CHIEF O. FAFIYEBI & ANOR v. LOJA MICHEAL OLADUNJOYE ADEBISI & ANOR (2014)

CHIEF O. FAFIYEBI & ANOR v. LOJA MICHEAL OLADUNJOYE ADEBISI & ANOR

(2014)LCN/7481(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of October, 2014

CA/AK/5/2010

RATIO

EVIDENCE: PROOF OF TRADITIONAL EVIDENCE; WHAT A PARTY WHO SEEKS TITLE TO LAND AND RELIES ON TRADITIONAL EVIDENCE MUST PLACE IN ORDER TO SUCCEED AND THE BEST WAY TO TEST TRADITIONAL HISTORY

It is trite law that a party who seeks title to land and relies on traditional evidence must, in order to succeed plead the root of his title and the names and history of his ancestors and lead evidence to show the root of his title and before him that of his ancestors. See Okereke V. Okonkwo (2003) 9 NWLR (Pt 826) 592.

Where there is conflict of traditional history, the best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two conflicting histories is more probable. However for the rule to apply there must be evidence of traditional history from both parties which are in conflict, one with the other such that the Court cannot justifiably prefer one to the other. See Okolo V. Okolo (2006) 14 NWLR (Pt.1000) 401 and Nkado V Obiano (1997) 5 NWLR (Pt 503) 31. per. JAMES SHEHU ABIRIYI, J.C.A.

LAND LAW: CUSTOMARY TENANCY; WHETHER IN A CUSTOMARY TENANCY THE NON PAYMENT OF RENT OR TRIBUTE IS NOT NECESSARILY INCONSISTENT WITH THE OWNERSHIP OF THE OVERLORD

In a customary tenancy 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 however determine whether there is a denial of the title of the overlord. See Alade V. Aborishade (1960) 5 F.S.C. 167. per. JAMES SHEHU ABIRIYI, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST BE BASED ON THE GROUND OF APPEAL

Issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently any argument in the brief in support of such issues will be discountenanced by the Court. See Ibator V. Barakuro (2007) 9 NWLR (Pt.1040) 475 and Amadi V NNPC (2000) 6 SC (Pt.1) 66 at 72. per. JAMES SHEHU ABIRIYI, J.C.A.

LAND LAW: CUSTOMARY LAW; WHETHER FORFEITURE IS THE USUAL MODE FOR DETERMINING A CUSTOMARY TENANCY

It is settled law that forfeiture is the usual mode for determining a customary tenancy. The real basis of the misconduct or misbehavior which renders customary tenancy liable to forfeiture is the challenge to the title of the overlord. This may be by alienation of part of the land or direct denial of the overlords’ title. See Archibong & Ors V. Ita (2004) 2 NWLR (Pt. 858) 590 and Makinde v. Akinwade (2000) 1 SC 89. per. JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. CHIEF O. FAFIYEBI (Odofin of Otan-Ile)

2. SADIKU KADIR OLAIYA FAFIYEBI (For themselves and on behalf of Odofin Family, Otan-Ile) – Appellant(s)

AND

1. LOJA MICHEAL OLADUNJOYE ADEBISI (Loja Ipepeji, Ilare)

2. PASTOR ISSAC IDOWU JEMIYO (For themselves and on behalf of I Aoyile Descendant Ilare) – Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osun State High Court, Osogbo Judicial Division delivered on 16th March, 2010. The suit at the Lower Court was instituted by the Respondents as Plaintiffs against the Appellants as Defendants.

The claim of the Respondents against the Appellants was for the following:

1. A declaration that the Plaintiffs are entitled to the customary rights of occupancy upon that entire piece or parcel land at Ipepeji Ilare bounded on its various sides as follows:

On the front side by Igigun

On the second side by River Iloja

On the third side by Itiya

On the fourth side by River Oloyo

More specifically shown in the plaintiffs’ dispute survey plan No:

OS/1194/2007/LD/001 and therein verged red.

2. A declaration that the Defendants as well as all indigenes of Otan-Ile on Ipepeji farmlands were tenants of the Plaintiffs Aoyile descendant’s family (successors of Odeyemi) on all that northern part of Ipepeji land verged yellow in the plaintiffs’ survey plan.

3. An injunction restraining the Defendants, their agents, servants and privies from trespassing or continuing to trespass on the Plaintiffs’ family land at Ipepeji Ilare.

4. An injunction restraining the Defendants from further trespassing on or harassing the Plaintiffs’ tenant on the said land.

5. An order forfeiting the tenancy of defendants on the northern part of the land in dispute particularly the area verged yellow due to the persistent denial of the plaintiffs’ family title by the defendants.

6. A declaration that only members of the Plaintiffs family are entitled to be installed by the Owalare of Ilare as Apepeji (Loja) of Ipepeji.

7. An injunction restraining the 2nd defendant from parading himself as the Apepeji of Ipepeji.

8. The sum of N500,000.00 as special and general damages for trespass committed by the Defendants and through their agents servants and or privies on the Plaintiff (sic) part of the land at Ipepeji.

On their part the Appellants counterclaimed for the following:-

a). A declaration that the Defendants’ family is the person entitled to the grant of a Certificate of Customary Right of Occupancy in respect of the said piece or parcel of land situate at Ipepeji family land bounded as follows:

On the 1st side by Aio river flowing from Afola land in Otan-Ile to Okutasada; on the 2nd side by peregun trees (planted by Owa Aromolaran

1) from Okutasada to Okutamewa; on the 3rd side by Itiya land and on the 4th side by Otan-Ile land at Oloyo river to Agbo family land.

b). An order that it is the Defendants’ family that is entitled to be installed as the Baale of Ipepeji to the exclusion of either the 1st Plaintiffs’ family or anybody from Ilare.

c). An order of perpetual injunction restraining the plaintiffs, their servants, privies or any person claiming through them or in trust for them from disturbing the defendants’ possession, use and occupation of the said piece or parcel of land.

The case of the Respondents at the Lower Court on the pleadings and evidence adduced especially the testimony of 1st Respondent was that the 1st Appellant was Odofin of Otan-Ile. The land in dispute is Ipepeji in Obokun Local Government of Osun State. Ajalorun Oro founded Ilare otherwise known as Aigbo. He came from Ile-Ife to found Ipepeji. Those who followed him founded the settlements around Ilare. Ogunlade was the first Loja of Ipepeji. He was installed by Owalare Aigbo. Oguntade lost all but one of his sons due to many pestilences and wars. Odeyemi was the only surviving son. Oguntade died and was buried at Ipepeji.

Before the death of Oguntade two husbands of his daughters requested him for farmland at Ipepeji. They were given the land on rent and they paid tribute.

After the death of Oguntade, Odeyemi took control of the land at Ipepeji. He was collecting tribute from his late father’s tenants.

Odeyemi was made a regent by Owalare.

The people of Otan-Ile were all paying tribute, Odeyemi died and was buried in the house of 1st Respondent’s father at Ilare. Before the death of Odeyemi the 1st Respondent’s father made agreements with tenants on the land. 1st Respondent’s father was then the Obanla of Ilare.

Odofin family in Otan-Ile made financial contributions towards the necessary traditional burial rites of Odeyemi.

Since the death of Odeyemi, nobody disturbed them on the land in dispute until 2004. In 2004, the Respondents suddenly heard that Olotan instatled the 2nd Appellant as Baale of Ipepeji. Baales are not installed in Ipepeji. The Appellants went to the farm of the 1st Respondent to destroy some of his crops. They did. The Appellants destroyed 1st Respondents cashew and pear trees. The Appellants said they wanted to erect a palace.

The defence of the Appellants as contained in the Further and Better Amended Statement of Defence and Counterclaim as well as evidence led in the Lower Court especially the testimony of the 2nd Appellant was that the land was originally owned by the father of the 2nd Appellant Apepeji Apetu Osenyin. Odeyemi was a tenant of the 2nd Appetlant’s father. Odeyemi was left at Otan-Ile by his father. Odeyemi was a hunter. After the death of Odeyemi’s father, Odeyemi was struck with leprosy. 2nd Appellant’s father then took Odeyemi to Ipepeji where he was treated and cured. Odeyemi stayed put at Ipepeji after he was cured. Odeyemi continued with his hunting and engaged in farming on Ipepeji land. The land on which Odeyemi farmed was given to him by Odofin Okanlawon Adanbioye.

In 1960, 2nd Appellant too was struck by leprosy. He was taken to Ipepeji land to live with Odeyemi. Throughout the period he lived with Odeyemi, he never heard of Fagbile. Odeyemi was the only hunter he knew on Ipepeji land. Odeyemi is now dead.

Presently 2nd Appellant now lives on the land at Ipepeji. His family put tenants there and collects tribute.

He was installed Apepeji on 6th February, 2004 by Olotan Fagberade. When he was installed people protested.

After calling witnesses and tendering several documents, both parties filed and exchanged written addresses.

The Learned Trial Judge in a considered judgment entered judgment in favour of the Respondents. The Appellants were dissatisfied with the judgment and appealed to this Court on five grounds of appeal.

From the five grounds of appeal the Appellants presented the following issues for determination:

i. Whether the Respondents have proved with positive averments in their pleadings and preponderance of evidence led before the Lower Court that the Appellants were their tenants the land thereby entitled them to the grant of claims for injunctions in their favour; the Honourable Court having held that the respondents have not adduced any evidence to warrant granting them forfeiture. (Relates to Grounds 2 and 3 of the Grounds of Appeal).

ii. Whether the Learned Trial Judge was right in his finding that the Appellants did not prove title to the land in dispute through their counterclaim on the preponderance of evidence thereby dismissing Appellants’ counterclaim and grant the Respondents’ claim to title to the land. (Relates to Ground 1 of the Grounds of Appeal).

iii. Whether the judgment of the Trial Court can be supported by the weight of evidence before the Court. (Relates to Ground 5 of the Grounds of Appeal).

iv. Whether reliefs 6 and 7 of the Respondents’ claims are properly initiated and endorsed on the writs of summons by the due process of the law before the Lower Court to confer jurisdiction on the Lower Court to entertain and grant the reliefs to the Respondents. (Relates to Ground 4 of the Grounds of Appeal).

On their own part, the Respondents submitted the following issues for determination:

1. Whether the Trial Court was right in upholding the Plaintiffs/Respondents’ claims and dismissing the Appellants’ counterclaims with regard to title to the land in dispute. (Ground 1)

2. whether the Learned Trial court was right when it found that the Appellants are customary tenants of the Respondents on the northern part of the land verged yellow in the Plaintiffs’ survey and whether the finding of customary tenancy on a portion of the land was inconsistent with the grant of injunction in the overall circumstances of this case? (Grounds 2, 3 and 5).

3. Whether the trial court was right in holding that he had jurisdiction to determine legs 6 and 7 of the Plaintiffs/Respondents’ claims with regard to the Apepeji of Ipepeji Chieftaincy also counterclaimed by the Appellants? (Ground 4)

I will determine the appeal on the issues presented by the Appellants.

On issue 1, it was submitted that the Respondents have not proved that the Appellants are their tenants but there is a presumption that the Appellants are in exclusive possession of the land going by the claims of the Respondents contrary to the findings of the Lower Court.

The evidence of long possession, it was submitted was deduceable from the reference to 1960 suit fought over the land in dispute by the Defendants/Appellants’ family. It was submitted that there is no evidence before the Lower Court as to the question of the person who put the Appellants in possession when and how and no evidence, as to how the Appellants became customary tenants of the Respondents. It was submitted that there was no positive evidence before the Lower Court that suggested that the Appellants and other Otan-Ile indigenes were customary tenants of the Respondents and there was no finding of fact on the issue. There was also no evidence that the Appellants or any Otan-Ile person ever paid to the Respondents any tribute in respect of the land in dispute. There was no evidence either that the payment of tribute was excluded in the type of customary tenancy offered the Appellants by the Respondents. That the 1st Respondent in fact admitted under cross-examination that none of the tenants pay tribute to him. We were referred to Dashi V. Satlong (2009) FWLR (Pt.474) 1428 at 1439 which deals with the nature of customary tenancy.

It was submitted that since there was no evidence in this case of the Appellants paying tribute to the Respondents to establish their claim to customary tenancy, the Lower Court ought to have dismissed the respondents’ claim.

The Appellants, it was submitted led evidence during the trial of various acts of possession on the land which include wading off trespassers on the land. The Appellants, it was submitted, called some tenants on the land and tendered some of the agreements executed in favour of some of these tenants.

It was submitted that the Lower Court stated that it believed the evidence of the Respondents’ witnesses without saying why.

It was submitted that where there is a conflict in the traditional evidence adduced by both parties and the trial court is unable to resolve the conflict in favour of either side and finding such evidence inconclusive, title to land in dispute may still be established by evidence of numerous and positive acts of possession and ownership. We were referred to Akpan V. Otong (1996) 10 NWLR (Pt.176) 108 at 150 B-C.

It was submitted that a party relying on acts of possession and ownership as evidence of title to land must show that such acts not only extend over a sufficient length of time, but that they are numerous and positive enough to warrant such inference that the claimant is the exclusive owner of the land. We were again referred to Akpan V. Otong (supra) at 130 C – O.

The Appellants, it was submitted, had not only shown that they were in possession of the land claimed by them, but that their acts of ownership extend over a sufficient length of time, and acts of ownership numerous and positive enough to warrant the inference that they are the exclusive owners of the land evidence of which is even supported by the Respondents witnesses.

Arguing issues 2 and 3 together, learned counsel for the Appellants submitted that the Lower Court failed to adequately evaluate the evidence adduced by the parties.

The Respondents, it was submitted failed to prove their title to the land in dispute with credible evidence. That the evidence on record shows that the Appellants have maintained exclusive possession and enjoyment of the land in dispute for decades. That the Lower Court omitted to consider some vital evidence led by the Appellants which supported the fact that the Appellants’ family have been in exclusive possession of the land in dispute for at least as far back as 1965.

It was submitted that the Respondents’ case is shrouded in confusion and cannot be helped by the Court.

That it is on record that the Appellants stated that the land in dispute devolved on them through Agbo family by inheritance under Yoruba native law and custom from time immemorial. That the progenitor of the Appellants, Apepe Apeluterosanyin who came from Ile-Ife settled on the said Ipepeji land and gave accurate account of previous Apepeji before the turn of the 1st appellant.

It was submitted that the Appellants have led credible evidence to show that they are entitled to be installed as Baale of Ipepeji to the exclusion of the Respondents or anybody else from Ipepeji.

It was submitted that the Appellants'(claim) case is clear easy to comprehend and their claims should be granted on the preponderance of evidence and balance of probabilities. Reliance was placed on Shittu V. Fashawe (2005) 14 NWLC (Pt.946) 689-690.

The Lower Court, it was submitted, did not consider the totality of the evidence before it and did not give adequate consideration to applicable principles and rules of law. We were referred to Obayan V Unilorin (2005) 15 NWLR (Pt.947) 123 at 140.

The Appellants, it was submitted, proved their claim for declaration of title on their traditional evidence alone and/or by acts of possession and ownership and title to the Apepeji of Ipepeji land.

On issue 4, it was submitted that claims 5 and 6 are a chieftaincy dispute within the meaning and intendment of the provisions of section 22(3) of the Chiefs Law Cap 21, Laws of Osun State 2003. It was submitted that in a chieftaincy dispute, an aggrieved person who brings a suit must show that he brought his suit only after he had exhausted the remedies provided or followed the procedure prescribed under the applicable law.

We were referred to Aribisala V. Ogunyemi (2005) ALL FWLR (Pt.25) 451 at 466 C-D and Owoseni V. Faloye (2005) ALL FWLR (Pt 284) 220; also Ezuamwenze V. Amaghizenmen (1993) 9 NWLR (Pt 315) 1 at 25.

It is on record, it was submitted, that the 2nd Appellant was installed as Baale of Apepeji by the Olotan of Itan-Ile, the prescribed authority on the 6th February, 2004. That it was on 5th May, 2004 three months thereafter that the 1st Respondent was also installed without any records suggesting that the respondents had exhausted all the administrative remedies before coming to Court. It was submitted that the preconditions for access to the court in the determination of minor chieftaincy disputes are:

a). The prescribed authority must have made a determination;

b). The aggrieved party must make a presentation to the commissioner for chieftaincy matters within 21 days of the giving of the decision; and

c). The Commissioner of Chieftaincy Affairs should determine the dispute after enquiry.

The Respondents in this case, it was submitted, having failed to have recourse to the commissioner in charge of chieftaincy matters before filing this suit challenging the installation, they have thereby not complied with a condition precedent for the institution of the claim challenging the installation of the 2nd appellant as the Baale of Ipepeji. It was submitted that where there is a chieftaincy dispute, failure to exhaust available local remedies will oust the jurisdiction of the Court to hear the matter. We were referred to Okomalu V. Akinbode (2006) 9 NWLR (Pt.285) 338 at 357 C – E.

It was submitted that the Court was robbed of jurisdiction to entertain claims 6 and 7 of the Respondents’ claim since they did not comply with a condition precedent. The decision of the Lower Court, therefore, to assume jurisdiction was wrong.

The learned counsel for the Respondents submitted that the treatment of the traditional histories of both parties by the Lower Court was faultless as it gave each side equal opportunity in the assessment of the probative value of the evidence of each side and its finding has not been shown to be perverse and therefore should not be disturbed.

Evidence of Owalere, it was submitted, strengthened the case of the Respondents. Also that the admission by Appellants that Odeyemi who was found to be a blood relation of the Respondents on the land and was in control of the land is an aspect of the Appellants’ case which strengthened the case of the Plaintiffs/Respondents.

The evidence led by the Appellants on the other hand, it was submitted, firstly was self contradictory as the survey plan shows that the Appellants claim the whole land, yet the land on the survey plan was still bounded by Ipepeji land and that the Lower Court promptly rejected it as unreliable. Secondly that the Appellants traditional history was rejected as unreliable and improbable because it failed the test on the relationship Odeyemi had with either of the parties. Thirdly that most of the Appellants witnesses are recent tenants who also farmed on portions of Respondents’ land.

Learned counsel criticized the evidence of all Appellants’ witnesses one after the other from DW1 – DW7.

The Appellants’ case, it was submitted was riddled with unforgivable contradictions.

The 2nd Appellant, it was argued, testified that the land belonged to his father Apeluleosanyin even though DW1 had earlier stated that Oyediran owned Ipepeji land but that the 2nd Appellant traced his ancestry down, ending surprisingly not in Ipepeji, but in the Odofin of Otan-Ile chieftaincy family. That the 2nd Appellant contrary to pleadings asserted that the land is surrounded and demarcated by Peregun trees planted by Owa Aromolaran 1.

That the witness proceeded to tender a survey plan marked with suit No. A14/60 as having been used to prosecute suit No. C103/65. That the Appellants did not even see the inconsistency and therefore did not bother to explain it. That the survey plan had so much alterations in fresh ink on it that no Court would place reliance on it. That the Appellants tendered the survey plan (Exhibit 2) and gave evidence that it was used to prosecute Exhibit 5. But the two documents relate to two different suits. That in the survey plan, the suit number was A. 1460 with Odofin Apepeji as Plaintiff and Lasisi Sekele as Defendant. But the judgment tendered Exhibit 5, the suit number was C 103/65 and the parties were Lasisi Sekele Plaintiff and Elijah Fapohunda and others as defendants. Therefore, the parties and the suit numbers in the two documents are contradictory. That worse of all suit No: C.103/65 was dismissed because no plan was filed. That the survey plan was also a document without a maker as it was unsigned. That both the judgment and the survey plan were not certified true copies and were therefore inadmissible legally being public documents.

It was submitted that the 2nd Appellant broke down under cross examination and admitted that Obanla of Ilare gave birth to the 1st Plaintiff/Respondent. It was submitted that the 2nd Appellant tied the father of the Plaintiff/Respondent to the land and Odeyemi who was in control of the land.

On Respondent’s issue 2, it was contended that the respondents explained how the Odofin of Otan-Ile family became tenants on the land through the marriage of Lofinlade, a daughter of Ogunlade and that the

Appellants never controverted this story.

On the claim for trespass, it was submitted that when a tenant has lost the basis of his entry, he becomes a trespasser ab initio: Reliance was placed on Omotayo V. Co-Operative Supply Association (2010) ALL FWLR (Pt.537) 608.

On respondent’s issue 3, which deals with the jurisdiction of the Lower Court to entertain claims 6 and 7, it is interesting, it was noted that these claims coincided with claim (b) of the Appellants’ counterclaim. It is strange, it was submitted, that the Appellants who themselves invoked the jurisdiction of the Lower Court on an issue along with the respondents are now challenging the same jurisdiction which they equally invoked.

It was submitted that the learned trial Judge has the right to expound his jurisdiction. Reliance was placed on Integrated Timber And Plywood Products Ltd V. UBN PLC (2006) ALL FWLR (Pt 324) 1802 and Erhueh v. I.N.E.C. (2003) ALL FWLR (Pt. 137) 1080 G – H.

The learned trial Judge, it was argued, carefully examined the evidence before him and held that in view of the evidence led by the Appellants themselves, the Olotan of Otan-Ile, who purportedly installed the 2nd Appellant, was not the prescribed authority over Ipepeji and therefore section 22 of the chiefs Law had no relevance to the case/dispute before him.

It was submitted that since the Respondents and even the Appellants were not questioning the decision of a prescribed authority but the contest was on the identity of the prescribed authority, the resort to section 22 of the Chief’s Law was a subject introduced to divert the discussion which the learned trial Judge rightly refused to follow.

It was submitted that section 22 of the Chiefs’ Law was a statutory defence which ought to have been raised in the pleadings of the party relying on it so that issues could be joined on it. The said issue was not raised but was considered by the Lower Court having been dressed in the garb of jurisdiction.

It was submitted that what was raised as an issue in the pleadings was WHO as between the Olotan of Otan-Ile (who purportedly installed the 2nd Appellant) and Owalare of Ilare (who installed the 2nd Respondent) WAS the prescribed authority over Ipepeji so as to determine who was genuinely installed.

The issue of jurisdiction was therefore rendered irrelevant since the case of the parties on the pleadings was on the identity of the prescribed authority and not the decision of the prescribed authority.

It was submitted that while the Lower Court would not have jurisdiction to question the decision of a prescribed authority until local remedies were exhausted, what was in issue in this case was the identity of the prescribed authority which is certainly not covered by section 22 of the Chiefs’ Law.

It was submitted that since the Olotan was not the prescribed authority over Ipepeji, as the Lower Court found, it would be standing logic on its head to refer a decision made by him for settlement in the name of exhausting domestic remedy when same could simply be declared a nullity by the Court as was done in this case.

That the Owalare whom the Respondents maintained was the prescribed authority testified before the Court and gave traditional history of how Owalare became prescribed authority over all Eka Osun settlements which included Igigun and Ipepeji. That he gave evidence that the relevant Local Government which should know who is the prescribed authority, also gave him approval when he installed the head of Igigun. He also followed the same process when he instalted the 2nd Respondent. It was submitted that the act of the Local Government in this case was an official act which enjoyed the presumption of regularity.

That the 2nd Respondent gave evidence that Ipepeji predated Otan Ile and that Ipepeji was not under Otan Ile as observed by the Lower Court. And that unlike the Owalare who testified, the Olotan of Otan Ile did not do so.

It was submitted that the Ijesha North Traditional Council to which both communities belonged investigated the matter and found that Ipepeji was under Ilare and not under Otan Ile. That while their decision may not be binding, it constitutes a relevant fact which goes to clarify the fact in issue.

On issue 1, learned counsel for the Appellants appears to have misplaced the basis on which the lower court held that there was no basis for forfeiture with that for which the declarations sought were granted. On the claim for declaration of title the Lower court stated as follows:

“Each of the parties has pleaded traditional history to back up their respective cases. paragraphs 3 – 10 of the Further Amended statement of claim of the Plaintiff present a traditional history that conflicts materially with paragraphs 2 – 19 of the further and better amended statement of defence of the defendant. In the two traditional histories Odeyemi featured prominently.”

I agree fully with the above finding of the Lower Court. On the pleadings both parties pleaded traditional history as their root of title. The Appellants did not plead possession as their root of title to the land as suggested in Appellants’ brief. Therefore the argument on long possession of the land by Appellants is not based on the pleadings and was without any basis. It was not even their evidence.

Learned counsel for the appellants contended that there was no evidence on which the respondents based their case and did not prove strictly that the appellants were their customary tenants. What did the Lower Court find? At page 152 – 153 of the record of appeal, the Lower Court stated inter alia thus:

“The plaintiff’s case is that Odeyemi was the grand uncle of the 1st plaintiff. The father of Odeyemi was Ogunlade who had three other sisters by name Lofinlade, Awofoluke and Adefolabi. Adefolabi begat Alice Tepatan who begat Adebisi Fagbile.

But the defendants’ case does not disclose any connections between Adebisi Fagbile and Odeyemi. It sounds improbable that Adebisi Fagbile would bury the corpse of a stranger in his house. It is only probable that Adebisi Fagbile and Odeyemi were blood relations hence Odeyemi was buried in his house.

This also explains why Odeyemi was in charge of the land in dispute till he died. I am not unmindful of the explanation given by the 2nd plaintiff in his evidence under cross-examination on why this happened. I have deeply considered the explanation but it does not lessen its improbability. I reject the defendant’s version of the story of Odeyemi.

I accept that of the plaintiffs.

If the plaintiff’s case is that Odeyemi was regent of Ipepeji until he died in 1965 and the defendants’ case is that Odeyemi lived in Odofin compound in Otan Ile before he became a tenant who was given the right to oversee the Apepeji land for and on behalf of Odofin family then the story of Odeyemi is fundamental to the case of each of the parties.

The plaintiffs also tendered exhibits H1-H15 being sale of land agreements purportedly executed between David Odeyemi and Chief Simeon Adebisi 1st plaintiff (as landlords).

The failure of the story on Odeyemi of either of the parties vitiates the case of the said party. This is more so because it is common ground that Odeyemi was in charge of the land in dispute before he died.

The plaintiffs also tendered exhibits H1 – H15 being sale of land agreements purportedly executed between David Odeyemi and Chief Simeon Adebisi 1st plaintiff (as landlords) and some tenants. 1st plaintiff who tendered the agreements was extensively cross-examined on them. He said he was present when the agreements were executed.He said the tenants who thumprinted the agreements were not literate and that the agreements were not made for the purpose of the case in court.

The plaintiffs also called the 1st P.W, Professor Oludare Olajubu who knew Odeyemi personally and gave evidence that his mother processed oil for Odeyemi on the land in dispute.

The plaintiffs also called Mathew Olusola Falore who calimed (sic) to have lived with Odeyemi. He said Odeyemi was his uncle. He denied that Odeyemi was leprous. He said Odeyemi sent to him before he died. He confirmed that Odeyemi sent Ilesanmi to deliver some messages before he died. He however stated that the messages were for them at Ibokun and Obala of Ilare at Ilare and not for the Odofin at Otan Ile.”

The respondents pleaded and led evidence especially through the 1st respondent that Ajalorun Oro founded Ilare otherwise known as Aigbo. Ajalorun Oro who came from Ile-Ife founded Ipepeji. Those who came with him founded settlements around Ilare. Oguntade was the first Oloja of Ipepeji. He was installed Owalare Aigbo. On 8/6/05 the 1st Appellant too was made Loja by Owalare of Ilare after the Owalare got approval of Obukun Local Government. Ogunlade had only two surviving female children and one son Odeyemi. After the death of Ogunlade Odeyemi took control of the land; and was collecting tribute from tenants. It is the case of the respondents that two sisters of Odeyemi married to two Otan Ile people. The husbands of Odeyemi’s two sisters came and requested for land to farm at Ipepeji and they were granted the land. This is how Otan Ile people came into Ipepeji Land. They paid tribute.

The respondents called Professor Oludare (PW1) who has been Sokoti of Ilare since 1970. He said he used to visit the land when his mother was processing palm oil for Odeyemi. He knew the 2nd respondent to be farming on the land since the 1950s. PW3 said he lived on the land with Odeyemi who was his uncle. That Odeyemi was not from Otan Ile. Odeyemi was not a tenant in Otan Ile. Odeyemi was never inflicted with leprosy. PW7 said he was put on the land by the 2nd respondent in 1983 and was there until recently when he was driven out by someone who claimed to have bought the land from the 2nd appellant. He said he had been in Ilare since he was eight years old. The Lower Court relied on the evidence of these witnesses as well as Exhibits FH1 – FH15 and in my view rightly so to show that the evidence led by the Respondents was more probable.

Apart from this, the echo of Odeyemi in the evidence of defence witnesses in my view supports the case of the respondents that he was owner of Ipepeji land before his death in 1965. For example DW1 said he had heard of Odeyemi. He, Odeyemi lived in Apepeji land. DW2 said he had heard of Odeyemi in respect of the land. He knew him before he died. DW3 said he had heard of Odeyemi before in relation to Ipepeji land but he did not know him in person. The 2nd Appellant himself said he knew Odeyemi that Odeyemi’s father went with Odeyemi as a child to Otan Ile. The 2nd Appellant’s father took Odeyemi to Ipepeji when he was allegedly struck with leprosy. In any case, the evidence of the 2nd appellant was that Odeyemi stayed put at Ipepeji when he recovered from the leprosy. This certainly suggests that Odeyemi controlled the land after the death of his father Ogunlade. The claim of the Appellants that he was taken to Ipepeji land because he had leprosy has no basis. In any case PW2 under cross-examination said he did not know if Odeyemi had an attack of leprosy. PW3 who said Odeyemi was his uncle in evidence in chief categorically refuted the claim that Odeyemi was ever attacked with leprosy.

1st Respondent in evidence said that after the death of Odeyemi in 1965 nobody disturbed them on the land until 2004 when the 2nd Appellant was purportedly installed or made Baale of Ipepeji even though there was no title like that in Ipepeji land. What they have is Apepeji or Loja of Ipepeji. See Exhibit D report of Conflict Resolution Committee. It is not surprising that the Lower Court on the evidence led by the Respondents declared them entitled to the land. That when the 2nd Appellant was purportedly installed as Baale of Ipepeji he more or less went into a rampage; destroying crops on the land and harassing anybody he saw on the land other than those he himself put there. He forcefully took over the land.

The learned counsel for the Appellants argued that there was no evidence of customary tenancy because no evidence was led to show that the Appellants paid tribute to the Respondents or that they were excluded from doing so by custom. He referred particularly to the evidence of the 1st Respondent under cross-examination wherein he said that Jimoh Adebisi had not paid tribute to him. Although the 1st Respondent said so, he stated further that the said Jimoh Adebisi however paid tribute to his (1st Respondent’s) father regularly.

This is evidence therefore that the Appellants paid tribute to the Respondents predecessors in title. In any case, Exhibits FH1 -FH15 tendered by the Respondents are evidence of payment of tribute to the Respondents. Apart from this the 1st Respondent had testified to the effect that most of the people who took land there had died. This was corroborated under cross-examination when the 1st Respondent replied that each of the persons enquired about was dead. He said that all the tenants were present in the land when Exhibits FHI -FH15 were signed. There was evidence therefore that tribute was paid at least to the respondents’ predecessors on the land.

As stated elsewhere in this judgment the Respondents pleaded and led evidence to the effect that two sisters of Odeyemi married at Otan Ile and their husbands requested for land at Ipepeji. They were granted the land and this is how Otan Ile people entered the land. The Lower Court in my view rightly held that the appellants were customary tenants of the Respondents and proceeding to grant them the title sought.

Learned counsel for the Appellants harped on the fact that the appellants were in possession and proved same. I have indicated above that the Appellants did not prove possession as their root of title. Evidence led in proof of possession by the Appellants was from witnesses who came into the land recently. DW2 for example came into the land in 1994 after the death of his father. He did not even know who put the father on the land. DW5 had only been on the land for six years, DW5 was put in the land in 2002. These cannot be compared with the period Respondents witnesses were said to be on the land. According to PW1 he knew the 2nd Respondent on the land in the 1950s to be farming on the land. The 1st Respondent started farming on the land in the 1960s not to mention the several years back that his father farmed on the land.

Compare the above with the unreliable evidence of the 2nd Appellant who claimed that he was struck by leprosy and was taken to the land in 1960. Is that when he came into possession of the land? He also claimed that Ofa wars disturbed the Apepeji and they moved to Otan Ile but he continued to go to Ipepeji land to farm. Where were they before they left to Otan Ile? When were the Offa wars? Was he still in possession because he was going there to farm from Otan Ile? Can these vague pieces of evidence be compared with the evidence of the respondents who had shown that they had been in possession of the land since Ajalorun Oro founded Ilare? It cannot. It is clear from the foregoing that the Appellants cannot be declared entitled to a grant of certificate of occupancy in respect of the land on the basis that they had been in possession of the land.

From all that I have stated above issue 1 should be resolved in favour of the Respondents. I therefore resolve issue 1 in favour of the Respondents.

On issues 2 and 3 learned counsel for the Appellants still harped on the fact that the Appellants had established exclusive possession. I have stated above that this was neither pleaded nor proved. I have also stated above that the Respondents proved that the Appellants were customary tenants for the reasons also stated above.

None of the exhibits tendered by the Appellants helped their case. I also do not agree with learned counsel for the Appellants that they had shown that the 2nd Appellant was entitled to be appointed Baale of Ipepeji. The Respondents had refuted this claim. There was no title like Baale of Ipepeji they said. There is an Apepeji or Loja of Ipepeji usually appointed by Owalare who did not appoint the 2nd Appellant. Apart from this, DW3 said under cross-examination that Ipepeji people were not primarily from Otan Ile and that Ipepeji is older than Otan Ile from where the 2nd Appellant came. Even on his own evidence, 2nd Appellant could not have been appointed Baale of Ipepeji because he said he was only sent to Ipepeji because he had leprosy. DW5 said he knew the Appellants. They are from Odofin family in Otan Ile. The Appellants have not shown that Otan Ile people can be appointed Baale of Ipepeji and why?

It is clear from the foregoing that the decision of the Lower Court was not perverse as contended by the learned counsel for the Appellants.

Issues 2 and 3 are therefore resolved in favour of the Respondents.

Issue 4 was argued at the Lower Court and that Court stated in part as follows:

“Does the Court have jurisdiction to entertain leg 6 of the Plaintiffs’ claim? I agree entirely with the submissions of learned counsel for the plaintiffs on this. The evidence of the 3rd DW and the 2nd Plaintiff Oba Arinkin on this is clear. He said under cross-examination.

‘Since the suicide of Apepeji, no other Apepeji was installed until the 2nd defendants. Ipepeji people were not primarily from Otan Ile. Ipepeji is older than Itan Ile. The 2nd plaintiff under cross-examination in his evidence also said:

‘Apepeji first settled before Olotan. Ipepeji has never been under the kingdom of Otan Ile.’

With these pieces of evidence and there being no evidence of history of traditional dominance or supervision of Ipepeji by Otan Ile, it is in my respectful view will be wrong to describe Olotan of Itan Ile as prescribed authority over Ipepeji.

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In this case there is evidence by the plaintiffs that the Alare installed the first Apepeji. On the other hand there is evidence form (sic) the 2nd Defendant that Ipepeji had never been under the kingdom of Otan Ile. How can Otan Ile then be the prescribed authority over Ipepeji? I respectfully disagree with Mr. Okin on this. I hold that the Olotan is not the prescribed authority for Ipepeji and so the invocation of section 22 of the Chiefs law to divest this Court of jurisdiction in this case cannot stand. I hold that this court has jurisdiction to entertain leg 6 of the plaintiffs’ claim.”

I agree. As Respondents’ counsel rightly pointed out too since the Respondents were not questioning the decision of the prescribed authority, section 22 of the Chiefs Law was inapplicable. The Respondents as the Lower Court rightly found were saying that the Olotan of Otan Ile was not the prescribed authority for Ipepeji and could therefore not appoint a Baale of Ipepeji. The Lower Court in my view rightly held that it had jurisdiction to consider claims 6 and 7.

Issue 4 is therefore resolved in favour of the Respondents.

All four issues having been resolved in favour of the Respondents, the appeal of the Appellants should be dismissed.

CROSS APPEAL

The Respondents cross-appealed on the following grounds reproduced immediately hereunder without their particulars:

GROUND ONE: ERROR IN LAW

The learned trial judge erred in law when he held as follows:

“I must however state that plaintiffs have not given sufficient evidence to sustain the claim for forfeiture of the tenancy on all that northern part of Ipepeji land verged yellow in the plaintiffs’ survey plan. The evidence given on it is very scanty.”

GROUND TWO:

“The judgment refusing the plaintiffs relief 5 (for forfeiture) is against the weight of evidence”

The Respondents/Cross appellants in their brief of argument filed on the 9th October, 2012 but deemed filed on the 25th February, 2013, formulated a lone issue for determination. The lone issue reproduced immediately hereunder reads as follows: Whether the cross-appellants (sic) who have been held to be customary tenants of the cross-appellants based on the preponderance of evidence accepted by the trial court, have proved that the Appellants should have their tenancy forfeited on the northern part of the land in dispute verged yellow in the dispute survey?

The cross-respondents however in their brief of argument filed on the 20th May, 2013 but deemed filed on the 3rd April, 2014 formulated the following issues for determinations:

1). Whether by the totality of the evidence adduced by the Respondents/Cross-Appellants, the learned trial judge was right to hold that the Appellants/Cross-Respondents are customary tenants of the Respondents/Cross-Appellants (Relates to Ground one)

2). Whether the learned trial judge was wrong in holding that there were scanty evidence led by the Respondents/Cross-Appellants in support of their claim for forfeiture (Relates to Ground Two)

Arguing the cross-appeal, it was submitted that a customary tenant in possession is amenable to a claim for forfeiture. We were referred to Chikere V. Okegbe (2000) ALL FWLR (Pt.22) 1029.

It was submitted that by the findings of the Lower court Appellants/Cross-Respondents, Odofin family were customary tenants of the Respondents/Cross-Appellants the Lower Court must have accepted that the evidence before it was cogent to support its finding. That having held that the Appellants/Cross-Respondents were tenants on the northern part of the land verged yellow, the only question was whether there was evidence before the Lower Court showing that the adjudged tenants had committed such acts of misbehavior as should entitle the adjudged owners to the relief of forfeiture

It was submitted that there was evidence of wrongful acts of the appellants given in evidence which were inconsistent with the title of the cross-appellants on the land viz:

1). Trespass to the entire land exceeding the area verged yellow.

2). Violence against the Cross-Appellants and their tenants PW7 and DW8

3). Claim of absolute ownership to the entire land thus denying the plaintiffs/respondents’/cross-appellants’ title

4). Installing one of themselves as chief over the land

5). Purported disposal of part of the land by sale.

It was submitted that the evidence on forfeiture was, therefore, not “scanty” but overwhelming. We were referred to Makinde V Adewale (supra) at page 1586 and Ogun v Akinyetu (2005) ALL FWLR (Pt.243) 619. It was submitted that the customary tenants in this case have directly denied the overlords’ title by their claim to absolute ownership to the entire land. The Lower Court, it was submitted was wrong to have held that the evidence led in support of the claim for forfeiture was scanty.

Arguing issue 1 of the Appellants/Cross-Respondents brief learned counsel for the Appellants’/Cross-Respondents submitted that the Lower Court was right in holding that there was scanty evidence in support of forfeiture. The counsel proceeded to attack evidence of all witnesses called by respondents/cross-appellants in proof of their claim at the Lower Court to show that there was no evidence to prove that Appellants/Cross-Respondents were customary tenants which is not an issue in the cross-appeal. In the same vein he travelled through the evidence led by the Appellants/Cross-Respondents to show that they were not customary tenants which is not the issue in the cross-appeal.

It was submitted that the want of the evidence to show that the cross-respondents were customary tenants was the reason for the refusal to grant the Respondents’/Cross Appellants’ claim for forfeiture.

On issue 2, it was submitted that the standard of proof of customary tenancy and claim for forfeiture is as high as the standard of proof in criminal trials which is proof beyond reasonable doubt. We were referred to Salami V Adetoro Lawal (2008) ALL FWLR (Pt. 438) 200 at 222 – 224.

It was submitted that there is no evidence on the record to justify the grant of the claim for forfeiture against the cross-respondents. It was submitted that the fact that cross-respondents trespassed beyond the area permitted as “customary tenants” cannot be a valid ground for granting the claim for forfeiture since the Cross-Respondents’ counterclaimed for the entire land of Ipepeji described in their counterclaim contrary to the Cross-Appellants efforts to classify the land into Northern part and Southern part.

It was submitted that the acts which cross-appellants’ counsel listed as “wrongful acts of the appellants” which were not substantiated can only be relevant where the first issue argued in the Cross-Respondents’ brief is resolved in favour of the Respondents/Cross-Appellants. This is because the issue of forfeiture will not arise if the Cross-Respondents are adjudged not to be customary tenants of the Cross-Appellants.

In a reply brief, the Cross-Appellant submitted that the 1st issue formulated by the Cross-Respondents in their brief was incompetent as it was not based on any of the grounds of appeal in the Notice of Cross-Appeal. It was submitted that an issue whether in an appeal or cross-appeal must relate to an existing ground of appeal in a notice of appeal.

On the Cross-Respondents’ second issue, it was submitted that it too is an extension of the error represented by the first issue.

It was submitted that the Cross-Respondents were not only doing things inconsistent with the rights of the cross-appellants before they were sued, they continued even after they were sued and proceeded to counterclaim for the entire land consisting of the area held by the cross-appellants which they trespassed into and the area verged yellow on the northern part of the land on which they were permitted to farm and on which forfeiture was claimed.

Therefore the cross-appellants contended that:

a). Their root of title having been upheld by the acceptance of their traditional history

b). the traditional history of the cross-respondents having been rejected

c). the Lower court having made a finding that the cross-appellants put the cross-respondents on the part of the land on which forfeiture was sought

d). the cross-Respondents having been shown to be disputing the cross-respondents’ title and not claim a relief of forfeiture, the most natural conclusion of the matter was to forfeit whatever right had been granted the cross-respondents on the portion of land on which their forebears were permitted to farm, so as to put an end to the possibility of future litigation.

A cross-appeal is like a counterclaim which is distinct from the main action. In a similar manner, a cross- appeal is distinct from an appeal. See Opara V. D.S (Nig.) Ltd (1995) 4 NWLR (Pt 390) 440.

Issues formulated in a brief must in like manner be based on the grounds of cross-appeal filed by the cross-appellant. If any issue is not related to any ground of cross-appeal, then it is irrelevant and any argument in the brief in support of such issue will be discountenanced.

Issue 1 formulated by cross-respondent is not based on any of the two grounds of cross-appeal of the cross-appellant. I will therefore discountenance the arguments in it. Although issue 2 formulated by the cross-respondent is to some extent related to the grounds of cross-appeal. I still prefer the lone issue formulated in the cross-appellants’ brief. In my view the cross-appeal can be conveniently determined on this issue.

The cross-appellant’s grief is that relief 5 of his claim for an order forfeiting the tenancy on the northern part of the land in dispute particularly the area verged yellow due to persistent denial of the cross-appellants’ family title by the cross-respondents was not granted.

It is the contention of learned counsel for the cross-appellants that the area which the cross-appellants attributed customary tenancy to was not the entire land but the portion of it clearly demarcated yellow on the survey plan exhibit A. I have taken a hard look at the evidence of all the witnesses called by the cross-appellants and nowhere was evidence led specifically in relation to an area of the land verged yellow.

Apart from mentioning it in relief 5 of the further amended statement of claim no such specific area is pleaded in the further amended statement of claim. It is elementary law that address of counsel cannot take the place of evidence. See Ayanwale V. Odunsanmi (2012) ALL FWLR (Pt. 610) 1246. I have looked at page 106 of the record of appeal to which learned counsel for the cross-appellants referred this Court and there is no evidence of any particular area verged yellow referred to by the 1st cross-appellant to which he sought forfeiture. No mention was even made of any particular area of the land to which forfeiture was sought or on which the cross-respondent committed any misbehavour or challenged the title of the overlord. Rather the complaints were in respect of the whole area claimed in relief 1 of the further amended statement of claim of the cross-appellants.

Learned counsel for the cross-appellants also referred the Court to the evidence of the surveyor at page 97 of the record and not page 197. I have again taken a hard look at the evidence of this witness in respect of the survey plan Exhibit A. This is what the witness said:

“The area verged yellow is said to be occupied by the defendants as tenants to the plaintiff”

Apart from the fact that the above piece of evidence is hearsay, on it alone, the cross-appellants could not be entitled to the relief of forfeiture contained in prayer 5 of the further amended statement of claim.

I have myself looked at the survey plan Exhibit A tendered by the cross-appellants. Despite taking what I may call a microscopic view of the survey plan Exhibit A I am unable to see the area verged yellow. I hope I have not suddenly become colour-blind. None of the witnesses called apart from the maker was referred to an area verged yellow in the survey plan on the available record of appeal.

It is submitted by learned counsel for the cross-appellants that the Lower Court having held that the cross-respondents were tenants on the northern part of the land verged yellow, the only question was whether there was evidence before the court showing that the adjudged tenants had committed such acts of misbehavior as should entitle the adjudged owner to be entitled to the relief of forfeiture. With respect to learned counsel for the cross-appellants, the Lower Court made no such specific finding on an area of the land verged yellow. Since it did not make any such finding, it is not surprising that it refused to grant relief 5 of the further amended statement of claim. In my view the Lower Court on the basis of what I have stated above rightly refused to grant prayer 5 of the further amended statement of claim.

The lone issue in the cross appeal is resolved in favour of the cross-respondent. The cross appeal is therefore hereby dismissed. The order of the Lower Court refusing the order of forfeiture contained in prayer 5 of the further amended statement of claim is affirmed by me.

On the other hand, the four issues formulated by the Appellants in the main appeal having been resolved in favour of the Respondents, their appeal is hereby dismissed and the judgment of the Lower Court and orders made therein are affirmed by me.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the advantage of reading in a draft the judgment just delivered by my learned brother, James Shehu Abiriyi JCA, and I agree with the reasoning and conclusions reached therein. He has exhaustively dealt with the issues in the appeal and the cross appeal. I would like to add few words. Of the five ways of proving title to land, two of the five ways or factors deal with possession. One way is acts of long possession and enjoyment of the land in dispute. The other is proof of possession of connected or adjacent land. Possession, per se may not be prove of ownership. The possession must be long and the length of the period will be determined in the light of the facts of each case. Apart from the long possession, a Plaintiff can prove ownership of the land in dispute if he proves possession of land connected or adjacent to the land in dispute. See Salami V Lawal (2008) All FWLR (Pt.438) 2000.

Evidence of inheritance from time immemorial is synonymous with traditional evidence as a way of proving ownership of the land in dispute.

In the instant case both parties relied on traditional history from their ancestors as their root of title. The law is that where both parties agree that the title to a land in dispute belongs to a common ancestor or vendor, for either side to succeed, he must be able to trace his root of title to the common ancestors or vendors. See Adebo V Saki Estates Ltd (1999) 7 NWLR (Pt. 612) 525. In the instant case, even though the Appellants agreed to the root of title of the Respondents, only the Respondent was able to trace his root of title to Odeyemi the only male child of Ogunlade the first Oloja of lpepeji.

Furthermore, it is settled that customary tenants should not suffer forfeiture for minor acts of misbehavior, and that the court are loath to order forfeiture except in the most exceptional circumstances, such as alienation of a portion of the land to others without the prior consent of the grantors, or by putting the land to uses other than those originally agreed upon, or by failure to pay the customary tribute, or by denying the title of the overlord. See Salami V Lawal (supra). Cross appeal is distinct from the main appeal, is an appeal by the Respondent in the same case. For a party to be entitled to the relief of forfeiture he must adduce credible and cogent evidence before the court that the tenants had committed such acts that would entitle him to the relief of forfeiture, which the cross appellant failed to do.

For the foregoing and the more detailed reasons articulated in the lead judgment of my learned brother Abiriyi, JCA I also dismiss the appeal for lack of merit, the cross appeal is also hereby dismissed. I abide by the consequential order(s) contained in the judgment.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: My Lord, Abiriyi, JCA has summarised the facts and the submissions relating the issues in the Main Appeal and the Cross appeal.

I adopt same and dismiss both the main and cross appeal as they were each not established.

Appearances

S. B. Ajibade Esq.For Appellant

AND

M. O. Agboola Esq.For Respondent