not exercised his discretion judicially or had exercised it on wrong principles.


For these reasons this appeal is dismissed.


The judgment of the High Court of Western Nigeria in suit HK/60/60 between Salawu Lawani for himself and on behalf of the Itire family and Jimoh Adeniyi is affirmed.


The plaintiff respondent will have the costs of the appeal assessed at thirty five guineas.


Bahamian J.S.C. I concur.


Ajegbo J.S.C. I concur.


Appeal dismissed.



error: Our Content is protected!! Contact us to get the resources...