DAUDA GBADAMOSI & ORS. V. YUSUF AJIBODE & ORS.
(2012)LCN/5281(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of March, 2012
CA/I/241/2007
RATIO
LAND LAW: CONDITION OF CUSTOMARY TENANCY
While payment of tribute is recognized condition of customary tenancy, it is not always so and for all times. There are situations where tribute is not paid to the overlord and yet customary tenancy exists. PER ADZIRA GANA MSHELIA, J.C.A
LAND LAW: WHETHER CUSTOMARY TENANTS CAN RIPEN INTO OWNERSHIP
The law is that customary tenants remain on the land in perpetuity and will not ripen into ownership, however long it may be. See: Akinloye v. Eyiyola & Ors. (1968) NWLR 92 at 95, Archibong v. Ita (2004) 1 SCNJ 141 at 183; Akinlogun v. Osholoja 2006 5 SCNJ 261 at 211; and Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130 at 201. PER ADZIRA GANA MSHELIA, J.C.A
LAND LAW: CIRCUMSTANCES A CUSTOMARY TENANCY MAY BE DETERMINED
Misconduct is one of the ways in which forfeiture could be granted. I find it useful at this stage to note the observation of the Apex Court per Niki Tobi JSC in the case of Akintagun v. Oshoboja (Supra) at Page 280 wherein he said:-
“A customary tenancy is determined by forfeiture. Forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner’s land, tenements or hereditaments, whereby he loses all his interest therein, as a recompense for the wrong which either he alone, or the public together with himself has sustained. See:- Mozeley and Whitecley’s Law Dictionary page 151. The punishment of forfeiture attaches to an act or acts of misbehavior on the part of the tenant. The act or acts include, (i) refusal to pay rent or tribute;
(ii) refusal to provide the customary services stipulated;
(iii) use of the land for quite a different purpose and
(iv) denial of the title of the overlord (Underlining mine for emphasis) of the above. I think the most serious, is (iv). The moment the tenant denies the title of the overlord, then the whole romance of landlord and tenant is gone. The next action is that of forfeiture.
See also Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130 at 201. PER ADZIRA GANA MSHELIA, J.C.A
APPEAL: CIRCUMSTANCES AN APPELLATE COURT WILL INTERFERE WITH EVALUATION OF EVIDENCE
Where the trial judge had failed to properly evaluate the evidence adduced by both sides to the dispute the court of Appeal has a duty to consider and evaluate such evidence and make proper findings. See:- Fashanu v. Adekoya 1974 1 All NWLR (Pt.1) 35 and Abusomnan v. Merchantile Bank Nig. Ltd. (1989) (Pt. 60) 196. PER ADZIRA GANA MSHELIA, J.C.A
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. DAUDA GBADAMOSI
2. PRINCE SADIRU OBALANLEGE
3. YISA AKINBOYEDE
4. MURAINA ABATAN (FOR THEMSELVES AND ON BEHALF OF AIDOKUN-OGBO FAMILY OF EWUPE) Appellant(s)
AND
1. YUSUF AJIBODE
2, KARIMU AJIBODE
3. CHIEF RAIMI AJIBODE
4. CHIEF M.A. AJIBODE
5. JOHN AYINDE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A, (Delivering Leading the Judgment): The plaintiffs who are the appellants herein had claimed against the Defendants before the lower court as per their Further Amended Statement of Claim dated 25th day of April, 2002 the following reliefs:-
(a) Declaration that the 1st, 2nd, 3rd, 4th and 5th defendants are not members of Aidokun-Ogbo family of Ewupe.
(b) Declaration that purported power of Attorney dated 20/7/80 and the Deed of Conveyance dated 4/9/85 purportedly executed jointly by the 1st to 6th defendants and other persons named therein and/or their representatives are irregular, unlawful null, void and of no effect whatsoever.
(c) An order setting aside all sales and transactions effected under or pursuant to the purported power of Attorney in respect of Aidokun-Ogbo family land.
(d) Perpetual injunctions restraining the 1st, 2nd, 3rd, 4th and 5th defendants jointly and severally from parading themselves as members of Aidokun-Ogbo family of Ewupe.
(e) Forfeiture of the tenancy enjoyed by the 1st, 2nd, 3rd, 4th and 5th defendants and other descendants of Ajibode family over Aidokun-Ogbo family land at Ewupe on the grounds of misconduct.
(f) Perpetual injunction restraining the 1st, 2nd, 3rd, 4th and 5th defendants by themselves or as members of Ajibola family, their servants, agents and privies from dealing with Aidokun-Ogbo family land in any capacity. See pages 170 – 178 of the record.
The 1st – 5th Defendants relied on a joint statement of defence dated 25/2/97 at pages 114 – 120 of the record. While the 6th defendant filed an Amended statement of defence dated 19th May, 2005 appearing at pages 183 – 184 of the record.
The case for the Plaintiffs is that they are direct descendant of one Aidokun-Ogbo who founded and settled on Ewupe land, the subject matter of this suit, a long time ago. It is their contention that the Defendants not are descendants of this individual, that rather, they are customary tenants, who are descendants of one Ajibode. Having become aware that the defendants are arrogating to themselves certain rights, ownership, like disposing off the land and executing Power of Attorney, and subsequently denying the overlordship of the Plaintiffs, the latter are suing for the orders set out supra in the Writ of Summons and Statement of Claim.
It is the case for the Defendants, also in summary that they also are descendants of this Aidokun-Ogbo, and are not customary tenants. It is their contention that they have a right to dispose of the property and had been doing so in conjunction with some of the plaintiffs.
At the hearing, the plaintiffs adduced evidence through six witnesses and closed their case. The 1st – 5th Defendants jointly put evidence through 9 witnesses. While the 6th Defendant offered no evidence having given notice of admission of the plaintiffs’ case vide his Amended Statement of Defence dated 19/5/05 appearing at pages 183 – 184 of the record, written addresses were filed and exchanged by parties. In a considered judgment, the learned trial judge dismissed the plaintiffs’ claim (a), granted claims (b) and (c) while claims (d) and. (e) were refused. Claim (f) was granted with variation.
Aggrieved with parts of the judgment of the High Court of Justice Ogun State, sitting in Ota Judicial Division, delivered by Solanke J. on the 25th day of May 2002 Plaintiffs/Appellants lodged an appeal to this court their notice of Appeal dated 9th August, 2007 and filed same date containing seven Grounds of Appeal.
In compliance with the practice of this court parties filed and exchanged briefs of argument. Appellants, brief of argument settled by Adetunji Onabawo Esq. was filed on 24/6/07 but deemed properly filed on 9/12/09. Respondents’ brief of argument settled by Dele – Babalola Esq. was filed on 12/5/10. Appellants’ filed a reply brief on 24/5/10. When the appeal came up for hearing Appellants’ Counsel adopted both the Appellants brief of argument and reply brief and urged the court to allow the appeal. While respondents’ Counsel adopted the respondents’ brief of argument and urged the court to dismiss the appeal with substantial costs.
Appellants formulated four issues for determination as follows:-
1. Whether the learned trial judge was right by failing to treat consider and make a distinct finding on the plaintiffs’ relief seeking a declaration that the 1st – 5th defendants are not members of Aidokun-Ogbo family before denying the plaintiffs that relief.
2. Whether the learned judge was right in taking the plaintiffs’ relief for a declaration that the 1st – 5th defendants are not members of Aidokun-Ogbo family and the relief for forfeiture of customary tenancy enjoyed by the Defendants on Ewupe land as closely related and inseparable.
3. Whether the learned trial judge correctly applied the settled principles of law on customary tenancy and forfeiture to the facts proved by the plaintiffs before the lower court.
4. Whether it was right for the trial judge to grant a relief not claimed by any of the parties or vary a relief claimed without support from the evidence placed before the court by the parties, and hearing from the parties.
Respondent formulated sole issue for determination as follows;
Whether the learned trial judge after consideration of the claims, evidence of the parties, being a relief for declaration that the 1st, 2nd, 3rd, 4th and 5th defendants/respondents are not members of Aidokun-Ogbo family as Ewupe thereby refused the order of perpetual injunction against the aforesaid Defendants/Respondents 1st, 2nd, 3rd, 4th and 5th jointly and severally from parading themselves as member of Aidokun-Ogbo family of Ewupe based on his conclusions and findings of facts at page 377 of the record of appeal in his judgment and conclusion as 1, 2, 3, 4, 5 and 6 page 377 aforesaid as follows:-
“CLAIM (i) succeeds in part and 1st to 5th defendants are hereby restrained from dealing with AIYEDOKUN-OGBO FAMILY and without knowledge and express concept (sic) of the 1st to 5th plaintiffs.
Respondents did not set up a Gross (sic) Appeal and also did not file respondent’s notice basing to confirm the judgment on other grounds there in the judgment of the learned trial judge Chief R.A. Williams v. Daily Times of Nigeria Ltd. 1990 1 NWLR at 124 page 1.”
The Respondent raised preliminary objection in the Respondents’ Brief of Argument. It has to be resolved before considering the merit of the appeal. When the appeal came up for hearing on 16/2/12 Respondents’ Counsel allowed the appellants’ counsel to adopt his Brief of Argument. It was when he had adopted the Respondents’ Brief of Argument, counsel informed the court that he incorporated preliminary objection in the Respondents’ Brief of Argument. In short the argument canvassed in respect of the preliminary objection was not adopted at the hearing of the appeal. Where a Respondent incorporates a preliminary objection in the Respondent’s Brief of Argument it is imperative on Respondent to move the court to take preliminary objection before proceeding with the main appeal. See:- Mkpen Tiza & 1 Or V. Iorakpan Begha (2005) 15 NWLR (Pt 949) 616 and Onochi & Anor V. Odogwu & Anor (2006) 6 NWLR (Pt 975) 65 at 79. However, where the Respondent does not apply for or seek Leave of Court before the hearing of an appeal to move his preliminary objection to the Appellants’ Grounds of Appeal, the preliminary objection shall be deemed abandoned. See:- Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 215, Arewa ile Plc. V. Abdulkadir Brothers Ltd. (1998) 6 NWLR (Pt.554) 508. Since the Respondents’ Counsel in the instant case did not seek Leave of Court before the hearing of the appeal to move his preliminary objection, same is deemed abandoned.
In determining this appeal I will adopt the issues formulated by the Appellants. I find Respondents’ sole issue verbose and vague.
The complaint of the Appellants under issue 1 relates to the failure of the learned trial judge to make a distinct finding on the plaintiff’s relief seeking a declaration that the 1st – 5th Defendants are not members of the Aidokun-Ogbo family.
Appellants’ counsel submitted that the Appellants herein as plaintiffs before the lower court pleaded clearly that 1st – 5th Defendants are not members of the Aidokun-Ogbo family, tracing the genealogy of that family right from its progenitor Aidokun-Ogbo down to each of the plaintiffs excluding each of the 1st – 5th Defendants. Reference was made to paragraphs 2, 3, 4, 7, 7c, 7e, 8, 9, 10 and 11 of the Further Amended Statement of claim on pages 170 – 172 of the record. It was contended that Appellants also pleaded facts to establish that each of the 1st – 5th Defendants descended from one Ajibode and that there was no blood relationship between Aidokun-Ogbo and Ajibode. See paragraphs 14, 15, 17, 19, 20, 21 and 23 of the Further Amended Statement of claim at pages 172 – 174 of the record. That Defendants joined issues with the Plaintiffs on who are the descendants of Aidokun-Ogbo between them and the Plaintiffs.
Learned Counsel submitted that from the pleadings of the parties both are relying on traditional history for and against the Plaintiffs first relief in respect of membership of Aidokun-Ogbo family. It was argued that the use of traditional history in form of evidence to sustain a declaratory relief is not restricted to declaration of title to land. Reliance was placed on The Anacho V. Chigere & Ors 2004 SCNJ 272 at 291; Olarenwaju v. Governor of Oyo State 1992 9 NWLR (Pt.205) 335 and Eze Akabekwe v. Emenike (!998) 58 at 73.
Learned Counsel further submitted that the learned trial Judge after a comparison of the evidence of traditional history as offered by each side found the evidence of the Defendants in respect of the genealogy and descent from Aidokun-Ogbo not consistent with their pleadings. It was contended that the Learned trial Judge ought to have made a clear and positive pronouncement as to which of the stories is accepted and which side is believed before a finding is made. That the Learned trial Judge must try the issue joined by the parties on whether 1st – 5th Defendants are members of Aidokun-Ogbo family which is the essence of the distinct relief claimed by the plaintiffs. See:- Salawu & Anor V. Yusuf & Anor (2007) 12 NWLR (Pt 1049) 707 at 725 – 726 and Yusuf v. Adegoke Anor (2007) 11 NWLR (Pt.1045) 332 at 360. That the Learned trial Judge was entitled to disbelieve the Defendants as regards the traditional history offered by them. See:- Okoko v. Dakolo (2006) 14 NWLR (Pt.1000) 401 at 427. That the failure of the Learned trial Judge to make a pronouncement on whether or not the Defendants are members of Aidokun-Ogbo family had occasioned a miscarriage of justice in that the issue of membership of the Defendants in Aidokun-Ogbo family remained unresolved. This Court is urged to invoke its powers under Section 15 of the Court of Appeal Act by applying the law on the evidence of traditional history already asserted by the trial Court to grant the relief that the Defendants are not members of Aidokun-ogbo family of Ewupe as claimed by the plaintiffs before the lower Court. It follows that the learned trial judge ought to have granted the order for perpetual injunction. He urged the court to resolve the first issue on the negative against the Respondents.
Respondents’ Counsel in the Brief of Argument submitted that the crux of the appeal is whether being a declaratory Judgment the learned trial Judge acted judicially and judiciously under the rule in University of Lagos and Anor. vs. M.I. Aigoro (1985) 1 NWLR (Pt.1) 143 at 144. Learned Counsel referred to ratio 3, 4 and 5 of the case. It was argued that declaratory judgment in discretionary it is a form of judgment which should be granted only in circumstances in which the court is of the opinion that the party seeking it is entitled to the exercise of the court’s discretion in his favour. See:- Onuoha v. Okafor (1983) 2 SCNLR 244, Ekwunu v. Ifejika (1960) SCNLR 320 and Egbunike v. Muonweokwu 1962 1 SCNLR 97.
Learned Counsel contended that the law is that upon grounds of law an Appellate court will not reverse discretionary order of a trial Court merely because it would have exercised the discretion differently. That if the discretion was wrongly exercised in that due weight was not given to relevant consideration, the order may be reversed. See:- Awani v. Erejuwa 11 1976 11 SC 307 and Odusote v. Odusote (1971) 1 All NLR page 219.
It was argued that the Learned trial Judge took into consideration the pleading of both parties and the evidence adduced and set up the imaginary scale under the rule in Mogaji v. Odofin (1978) 4 SC 91 before granting part of the reliefs sought and refusing part. That taking into consideration the guiding principle and laws relating to Appellate Court interference with declaratory judgment made by lower court, Counsel urged the court not to interfere as Appellants woefully failed to justify interference by this court. Learned counsel further submitted that there is no basis to disturb the findings of facts as the learned trial Judge evaluated properly the evidence adduced before him and ascribed proper weight to them. Reliance was placed on the cases of Ebba v. Ogodo (1984) 1 SCNJ 372, 2000 NWLR (Pt.675) 387, Woluchem v. Gudi (1981) 5 SC 291; Kwajafta v. BON Ltd. (2004) 13 NWLR (Pt.889) 146 and Ajadi v. Ajibola (2004) 16 NWLR (Pt.892) 91. Counsel urged the court to dismiss the appeal with substantial costs.
Going through the Pleadings and evidence of the parties, it is clear that parties have joined issue on 1st -5th defendants’ family status as regards membership of Aiyedokun or Aidokun-ogbo family. Where issues are joined in the pleadings and oral evidence, the court cannot resolve them without evaluating the available evidence on record so as to be able to ascribe value to them. See:- the cases of MOBIL PROD. NIG. UNLIMITED V. MONOKPO (2003) 18 NWLR (Pt.852) 346 at 436 and OSAZUWA V. ISIBOR (2004) 3 NWLR (Pt.859) 16 at 39.
I have carefully studied the proceedings in relation to the pleadings, evidence adduced by the parties and their witnesses. I have also examined the trial Judge’s findings and his decision.
The Appellants herein as plaintiffs before the Lower Court pleaded clearly that the 1st – 5th Defendants are not members of AIDOKUN-OGBO FAMILY. They traced the genealogy of the family right from its progenitor AIDOKUN-OGBO down to each of the Plaintiffs excluding the 1st – 5th Defendants. The relevant paragraphs of the pleadings are:- 2, 3, 4, 7, 7C, 7e, 8, 9, 10 and 11 of the Further Amended Statement of Claim on pages 170 – 172 of the record.
Furthermore, in paragraphs 14, 15, 16, 17, 19, 20, 21 and 23 of the Further Amended Statement of Claim at pages 172 – 174 of the record the Appellants pleaded facts to establish that each of the 1st – 5th Defendants descended from one Ajibode and that there was no blood relationship between AIDOKUN-OGBO and AJIBODE. For clarity and ease of reference I will reproduce paragraphs 2, 3, 4, 7, 7c, 7e, 8, 9, 10, 11, 14, 15, 16, 17, 19, 20, 21 and 23 of the Further Amended Statement of Claim as follows:-
“2. The Late Chief Abudu Gbadamosi the father of the first Plaintiff was during his life-time the head of Aidokun-Ogbo Family. All the Plaintiffs herein are principal members of the family, 6th Defendant is also a member of the family.
3. The 1st, 2nd, 3rd, 4th and 5th, Defendants are not members of Aidokun-Ogbo Family but descendants of some of the tenants of the family at Ewupe.
4. The progenitor of ADOKUN-OGBO family and the ancestor of the Plaintiffs as well as the sixth Defendant ingrated from Ile-Ife to Ota in company of his wives and children settled on and founded what is known today as Iga Idokun in Ota.
7. ADOKUN-OGBO had two wives AJE the first wife begat only one son OPEOGUN OROLE (M) popularly known as OROLE while the second wife OROBIYI had only one child called OMOBOLA a female.
7c. While the descendants of OMOBOLA are known as AYEDOKUN IWOYE FAMILY the descendants of OROLE are known as ADOKUN-OGBO FAMILY.
7e. OPEOGUN OROLE was like his father a very prosperous farmer. He established a farm-house on a portion of his land. This farm-house later grew and became popular and named EWU-OPEOGUN in Awori dialect meaning OPEOGUN’S ABODE. This was later shortened to Ewupe which is now the name of the village.
8. Orole was survived by only one son named Paki. Paki begat Ajaa (M), Taiwo (F) and Kehinde (F).
9. Ajaa begat Dada Aso (F) Aina Ogbuwa (F); Dada Aso begat Nofisat (F) and Abudu Gbadamosi the father of the first Plaintiff, Nofisat begat Sadiru Obalanlege the second Plaintiff.
11. Taiwo begat Abatan (M) Ababn begat Olosunde (F) Sunmonu Makinde (M) Makinde begat Salawu Abatan and Muraina Abatan (4th plaintiff) among others.
14. AJIBODE the ancestor of the 1st, 2nd, 3rd, 4th and 5th Defendants was an Egun from the Ara now known as the Republic of Benin.
15. AJIBODE came to Ota in company of his brothers Olufunwa Aside, Ota, Aje and Ifeawo upon the invitation of Olota who wanted them as warriors to assist in prosecuting Awori War.
16. AJIBODE and his brothers were initially settled with their deity Orin Ara (godess of war) at a place which is now as IDEGUN in Osi Quarters of Ota, deriving its name from the settlement of the Eguns “IDO-EGUN”.
17. After the war Ajibode and his brothers decided not to go back home and they were re-settled initially as IKOSO and later and Okewoye in Ota. In search of permanent abode of their own, Ajibode and his brothers later found ILOYE. This settlement later developed to become ILOYE Compound in OTA.
19. Ajibode married Agbala (F) who is not related to Adokun-Ogbo family and begat through her Aruka, Dada Iko, Akinde and Are (alias Kekere-Ogun) Agbala is from Agangbo Compound Ota,
20. Ajibode also married Omosebi from Isunbajon compound Ota. Omosebi who is not related to Adokun-Ogbo family begat Ajibode Oke Dada Ebiye, Talabi and Ajibose.
21. Aruka the son of Ajibode, upon his request was granted arable land at Ewupe by Paki who has inherited the whole area original settled upon by his grand-father Adokun-Ogbo.
23. Aruka begat Nosiru and Nosiru begat Yusuf Ajibode (1st Defendant), Karimu Ajibode (2nd Defendnat) and Raimi Ajibode (3rd Defendant). Are begat John Ayinde Are (5th Defendant) Akinbode Are and Peter Are while Ajibose begat Moses Ajibode (4th Defendant).”
The Respondents 1st – 5th Defendants had joined issues with the Appellants on who are the descendants of AIDOKUN-OGBO between them and the Appellants, Respondents pleaded that they descended from AIDOKUN-OGBO through one of his two sons named Ajibode. See:- paragraphs 4, 5, 6, 7, B, 9, 10, 11, 12, 13, 14, 15, 17 and 18 of the Statement of Defence at pages 114 – 120 of the record. For clarity I will reproduce here under the relevant paragraphs thus:-
“4. The 1st to the 5th Defendants deny paragraph 3 of the Statement of Claim and shall put the Plaintiff to the strictest proof thereof.
5. The 1st to the 5th Defendants deny paragraph 4 of the Statement of Claim to the extent that Aidokun-Ogbo had a son called OROLE and also to the extent that the 6th and 7th Defendants are descendants of Aidokun -Ogbo.
6. The 1st to the 5th Defendants deny paragraph 5 to 27 of the Statement of Claim and shall put the Plaintiffs to the strictest proof thereof.
7. The 1st to the 5th Defendants avers that their great-father and ancestor is by name AIDOKUN -OGBO. He hails from Ile-Ife, the cradle of the Yorubas.
8. AIDOKUN-OGBO settled at a place called Idokun-Otta with his two sons called (A) AJIBODE and (B) PAAKI.
9. Ajibode was senior to Paaki. Ajibode was a great farmer and hunter. Ajibode left Otta for Ewupe village as a result of his hunting expeditions.
10. When Ajibode finally settled at Ewupe Village he brought in his junior brother, Paaki to settle with him.
11. Ajibode and Paaki commenced farming and hunting activities on the land. The two brothers cultivated a large portion of the land without any misunderstanding.
12. AJIBODE begat Akinde, Are Ashin, Aruka, Oke and Aiibose.
13. (i) ARUKA begat NOSIRU
(ii) NOSIRU begat YUSUF Ajibode (1st Defendant) and RAIMI AJIBODE (3rd Defendant).
14. ARE ASHIN begat AYINDE ARE AND PETER ARE.
15. AKINDE AJIBODE AND OKE begat so many children who are also members of Ajibode branch of the Aidokun-Ogbo family.
16. PAAKI begat AJASA, a male child who jointly exercised right of ownership of the land in dispute with descendants for s many years and until he died.
17. AJASA begat dada Aso a female child who went to Ilogbo for marriage. Dada also married Gbadamosi Ilogbo and begat
(a) Late Chief Abudu Gbadamosi who begat Dauda a Gbadamosi (1st Plaintiff)
(b) Dada Aso also begat NAFISATU, a female child who went and married at Konifawo Okotikan and begat Sadiru Obalanlege (2nd Plaintiff).
Thus Sadiru Obalanlege’s father has nothing to do with Ewupe village and Sadiru’s only claim to Ewupe village is through his mother.
18. The 1st to the 5th Defendants shall contend that Ajasa had no female child called AINA OGBUWA and that such is invented by the Plaintiffs to accommodate the 3rd Plaintiff and that the 6th Plaintiff who are strangers to Aidokun-Ogbo family; Also Paaki had only one child called Ajasa. The introduction of Taiwo (F) and Kehinde (F) is invented to smuggle in the 4th plaintiff and the 7th Defendant into the AIDOKUN-OGBO FAMILY.”
By the pleadings of parties referred to (Supra) both parties are relying on traditional history for and against the Plaintiffs’/Appellants’ first relief in respect of the membership of AIDOKUN-OGBO family. Both parties called witnesses to support their pleadings. PW6 in particular, traced the genealogy of the Appellants to AIYEDOKUN-AGBO, the original founder and settler of the land. He also traced the genealogy of the Defendants to Ajibode whom he claimed was from Benin Republic and to whom land was granted by Aiyedokun-Ogbo for farming. The respondents also traced their roots to this same Aiyedoku-Ogbo.
It is clear from the record that the learned trial Judge made comparison of the evidence of traditional history as offered by each side. For instance, the trial Judge referred to paragraph 4 to 11 of the Statement of Claim and stated that Appellants by the averments traced the history of Aiyedokun-Ogbo family from Aiyedokun-Ogbo as the progenitor of the family down to each of the Plaintiffs excluding any of the 1st to 5th Defendants. In paragraphs 14-23 of the Statement of Claim Appellants traced the history of the 1st – 5th Respondents from their ancestor named Ajibode to each of the 1st and 5th Defendants/Respondents exclusive of the history and genealogy of Aiyedokun-Ogbo family as earlier pleaded. The trial Judge also referred to paragraphs of 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of 1st – 5th of the Defendants/Respondents’ Statement of Defence and also stated that they traced their family Lineage from each of them to AIYEDOKUN-OGBO but excluding the 3rd and 4th Plaintiffs, as well as the sixth Defendant. Reference was also made to paragraph 5 and 6 of the Statement of Defence. The trial Judge stated that by the pleadings, the Respondents are saying that; contrary to the position of the Appellants, Aiyedokun-Ogbo did not begat Orole but two sons named Paaki and Ajibode. Orole as a son of Aiyedokun-Ogbo is not part of the case of the 1st – 5th Defendants.
The trial Judge also referred to the testimony of DW6 (1st Defendant) during examination in Chief when he stated that Ajibode from whom he and the other 4 Defendants descended is the son of Opeogun Orole whose father is Aiyedokun-Ogbo. He stated that Aiyedokun-Ogbo had another female child named Omobola. The trial Judge found as fact that these pieces of evidence on the very important issue of who are descendants of Aiyedokun-Ogbo are contrary to the facts pleaded by the 1st -5th Defendants/Respondents.
Furthermore, on the issue of where Aiyedokun-Ogbo first settled at Otta when he came from Ile-Ife, the trial Judge observed that the 1s – 5th Defendants pleaded that Aiyedokun-Ogbo first settled at Idokun Otta, but the evidence of DW6 (1st defendant) during Examination in chief is that Aiyedokun-Ogbo first settled at Ikose Compound Ijana.
As to who founded Ewupe village the 1st – 5fr Defendants/Respondents averred in paragraphs 9 and 10 of their Statement of Defence that it was Ajibode that founded Ewupe village.
After identifying these conflicting evidence, the trial Judge conceded that the Respondent’s history as narrated by them is in conflict with their pleadings as enumerated above. The trial Judge rightly stated the position of the law. It is trite that parties are bound by their pleadings. Therefore, where evidence led is contrary to the facts as contained in the pleadings such conflicting evidence goes to no issue and the pleaded facts are deemed abandoned. See Yusuf v. Adegoke (2007) 11 NWLR (Pt.1045) 332 at 353; Njoku & Ors. v. Eme & 4 Ors. (1973) 5 SC 293; Mogaji v. Cadbury (Nig) Ltd. (1985) 2 NWLR (Pt.7) 393 and Amakor v. Obiefuna (1974) 3 SC 67.
It is also relevant to note the finding of the learned trial Judge at page 374 lines 13-14 of the record wherein he said:
“as I stated earlier, since the genealogical history of the Plaintiffs is supported by the Defendants……………”
Similarly on page 377 lines 1- 2 of the record the learned trial Judge had this to say:-
“The Defendants having admitted the validity of the genealogy of the Plaintiffs………….”
I agree with the submission of Appellants’ Counsel that going by the findings of the Learned trial Judge referred to (Supra) in respect of the probative value of the traditional evidence offered by the parties, it is imperative that a clear and positive pronouncement be made by the Learned trial Judge as to which of the stories is accepted or believed before a finding is made. As earlier stated issues have been joined on 1st –
5th Defendants Family status i.e. whether they are members of the AIDOKUN-OGBO Family. The trial Judge is required to try the issue joined by the parties. In Salawu v. Yusuf (2007) 12 NWLR (Pt.1049) 707 at 725 the Apex Court per Aderemi JSC had this to say:
“One thing that emerges from this case when is that traditional history is put forward by the parties, it is imperative that a clear and positive statement should be made by the trial Judge showing which story he (the learned trial Judge) accepted and which side he disbelieved before any finding is made. This is called the trial of the issue before finding is made one way or the other.” See also Yusuf v. Adegoke (2007) 11 NWLR (Pt.1045) 332 at 360.
As rightly pointed out by Appellants’ Counsel the learned trial Judge was entitled to disbelieve the evidence of traditional history offered by the Respondents having highlighted and found that their history as narrated by them is in conflict with their pleadings (see page 369, of the record lines 22-27). See also Okoko v. Dakolo (2006) 14 NWLR (Pt.1000) 401 at 427.
The general principles guiding the trial court on the application of traditional history do not distinguish between declaratory relief in respect of land, chieftaincy or family membership. The use of traditional history in form of evidence to sustain a declaratory relief is not restricted to declaration of title to land. See: Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (Pt.265) and 335.
As earlier stated parties joined issues as to the family status or membership of the 1st – 5th Defendants. That is whether they are members of the Aiyedokun-Ogbo Family. See paragraphs 8 – 18 of the 1st -5th Defendants Statement of Defence reproduced (Supra). It is to be noted that the evidence of the 1st defendant (DW6) was contrary to the 1st – 5th Defendants paragraphs 5 and 8 of the Statement of Defence. After stating portion of DW6’s testimony, the Learned trial Judge made a finding at page 369 lines 2-5 of the record as follows:-
”All these pieces of evidence on the very important issue of who are the descendants of Aiyedokun-Ogbo are contrary to the facts pleaded by the 1st to 5th Defendants.”
At page 369 lines 22 -30 of the record the trial judge also made these findings:-
”It is true that the defendants’ history as narrated by them is in conflict with their pleadings as enumerated. It is the law that parties are bound by their pleadings. Therefore, where evidence ted is contrary to the facts as contained in the pleading, such goes to no issue and the pleaded facts are deemed abandoned. Emegokure v. Okadigbo (1973) 4 SCNJ 1 at 117; Woluchem v. Gudi (1981) 5 SC 291.”
Relief (a) sought by the Appellants at the court below is very explicit. After making the various findings referred to Supra, the learned trial judge had a duty to consider and decide on such a vital issue raised before him. The issue of family status of the Respondents was a distinct relief claimed by the Appellants. The learned trial judge failed in his duty to pronounce on all issues placed before him. In Ebba v. Ogodo & Anor. (1984) 1 SCNLR 372 the Apex Court held, “that a court of appeal should not deal with issues not before it, so also when a party submits an issue to the court for determination the court must make a pronouncement on issue except where the issue is subsumed in another issue.” See also UKA V. Irolo (2002) 7 SCNJ 137 at 156 – 157.
I agree with Appellants’ counsel that the failure of the learned trial judge to resolve the issue of the membership of the Respondents had occasioned a miscarriage of justice. The membership of the Respondents in Aidokun-Ogbo family remained unresolved.
With the findings, made by the learned trial judge at page 369 of the record I am of the considered view that this court is entitled to interfere. The learned trial judge had found that the traditional history of the defendants was inconsistent with their pleadings and that the evidence of the defendants supported the pleadings of the plaintiffs but as earlier observed he failed to make pronouncement as to whether or not the Defendants/Respondents are members of the AIDOKUN-OGBO family a vital relief which the parties joined issues. The Learned trial Judge ought to have granted Appellants relief (a) based on the traditional history offered before him by the parties. Appellants have proved by their traditional history that Defendants are not members of Aidokun-Ogbo family of Ewupe and I so hold, In the circumstances issue 1 is accordingly resolved in favour of the Appellants’
Issue 2 is whether the learned trial Judge was right in taking the plaintiffs, relief for a declaration that the 1st – 5th Defendants are not members of Aidokun-Ogbo family and the relief for forfeiture of customary tenancy enjoyed by the Defendants as closely related and inseparable.
While arguing this issue the Appellants in their brief referred to the statement made by the learned trial judge in his judgment at page 367 lines 1 – 2 of the record wherein he said:-
“it will be observed that the claims (a) and (e) of the plaintiffs are Siamese in that they go together”‘
Learned counsel submitted that it was the opinion of the learned trial judge that since the plaintiffs were claiming that the defendants are not members of Aidokun-Ogbo family and are also claiming against them forfeiture of customary tenancy on Aidokun-Ogbo land the effective claim of the plaintiffs is that the defendants are customary tenants (see page 367 lines 7 – 10 of the record). It was contended that this is a wrong approach to resolve disputes put before the lower court. That the learned trial judge misconstrued the relief claimed by the appellants as plaintiffs and the issues joined by the parties. It was argued that the claim that defendants are not members of the plaintiffs family ought to have been taken separately from the claim for forfeiture. That in the claim for non-membership the relief is a general declaration of status; whereas in the relief for forfeiture proof of status in connection with occupation of land is merely one of the ingredients to sustain the claim. It was contended that the learned trial judge was off track in his approach and demonstrated total lack of understanding of the different legs of the claims of the plaintiffs. It was as a result of the misapprehension of the nature of the case of the Plaintiffs that the judgment of the court denied the plaintiffs a declaration that the defendants are not members of Aidokun-Ogbo family of Ewupe. That it was as a result of the wrong approach that the learned trial judge failed to make definite pronouncement whether the defendants are members of Aidokun-Ogbo family, which caused a miscarriage of justice. Reliance was placed on Udengwu v. Uzuegbu & Ors. (2003) 7 SCNJ 145 at 153. Counsel urged the court to resolve the second issue in favour of the appellants.
The relief sought by the appellants as, it relates to relief (a) and (e) are distinct and ought to have been treated separately. I agree with Appellants’ Counsel that the trial Judge misconstrued the reliefs claimed by the Appellants and the issues joined by the parties. The learned trial Judge should have resolved the issue of membership of the respondents separately. As a result of the wrong approach the trial judge failed to make a specific pronouncement as to whether 1st – 5th Defendants are members of the Aidokun-Ogbo family of Ewupe which occasioned a miscarriage of justice. The two reliefs are not inseparable, as such they ought to have been treated separately, I have already resolved relief (a) under issue 1. The complaint of the Appellants is in order and issue 2 is accordingly resolved in favour of the Appellants.
Issue 3 is distilled from grounds 3, 4 and 5 of the Ground of Appeal. The complaints’ of the Appellants is in respect of portion of the judgment of the lower court denying the Appellants the relief seeking the forfeiture of tenancy enjoyed by the Respondents and other descendants of Ajibode family on Aidokun-Ogbo family land at Ewupe, on grounds of misconduct.
Appellants’ counsel submitted in the brief of argument that the main issue joined by the parties is the basis of occupation and possession of various portions of Aidokun-Ogbo land at Ewupe. While the Appellants as plaintiffs are insisting as owners and that the occupation or possession of the Defendants is on the basis of customary tenancy, the defendants are insisting that they are co-owners with the Appellants as members of Aidokun-Ogbo family. Before Appellants could succeed in claim for forfeiture, certain conditions must co-exist. Counsel enumerated the conditions as laid down by decided cases thus:-
(a) the grant made by the ancestors of the Plaintiffs to the predecessors of the Defendants.
(b) the possessory right of the defendants predecessors which has been on for a long time and will continue in perpetuity until forfeited by the order of court.
(c) the denial of the overlordship of the grantor isone of the greatest misconduct that can attract forfeiture.
(d) the length of time of the possession of the customary tenant cannot transform ownership as title by prescription is not possible.
Reliance was placed on Lasisi & Anor V. Tubi & Anor 1974 12 SC 71, Abioye V. Yakubu (1991) 5 NWLR (Pt 190) 130 at 217, Akinloye & Anor V. Eyiyola & Ors 1968 NMLR 92 at 95 and Taiwo 1 lari Ogun V. Akinyelu & Ors. 2004 12 SCNJ 196 208 -209. It was submitted that the learned trial judge made a palpably wrong finding when he said that the appellants led no evidence in respect of their pleadings that the descendants of Ajibode and other customary tenants paid tributes to Ajasa and other descendants of Aidokun-Ogbo. Reference was made to page 371 of the record and testimony of PW2, PW4 and PW6. That long possession cannot defeat the claim of the Appellants for forfeiture as owners of the land in dispute. That traditional history is an acceptable method of proving customary title. See:- Ihenacho v. Chigere (2004) SCNJ 272 at 291. Learned Counsel further contended that the conclusion of the learned trial Judge that since the defendants had been on the land for a long time it will be travesty of justice to hold that they are customary tenants is perverse. That the decision of the learned trial judge refusing the claim of the Plaintiffs for forfeiture because of long possession of the Defendants on the land and for inadequate evidence of payment of tribute is perverse. That the learned trial judge did not consider at all the evidence of the acts of the defendants challenging the overlordship of the plaintiffs family by claiming that they too belong to that family. That this is enough misconduct that should earn the defendants forfeiture as claimed. See:- Archibong V. Ita 2004 1 SCNJ 141 at 184.
Counsel further argued that since all material evidence to sustain the claim for forfeiture as highlighted above are in the record, he urged the court to invoke its powers under Section 15 of the Court of Appeal Act and make order against the Defendants forfeiture of the tenancy enjoyed on various of Aidokun-Ogbo family land as claimed by the Plaintiffs/Appellants. That issue 3 should be resolved in against the Respondents.
At the lower court it was common ground amongst the parties that Aidokun-Ogbo family owns the Ewupe land. It was also not in dispute that both the plaintiffs and the defendants are occupying and are in possession of various portions of Aidokun-Ogbo family land. The main contention is that appellants as plaintiffs are insisting that defendants/respondents are occupying the land as customary tenants. While defendants on the other hand are claiming they are co-owners with the Plaintiffs as members of Aidokun-Ogbo family.
The Learned trial judge refused to grant the relief of forfeiture on the ground that Appellants did not lead sufficient evidence to show that Respondents are customary tenants and that they have been paying tribute.
It is clear from the record, the pleadings and oral testimony of witnesses adduced before the lower court that appellants gave evidence of traditional history and traced the genealogy of the undisputed founder and first settler of Ewupe land to themselves, excluding the respondents. The learned trial judge made a finding at page 374 lines 13-15 of the record confirming that the genealogy history of the Appellants is supported by the respondents. On the same page 374 lines 20-22 of the record, the learned trial judge made a far reaching finding as follows:-
“it is my view that in light of the uncontradicted traditional history narrated by PW6…..”(Underlining
mine)
Similarly at page 377 lines 1 – 2 of the record the learned trial judge made these findings:-
“The Defendants having admitted the validity of the genealogy of the plaintiffs……”
The appellants have therefore proved that they are the undisputed owners of the land at Ewupe being members of Aidokun-Ogbo family of Ewupe to the exclusion of the Respondents who are not members. Their source of title was from their progenitor Aidokun-Ogbo who founded Ewupe village.
On the issue of customary tenancy of the Respondents, Appellants pleaded in paragraph 13 of the Further Amended Statement of claim as follows:-
“13. Paaki in his lifetime granted portions of the land to many strangers as customary tenants from whom he received tributes. These customary tenants included Aruka, Akintoye, Oke, Ajibode, Adedigba Are Kekere-Ogun, Akinbore, Ige, Akinleye, Iroko Bante Ija, Iggi Agbede, Akogun Sanni, Bamgbose and many others. Some of the descendants of these grantees still remain on the Aidokun-Ogbo family land at Ewupe as customary tenants.”
In support of the pleadings PW2 gave evidence that he got the land on which he had been farming for over 75 years from the children of Ajasa. This witness also gave evidence to the effect that although both plaintiff and defendants farm at Ewupe like him, but plaintiffs and defendants are not members of the same family. See page 295 lines 1-4 of the record. PW4 also stated under cross-examination that although the defendants had been farming in Ewupe for a long time they are not part of the Aidokun-Ogbo family. See page 298 lines 20 -25 and 299 lines 4 -6 of the record. PW6 in line with pleadings of the plaintiffs also gave evidence of grant of arable land to many customary tenants including the ancestors of the defendants. At page 308 lines 12 -18 of the record pw6 had this to say:-
“The 1st to 5th Defendants are the descendants of some of our grantees of Aidokun-Ogbo land. We are not related, but their ancestors were granted farmlands to so many people including the ancestors of the 1st to 5th defendants. Some of the guarantors are Akintoye, Aruka, Are-Kekere-Ogun, Ajibode, Oke, Bamgbose, Iroko, Bante Ija, Ige Igi, Agbede Ete”.
The witness further stated at page 311 line 18 of the record, under cross-examination that tributes were paid up to 1953 to 1955. It is therefore evident that the Appellants pleaded and gave unchallenged evidence of the genealogy of the Ajibode family and how their forebearer ARUKA was granted land at Ewupe as customary tenant by Paaki the grandson of Aidokun-Ogbo. Contrary to the finding of the learned trial Judge, I am of the humble view that Appellants adduced sufficient evidence which established that respondents are customary tenants. The unchallenged evidence of PW6 showed that at one time they were paying tributes, which confirmed that they were not occupying the land as owners, but as customary tenants. While payment of tribute is recognized condition of customary tenancy, it is not always so and for all times. There are situations where tribute is not paid to the overlord and yet customary tenancy exists. There is no evidence to show that Aidokun-Ogbo family forfeited payment of tribute. It has been accepted as a result of the unchallenged traditional history presented by the Appellants that Respondents are not members of Aidokun-Ogbo family as claimed, as such they cannot be co-owners with the Appellants in respect of the land at Ewupe which is owned by Aidokun-Ogbo family of Ewupe. The Learned trial Judge also relied on long possession to deprive the appellants their relief for forfeiture of the tenancy. After reviewing the evidence of PW2, PW4, PW6 and DW1 that the defendants/respondents had been on the land for a long time, the trial judge concluded in the following words:-
“I short, the presence of the defendants on the land for generations cannot be disputed and that there is no evidence that they have ever been challenged thereon.”
See:- page 379 lines 19 -21 of the record.
I agree with Appellants’ Counsel that the portion of the judgment of the lower court quoted above clearly depicts lack of understanding of the case of the plaintiffs and misconception of the law on customary tenancy. The plaintiffs/appellants by their pleadings and evidence are claiming that members of the defendants’ Ajibode family are customary tenants on the land by virtue of grants made by Paaki and thereafter Ajasa and other descendants of Aidokun-Ogbo. The defendants are therefore on the land with the consent of the plaintiffs’ family and the issue of challenging them does not arise. The law is that customary tenants remain on the land in perpetuity and will not ripen into ownership, however long it may be. See: Akinloye v. Eyiyola & Ors. (1968) NWLR 92 at 95, Archibong v. Ita (2004) 1 SCNJ 141 at 183; Akinlogun v. Osholoja 2006 5 SCNJ 261 at 211; and Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130 at 201. It is clear from the authorities cited (Supra) that the decision of the learned trial judge refusing the claim of the plaintiffs for forfeiture because of the long possession of the defendants on the land and for inadequate evidence of payment of tribute is perverse.
Appellants are asking for forfeiture of the tenancy on ground of misconduct. The Appellants’ complaint is that the acts of the respondents showed that they are challenging the overlordship of the Appellants family by claiming that they belong to Aidogun-Ogbo family. Appellants are contending that this is enough misconduct that should earn the respondents forfeiture as claimed. See:- Archbong v. Ita (supra). It is not in dispute that by the pleadings and oral evidence adduced at the lower court respondents are claiming co-ownership with the Appellants of the land at Ewupe village as members of AIDOKUN-OGBO family of Ewupe. Having established that Respondents are customary tenants, their action amount to misconduct. Misconduct is one of the ways in which forfeiture could be granted. I find it useful at this stage to note the observation of the Apex Court per Niki Tobi JSC in the case of Akintagun v. Oshoboja (Supra) at Page 280 wherein he said:-
“A customary tenancy is determined by forfeiture. Forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner’s land, tenements or hereditaments, whereby he loses all his interest therein, as a recompense for the wrong which either he alone, or the public together with himself has sustained. See:- Mozeley and Whitecley’s Law Dictionary page 151. The punishment of forfeiture attaches to an act or acts of misbehavior on the part of the tenant. The act or acts include, (i) refusal to pay rent or tribute;
(ii) refusal to provide the customary services stipulated;
(iii) use of the land for quite a different purpose and
(iv) denial of the title of the overlord (Underlining mine for emphasis) of the above. I think the most serious, is (iv). The moment the tenant denies the title of the overlord, then the whole romance of landlord and tenant is gone. The next action is that of forfeiture.
See also Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130 at 201.
In view of all that I have said, I will accordingly resolve issue three in favour of the Appellants.
I now consider issue Four (4); which states:-
“whether it was right for the trial judge to grant a relief not claimed by any of the parties or vary a relief claimed without support from the evidence placed before the court by the parties and hearing from the parties.”
Appellants’ Counsel first referred to page 377 lines 20 – 24 of the record wherein the learned trial Judge concluded in respect of the claim (f) as follows:
“claim (f) succeeds in part and the defendants are hereby restrained from dealing with Aidoku-Ogbo family land without the knowledge and express consent of the defendants.”
Learned counsel submitted that this conclusion of the learned trial judge is perverse and has occasioned a miscarriage of justice. In the first place defendants/respondents did not counter-claim and never asked for any relief that enables them to deal with Aidokun-Ogbo family together with the 1st – 5th Plaintiffs/Appellants. Also the reliefs asked for by the Appellants did not include the giving of approval to the 1st – 5th defendants in relation to Aidokun-Ogbo family land. Counsel argued that court cannot grant any relief not asked for. See:- Ugbo v. Obiokire & Anor. (1989) 1 NWLR (Pt.99) 566 at 585 para G.
I agree with the submission of Appellants’ Counsel that the conclusion of the learned trial judge in respect of claim (f) is wrong. As rightly pointed out the respondents did not counter-claim and did not ask for such relief. Appellants did not also include the giving of approval to the 1st – 5th defendants in relation to the Aidokun-Ogbo family land in the reliefs sought by them. It is trite that a court has no jurisdiction to award a relief not sought by a party to the action. See:- Ebosie v. Ebosie (1976) 7 S.C. 113, Ochonma v. Unosi (1965) NMLR 325 and Imoloawe v. W.A.E.C. (1992) 9 NWLR (Pt.265) 303.
Appellants’ counsel also rightly pointed out that relief (f) cannot be granted in part as erroneously done by the learned trial judge. The first relief sought by the appellants was a declaration that the 1st – 5th defendants are not members of Aidokun-Ogbo family. The learned trial judge failed to make a definite pronouncement as to whether the 1st – 5th defendants are members of the Aidokun-Ogbo family or not. Having failed to make a clear and definite declaration, it was wrong for the trial judge to make an order restraining the defendants from dealing with Aidokun-Ogbo family land without the knowledge and consent of the 1st – 5th plaintiffs. How could the Respondents deal with Aidokun-Ogbo family land? Are they to deal with them as members of the Aidokun-Ogbo family or customary tenants? I agree with Appellants’ Counsel that claim (f) is apparently a consequential relief to claim (a). However, the learned trial judge refused to grant relief (a). It is very clear that the learned trial judge granted a relief not asked for by the parties. In the circumstances, I will similarly resolve issue 4 in favour of the Appellants.
Where the trial judge had failed to properly evaluate the evidence adduced by both sides to the dispute the court of Appeal has a duty to consider and evaluate such evidence and make proper findings. See:- Fashanu v. Adekoya 1974 1 All NWLR (Pt.1) 35 and Abusomnan v. Merchantile Bank Nig. Ltd. (1989) (Pt. 60) 196. In the instant case this court is entitled to interfere because the evaluation and findings are found to be perverse.
In the result, I find this appeal meritorious and same succeeds. Appeal allowed. The judgment of the High Court of Ogun State, Ota Judicial Division delivered on the 25th day of May, 2007 by Solanke J, is partly set aside as it affects reliefs (a) (d) and (e). Relief (f) which was partly granted is also set aside. I will invoke the powers of this court under section 15 of the Court of Appeal Act, 2004 and enter judgment in favour of the Plaintiffs in suit No. HCT/72/95 and grant reliefs (a), (d), (e) and (f) respectively. I hereby make the following order:-
(a) It is hereby declared that the 1st, 2nd, 3rd, 4th and 5th defendants are not members of Aidokun-Ogbo family of Ewupe.
(d) An order of perpetual injunction restraining the 1st, 2nd, 3rd, 4th, and 5th defendants jointly and severally from parading themselves as members of Aidokun-Ogbo family of Ewupe.
(e) An order of forfeiture of the tenancy enjoyed by the 1st, 2nd, 3rd, 4th and 5th defendants and descendants of Ajibode family over Aidokun-Ogbo family land at Ewupe on the grounds of misconduct.
(f) An order of perpetual injunction restraining the 1st, 2nd, 3rd, 4th and 5th defendants by themselves or as members of Ajibode family, their servants, agents and privies from dealing with Aidokun-Ogbo family land in any capacity.
Part of the Judgment of the lower court in respect of reliefs (b) and (c) is affirmed. There shall be N30,000.00 costs assessed in favour of the Appellants, against the Respondents.
MODUPE FASANMI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Mshelia J.C.A.
I agree with the reasoning and conclusion reached which I adopt as mine. For the reasons clearly set out in the judgment the appeal succeeds as it affects reliefs (a), (d), (e) and (f,) while the judgment of the lower court in respect of reliefs (b), & (c) is affirmed. I abide with the consequential orders made including the order on costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I subscribe to the exhaustive judgment just pronounced by my learned brother, Mshelia, J.C.A., which I had the advantage of reading in draft. I have nothing useful to add to the judgment. I adopt same together with the consequential orders contained therein.
Appearances
Mr. Adetunji OnabawoFor Appellant
AND
Mr. Dele BabalolaFor Respondent
