AHMODU YAHAYA v. MUDI HARUNA
(2019)LCN/12735(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2019
CA/A/497/2016
RATIO
LAND LAW: DECLARATION OF TITLE
“A claim for declaration of title postulates that the plaintiff is claiming ownership of the land. See FAGUNWA V. ADIBI (2004) 17 NWLR (PART 903) 544 at 568 S.C. For a plaintiff to succeed in such a claim, he must lead credible evidence and must not merely rely on the weakness or admissions of the Defendant. See (1) ANUKAM VS. ANUKAM (2008) 1 – 2 SC 34 (2) ONI SAODU VS. ELEWUJU (2006) 13 NWLR (PART 998) 517 SC 34. (3) ASHIRU VS OLUKOYA (2006) 11 NWLR (PART 990) 1 SC.” PER PETER OLABISI IGE, J.C.A.
LAND LAW: TRESPASS TO LAND
“‘Trespasser’ to land was described by the Supreme Court in FAGUNWA VS ADIBI (2004) 17 NWLR (PART 903) 544 at 5696-b SC as follows:- Trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. See Solomon v. Mogaji (1982) 11 SC 1 at 37. In Renner v. Annan (1935) 2 WACA 258, the West African Court of Appeal said: ‘A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing trespass is to say that the defendant broke and entered the plaintiff’s close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled not being competent to maintain an action for trespass, before entry (Wallis v. Hands (1893) 2 Ch. 75).'” PER PETER OLABISI IGE, J.C.A.
LAND LAW: WHETHER TWO OR MORE PARTIES CAN POSSESS A LAND
“It is trite law that two competing litigants cannot both be in possession, hence the law will ascribe title (and, therefore, a possible relief to enforce possession) to the party that has a better title than his opponent. See (1) AWOYOOLU VS. ARO (2009) 4 NWLR (PART 971) 481 SC (2) MOGAJI VS. CADBURY (NIG.) LIMITED (1985) 2 NWLR (PART 7) 393 SC (3) AROMIRE VS. AWOYEMI (1972) 1 NWLR 101. This means that there is nothing like ‘adverse’ possession of the same parcel of land by two or more competing parties. The further implication is that the person who has been declared not to be in lawful possession will automatically become the trespasser.”PER PETER OLABISI IGE, J.C.A.
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
AHMODU YAHAYA – Appellant(s)
AND
MUDI HARUNA
(for himself and the family of late Haruna) – Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of the High Court of Justice, Kogi State delivered on the 29th day of June, 2016 Coram: Honourable Justice J. J. MAJEBI, Honourable Justice F. AJAYI, Honourable Justice M. M. GWATANA. The High Court while sitting on appeal from the Upper Area Court Ankpa allowed the appeal and entered Judgment in favour of the Appellant as per his claims before the trial Court.
The Plaintiff /Appellant’s cause of action of proceedings is for:
“a. A declaration of title to the residential plot of land lying and situate at Ukege Inye.
b. An order ejecting the defendants, their privies, agents and servants from the compound of Late Haruna Baba at Ukege-Inye.
c. An order of injunction restraining the defendants, their privies, agents and servants from trespassing or in whatever manner doing anything in the compound of Late Haruna Baba at Ukege-Inye. This case is set down today being 22nd July, 2009 for motion Ex-parte. The parties are not in Court. Attah Okolo Isaac for the applicant.”
The matter proceeded to trial. At the end of the trial the learned trial Judges gave a considered judgment on 21st of May, 2014. The trial Court found that the Defendants are in possession of the land in dispute and have proved the possession so claimed. The trial Court concluded as follows:-
“On the whole therefore, land cases being the sort that is determined on the basis of preponderances of evidence and balance of probability, and from all that we have discussed so far in this proceedings some of which are, that the plaintiffs had not determined the land in dispute with certainty, the discrepancies in the evidence of the PW2 and PW5 and PW1, PW2 and PW3 constituting contradictions as pointed out earlier in this proceedings fussed with the issues discussed the views expressed and the conclusions drawn, we are of the decision that the plaintiffs action in this case must fail and we accordingly hold so. This is moreso because, the plaintiff are under obligation to prove their case on the strength of their evidence and not having regard to the weakness in the evidence of the Defendants especially that the Defendants in this instant case did not file any counter claim.”
On appeal to the High Court of Justice Kogi State holden at Ankpa, the Court found as follows:-
“By the record before us, these were the salient points in the evidence of traditional history led by both parties. We have no difficulty in finding that, there is a clear difference in the evidence of traditional history led by the parties before the trial Court. We find that, the traditional evidence led by the Plaintiff/Appellant was rich, robust and complete. While that of Defendant/ Respondent was deficient and inconclusive. We have come to this view because there is no evidence on record as to how the grandfather of the Defendant became the first settler and founded the land in dispute Between Negedu Odeh and Abdullahi – who founded or disvirgined the land of Efiwo Ukege Inye? Certainly they cannot be two first settlers in the same settlement. Since the defence did not challenge the evidence of the PW1 on this, we believe the plaintiff that, Negedu Odeh was the first settler at EFIWO, UKEGE INYE. And it was the same Negedu Odeh that allocated land to the grandfather of the Plaintiff.
With this it is clear as crystal that the Plaintiff/Appellant had a better root of title than the Defendant. We found it difficult to understand why the trial Court failed to go the whole hug by pronouncing so. With a deficient and inconclusive root of title was it right for the trial Court to have found in favour of the Respondents based on acts of Ownership and long possession?
The answer is in the negative. This is because a party has a duty to satisfactorily establish his root of title before any subsequent act can qualify as an act of ownership. See: ELEGUSHI V OSENI (2005) 14 NWLR PT. 945 page 348 at p. 368.
From the records, it is shown that anytime the Appellant discovers that the Respondents were altering/developing their Compound, the 1st Defendant will always plead for forgiveness yet the wrong continues. This made the PW2 to lodge complaints against the 1st Defendant and his family before the Onu Inye, Imam, Pastor, Police and finally to the Court. We find that, it was therefore wrong for the trial Court to have concluded and found for the respondents, that the Plaintiff/Appellant did not act timeously.
Since the traditional evidence of the Defendant is inconclusive, the bottom is knocked out. When his root ceases to stand, the stem and branches will fall with the root. EZUKWU V UKACHUKWU (2004) 17 NWLR PT. 902 page 227 at 252.
What we are saying in essence is that, acts of ownership and long possession cannot stand in the face of a defective root of title.
Closing on this issue, we shall reproduce the pronouncement of the Supreme Court in the case of OSENI V BAJULU (2010) vol. 178 LRCN 26 at 46 on this subject:
“long possession of a property (except where a plea of laches and acquiescence are successfully raised), does not and will not ripen to ownership of or confer title to the Property.”
The underlinings are ours for emphasis. We consider this authority to be instructive and apt to this appeal. The net result that, we answer Issue II in the negative and resolve it in favour of the Appellant.
Having resolved these two broad issues, we do not think it is still necessary to make findings on the propriety or otherwise of the PW1 to give evidence to establish the case of the Appellant. We are of the considered opinion that, it was wrong for the trial Court to have made such a finding. For that is not the settled position of our law and procedure.
In the nutshell, all the issues are resolved in favour of the Appellant. We proceed therefore to allow this appeal for it has merit. The judgment of the trial Court delivered on the 21st May 2014 by the Upper Area Court Ankpa is hereby set aside. We enter judgment in favour of the Appellant as per his claims before the trial Court.”
The Appellant was aggrieved by the Judgment and has by his Notice of Appeal dated and filed on 2nd day of July, 2016 appealed to this Court on four grounds which without their particulars are as follows:-
“GROUND ONE
The Judgment or decision of the lower Court is unreasonable, unwarranted and against the weight of evidence adduced.
GROUND TWO
The lower Court erred in law in holding that the land in dispute is properly described and certain when the Respondent failed to ascertain the boundaries of the land as required by law.
GROUND THREE
The lower Court erred in setting aside the decision of the trial Court when it is apparent that the Respondent has been in possession for over 100 years and this occasioned a miscarriage of justice.
GROUND FOUR
The lower Court erred in law in holding that the Appellant has a weak root of title when the Appellant has no counter claim before the Court.
The Appellant’s Brief of Argument dated the 28th day of August, 2017 was filed on 6th day of September, 2017, it was deemed filed on 27/9/2017 while the Respondent’s Brief of Argument was dated and filed on the 3rd day of October, 2017. The Appellant Reply Brief dated 26th January, 2018 was filed on 30th January, 2018 and it was deemed properly filed on 4th of November, 2018.
The appeal was heard on 27th November, 2018 when the learned counsel to the parties adopted their Briefs of Argument. The learned counsel to the Appellant distilled three issues for determination as follows:
1. WHETHER the learned judges sitting on Appeal were right in holding that the land in dispute is properly ascertained and defined as required by law, when the respondent failed to ascertain the boundaries of the land (Ground 2 & 1).
2. WHETHER the lower Court was right in holding that the root of title of the appellant is weak, deficient and inconclusive when the appellant gave a robust root of title. (Ground 4).
3. WHETHER the lower Court was not wrong in holding that Appellant’s long possession from his grandfather, his father and himself cannot avail him considering the numerous acts of possession. (Ground 3 and 1).
The learned counsel to the Respondent also nominated three issues for determination as follows:
1. Whether the lower Court was right in deciding that the identity of the land in dispute between the parties was not an issue before the trial Court. Distilled from Grounds 1 and 2 of Appellant’s Notice of Appeal of 22nd July, 2016.
2. Whether the lower Court was right in deciding that Appellant’s root of title was deficient and inconclusive. Distilled from Ground 4 of Appellant’s Notice of Appeal of 22nd July, 2016.
3. Whether the lower Court was right in deciding that acts of ownership and long possession cannot avail appellant that failed to establish his root of title. Distilled from Ground 3 of Appellant’s Notice of Appeal of 22nd July 2016.
I am of the solemn view that the appeal can be determined on the three issues formulated by the Appellant.
They will be treated anon.
ISSUE 1
WHETHER the learned judges sitting on Appeal were right in holding that the land in dispute is properly ascertained and defined as required by law, when the respondent failed to ascertain the boundaries of the land (Ground 2 & 1).
The learned counsel to the Appellant stated that the onus of proof is on the plaintiff to prove title to a defined area. He relied on OGEDENGBE V. S. BALOGUN AND ORS (2007) VOL. 153 LRCN 197 at 204 ratio 1 – 4.
That the totality of the evidence of PW1, PW3 and PW5 is to the effect that the land in dispute does not include the compounds of PW1, PW5 and DW1, BW PW2 who were the Respondent’s representatives identified the compounds of PW1, PW5 and DW1 to be part of the kind in dispute which makes the identity of the land in dispute to be an issue.
He relied on ADESANYA vs. ADERONMU (2000) 7 SCNJ 159 at (Page 169).
That the Learned judges of the lower Court refused to see that there is dramatical departure from the identity of the land in dispute as given by PW1- PW5 in the Court and the one showed to the Court at the locus visit, therefore no certified surveyor can produce accurately the plan of the land in dispute based on the contradictory evidence in the open Court and the locus visit.
That the trial Court duly appreciated the evidence of PW1- PW5 on the issue of identity and resolved that there are contradictions in the identity of the land in dispute to which a decree of title is sought.
That it is not enough in law for parties to know the land in dispute but that the boundaries of the land must be proved with exactitude which is lacking in this case. He relied on
(1) AUTA VS. IBE (2003) VOL. 110 LRCN 1602 at 1603
(2) ATANDA VS. ILIASU (2012) VOL. 214 LRCN 226 ratio 1.
That the lower Court judges sitting on appeal over the decision of the trial Court was wrong with due respect to have set aside the just decision of the trial Court on grounds that the identity of the land is not in issue.
He urged this Court to resolve this issue in favour of the Appellant and hold that the identity and boundaries of the land in dispute is uncertain, set aside the decision of the lower Court and restore the decision of the trial Court.
‘In response, learned counsel to the Respondent submits that both parties are at ad idem on the identity of the land/compound in dispute.
That the law is settled that it is the primary burden or duty of the plaintiff in an action for declaration of title to land to identity the land which his claim relates with certainty and precision. That the failure to discharge the burden is usually fatal to his claim. He relied on ADESANYA VS. ADERONMU (2000) 6 S.C.N.J. 242 at (Page 18).
But that where the land is known to the parties, the question of its identity will cease to be an issue. He cited (1) ODOFIN VS. ONI (2001) 1 S.C.N.J 130 at (Page 144) and (2) ILONA VS. IDAKWO (2003) 5 S.C.N.J. 330 at (PAGE 352).
That the contention and submission in the Appellant’s Brief of Argument that PW2 showed the compounds of PW1 and PW5 to be part of the land/compound in dispute has no basis whatsoever. That considering the entire circumstances of this case, PW1 was not wrong to have showed the dilapidated house of the father of PW1 as part of her late father’s land compound at the locus in quo. That the effects to transform the evidence of PW2 on Adejoh Negedu, Abudu Abu and DW1 into material contradiction regarding inconsistency of the boundaries of the land/compound in dispute presented by her cannot stand on the face of the unanimity of the parties particularly at the locus in quo. He urged this Court to resolve issue 1 against the appellant.
A claim for declaration of title postulates that the plaintiff is claiming ownership of the land. See FAGUNWA V. ADIBI (2004) 17 NWLR (PART 903) 544 at 568 S.C. For a plaintiff to succeed in such a claim, he must lead credible evidence and must not merely rely on the weakness or admissions of the Defendant. See (1) ANUKAM VS. ANUKAM (2008) 1 – 2 SC 34 (2) ONI SAODU VS. ELEWUJU (2006) 13 NWLR (PART 998) 517 SC 34. (3) ASHIRU VS OLUKOYA (2006) 11 NWLR (PART 990) 1 SC.
However, plaintiff is at liberty to utilize any aspect of the defendant’s case that supports his case.
The claimant here, must prove the actual boundaries of the dispute land. See
1. ANSA VS ISHIE (2005) 15 NWLR (PART 948) 210 SC
2. ARCHIBONG VS ITA (2004) 2 NWLR (PART 858) 590 SC. He must also prove his case by credible evidence see ABIARA VS. REGISTERED TRUSTEES, METHODIST CHURCH OF NIGERIA (2007) ALL FWLR (PART 391) 1664 at 1679 – 1680 CA.
I am of the solemn view that the findings of lower Court is supported by the evidence on the printed record. The lower Court cannot be faulted.
ISSUE 1 is resolved against the Appellant.
ISSUE 2
WHETHER the lower Court was right in holding that the root of title of the appellant is weak, deficient and inconclusive when the appellant gave a robust root of title. (Ground 4).
Learned Counsel to the Appellant submits that there is a very robust, credible and unchallenged evidence from the Appellant as to how his grandfather Abdullahi acquired or disvirgined the land settled thereon.
That the Appellant led credible evidence in tracing his root of title to his grandfather (Abdullahi) who was the first to acquire the compound he inherited. That his grandfather was buried on the land in dispute. That the father of the Appellant Yahaya took over the land after the death of Abdullahi his own father.
That the traditions; history of title of Appellant stated above does not support of strengthen the case of the Respondent to enable the lower Court set aside the decision of the trial Court. He cited LRCN (page 114) at 121 ratio 4.
That the Appellant was never challenged at the locus visit when he was showing the grave of his grandfather to the Court by the Respondent as was never cross examined even at the locus visit thus making his evidence, of traditional history of title credible. That it is trite law that the Court ought to act positively on the unchallenged evidence before it. He cited CAMERON AIRLINES VS. OTUTUIZU (2011) 195 LRCN (PAGE 198) at 212.
He urged this Court to resolve this issue in favour of the Appellant and set aside the decision of the lower Court.
In response, learned counsel to the Respondent submits that the Appellant did not challenge the decision of the trial Court before the lower Court. That the lower Court was right to have held that there is no evidence on record as to how the grandfather of the Appellant became the first settler and founded the land in dispute.
That the Respondent through PW1 and PW2 gave clear and credible account about how the father of the Appellant in the company of his late elder brother (sued along with him as 1st Defendant) after several efforts and pleas secured the keys to the houses of late Haruna Ocholi (Respondent’s father) for temporary use.
He urged this Court to resolve this issue against the Appellant.
Five ways have been separately or in conjunction with one another, as the means by which a plaintiff might, upon proper proof of his case, earn a declaration of title to land in his favour. The five ways are:
1. Proof by traditional history or evidence of tradition, or
2. Proof by grant or the production of documents of title, or
3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the person exercising such act is the true owner of the land,
4. Proof by acts of long possession, or
5. Proof by possession of connected or adjacent lands in circumstances rendering it probable that the owner of such lands would in addition be the owner of the land in dispute
See: 1. MADU VS. MADU (2008) 2 – 3 SC (PART 11) 109 at 136-137. 2. MBANI VS. BOSI (2006) 11 NWLR (PART 991) 400 sc. 3. AIGBOBAHI VS. AIFUWA (2006) 6 NWLR (PART 976) 270 SC. 4. OJOH VS. KAMALU (2005) 18 NWLR (PART 958).
The learned Counsel to the Respondent controverted the position of the Appellant’s learned Counsel who insisted that evidence of 2nd Defendant’s evidence on page 59 lines 5-14 as proving the fact that the Appellant’s father was the first settler on the land.
The Respondent’s learned Counsel drew attention to page 31 lines 10-12 of Exhibit ‘P1’ tendered at the trial Court rejecting the Appellant’s evidence at the trial Court.
I agree with the submissions of the learned Counsel to the Respondent that the decision of the learned trial Judge on cannot be faulted.
ISSUE 2 is also resolved against the Appellant.
ISSUE 3
WHETHER the lower Court was not wrong in holding that Appellant’s long possession from his grandfather, his father and himself cannot avail him considering the numerous acts of possession. (Ground 3 and 1).
Learned Counsel to the Appellant submits that the Appellant has been in possession for several decades prompting the trial Court to hold that the Respondent has been in possession and exercising acts of ownership over sufficient a long period of time. He cited
1. DAGACI OF DERE VS. DAGACI OF EBWA (2006) VOL. 140 LRCN at 2120.
2. SALAMI & ANOR VS LAWAL (2008) VOL. 161 LRCN (PAGE 1) at 4 ratio 4
That the learned judges of lower Court rightly cited the case ofOSENI vs. BAJULU (2010) vol. 178 LRCN 26 at 46, but wrongly departed from the principle set up by the Supreme Court in that case.
That by the authority of OSENI vs. BAJULU (supra) the plea of laches and acquiescence if successfully raised will ripen to ownership and can confer title to the property on a party.
He urge this Court to resolve this issue in favour of the Appellant and allow the appeal.
In response, Learned Counsel to the Respondent submits that the law is settled that where a party relies on traditional evidence as basis of his ownership of the land in dispute, he must first satisfactorily establish or prove his root of title before any consequential act following there from can qualify as an act of ownership. He cited ELEGUSHI VS. OSENI (2005) 14 NWLR (PART 945) 348 at (PAGE 368) paragraph A -B
That the Appellant has sought to capitalize on the disadvantaged situation in which Respondent and his siblings found themselves following the death of their father while they were still quite young, the eventual relocation of their mother from the community where the land/compound in dispute is located after she remarried and the dispersal of Respondent and his siblings from Inye to Olla, Zaria and Kano in consequence of the death of their father and the re-marriage of their mother.
That PW2 gave vivid account of her efforts and those of the Respondent to stop the attempt to snatch their father’s compound by the Appellant. See page 32 – 35 of the record of appeal.
That the assertion of the Appellant that the land in dispute was disvirgined by his grandfather who was allegedly buried on the land can no longer avail the Appellant in the light of the unchallenged decision of the trial Court that the evidence that his grandfather disvirgined the land/compound in dispute cannot be believed. That no other iota of evidence on record explains how the Appellant and his privies are on the land/compound in dispute other than the unchallenged evidence on the point given by PW1 and PW2. That references to the number of houses built on the land by Appellant and his privies cannot mitigate the fact that they are trespassers.
That the lower Court was right by relying on OSENI vs. BAJULU (supra) to hold that long possession of a property does not and will not ripen to ownership of a confer title to the property. That the Appellant’s reliance on the principle of laches and acquiescence is farfetched and completely misconceived considering the fact that Respondent and PW2 never slept over their right to the land/compound.
He urged this Court to resolve this issue against the Appellant.
A claim for trespass and injunction postulates that the plaintiff or claimant is the owner of the land, in which case he has to prove ownership thereof before the Court will decree both reliefs in his favour. See ANSA VS ISHIE (2005) 15 NWLR (PART 948) 210 SC.
It also posited that the plaintiff or claimant is in possession of the land.
“Possession” of land means exclusive possession, hence where possession is not exclusive, the law will not protect it. see OYADARE VS. KEJI (2005) 7 NWLR. (PART 925) 571 at 585 SC. Such exclusive possession is either by the person claiming to be in possession physically occupying the land or doing so ENUNWA VS 6 BIANUKOR (2005) 11 NWLR (PART 935) 100 CA. ?In strict legal parlance, however, there is a difference between “possession” and Occupation” of land. Thus, in EZUKWU vs. UKACHUKWU, (2004) 17 NWLR (PART 902) 227 at 257E – 258B SC, the Supreme Court, adopting UDEZE vs. CHIDEBE, (1990) 1 NWLR (Part 125) 141 at 160 SC held as follows
“But the real problem of such cases is that quite often, as in this case, there is tendency to confuse possession with mere occupation. ‘Occupation’ as used in relation to land entails mere physical control of the land in the time being. It is a matter of fact. Such a control may have originated from permission from the true owner; it may have been by stealth; or it may be a tortious trespass. Possession of land, on the other hand, may, sometimes entail or even coincide with occupation of it; but is not necessarily always synonymous or conterminous with it. A man, such as a landlord who collects rents from his tenants, may be in legal possession of the land even though he does not set his feet on it. This is why distinction is often made between defacto possession, which is mere occupation and de jure possession which entails possession animo possidendi with that amount of occupation, control or even, sometimes, the right to occupy at will sufficient to exclude other persons from interfering. See Lasisi Akanni Buraimoh v. Rebecca Ayinke Bamgbose (1989) NWLR (Pt. 109) 352 at p. 361. Within the meaning of this concept of possession, a man ordinarily living in Maiduguri may be in possession of a vacant house in Lagos if he is in possession of the keys.”
It is trite law that two competing litigants cannot both be in possession, hence the law will ascribe title (and, therefore, a possible relief to enforce possession) to the party that has a better title than his opponent. See
(1) AWOYOOLU VS. ARO (2009) 4 NWLR (PART 971) 481 SC
(2) MOGAJI VS. CADBURY (NIG.) LIMITED (1985) 2 NWLR (PART 7) 393 SC
(3) AROMIRE VS. AWOYEMI (1972) 1 NWLR 101.
This means that there is nothing like ‘adverse’ possession of the same parcel of land by two or more competing parties. The further implication is that the person who has been declared not to be in lawful possession will automatically become the trespasser.
“Trespasser” to land was described by the Supreme Court in FAGUNWA VS ADIBI (2004) 17 NWLR (PART 903) 544 at 5696-b SC as follows:-
“Trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. See Solomon v. Mogaji (1982) 11 SC 1 at 37. In Renner v. Annan (1935) 2 WACA 258, the West African Court of Appeal said:
“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing trespass is to say that the defendant broke and entered the plaintiff’s close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled not being competent to maintain an action for trespass, before entry (Wallis v. Hands (1893) 2 Ch. 75).”
Trespass to land is actionable per se, meaning the plaintiff does not need to prove damage before he will be awarded damages.
The relief of forfeiture is also available in a claim for recovery of possession under customary tenancy. It simply means a claim for an order that the customary tenant should forfeit his rights, interest and privileges under the customary tenancy, and it arises when the customary tenant by over or covert acts starts challenging his overlord’s title to the land, see ARCHIBONG VS. ITA (2004) 2 NWLR (PART 858) 590 SC, or has repeatedly misbehaved, which is regulated by the facts of each case. See OGUN VS. AKINYELU (2004) 18 NWLR (PART 905) 362 SC.
A customary tenant is allowed to remain on the land in perpetuity subject to good behaviour. In essence, his misbehavior, depending on its magnitude, might earn him an order of forfeiture, if prayed for by the landlord. However, forfeiture is not ordered as of right especially where proof of customary landlord-tenant relationship has not been established. Thus, a challenge to a landlord’s allege ownership rights cannot amount to misconduct as to merit forfeiture where the defendant is also claiming ownership and right to remain in possession, which will then require the land. See ELEGUSHI VS. OSENI (2005) 14 NWLR (PART 945) 348 SC.
I am of the solemn view that upon close reading of the record of appeal, the exhibits and consideration of issues raised by the Appellant and having regard to the evidence at the trial Court the Respondent has been shown to be the owner of the land. The lower Court was right in holding that plea of long possession cannot avail the Appellant.
From the foregoing reason, Issue 3 is also resolved against the Appellant.
Having resolved the three issues formulated for determination of this appeal against the Appellant, the appeal lacks merit and it is hereby dismissed in its entirety.
The unanimous judgment of the High Court of Justice, Kogi State sitting in its appellate jurisdiction delivered on the 29th day of June, 2016 by Honourable Justice J. J. MAJEBI, is hereby affirmed.
Cost of N30,000 (Thirty Thousand Naira) is awarded against the Appellant and in favour of the Respondent.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, PETER OLABISI IGE, JCA. I am in agreement with his reasoning and conclusion and orders reached therein.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice PETER OLABISI IGE, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
James Michael with him, Haliru Suleiman For Appellant(s)
E. A. Haruna with him, I. Obaje and F.U. Adejoh For Respondent(s)
