ATTABOH IDIH v. DR. ALIYU OCHEJA OBAJE (THE ATTAH OF IGALA) & ANOR
(2010)LCN/4010(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of October, 2010
CA/A/116/07
RATIO
FORMULATION OF ISSUES: WHETHER A RESPONDENT WHO DOES NOT CROSS APPEAL, CANNOT FORMULATE ISSUES INDEPENDENT OF THE APPELLANT’S GROUNDS OF APPEAL
The law is settled by a long line of decision, that a Respondent who does not cross appeal, cannot formulate issues independent of the Appellant’s grounds of appeal. See JATAU VS AHMED (2003) 4 NWLR (pt.811) 498; STATE v. DUKE (2003) 5 NWLR (Pt.813) 394; BRIJINA LTD v. INTERCONTINENTAL BANK LTD (2003) 5 NWLR (Pt.814) 540. In EMESPO J. CONTINENTAL LTD v. CORONA SHIFAH RTSGESELLSCHAFT & ORS (2006) ALL FWLR (pt.321) 1233 at 1244 paragraph E-F, Mukhtar, JSC said: “Authorities abound on the essence of issues raised for determination in the parties brief of argument. Issues are meant to flow from the grounds of appeal in an appeal, and where they do not so flow, they become incompetent and will be struck out by the Court. See NTEOGWUIKE VS OTUO (2001) 16 FWLR (PT.238) 58, and OLOWOSAGO VS ADEBANJO (1988) 4 NWLR (pt.88) 275. A Respondent who has not cross appealed (in which case he may raise an issue to marry his ground of appeal) must when formulating an issue for determination in his brief of argument distil it from the grounds of appeal framed by the Appellant in his notice of appeal. Where an issue is not married to a ground of appeal, then it becomes an issue with no leg to stand and such issue has no place in our legal system and deserves to be struck out for being incompetent.” PER PAUL ADAMU GALINJE, J.C.A.
WHETHER A CUSTOMARY TENANT IS ENTITLED TO EXCLUSIVE POSSESSION OF THE LAND GRANTED TO HIM
A customary right under Customary Tenancies include right to exclusive possession of the land. The law is settled that once land is granted to a tenant in accordance with native law and custom, whatever the consideration, full right of possession are conveyed to the grantee. In AKINKUOWO VS FAJIMOJU (1965) N.M.L.R. 349, a claim for an injunction to restrain the Defendant from trespassing on land of which he was in possession as a customary tenant was dismissed, on the ground that a customary tenant is ipso facto entitled to possession of the land granted to him, and although he is liable to forfeiture of such rights when he denies or challenges the title of his overlord or commits a serious misconduct, yet his rights are not determined until the operation of the forfeiture. PER PAUL ADAMU GALINJE, J.C.A.
NATURE OF THE RIGHT OF A CUSTOMARY TENANT WITH RESPECT TO THE LAND HE WAS GRANTED
A customary tenant’s right is exclusive. In other words, the tenant has the right to exclude everybody else from the land, including the landlord, until tenancy has been lawfully determined, the grantors have no right whatever to enter upon the land without the permission of the tenant unless the tenancy so permit. Any such unlawful entity is actionable as a trespass at the instance of the tenant. see EMEGWARA VS NWAIMO (1953) 14 WACA 947, ISIBU VS HASON (1968) N.M.L.R. 76. The tenant’s exclusive possessory right avails also against a purchaser of the grantor’s reversion and against all others claiming under or thorough the grantor and indeed against complete stranger to the land. See KIEGBUYI VS ODUNJO (1926) 7 NLR 51 TONG VS KALIL (1955) 14 WACA 331, ETIM VS EKE (1941) 10 NLR 43 at 50. PER PAUL ADAMU GALINJE, J.C.A.
WHAT ARE THE OBLIGATIONS A GRANTOR WHO CLAIMS FORFEITURE OF LAND AGAINST A TENANT MUST PROVE
A grantor who claims forfeiture of land against a tenant must prove that the tenant has failed to observe the following obligations:- 1. Obligation not to deny the grantors title. This is the primary obligation imposed by a customary tenancy on the tenant- A denial of title occurs when the tenant asserts that somebody other than the grantor is the owner but more usually it takes the form of a claim of ownership by the tenant himself. See BONGAY v. MACAULEY (1932) 1 WACA 225. In the instant case, the Appellant pleaded and gave evidence that he was put on Okpe Adige land by Ekele-Aga, the then Attah of Igala in 1832, and he has dutifully paid tributes to the successive Igala chiefs up to the time this case commenced at the High court. The 1st Respondent who is the grantor of Okpe Adige and at the same time the Attah of Igala did not deny this. It follows therefore that the appellant at no time denied the title of the grantor to the land. ii. Obligation not to alienate part or all of the land without grantor’s consent. The tenant owes it as a duty to the grantor not to alienate his interest without the grantor’s permission, any such alienation whether by way of an assignment, mortgage or subletting is void. Even a mere attempt at alienation amounts to a breach of the tenant’s obligation. See Nigerian Land Law page 257 paragraph 2, by Professor B.O. Nwabueze. In the instant case, there is no proof that the Appellant attempted to alienate Okpe Adige. iii. Obligation not to use for a different purpose. Except with the consent of the grantor, it is a breach of obligation for a tenant of land granted solely for a particular purpose to be use for another purpose. Throughout the Appellant’s case, there is no evidence that the land granted to the appellant by the 1st Respondent was restricted to a particular purpose IV. Lastly, the obligation to pay customary tribute or rent. Payments of tribute or rent by a tenant is a well recognized obligation under a customary tenancy, and default in payment renders the tenant liable to an action for forfeiture, See EGBEBUIKE v. OBASI unreported suit no.0/5/1962 delivered on 20/2/1967. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
ATTABOH IDIH Appellant(s)
AND
1. DR. ALIYU OCHEJA OBAJE
(THE ATTAH OF IGALA)
2. CHIEF PAUL BABA ADAMA Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): The Appellant herein, who was the plaintiff at the Kogi State High Court, claimed against the respondents, the following reliefs:-
i. An Order quashing the entire letter dated the 22nd day of March 2004 as being contrary to Igala native law and custom, natural justice, equity and good conscience.
ii. An Order declaring the purported termination of Plaintiffs caretakership of Okpe Adige land not based on any known misbehavior as null and void and of no effect whatsoever.
iii. An order restoring or maintaining Plaintiffs customary and natural caretakership over Okpe Adige since his fore-fathers first occupied the land.
iv. A perpetual injunction restraining the Defendants from tampering in any manner Plaintiffs caretakership over Okpe Adige land or preventing the Defendants from taking decision or steps injurious to the Plaintiffs interest and enjoyment of Okpe Adige land and its economic trees thereon.
In his Statement of Defence, dated 4th of October, 2004, the 2nd Respondent counter claimed against the Appellant as follows:-
a. A Declaration that the action of the 1st Defendant, terminating the caretakership of the Plaintiff and his family over Okpe Adige land is in Order, correct and in accordance to (sic) Igala native law and custom in the circumstances of this case.
b. A Declaration by the Honourable Court that there being nothing in Igala native law and custom as natural or perpetual caretakership of Okpe Adige land.
c. An Order declaring that the Plaintiff are liable to forfeiture of Okpe Adige land in view of gross misbehavior and misconduct of the Plaintiff and members of his family.
Appellant filed a defence to counter claim and a reply to the defence of the 2nd Respondent.
Issues having been joined the matter proceeded to trial. During the trial, the Appellant called three witnesses while the 2nd Respondent gave evidence and in addition, two witnesses testified for the defence.
Thereafter, counsel for both parties addressed the court. In a reserved and considered judgment delivered on the 17th January,2007, Idajili J. dismissed the Appellants claims and granted the counter claims of the 2nd Respondent.
The Respondent is dissatisfied with the decision of the lower court.
Being dissatisfied and aggrieved, he has appealed to this court. His notice of appeal dated 2nd February, 2007, which is at pages 123-127 of the printed record of this appeal, contains three grounds of appeal. For the sake of clarity, I reproduce the grounds of appeal hereunder without their particulars as follows:-
1. The learned judge erred in law when he held “The entire evidence of the Counter-Claimant and his witnesses shows that the Defendant and his family are guilty of misconduct against their landlord, 2nd Defendant/Counter-Claimant over the Okpe Adige Fief Land.” Thus showing the Court as having misconceived the entire case.
2. The learned trial judge erred in law when he relied on extraneous matters to order the Plaintiff and his family to relinquish their caretakership of Okpe Adige to the 2nd Defendant when no such gross misconduct was established.
3. The learned trial judge erred in law when he made a finding that Plaintiff had challenged the title of his landlord when there is no evidence supporting such finding.
4. The learned trial judge erred in law when he failed to properly evaluate the evidence before him and attribute necessary probative value thus occasioning miscarriage of justice.
Parties filed and exchanged briefs of argument. The Appellant formulated one issue for the determination of this appeal at page 2 of his brief of argument dated 22nd of December, 2008 and deemed filed on 3/11/09, and it reads as follows:-
“Whether there is gross misconduct in this case to warrant forfeiture of the Appellant’s Customary Tenancy/Caretakership over the customary land of Adige that Appellant has been enjoying since 1832.”
For the Respondents, two issues have been formulated for the determination of this appeal. These issues as formulated at page 2 of the Respondents’ Brief of Argument dated 18th March, 2010 and deemed filed on the 23/3/2010 read as follows:-
1. Whether customary tenancy relationship existed between Appellant’s family and the 2nd Respondent’s family?
2. Whether the Appellant’s family is guilty of any misconduct that could warrant forfeiture of their customary tenancy.
Before I consider the submissions of counsel in this appeal, I wish to set out briefly the fact of this case as correctly found by the lower court. The Appellant herein is the head of the Agenyi Akor family that first settled at Okpe Adige land with the permission of Ekele-Aga, the then Attah of Igala in 1832. In return for the provision of the land, Agenyi Akor’s family as tenant of the Attah of Igala had to pay tribute of palm wine, palm oil and meat to the Attah of lgala during Ocho, Egwu, Ogaganyi Festivals and other ceremonies. With the passage of time payment of wine and meat ceased and the payment of tribute was assessed at fourteen tins of palm oil which the Appellant inherited and continued to pay through the beaded Ocheje for onward transfer to the 1st Respondent, while the 2nd Respondent was responsible for carrying the tribute from the Appellant to the Ocheje. In 1998, the 2nd Respondent, who was the courier of the tribute was made a beaded Adige of Okpe Adige land by the 1st Respondent. The 2nd Respondent subsequently sued the Appellant claiming arrears of tribute for four years and forfeiture of the Appellant’s caretakership, but the 1st Respondent gave evidence that the Appellant was not owing him any arrears of tribute and so the matter ended in favour of the Appellant.
The 1st Respondent wrote a letter dated 22nd March, 2004 to one James Odaudu, a member of the Appellant’s family claiming to terminate his family’s caretakership over Okpe Adige land following a report of a panel set up by him to investigate the dispute between the said James Odaudu and the 2nd Respondent. The Appellant is of the view that the purported termination of the caretakership over Okpe Adige land by the 1st Respondent is not based on any known misbehavior and that has affected him and his family adversely hence this action.
I have carefully perused the issues formulated by the Respondent and I am of the firm view that the 1st issue formulated by him does not arise from any of the grounds of appeal. There is no ground of appeal that puts the relationship of the Appellant’s family and the 2nd Respondents family in question. The law is settled by a long line of decision, that a Respondent who does not cross appeal, cannot formulate issues independent of the Appellant’s grounds of appeal. See JATAU VS AHMED (2003) 4 NWLR (pt.811) 498; STATE v. DUKE (2003) 5 NWLR (Pt.813) 394; BRIJINA LTD v. INTERCONTINENTAL BANK LTD (2003) 5 NWLR (Pt.814) 540. In EMESPO J. CONTINENTAL LTD v. CORONA SHIFAH RTSGESELLSCHAFT & ORS (2006) ALL FWLR (pt.321) 1233 at 1244 paragraph E-F, Mukhtar, JSC said:
“Authorities abound on the essence of issues raised for determination in the parties brief of argument. Issues are meant to flow from the grounds of appeal in an appeal, and where they do not so flow, they become incompetent and will be struck out by the Court. See NTEOGWUIKE VS OTUO (2001) 16 FWLR (PT.238) 58, and OLOWOSAGO VS ADEBANJO (1988) 4 NWLR (pt.88) 275. A Respondent who has not cross appealed (in which case he may raise an issue to marry his ground of appeal) must when formulating an issue for determination in his brief of argument distil it from the grounds of appeal framed by the Appellant in his notice of appeal. Where an issue is not married to a ground of appeal, then it becomes an issue with no leg to stand and such issue has no place in our legal system and deserves to be struck out for being incompetent.”
Apart from the fact that the Respondents first issue for determination does not relate to the grounds of appeal, it is also not germane and reasonably relevant to this appeal. I find the issue incompetent and it is accordingly struck out.
The only issue that is germane and reasonably relevant to the determination of this appeal is the one formulated by the Appellant which in my opinion has adequately covered the Respondents’ 2nd issue for the determination of the appeal. I will therefore rely on the Appellant’s sole issue for the determination of this appeal.
Mr. Festus Akpoghalino, learned counsel for the Appellant in his argument submitted that the Respondents have woefully failed to establish any misconduct on the part of the Appellant’s family as to warrant an order of forfeiture. Learned counsel set out the elements to be proved by a party claiming forfeiture as enumerated in OKTPALA VS OKPU (2003) 5 NWLR (PT.812) 183 at 207, paragraph A-H to include:-
(i) Going beyond the area granted to the tenant
(2) Alienation of portion without the consent of the landlord/overlord.
(3) Putting up competing interest on the land which is adverse to the interest of the Respondents’
(4) Denial of the Respondents title to the land not originally allocated to them.
Learned counsel further submitted that only conditions enumerated under 3 and 5 above are relevant to the issues canvassed in this case and that the Appellant was neither in arrears of tribute/rents before the institution of this case nor did he put up any competing interest or adverse claim to the title of the lst Respondent. Learned counsel thereafter cited several authorities on certain principles of law on forfeiture of customary tenancy and made reference to the numerous litigations between the Appellant and the 2nd Respondent at the Upper Area Court which were decided in favour of the Appellant and urged the Court to allow the appeal.
I will consider some of the authorities cited in course of this judgment.
Mr. P.D. Abalaka, learned counsel for the Respondents in his argument submitted that there are subsisting judgments in which the superior title of the 2nd Respondent’s family has been affirmed and the Appellant’s family admonished severally to recognize them and pay the requisite tribute to 2nd Respondent. According to the learned counsel, the Appellant’s family is recalcitrant and has defiantly refused to pay tribute and employed all manners of tricks to avoid the payment, Learned counsel further submitted that it was the recalcitrance of the Appellant’s family that necessitated the decision of the Attah of Igala to revoke their customary tenancy/caretakership.
Still in argument, learned counsel submitted that another act of gross misconduct on the Appellant’s part to warrant forfeiture is their challenge to the title of their overlord (2nd Respondent’s family) in the various proceedings in evidence. According to the learned counsel, it is trite law that challenge of the overlord’s title is the worst form of misconduct and it is a sufficient ground for forfeiture. In aid, learned counsel cited ANYADUBA v. N.R.T.C. LTD (1992) 5 NWLR (pt.243) 535 at 565; FASONU v. FAWEHINMI (1997) 3 NWLR (pt.492) 182 at 193.
On this issue, the lower court found that the 2nd Respondent/Counter Claimant had dragged the Appellant severally to the Upper Area Court and the High Court, which ordered the Appellant to pay tribute to the 2nd Respondent. The Court also found as a matter of fact that the Appellant refused to pay this tribute to the 2nd Respondent as directed by the Court and concluded that he was in contempt of Court. Finally, the lower court found the contempt of court as amounting to gross misconduct, on the basis of which it ordered forfeiture by the Appellant in the following words:-
“My sympathy here is that the claimant/Defendant and his family in this counterclaim have since the reign of Attah Ekele-Aga in 1832 being enjoying the caretakership of Okpe Adige Fief land and are now asked to relinquish that role, I consider it a pill too bitter for them to swallow.
Unfortunately, the Supreme Court, in the case of ONIJIA VS ONIAH (supra) has warned that once there is a proof of gross misconduct on the part of a tenant the Court is not to consider the social and economic hardship of the tenant.
The court is also warned not even to consider what would the tenants survived (sic) on. The entire evidence of the counter-claimant and his witnesses shows that the Defendant and his family are guilty of gross misconduct against their landlord, 2nd Deft/Counter Claimant over the Okpe Adige Fief land.
According (sic) they are relinquished of their title as caretaker of the Okpe Adige Fief land henceforth. The 2nd Deft/counter Claimant can now appoint a caretaker of his choice over his stool land of Okpe Adige.”
From the conclusion of the learned trial judges’ judgment, it is easily discernible that the Appellant’s have been customary tenants of the Attah of Igala upon the piece of land called Okpe Adige since 1832. That while they were in possession of the land as tenants the 2nd Respondent who is not a tenant upon the land has consistently harassed the tenants to the extent of dragging the Appellant to the court. Clearly, the acts of the 2nd Respondent amounted to an unwarranted interference with the Appellant’s possessory right over the land as customary tenants. A customary right under Customary Tenancies include right to exclusive possession of the land. The law is settled that once land is granted to a tenant in accordance with native law and custom, whatever the consideration, full right of possession are conveyed to the grantee. In AKINKUOWO VS FAJIMOJU (1965) N.M.L.R. 349, a claim for an injunction to restrain the Defendant from trespassing on land of which he was in possession as a customary tenant was dismissed, on the ground that a customary tenant is ipso facto entitled to possession of the land granted to him, and although he is liable to forfeiture of such rights when he denies or challenges the title of his overlord or commits a serious misconduct, yet his rights are not determined until the operation of the forfeiture. A customary tenant’s right is exclusive. In other words, the tenant has the right to exclude everybody else from the land, including the landlord, until tenancy has been lawfully determined, the grantors have no right whatever to enter upon the land without the permission of the tenant unless the tenancy so permit. Any such unlawful entity is actionable as a trespass at the instance of the tenant. see EMEGWARA VS NWAIMO (1953) 14 WACA 947, ISIBU VS HASON (1968) N.M.L.R. 76.
The tenant’s exclusive possessory right avails also against a purchaser of the grantor’s reversion and against all others claiming under or thorough the grantor and indeed against complete stranger to the land. See KIEGBUYI VS ODUNJO (1926) 7 NLR 51 TONG VS KALIL (1955) 14 WACA 331, ETIM VS EKE (1941) 10 NLR 43 at 50.
In the instant case, the 2nd Respondent claims through the 1st Respondent. The 1st Respondent being the grantor, has no right to appoint the 2nd Respondent to interfere with the exclusive possession of Okpe Adige land by the Appellant. From the activities of the 2nd Respondent, as evidenced in several litigations against the Appellant, before the customary tenancy is lawfully determined, clearly shows him as a busy body who interfered with the possession of the Appellant severally through court actions. If the court orders made against the Appellant in the various suit between him and the 2nd Respondents are not obeyed, then the Court is at liberty to punish the offender for contempt of court. Certainly, the Appellant’s failure to obey the orders of the court has nothing to do with the customary tenancy between the Appellant and the 1st Respondent, as such it cannot be a ground for forfeiture of the customary tenancy.
A grantor who claims forfeiture of land against a tenant must prove that the tenant has failed to observe the following obligations:-
1. Obligation not to deny the grantors title. This is the primary obligation imposed by a customary tenancy on the tenant- A denial of title occurs when the tenant asserts that somebody other than the grantor is the owner but more usually it takes the form of a claim of ownership by the tenant himself. See BONGAY v. MACAULEY (1932) 1 WACA 225.
In the instant case, the Appellant pleaded and gave evidence that he was put on Okpe Adige land by Ekele-Aga, the then Attah of Igala in 1832, and he has dutifully paid tributes to the successive Igala chiefs up to the time this case commenced at the High court.
The 1st Respondent who is the grantor of Okpe Adige and at the same time the Attah of Igala did not deny this. It follows therefore that the appellant at no time denied the title of the grantor to the land.
ii. Obligation not to alienate part or all of the land without grantor’s consent. The tenant owes it as a duty to the grantor not to alienate his interest without the grantor’s permission, any such alienation whether by way of an assignment, mortgage or subletting is void. Even a mere attempt at alienation amounts to a breach of the tenant’s obligation. See Nigerian Land Law page 257 paragraph 2, by Professor B.O. Nwabueze.
In the instant case, there is no proof that the Appellant attempted to alienate Okpe Adige.
iii. Obligation not to use for a different purpose. Except with the consent of the grantor, it is a breach of obligation for a tenant of land granted solely for a particular purpose to be use for another purpose.
Throughout the Appellant’s case, there is no evidence that the land granted to the appellant by the 1st Respondent was restricted to a particular purpose
IV. Lastly, the obligation to pay customary tribute or rent. Payments of tribute or rent by a tenant is a well recognized obligation under a customary tenancy, and default in payment renders the tenant liable to an action for forfeiture, See EGBEBUIKE v. OBASI unreported suit no.0/5/1962 delivered on 20/2/1967.
In the instant case, the Appellant pleaded at paragraph 13 of his statement of claim at the lower court that the 1st Respondent who is his grantor gave evidence at the upper Area Court in a case between him and the 2nd Respondent that he was not owing any tribute or rent on the said land. This averment was not denied by the 1st Respondent.
I therefore hold that the Appellant was not in arrears of tribute and rent payable to the 1st Respondent.
It may be said that since the commencement of this case, the Appellant has not paid to the first Respondent, the accrued tribute or rents. This is however not a matter to be derided in this case. However in OKPALA VS OKPU (supra) at pages 207-208 paragraphs H-A, the Supreme Court, per Tobi, JSC said:-
“Although the non-payment of rent or tribute is not necessarily inconsistent with the ownership of the overlord, the circumstances and the reasons for the refusal to pay tribute may determine whether there is a denial of the title of the overlord.”
The unnecessary and sustained interference by the 2nd Respondent and the support given to him by the 1st Respondent by imposing him on the Appellant could be a factor that might have showed down the payment of the rent. From the statement of the claim by the Appellant, there is no indication that the latter intended to deny the title of the 1st Respondent.
For the reason I have set out in this judgment, I am satisfied that the Appellant’s family has not committed any misconduct that would lead to forfeiture of the customary tenancy and caretakership over Okpe Adige land. I therefore resolve the only issue formulated by the Appellant in his favour, and the grounds upon which the issue is formulated are hereby allowed. The decision of the lower court is hereby set aside and quashed. The letter dated 22nd March, 2004 is invalid as there was no basis for terminating the caretakership of the Appellant’s family.
The Appellant is entitled to the cost of this appeal which assess at N30, 000.00.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother GALINJE, JCA has fully considered the lone issue that calls for decision in the draft of the lead judgment which I read before today.
For the reasons so succinctly stated therein which I hereby adopt, I too find merit in the appeal and accordingly allow it in all the terms of the lead judgment.
JIMI OLUKAYODE BADA, J.C.A.: I had the opportunity of reading in draft, the lead Judgment just delivered by my learned brother, PAUL ADAMU GALINJE’ JCA and I agree with my Lord’s reasoning and conclusion.
The appeal is meritorious and it is also allowed by me.
I endorse the consequential orders made in the said lead Judgment.
Appearances
Mr. Festus Akpoghalino with Inaighan LegbeFor Appellant
AND
Not represented.For Respondent
