JOHNBULL OSEGBUE v. VINCENT SUNDAY ONONYE & ORS
(2018)LCN/11972(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of July, 2018
CA/E/214/2016
RATIO
APPEAL: LEAVE OF COURT
“It was submitted that leave of Court was not sought and obtained to argue ground A of the grounds of appeal as the said ground does not flow from the final judgment of the Court below. Rather it flows from an interlocutory ruling of the Court which was not appealed against. It was submitted that grounds of appeal must relate to the decision appealed against and must be a challenge to the validity of the ratio of that decision. The Court was referred Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546.” PER JAMES SHEHU ABIRIYI, J.C.A.
LAND LAW: OBLIGATION OF CUSTOMARY TENANT
“The law, it was submitted, is that a customary tenant’s obligations are (1) to pay his rents (2) be of good behaviour and (3) at all times acknowledge the title of the superior owners. If he complies with his customary obligations and conditions of his tenancy he is entitled to enjoy his holdings. We were referred to Ojomu vs. Ajao (1983) 9 SC 22.” PER JAMES SHEHU ABIRIYI, J.C.A.
LAND LAW: KOLA TENANCY
“Finally to issues 3 and 4. By law kola tenancy like other forms of customary tenancy is determined by an action for forfeiture. See Romaine vs. Romaine (1992) LPELR-2953 SC. It is therefore not correct as contended by learned counsel for the Appellant that when a piece of land is granted to an individual or community, it becomes the exclusive property of the grantee. The moment the tenant denies the title of the overlord then the whole romance of landlord and tenant is gone. What follows would be an action for forfeiture. See Akinlagun & Ors vs. Oshoboja & Anor (2006) LPELR-348 SC.”PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
JOHNBULL OSEGBUE
(for himself and on behalf of other members of Osegbue family) Appellant(s)
AND
1. VINCENT SUNDAY ONONYE
2. BEN OBANYE
3. AKUNWATA NNAJI OBANYE
(for themselves and on behalf of other members of Mgbelekeke family)
4. OANDO NIG. PLC Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 28th January, 2016 in the High Court of Anambra State holden at Ekwulobia in suit No. 0/29/2013.
The claim of the 1st to 3rd Respondents as plaintiffs in the High Court (the Court below) against the 4th Respondent and the Appellant as 1st and 2nd Defendants was for the following:
(a) A declaration that the purported transaction made by the defendants over renewal of lease or review of rent with respect to the lease of No. 61 New Market Road, Onistha (sic) without the consent and knowledge of the plaintiffs’ family and without paying to the plaintiffs the 20% of annual rent payable to the 2nd defendant’s family due to the plaintiffs is null and void.
(b) A declaration that the plaintiffs are entitled to statutory right of occupancy over the property known as No. 61 New Market Road, Onitsha which said property is subject to Mgbelekeke kola tenancy land tenure system.
(c) Forfeiture of the landed property by the 2nd defendant for challenging and denying the plaintiffs’ right as superior owners of the property at No. 61 New Market Road, Onitsha.
(d) Perpetual injunction restraining the defendants, their servants, agents or privies from remaining on the said land in any manner or whatsoever dealing with the said land known as No. 61 New Market Road, Onitsha.
The 4th Respondent and the Appellant in turn counter-claimed against the 1st to 3rd Respondents for the following:
(i) A declaration that late Madam Okwuagu was not a kola tenant of Mgbelekeke family as misrepresented in 1965 lease, but an Mgbelekeke leading female (Addah) who hailed from Ononye family of Mgbelekeke Village.
(ii) A declaration that the property known as No. 61 New Market Road, Onitsha was never bought from Mgbelekeke family by the descendants of late Madam Okwuagu under kola tenancy as a kola tenant but a grant given in memory of her, due to her position as a leading female (Addah) member of Mgbelekeke Village, which was inherited by the 2nd Defendant?s family as her descendants.
(iii) A declaration that consent is only paid once throughout the pendency of the kola tenancy, credited by a tenant who bought a land from the owners under kola tenancy with a prescribed fee, kola and wine.
(iv) A declaration that the collection of 20% of every annual rent paid to 2nd Defendant’s family as kola for consent by the Plaintiffs is illegal, fraudulent, exploitative and contrary to the operation of kola tenancy system.
(v) A declaration that the Plaintiffs are not entitled to the 20% kola for consent, which they are collecting from every rent paid to Osegbue family as consent.
(vi) A declaration that Mgbelekeke family is not entitled to 20% of the reviewed rent paid to Osegbue family.
(vii) An Order of perpetual injunction restraining the Plaintiffs from further inter-meddling and interfering with the Defendants’ quiet enjoyment of the property situate at No. 61 New Market Road, Onitsha as far as the property still remained in possession and occupation of the 2nd defendant and not sold by Osegbue family.
(viii) N10, 000, 000.00 (Ten Million Naira) general damages to be paid to each of the Defendants jointly and severally by the Plaintiffs for all the financial loss inconveniences and embarrassment caused to both Defendants by the institution of the suit.
(ix) And other orders or such further orders as the Honourable Court may deem fit to grant in the circumstances of this case.
In a rsum, the facts of the case are as follows: According to 1st to 3rd Respondents, they are principal members of the Mgbelekeke family of Onitsha. The Appellant is one of the descendants of late Madam Okwuagu Osegbue who hailed from the same family with the 1st to 3rd Respondents.
The family of 1st to 3rd Respondents are the owners of No. 61 New Market Road, Onitsha. The property was held under the kola tenancy system by the family of the Appellant. The grant was made after the death of Madam Okwuagu Osegbue to her children.
In 1965 by an indenture Agreement between Gabriel Ejikeme Osegbue & Ors and Agip Nig. Ltd the property was leased to Agip Nigeria Limited with the consent of the family of the 1st to 3rd Respondents under the customary kola tenancy of the Mgbelekeke family.
Oando Nigeria Plc which acquired Unipetrol which had earlier merged with Agip Nigeria Limited reviewed the annual rent and renewed the lease with the Appellant without informing the 1st to 3rd Respondents. The requirements under the customary kola tenancy contained in Section 3C of the 1965 lease agreement were not complied with.
When the Mgbelekeke family realized this, it wrote a letter through its counsel requesting for the 20% annual rent payable to the Appellant due to it as regards the reviewed annual rent.
The 4th Respondent and the Appellant neglected the letter from the Mgbelekeke family dated 20th June, 2012. The Mgbelekeke family caused their counsel to write another letter dated 16th July, 2012 to the 4th Respondent. The second letter of 16th July, 2012 was copied to the Appellant. The Mgbelekeke family by the letter further requested for its entitlement under the customary kola tenancy. The letter was also neglected by the 4th Respondent and the Appellant.
The Appellant and the 4th Respondent have refused to recognise the right of the Mgbelekeke family as superior landlords over the property by failing to observe the conditions contained in the lease agreement Exhibit A. They have also persistently refused to pay to the Mgbelekeke family the 20% annual rent payable to the Osegbue (Appellant’s) family due to the Mgbelekeke family.
The 4th Respondent is still carrying on business at No. 61 New Market Road, Onitsha despite protest by the Mgbelekeke family.
The Appellant’s family is challenging the rights and privileges of the Mgbelekeke family over the property.
The defence of the 4th Respondent and the Appellant is that the property was never held by the Appellant’s family (descendants of Madam Okwuagu Osegbue) as kola tenants under kola tenancy of Mgbelekeke family. Appellant’s grandmother and the 1st to 3rd Respondents according to the Appellant and the 4th Respondent are of the same Mgbelekeke family on whose behalf the land was given absolutely and in perpetuity to the family of the Appellants in memory of the Appellant’s grandmother.
That the 1965 agreement was drawn in error.
That in any case kola tenancy is paid once only by a kola tenant who holds a property under kola tenancy and not from every annual rent accruable.
That the Mgbelekeke family is not entitled to be paid 20% of the Appellant’s annual rent.
After hearing the evidence adduced by both parties and considering written addresses of learned counsel for the parties, the Court below entered judgment in favour of the 1st to 3rd Respondents and dismissed the counterclaim of the Appellant and the 4th Respondent.
The Appellant approached this Court by an original notice of appeal filed on 11th February, 2016. With the leave of the Court the notice of appeal was amended by an amended notice of appeal dated 8th September, 2017, filed on 11th September, 2017 but deemed duly filed and served on 30th January, 2018. The amended notice of appeal contains four grounds of appeal.
From the four grounds of appeal, the Appellant presented the following four issues for determination:
1. Whether the averment in paragraphs 3 & 4 of the Statement of Claim of the Respondents which ran thus; ‘2nd Defendant is one of the descendants of late Madam Okwuaju Osegbue, the original kola tenant of the Plaintiffs family with respect to the property at No. 61 New Market Road, Onitsha and the Plaintiffs are the original owners of the land at 61 New Market Road, Onitsha, which said landed property, was held under kola tenancy system of Mgbelekeke family by late Madam Okwuaju Osegbue’ have the same meaning with averment in the Respondents’ Amended Statement of Claim, which ran thus; ‘the 2nd Defendant is one of the descendants of Madam Okuagwu Osegbue’ and the Plaintiffs are the original owners of the land at No. 61 New market Road, Onitsha, which said landed property was held under the kola tenancy system of the Mgbelekeke by the descendants of late Madam Okwuagu Osegbue.
2. Whether the said landed property known as No. 61 Market Road, Onitsha was bought or leased by the sons of Madam Okwuagwu Osegbue in the year 1913 under Mgbelekeke kola tenancy or granted to the sons of Okwuagwu Osegbue on behalf of their mother, Madam Okwuagwu Osegbue, (nee Ononye of Mgbelekeke), who is the Respondents’ sister, because of the position she held as leading (Addah) female members of Mgbelekeke family, without terms and conditions at the time of the grant.
3. If the answer to issue No. 2 is in affirmative, that No. 61 New Market Road was neither bought nor leased was the trial Court right in holding that the Appellant’s family was kola tenant of the Respondent.
4. Whether the Appellant could be said to have challenged the radical title of the Respondents as held by the trial Court, for mere asserting the obvious fact that the Appellant’s grandmother, Madam Okwuagu Osegbue is the Respondents’ sister, and shared the same ancestors with the Respondents who were the original owners of the property known as NO. 61 New Market Road, Onitsha before it was granted to the Appellant’s family in 1913 because of the position she held as the leading (Addah) female member of Mgbelekeke family and granted relief of forfeiture against the Appellant?s family.
The 1st to 3rd Respondents formulated the following three issues for determination:
1. WHETHER THE GRANT OF THE ORDER TO AMEND THE STATEMENT OF CLAIM OF THE 1ST TO 3RD RESPONDENTS BY THE LOWER COURT OCCASIONED MISCARRIAGE OF JUSTICE AGAINST THE APPELLANT TO HAVE AFFECTED THE JUDGMENT OF THE LOWER COURT IF THE AMENDMENT WAS NOT GRANTED. (GROUND ‘A’ NOTICE OF APPEAL).
2. WHETHER THE APPELLANT?S FAMILY HELD THE PROPERTY AT 61 NEW MARKET ROAD, ONITSHA UNDER THE KOLA TENANCY SYSTEM OF THE 1ST TO 3RD RESPONDENTS TO WARRANT THE 1ST TO 3RD RESPONDENTS ENTITLED TO PAYMENT OF KOLA AS CONTAINED IN EXHIBIT ‘A’ LEASE AGREEMENT DATED 15TH SEPTEMBER, 1965. (GROUND ‘B’ NOTICE OF APPEAL).
3. WHETHER THE APPELLANT’S FAMILY CHALLENGED THE SUPERIOR TITLE OF THE 1ST TO 3RD RESPONDENTS OVER THE PROPERTY AT 61 NEW MARKET ROAD, ONITSHA TO ENABLE THE 1ST TO 3RD RESPONDENTS ENTITLED TO STATUTORY RIGHT OF OCCUPANCY AND FORFEITURE OVER THE PROPERTY. (GROUND ‘C’ AND ‘D’ NOTICE OF APPEAL).
The 4th Respondent did not file any brief of argument. Learned counsel for the 4th Respondent said the 4th Respondent was not contesting the appeal.
An issue for determination in an appeal should be clear succinct and terse. An issue for determination of appeal is a short question raised against one or more grounds of appeal and is meant to be a guide to the arguments and submissions to be advanced in support of the ground/s of appeal. It is a succinct and precise question either of law or of fact for determination by the Court. See Anaeze vs. Anyaso (1993) LPELR-480 SC page 36 per Wali JSC and Olafisoye vs. Federal Republic of Nigeria (2004) LPELR-2553 SC at page 35 per Tobi JSC.
Lengthy issues do not accord with the guidelines given by the Supreme Court in a host of authorities. See Bankole vs. Pelu & Ors (1991) LPELR-749 SC. In the instant appeal, the grounds of appeal are succinct and precise but the issues for determination presented by the Appellant and reproduced above are lengthy, unwieldy and in precise. Issue 1 is even incomprehensible.
For this reason, I prefer the issues submitted by the 1st to 3rd Respondents. I will determine the appeal on the issues submitted by the 1st to 3rd Respondents for determination.
On issue 1, learned counsel for the Appellant submitted that the Court below erred when it granted the application of the 1st to 3rd Respondents for amendment. The 1st to 3rd Respondents, it was submitted, changed the facts pleaded in their statement of claim with totality different facts in the guise of amendment. That the only intention of the 1st to 3rd Respondents in bringing the application for amendment of statement of claim was to change the facts of their pleading.
It was submitted that the 1st to 3rd Respondents did not need to amend the statement of claim to establish the fact that the property in dispute originally belonged to their ancestors as the Appellants in their pleadings admitted that fact.
Furthermore the 1st to 3rd Respondents had every opportunity to deny any untrue allegation of facts contained in the statement of defence of the Appellant as well as to exhibit any further document in rebuttal to the said defence of the Appellant if they had any, it was submitted.
The only reason why the 1st to 3rd Respondents decided to amend their statement of claim, it was further submitted, was to change the crux of the case they alleged from the fact that Madam Okwuagu Osegbue was their kola tenant to the fact that the children of Madam Okwuagu Osegbue were their kola tenants under Mgbelekeke customary kola tenancy after being served with the Appellant’s statement of defence and documents in proof of their defence.
The application for amendment of the statement of claim, it was submitted, was brought in bad faith and a machination to build a totally different case. The 1st to 3rd Respondents changed the facts and characters pleaded, it was submitted.
The Court below, learned counsel for the Appellant submitted, erred in law when it held that the family of the Appellants was kola tenant of the 1st to 3rd Respondents’ family by relying on Exhibit A that was at variance with the pleadings of the 1st to 3rd Respondents and also contained a non – existent custom.
It was submitted that there was no evidence before the Court below that the grant of the property in 1913 to the sons of the 1st to 3rd Respondents’ sister by the diokpa of Mgbelekeke was with terms and conditions under kola tenancy of Mgbelekeke.
Exhibit F relied upon by both parties, it was submitted, confirmed the case of the Appellant.
On issue 3, learned counsel for the Appellant submitted that when a portion of a communal/family property is mapped out and granted or given as a gift or grant to an individual or group of people, that portion ceases to form part the whole of the property of the said community or family and becomes exclusive property of that grantee.
It was submitted that testimonies of the 1st to 3rd Respondents? witness referred to extensively in the argument on issue 3 clearly contradicted Exhibit A relied upon by the 1st to 3rd Respondents in proof of the said alleged claim of purchase of No. 61 New Market Road, Onitsha under Mgbelekeke kola tenancy tenure system. Exhibit A, it was submitted, stated that the family of the Appellants held the property under customary kola tenancy of Onitsha which does not exist. Yet the Court below held that the Appellant’s family held the property under Mgbelekeke kola tenancy as kola tenants of the 1st to 3rd Respondents which was never proved before it. This, it was submitted, is akin to the trial Court doing the 1st and 3rd Respondents’ case.
Exhibit A, learned counsel for the Appellant maintained, stated that the heriditament was under Onitsha Native Law and Custom and that this fact was confirmed by the expert witness rejected by the Court below.
The Court was referred extensively to a portion of the judgment of the Court below which learned counsel for the Appellant contended affirmed the credible and reliable proof of the grant as the root of title of the property in dispute by the Appellant’s family since 1913 without interference from 1st to 3rd Respondents’ family.
It was submitted that the holding by the Court below that the Appellant’s family was a kola tenant of the 1st to 3rd Respondents’ family without any proof to that effect but relying on a lease agreement between the 4th Respondent and Appellant’s family amounted to grave injustice because the lease agreement was not a document evidencing the grant of the property in dispute to the Appellant’s family in 1914. Apart from this, the lease agreement was characterised with errors not-existent custom and misrepresentations, it was submitted.
On issue 4, learned counsel for the Appellants submitted that the Court below erred in law when it made its findings and held that the Appellant’s family challenged the radical title of the Respondents and ordered forfeiture against the Appellant’s family relying on Exhibit A. Exhibit A relied on by the 1st to 3rd Respondents, it was submitted, stated that the property in dispute was granted to the Appellant’s family by the 1st to 3rd Respondents’ family under customary kola tenancy of Onitsha, whereas the 1st to 3rd Respondents pleaded that the grant of the property was under Mgbelekeke kola tenancy which was at variance with Exhibit A.
Still the Court below gave the 1st to 3rd Respondents judgment on such contradictory facts that went to no issue, it was submitted.
It was submitted that the Court below wrongly substituted customary kola tenancy of Onitsha with Mgbelekeke kola tenancy which was not contained in Exhibit A and granted relief of forfeiture against the family of the Appellants by holding that the Appellant’s family is a kola tenant of the Mgbelekeke family.
It was submitted that both Exhibit A relied on by the 1st to 3rd Respondents and the pleadings of the 1st to 3rd Respondents are contradictory to each other. Thus they are at variance with each other and the Court below ought to have discountenance both Exhibit A and the pleadings of the Respondents as being unreliable.
It is trite law, it was submitted, that evidence at variance with pleaded facts goes to no issue. In the instant case Exhibit A stated that the heriditament of the Appellant’s family was under customary kola tenancy of Onitsha while the pleadings of the Respondents stated otherwise. Therefore the evidence goes to no issue and the Court below ought not have misinterpreted the clause ‘Onitsha customary kola tenancy’ in favour of the 1st to 3rd Respondents despite all the fallacies contained in the testimonies of PW1. The Court was referred to Ikpeazu vs. Otti (2016) 8 NWLR (Pt. 1513) 1 at 56, Ezenwaka vs. Okon (2017) 1 NWLR (Pt. 1547) 34 at 39 and Al-Hassan vs. Ishaku (2016) 10 NWLR (Pt. 1520) 217 at 238.
The Court was referred to the following evidence of the PW1 under cross examination:
Q. Is there anything like kola tenancy under Onitsha native law and custom by 1913?
A. Mgbelekeke kola tenancy is applicable to Mgbelekeke family alone and it is the only family that operates a kola tenancy under Onitsha native law and custom …
It is on record, it was pointed out that there was no documentary evidence before the Court below of the grant made in 1913 by the Respondents.
It was submitted that the lease agreement tendered as exhibit and acted upon by the Court below is not relevant in this case and should not have been acted upon by the Court below as it lacked evidential and probative value due to the fact that the said lease agreement was between the Mgbelekeke family and their kola tenants which did not prove anything in this case as this case concerns the Mgbelekeke family and the children of their sister.
It was submitted that collection of 20% of every annual rent by the 1st to 3rd Respondents is exploitative. Yet the Court below still held that such practice was in line with practice of kola tenancy and held that it was applicable to the Appellant’s family who did not purchase the property in dispute as kola tenants of the Respondents but were given the land by their grandmother’s brothers on her behalf.
It was submitted that the 1st to 3rd Respondents neither tendered any evidence nor call any expert witness, knowledgeable in operation of kola tenancy to prove the collection of 20% of every annual rent under Mgbelekeke kola tenancy both from the 1st to 3rd Respondents’ tenants and the children of their sister’s tenants was justified and in accordance with the operation of kola tenancy system.
On issue 1, learned counsel for the 1st to 3rd Respondents pointed out that the ruling granting the amendment of the statement of claim was not contained in the record of appeal.
It was submitted that the proposed amended statement of claim contained underlined areas affected by the amendment which was annexed to the affidavit in support of the application for amendment.
That the Court below granted the application for amendment on the ground that the amendment would not occasion a miscarriage of justice.
It was submitted that ground A of the grounds of appeal is incompetent. That the Appellant did not appeal against the ruling of the Court below as regards Ground A of the notice of appeal. That the Appellant did not ask the Court to set aside the ruling of the Court below and repeated that the ruling was omitted in the record of appeal.
It was submitted that leave of Court was not sought and obtained to argue ground A of the grounds of appeal as the said ground does not flow from the final judgment of the Court below. Rather it flows from an interlocutory ruling of the Court which was not appealed against. It was submitted that grounds of appeal must relate to the decision appealed against and must be a challenge to the validity of the ratio of that decision. The Court was referred Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546.
It was submitted that the decision granting the application for amendment did not form part of the record of appeal to this appeal and upon a careful consideration/perusal of the judgment there is nothing to suggest that the grant of amendment formed part of the judgment appealed against.
It was submitted that the ground of appeal is incompetent and should be struck out.
It was submitted that the grant of the application for amendment by the Court below in no way overreached and embarrassed the Appellant. It was submitted that the 1st to 3rd Respondents brought the application for amendment at the earliest opportunity in the proceedings and it was the only amendment granted to the 1st to 3rd Respondents in the proceedings at the lower Court and it did not cause miscarriage of justice. The Court was referred to Akaninwo vs. Nsirim (2008) 9 NWLR (Pt. 1093) 439.
On issue 2, learned counsel for the 1st to 3rd Respondents argued that the Appellant’s family through his forebears entered into a lease agreement Exhibit A with Agip Nigeria Plc now the 4th Respondent in 1965 with the consent of the Mgbelekeke family (1st to 3rd Respondents) the superior owners of the property. That the lease agreement confirmed the predecessors in title of the Appellant as kola tenants of the Mgbelekeke family. That the Appellant’s predecessors in title agreed to be bound by the lease agreement in respect of the payment of 20% annual rent until 2011 when the Appellant’s family refused to abide by the agreement.
The Appellant’s family, it was contended, had never challenged the lease agreement and did not make out a case of fraud in respect of the said lease agreement. It was submitted that the lease agreement binds the Appellant’s family as they are the successors in title of the parties that executed the said agreement.
It was submitted that if the parties willingly entered into an agreement, they are bound by its terms. The Appellant is bound by the terms of the agreement as successor – in – title in respect of the lease agreement Exhibit A.
The Court was urged to hold that the property at 61 New Market Road, Onitsha, which is in dispute, is held under the kola tenancy system of Mgbelekeke family and that the 1st to 3rd Respondents are entitled to the payment of kola as is contained in Exhibit A.
On issue 3, learned counsel for the 1st to 3rd Respondents submitted that contents of Exhibit A are very clear. That the Appellant refused to pay the 20% annual rent payable to the Mgbelekeke family in respect of ten years rent received in 2011 which was a breach of the covenant contained in the lease agreement Exhibit A as it relates to the Mgbelekeke family.
The 20% annual rent payable under the contract to the Mgbelekeke family, it was submitted, was paid until 2011 when the Appellant’s family refused to abide by the said covenant. It was submitted that a breach of that covenant by a kola tenant is a ground for forfeiture. The Court was referred to Ude vs. Nwara & Anor (1993) 2 NWLR (Pt. 278) 628.
It was submitted that neither the Appellant nor the 4th Respondent’s predecessors who entered into the lease agreement complained to the Mgbelekeke family in any whatsoever from the inception of Exhibit A that the property was granted to Okwuagu Osegbue not as a kola tenant or that the Mgbelekeke family are not entitled to 20% annual rent as kola and parties were observing same without let or hindrance.
It was submitted that Appellant’s counsel cannot be heard to suggest that Agip lawyer made a mistake in drafting the 1965 lease agreement without stating any particulars and without proving same. None of the parties, it was submitted, complained of an alleged mistake and the Appellant cannot be heard to complain now after the death of their forebears that entered into the lease agreement.
It was submitted that the refusal by the Appellant to abide by Exhibit A amounted to challenge of the landlord’s right over the property. The consequence, it was submitted, is forfeiture. It was further submitted that the counterclaim of the Appellant seeking for declaration that the property in dispute is not under kola tenancy is proof that the Appellant’s family challenged the superior title of the Mgbelekeke family over the property.
It was submitted that the 1st to 3rd Respondent’s case based on the challenge of their superior title by the Appellant was enough for the Court below to make an order of statutory right of occupancy and therefore forfeiture of the property in favour of the 1st to 3rd Respondents.
It was submitted that the Appellant and the 4th Respondent neglected to respond to the Mgbelekeke’s family letters protesting the denial of their right as superior landlords of the property. The Appellant and 4th Respondent, it was submitted, knew that they ought to pay the money due to the Mgbelekeke family but neglected to do so in a bid to challenge the rights of the 1st to 3rd Respondents as superior owners of the property in dispute. It was submitted that the amended statement of defence did not explain why the 4th Respondent refused to abide by the terms of the lease as regards the undertaking to deduct the 20% subsequent annual rent and pay same over to the Mgbelekeke family.
It was submitted that the Appellant and the 4th Respondent on the pleadings and evidence refused to acknowledge the rights of the superior landlords over the property. It was submitted that a customary tenant will remain in possession provided he is of good behaviour in the absence of which he forfeits his holding as a result of an order of Court for forfeiture at the instance of the customary landlords as in the present case.
We were referred to Ejeanalonye & Ors vs. Omabuike & Ors (1974) 2 SC 33 at 39 and Salami vs. Lawal (2008) 14 NWLR (Pt. 1108) 546.
The law, it was submitted, is that a customary tenant’s obligations are (1) to pay his rents (2) be of good behaviour and (3) at all times acknowledge the title of the superior owners. If he complies with his customary obligations and conditions of his tenancy he is entitled to enjoy his holdings. We were referred to Ojomu vs. Ajao (1983) 9 SC 22.
The Appellant and the 4th Respondent in the instant case, it was submitted, have refused to pay their rent, be of good behaviour and have denied the rights of the 1st to 3rd Respondents as superior landlords and the Court had no other option than to grant the reliefs sought by the 1st to 3rd Respondents.
It was submitted that from the amended statement of defence of the Appellant and 4th Respondent, it is not in dispute that the Appellant’s family denied the overlords’ title to the land and the consequence of their action is forfeiture of the land as held by the Court below. It was contended that the Appellant did not only aver that the Mgbelekeke family was greedy but went ahead to deny the 1st to 3rd Respondents the annual (kola) rent as contained in the lease agreement. The appellant, it was submitted, has challenged the superior Owners’ title and is liable to forfeit the property. We were referred to Lasisi vs. Tubi (1974) 12 SC 62, Taiwo vs. Akinwunmi (1975) 4 SC 143, Makinde vs. Akinwale (2000) 1 SC 89 and Ogundipe vs. Adenuga (2006) All FWLR (Pt. 336) 266 at 296.
Replying on points of law, learned counsel for the Appellant submitted that in as much as the order of amendment was not appealed against when it was granted by the Court below, the Court has power to entertain the complaint, since the complaint was adumbrated as one of the grounds of appeal with the particulars set out.
A ground of appeal must relate to the judgment or ruling complained of. Where this is not so, the ground of appeal should be struck out. See Omisore & Anor vs. Aregbesola (2015) LPELR-24803 SC page 136 – 137, Odom & Ors vs. Peoples Democratic Party & Ors (2015) LPELR-24351, Saraki & Anor vs. Kotoye (1992) LPELR-3016 SC, Afribank Nigeria Plc vs. Ubana (2011) LPELR-3632 CA and Friday & Ors vs. Governor of Ondo State & Anor (2012) LPELR-7886 CA.
Ground A of the grounds of appeal from which issue 1 is formulated is not related to the judgment of the Court delivered on 28th January, 2016 and should be struck. The said ground of appeal is related to a ruling of the Court below granting an application by the 1st to 3rd Respondents to amend their statement of claim. As learned counsel for the 1st to 3rd Respondents rightly pointed out, the ruling is not contained in the record of appeal. In the circumstances, ground A of the grounds of appeal and issue 1 formulated therefrom are hereby struck out for being incompetent.
I now turn to issue 2.
It is settled law that once land is granted to a tenant in accordance with native law and custom, full rights of possession are conveyed to the grantee. The only right remaining in the grantor is that of reversion should the grantee deny title or abandon or attempt to alienate the land. An outright grant of land is never to be presumed. It requires the clearest evidence. See Sagay vs. New Independence Rubber Co. Ltd (1977) LPELR-2975 SC page 19 – 20 per Sowemimo JSC and the decision of this Court in Adu vs. Mon (1998) LPELR-537 CA page 10 per Oguntade JCA. As is common with native transactions in the past, the grant of the heriditament by the Mgbelekeke family was not in writing. It is common ground between the parties that the grant was made in 1913. What parties are not agreed on is whether the grant was made to Madam Okwuagu Osegbue mother of the Appellant’s predecessors in title or to the Appellant’s predecessors in title after their mother’s death. The parties are also not agreed on whether the grant was made in perpetuity or not. Exhibit F which both parties relied upon has settled the argument as to who was granted the heriditament. It supports the testimony of the only witness for the 1st to 3rd Respondents that the grant was made to the Appellant’s predecessors in title after the death of their mother who came from the Mgbelekeke family.
This is also clear from Exhibit A. From Exhibit A, a lease agreement between the predecessors in title of the Appellant and the 4th Respondent shows that the land was granted to Gabriel Ejikeme Osagbue, Robert Osegbue and Albert Maduka Osegbue and not to their mother Madam Okwuagu Osegbue. It is also clearly stated in Exhibit A that the Appellant’s predecessors in title could only lease the land with the prior consent of the 1st to 3rd Respondents’ family first sought and obtained.
Learned counsel for the Appellant’s submission that there was no evidence that the grant to the Appellant’s predecessors in title was without conditions has no basis.
As shown earlier in the judgment there is a right of reversion should the grantee deny the title of the grantor as landlord or abandons the land or attempts to alienate the land.
Issue 2 is therefore resolved against the Appellant and in favour of the 1st to 3rd Respondents.
Finally to issues 3 and 4. By law kola tenancy like other forms of customary tenancy is determined by an action for forfeiture. See Romaine vs. Romaine (1992) LPELR-2953 SC. It is therefore not correct as contended by learned counsel for the Appellant that when a piece of land is granted to an individual or community, it becomes the exclusive property of the grantee. The moment the tenant denies the title of the overlord then the whole romance of landlord and tenant is gone. What follows would be an action for forfeiture. See Akinlagun & Ors vs. Oshoboja & Anor (2006) LPELR-348 SC.
Learned counsel for the Appellant made heavy weather of the type of kola tenancy granted to the Appellant’s predecessors in title. According to him the only witness called by the 1st to 3rd Respondents’ family contradicted Exhibit A. It is clear from Exhibit A that the Appellant’s predecessors in title and the Appellant were kola tenants. It did not in my view matter what type of kola tenancy it was. Exhibit A referred to the Mgbelekeke family as the paramount overload. Exhibit A made reference to the type of tenancy in some portions as kola tenancy of Mgbelekeke family while in other parts, it merely referred to it as customary kola tenancy. As the Appellant’s predecessors in title signed Exhibit A without bothering about the name of the customary kola tenancy that governed the grant, it means that the name did not matter. The fact remains that it was a customary kola tenancy.
Learned counsel for the Appellant further argued that the reliance on Exhibit A by the Court below occasioned a miscarriage of justice.
It is the law that parties are bound by the contents of any agreement duly executed by them. See Anyaegbunam vs. Osaka & Ors (2000) LPELR-508 SC. As learned counsel for the 1st to 3rd Respondents pointed out, the contents of Exhibit A are clear. No injustice was done to the Appellant and the 4th Respondent by the Court below applying Exhibit A to the facts of the case. In Exhibit A, the Appellant’s predecessors in title acknowledged the Mgbelekeke, that is, the 1st to 3rd Respondents’ family as their overlord which was the claim of the 1st to 3rd Respondents. Exhibit A was signed by the Appellant’s predecessors in title.
It is trite law that what is admitted need no further proof see Ndukwe vs. LPDC (2007) LPELR-1978 SC, Akinlagun & Ors vs. Oshoboja & Anor (2006) LPELR-348 SC and Cappa & D’ Alberto Ltd vs. Akintilo (2003) LPELR-829 SC. Exhibit A having been signed by the Appellant’s predecessors in title, the lower Court cannot be accused of miscarriage of justice by relying on it to find that the Appellant and his predecessors in title before him were kola tenants of the Mgbelekeke family.
Learned counsel for the Appellant argued also that Exhibit A was characterized by errors without pointing out the errors and how the errors, if any, misled the Appellant’s predecessors in title who signed it. The document was made in 1965 and the Appellant’s predecessors in title and the Appellant complied with it from 1965 to 2011 without any complaint of any errors in the said document Exhibit A. This complaint too has no basis.
Learned counsel for the Appellant submitted that the Court below erred when it found that the Appellant challenged the radical title of 1st to 3rd Respondents.
The punishment of forfeiture attaches to an act or acts of misbehaviour on the part of a tenant. However, it is not all cases of misconduct or misbehaviour that result in a guilty party becoming liable to forfeiture. The acts which may attract the punishment of forfeiture 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. (iv) Denial of title of the overlord. The moment the tenant denies the title of the overload he becomes liable to an action for forfeiture. See Akinlagun & Ors vs. Oshoboja & Anor (2006) LPELR-348 SC.
DW1 under cross-examination said that the agreement Exhibit A is still in force. That it is the same lease agreement they inherited and that the Appellant’s family never protested the payment of 20% of the rent paid to the Appellant’s family to the family of the 1st to 3rd Respondents, that is the Mgbelekeke family. As I pointed out earlier in this judgment, the Appellant’s predecessors in title in that agreement recognised the Mgbelekeke family as the paramount landlords of the property in dispute and the Appellant’s predecessors as kola tenants. In his written statement on oath, the DW1 claimed that the land was given to them in perpetuity. See page 230 – 231 of the record of appeal. In the face of the agreement between the Appellant and the 4th Respondent Exhibit A, nothing can be farther from the truth.
By claiming that the land was granted to them in perpetuity after unilaterally stopping the payment of the 20% of the rent payable to them by the 4th Respondent to the 1st to 3rd Respondents by letter Exhibit P dated 6th April 2000, the Appellants undoubtedly denied the title of the Mgbelekeke (1st to 3rd Respondents?) family as overlords. It is for this reason that the Court below in its judgment at page 392 of the record of apeal stated thus:
”In my mind, it amounts to misconduct for the defendant to deny the plaintiffs as their overlords and refuse to abide by the contents of Exhibit A, a lease made by their predecessors in title.”
I do not therefore agree with learned counsel for the Appellant that the Court below erred when it held that there was a challenge by the Appellant to the radical title of the Mgbelekeke family to the property in dispute.
Where a landlord claims forfeiture for gross misconduct and pleads it clearly as a claim, the tenant who has not sought and pleaded for a relief against forfeiture cannot have the relief. The tenant with clearly proven act of gross misconduct has an uphill task tackling a claim for forfeiture. See Olugbode & Anor vs. Sango deyi (1996) LPELR-2619 SC. The Appellant in this case did not ask for a relief against forfeiture which was clearly in the claim of the 1st to 3rd Respondents.
Issues 3 and 4 are therefore resolved against the Appellant and in favour of the 1st to 3rd Respondents.
All issues having been resolved against the Appellant and in favour of the 1st to 3rd Respondents, the appeal should be dismissed.
It is accordingly dismissed by me.
1st to 3rd Respondents are awarded N100, 000.00 costs to be paid by the Appellant.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.
I am at one with His Lordship for the reasons stated in the said leading judgment that the appeal is devoid of merit and also dismiss it. I abide by the consequential orders made therein including that of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I have read in draft the lead Judgment just delivered by my Lord James Shehu Abiriyi, JCA and I agree with his reasoning and conclusions that this appeal lacks merit and same should be dismissed. I so order.
The Judgment delivered at the High Court of Justice of Anambra State, Holden in Ekwulobia in Suit No 0/29/2013 on 28th January, 2016 is affirmed.
An order to cost in the sum of N100, 000. 00 is made against the appellant in favour of the 1st -3rd respondents.
Appearances:
F. N. Chike-OsegbueFor Appellant(s)
Steven Onyechi Ononye for the 1st to 3rd Respondents.
C. Obi for the 4th RespondentFor Respondent(s)
