CORAM

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F. F. TABAI, J.C.A

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PARTIES

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ALHAJI KAREEM ISHOLA

APPELLANTS 

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ALHAJI AZEEZ ISHOLA & ANOR

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, CUSTOMARY LAW, LAND LAW, LANDLORD AND TENANT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Respondents commenced this action before the High Court of Oyo State, Ibadan Judicial Division wherein they claimed against the Appellants declaratory and injunctive reliefs over a parcel of farmland situate at Akinbade Farm, Idi Mango along Idi Iroko Road, Ibadan, which is more particularly delineated on Plan No. EFUN/12/0Y/88. In response, the Appellants alongside their Amended Statement of Defence filed a Counter Claim, seeking for declaratory and injunctive reliefs as well as general damages. At the end of the trial, the Court granted all the reliefs claimed by the Respondents, dismissing the Appellants Counter-claim. Aggrieved, the Appellants have appealed against the judgment vide their Notice of Appeal containing three (3) Grounds of Appeal.

 

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HELD

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Appeal Allowed

 

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ISSUES

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Whether having regard to the reliefs claimed in the claim and counter-claim, the pleadings and the evidence on record the learned trial Judge was right in granting the plaintiffs’ claims and dismissing the defendants’ counter-claim.

 

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RATIONES DECIDENDI

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CUSTOMARY LAW, LANDLORD AND TENANT, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE CUSTOMARY TENANCY – WHETHER PRESUMPTION OF OWNERSHIP LIES IN FAVOUR OF A CUSTOMARY TENANT

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“It is a settled principle of law that a claim, such as this, which seeks a declaration that the defendants are customary tenants of the Plaintiffs and a forfeiture of the customary tenancy, postulates, in unequivocal terms, that the defendants are in exclusive possession of the land in dispute.

And by the operation of section 146 of the Evidence Act Cap. E14 of the Laws of the Federation 2004, they are presumed to be the owners of the land in dispute until the contrary is proved to rebut the presumption. And the only way to rebut the presumption is by strict proof of the alleged customary tenancy. That is the dangerous legal consequence of a claim, such as this, founded on allegation of customary tenancy.

The principle was restated by the Supreme Court in the case of Raphael Udeze & Ors. v. Paul Chidebe & Ors. (1990) 1 NWLR (Pt. 125) 141 at 160-161. There, the court, per Nnaemeka-Agu, JSC stated.

“It is left for me to mention that the courts below also found that although the appellants pleaded that the respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to prove such a tenancy. It is significant to note that a customary tenant is in possession of his holding during good behaviour, and until it is forfeited for misbehaviour. Once it is the case that such a person is a customary tenant, and, therefore, in possession, then, like any other person in possession of land, there is a presumption of ownership in his favour. Although that presumption is rebuttable, by due proof of a tenancy the onus is on his adversary to rebut it, if he can. Where, as in this case, the customary tenancy is not proved, such a pleading may turn out to be a dangerous admission of possession in the opposite party, upon which the trial court may base a presumption of ownership, unless, of course, it is rebutted.”

-PER F. F. TABAI, J.C.A

 

 

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CUSTOMARY LAW, LANDLORD AND TENANT, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE CUSTOMARY TENANCY – INCIDENCE OF CUSTOMARY TENANCY

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“The question is, did the plaintiffs prove the alleged customary tenancy to rebut the presumption of the defendants’ ownership of the land in their possession? On this question, it is settled that the main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour. See Ejeanalonye v. Omabuike (1974) 4 ECSLR 435 at 438; Lasisi v. Tubi (1974) 1 ALL NLR 438 at 441-442. -PER F. F. TABAI, J.C.A

LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

TRADITIONAL HISTORY – EFFECT OF MINOR INCONSISTENCIES IN TRADITIONAL EVIDENCE

“The Supreme Court has always advised that in assessing evidence of traditional history, the courts should be wary in concluding that a party’s version is improbable simply because of some minor inconsistencies in it vis-Ã -vis the facts pleaded, unless the inconsistencies render the evidence materially at variance with the pleadings. See Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR, (Pt. 341) 676 at 699. In Andu Makinde & Ors v. Dawuda Akinwale & Ors. (supra) at 447 Belgore JSC spoke of inconsistencies in traditional evidence and their effects as follows:

“The claim of plaintiffs and their witnesses (except PW2) was that the ancestor was Odede who begat Aso, the PW2 however tilted this by testifying that Aso was the father of Odede. This contradiction, the Court of Appeal held, was material enough to vitiate the case of the plaintiffs on traditional history. Upon all the evidence before the trial court, I believe the Court of Appeal was in grave error. Whichever way it was, the plaintiffs claim to descend from the two … whether Aso or Odede was the father or son. Such lapses are not unusual in traditional history where we have absence of written records and parties depend on oral accounts passed from generation to generation. The case perhaps would have been different if PW2 did not mention Aso or Odede but other names entirely different …”

And still on the effect of minor inconsistencies in traditional evidence Uwaifo, JSC at pages 450-451 said:

“It is not that Odede and Aso, who were pleaded among a long line of ancestors of the appellants were shown not to have existed. The averment was that Odede begat Aso. But in evidence, the witness who testified on the point in juxtaposition said Aso begat Odede. All other numerous ancestors were named in the order they were pleaded. No other fact was available either in cross-examination or as adduced by other witnesses for the appellants or by the respondents to show that that witness was unreliable. That singular evidence on that point cannot be other than a result of a slip by a man over 70 years of age.”

See also -PER F. F. TABAI, J.C.A

 

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CASES CITED

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Jolayemi v. Olaoye (1999) 10 NWLR (pt. 624) 600 at 617.

Raphael Udeze & Ors. v. Paul Chidebe & Ors. (1990) 1 NWLR (Pt. 125) 141 at 160-161.

 

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STATUTES REFERRED TO

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Evidence Act Cap. E14 of the Laws of the Federation 2004

 

 

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