[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]





19TH DECEMBER, 1969.

SUIT NO. SC 1/1967.

3PLR/1969/61  (SC)







WILLIAM LADEGA (For himself and on behalf of the Mashe family)


KASALI AKINLIYI (For themselves and on behalf of Ojuwoye family)


Mr. G.E. Shyngle with him Mr. K. Sofola – for Appellant

Mr. H.A. Lardner – for Respondent


Land Law – Declaration of title to land – Yoruba Customary Law – Forfeiture of rights of customary tenants – Claim of absolute ownership.


FATAI-WILLIAMS, J.S.C. (Delivering the Judgment of the Court):

In Suit No. 1/291/58 filed in the Ikeja High Court on 6th December, 1958, the plaintiffs claim was as follows:


“(1)   a declaration of title under Yoruba native law and custom to all that piece or parcel of land at Mushin In a plan whereof will be filed in this suit.


(2)     a declaration that the defendants have forfeited all rights possessed by them under Yoruba native law and custom to the said land; and

(3)     possession of the said land.”


In another suit, that is, suit No. HK/108/61 filed in the same court later on 25th August, 1961, the same plaintiffs claimed against one Lasisi Salu –


“(i)     a declaration that the plaintiffs are the absolute owners under native law and custom of all that piece of parcel of land situate lying and being at Mushin within the jurisdiction of this Honourable Court a plan of which land will be filed in this cause;


(ii)     £25 being general damages for trespass to the said land;


(iii)    an injunction restraining the defendant his servants and/or agents from further trespassing in the said land; and


(iv)    possession of the said land.”


Both suits were consolidated by order of court made on 23rd September, 1963. At the hearing on 9th February, 1965, at which Mr. Lardner appeared for the plaintiffs in the two cases while Mr. Shyngle appeared for the defendants in suit 1/291/58 and Mr. Adesina for the defendant in Suit HK/108/61, the learned trial Judge, Somolu, J., (as he then was) made the following notes:


“Adesina says that the land which is the subject matter of suit No. HK/108/61 is included in the larger area covered by suit No. 1/291/58. Lardner agrees. Adesina says that he is willing to be bound by the results of suit 1/291/58.”


In their amended Statement of Claim In suit 1/129/58, the plaintiffs averred that the land in dispute was part of a vast area of land which was first settled upon by their ancestors one Odu Abore and one Aileru about three hundred years ago. Until their death the two settlers exercised acts of ownership and possession over the said vast area. On their death their descendants used the land in common. These descendants of both Odu Abore and Aileru together with their domestics are now referred to as the Ojuwoye Community. The Community, in the continuous exercise of acts of ownership and possession over the vast area since the death of their ancestors, have granted innumerable leases and customary tenancies of portions of the said land including the portion now in dispute. One of their customary tenants was one Ifadu an Its. priest whom the Community because of his “natural gifts;” appointed their Alashe. The land thus granted to Ifadu was for his use and occupation subject only to his good behaviour and the proper performance of his duties as the Alashe of the Community. The defendants who are the descendants of the said Ifadu Alashe had in recent years claimed to be the absolute owners of the land in dispute, and in spite of the warnings of the plaintiffs, had been granting leases and selling portions hereof without the consent of the Ojuwoye Community. With respect to this alienation of their land by the defendants, the plaintiffs averred finally in paragraph 17 of their Statement of Claim as follows:


“17.   By Yoruba native law and custom, a customary tenant who challenges the title of his overlords or acts contrary to the terms of his grant is liable to be evicted and to forfeit his holding.”


In their amended Statement of Defence, the defendants in suit 1/129/58 denied that the plaintiffs were their overlords and averred further in paragraphs 5 and 7 thereof as follows:


“5.     The defendants aver that their family – the Alashe family – are the original owners of the land in dispute by right of settlement and have been in possession thereof exercising maximum acts of ownership for well over 200 years under Yoruba native law and custom.


  1. The. defendants. will further. aver that their. family. have. to. the plaintiffs’ knowledge sold and leased a large portion of the said land to different people at different times in their right as owners thereof without reference to the plaintiffs or their community and still collect rents from lessees and customary tenants put on the land by the defendants’ family, and who have erected substantial buildings on their respective holdings till today.”


At the trial, both sides testified in support of their averments both as to the traditional history and also as to acts of ownership and possession of the land in dispute (see Plan Exh. ‘W’). The learned trial Judge, after considering the evidence found as follows:


“From all the evidence before me in this case, I am satisfied that the plaintiffs have established their claim to their ownership of the land in dispute as shown on Exhibits ‘W’ and ‘4″, and I hereby declare them to be the owners thereof in accordance with Yoruba native law and custom. I have come to this conclusion strictly on the evidence before me, and after carefully considering all the facts adduced in evidence. But I have also found ample confirmation and support in some of the exhibits tendered by both sides.”


The learned trial Judge also found that the ancestors of the plaintiffs were the first settlers on the land now known as Ojuwoye and that the defendants’ ancestors were strangers and were the customary tenants of the plaintiffs’ family. He thereupon made an order for forfeiture and for immediate possession of the disputed land by the plaintiffs after finding further as follows:


‘The plaintiffs plead in paragraph 17 of their Statement of Claim that by Yoruba Native Law and Custom a customary tenant who challenges the title of his overlords, or acts contrary to the terms of his grant, is liable to be evicted and to forfeit his holding, and this is admitted by paragraph 1 of the Statement of Defence. Besides this, it is accepted law backed by judicial dicta of fairly ancient lineage. I have found that the defendants were customary tenants of the plaintiffs on the land in dispute, and it is clear that they have denied or challenged their overlords’ title to it. They have been claiming it as their own, and have granted portions of it to strangers, despite warnings, and paragraph 2 of their Statement of Defence leaves these facts in no doubt. In my view, they have incurred forfeiture of their rights on the land and are liable to be evicted. ………………………………….


‘They have claimed no relief in their pleadings; but even their conduct before and during the case seems to me to have aggravated their denial of the plaintiffs’ title to the land.”


The defendants have now appealed against this judgment and also against the award of 450 guineas costs made to the plaintiffs. The arguments put forward in support of the appeal are, in short –


(a)     that the judgment is against the weight of evidence in that the trial Judge based his finding on Exh. ‘A’, a judgment in an earlier case without considering the discrepancy between the testimony of the witnesses in that case and those in the present case;


(b)     that the trial Judge, even after finding for the plaintiffs/respondents on the issue of title, should have granted the defendant/appellant relief from forfeiture In accordance with the frequent practice of the Nigerian Courts, particularly as the defendant/ appellant’s people acted honestly in the belief of the traditional history handed down to them by their ancestors more than 200 years ago;


(c)     that ff an order for forfeiture was going to be made, it should have been limited only to the present defendant and those who aided and abetted him; and


(d)     that the order for costs, having regard to the reasons given by the trial Judge was manifestly excessive.


In view of the overwhelming evidence given in support of the plaintiffs’ claim which the learned trial Judge accepted, it is sufficient to say that the complaint about the judgment being against the weight does not merit any serious consideration. The appeal against the judgment for declaration of title therefore fails.


In the course of the argument regarding the order for forfeiture we were referred to a number of authorities In which the courts have granted relief against forfeiture. After a perusal of all these cases, it appears to us that any decision as to whether to grant relief or not will depend on credible evidence and on the circumstances of each case which invariably turn either on the attitude of the offending customary tenant or on the nature and length of the act on which the claim for forfeiture as based, or on both.


On the complaint about the order for both forfeiture and possession, we agree with the contention of Mr. Lardner for the plaintiffs/respondents that, notwithstanding the clear averment regarding the liability of a customary tenant for forfeiture in paragraph 7 of the Statement of Claim, the defendant and his people did not ask in their pleadings, even in the alternative, for relief against forfeiture. They have decided on a straight fight, basing all on title or nothing; they must now be prepared to take the consequences.


Moreover, judging by the features on the plans of the disputed land (Exhibits ‘W’ and ‘4 ‘) they do not appear to be living on the land in dispute. They have also admitted that they have other lands of their own. Finally, even while the case was still pending in court, they continued to lease or sell portions of the land in dispute. Bearing all these in mind, we will do no more than repeat the observation of the learned trial Judge that there are no extenuating circumstances which would justify the grant of any relief from forfeiture. The appeal against the order for forfeiture and for possession therefore fails.

We will now proceed to consider the appeal against the award of 450 guineas costs in favour of the plaintiffs/ respondents. Before making the award, the learned trial Judge observed as follows:


“On the question of costs, I would like to stress that this case is almost seven years old and quite needless expenses have been incurred on both sides to marshall evidence which proved of little value but wasted a lot of time, and for other purposes.”


By virtue of the provisions of Order 30 rule 1 of the High Court (Civil Procedure) Rules of the Western State, a trial Judge has a discretion whether to award costs or not and also as regards the person by whom they are to be paid. This discretion must, however, be exercised judicially: (See Donald Campbell and Co. v. Pollak (1927) A.C. 732 at p.811: also Worbi v. Asamanvuah 14 W.A.C.A. 669).


Consequently, this court will not interfere unless satisfied that the trial Judge did not exercise his discretion, or did not do so judicially. (See Wurno v. United African Co. Ltd. (1956) 1 F.S.C. 33 at p.34). Moreover, we would like to reiterate that the object of awarding costs is not to punish the unsuccessful litigant, but to compensate the successful party for the expenses to which he has been put by having to come to Court: (See Inneh vc. Obaraye 2 F.S.C. 58). Lastly, this view would appear to accord with the provisions of Order 30 rule 5 of the same High Court Rules referred to earlier and it reads:-


“In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in establishing his claim, defence or counterclaim, but the court may take into account all the circumstances of the case.”


With respect, we do not think, having regard to the notes in the record of proceedings, that the learned trial Judge took adequate account of all the circumstances of the case before making the order as to costs. As a matter of fact, a careful perusal of the record shows:


(a)     that the various adjournments granted between the issue of the writ and the conclusion of the case over seven years later were partly at the Instance of either party and partly at the instance of the court itself;


(b)     that the actual hearing, considering the length of the evidence taken on each day, need not have lasted twelve days; and


(c)     that the plaintiffs/respondents were not given the opportunity of stating what were their out-of-pocket expenses.


Mr. Lardner has Informed us that their out-of-pocket expenses are £100 and thought that costs of 275 guineas would have been quite adequate. We are also of the view that the amount awarded is too generous. For the above reasons we think that the appeal against the order for costs must succeed.


In the result, the appeal against the judgment of the Ikeja High Court in the consolidated Suits Nos. 1/129/58 and HK/108/61 is dismissed.


The appeal against the order for costs is allowed and the order Is hereby set aside. Instead, the plaintiffs/respondents are awarded the sum of 250 guineas as costs in the court below and as costs of this appeal, they are awarded the sum of 52 guineas.


Appeal dismissed. Appeal as to costs allowed.


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