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

CORAM

MOHAMMAD AMBI-USI DANJUMA    JUSTICE, COURT OF APPEAL.

PARTIES

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

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

APPELLANTS 

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

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

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiffs/Respondents instituted an action against the Defendants/Appellants at the High Court of Osun State seeking amongst others things a declaration that the Plaintiffs/Respondents were entitled to the customary right of occupancy in respect of a piece or parcel of land lying, being and situate at Ipepeji Ilare, and that the Defendants/Appellants, as well as all indigenes of Otan-Ile on Ipepeji farmlands, were tenants of the Plaintiffs/Respondents’ descendant’s family (successors of Odeyemi) on the Northern part of the land in dispute. The Plaintiffs/Respondents also claimed special and general damages for trespass committed by the Defendants/Appellants on the land in dispute. The Defendant/Appellants, on being served with the Plaintiffs/Respondent’s action, filed a counterclaim seeking a declaration that they were the owners of the land in dispute. The trial Court dismissed the Defendants/Appellants’ counter-claim and entered judgment in favour of the Plaintiffs/Respondents. Dissatisfied with the judgment of the trial Court, the Defendants/Appellants appealed to the Court of Appeal while the Plaintiffs/Respondents cross-appealed against the refusal of the trial Court to grant their claim for forfeiture of the tenancy against the Defendants/Appellants.

HELD

Appeal and Cross-Appeal Dismissed

ISSUES

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

2. Whether the Learned Trial Judge was right in his finding that the Appellants did not prove title to the land in dispute through their counterclaim on the preponderance of evidence thereby dismissing Appellants’ counterclaim and grant the Respondents’ claim to title to the land.?

3. Whether the judgment of the Trial Court can be supported by the weight of evidence before the Court.?

4. Whether reliefs 6 and 7 of the Respondents’ claims are properly initiated and endorsed on the writs of summons by the due process of the law before the Lower Court to confer jurisdiction on the Lower Court to entertain and grant the reliefs to the Respondents. ?

5. Whether the cross-appellants (sic) who have been held to be customary tenants of the cross-appellants based on the preponderance of evidence accepted by the trial court, have proved that the Appellants should have their tenancy forfeited on the northern part of the land in dispute verged yellow in the dispute survey?

RATIONES DECIDENDI

ADDRESS OF COUNSEL- ADDRESS OF COUNSEL CANNOT REPLACE EVIDENCE

“It is elementary law that address of counsel cannot take the place of evidence. See Ayanwale V. Odunsanmi (2012) ALL FWLR (Pt. 610) 1246.”PER ABIRIYI, J.C.A

CUSTOMARY TENANCY – EFFECT OF NON- PAYMENT OF RENT ON CUSTOMARY TENANCY

“In a customary tenancy the non payment of rent or tribute is not necessarily inconsistent with the ownership of the overlord. The circumstances and the reasons for the refusal to pay tribute may however determine whether there is a denial of the title of the overlord. See Alade V. Aborishade (1960) 5 F.S.C. 167.”PER ABIRIYI, J.C.A

FORFEITURE – DUTY ON A PARTY SEEKING A RELIEF OF FORFEITURE

“For a party to be entitled to the relief of forfeiture he must adduce credible and cogent evidence before the court that the tenants had committed such acts that would entitle him to the relief of forfeiture, which the cross appellant failed to do.”PER OWOADE, J.C.A

ISSUES FOR DETERMINATION – EFFECT OF WHERE ISSUES FOR DETERMINATION IS NOT RELATED TO ANY GROUND OF APPEAL

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

PROOF OF OWNERSHIP OF LAND– INSTANCES CONSTITUTING PROOF OF TITLE TO LAND BY POSSESSION

“Of the five ways of proving title to land, two of the five ways or factors deal with possession. One way is acts of long possession and enjoyment of the land in dispute. The other is proof of possession of connected or adjacent land. Possession, per se may not be prove of ownership. The possession must be long and the length of the period will be determined in the light of the facts of each case. Apart from the long possession, a Plaintiff can prove ownership of the land in dispute if he proves possession of land connected or adjacent to the land in dispute. See Salami V Lawal (2008) All FWLR (Pt.438) 2000. Evidence of inheritance from time immemorial is synonymous with traditional evidence as a way of proving ownership of the land in dispute.”PER OWOADE, J.C.A

CONFLICT IN TRADITIONAL HISTORY – DUTY OF THE COURT WHERE THERE IS CONFLICT IN TRADITIONAL HISTORY AS PRESENTED BY PARTIES- BEST WAY TO TEST TRADITIONAL HISTORY

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

CROSS-APPEAL – STATUS OF A CROSS-APPEAL

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

PROOF OF LAND BY TRADITIONAL EVIDENCE – A PARTY WHO RELIES ON TRADITIONAL EVIDENCE TO PROVE OWNERSHIP OF LAND MUST PLEAD THE ROOT OF HIS TITLE, THE NAMES AND HISTORY OF HIS ANCESTORS

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

FORFEITURE OF CUSTOMARY TENANCY- INSTANCES WHERE THE COURT CAN MAKE AN ORDER OF FORFEITURE

“Furthermore, it is settled that customary tenants should not suffer forfeiture for minor acts of misbehavior, and that the court are loath to order forfeiture except in the most exceptional circumstances, such as alienation of a portion of the land to others without the prior consent of the grantors, or by putting the land to uses other than those originally agreed upon, or by failure to pay the customary tribute, or by denying the title of the overlord. See Salami V Lawal (supra).” PER OWOADE, J.C.A

TITLE TO LAND – DUTY ON A PARTY WHO RELIES ON A COMMON ANCESTOR OR VENDOR IN PROVING TITLE TO LAND

“The law is that where both parties agree that the title to a land in dispute belongs to a common ancestor or vendor, for either side to succeed, he must be able to trace his root of title to the common ancestors or vendors. See Adebo V Saki Estates Ltd (1999) 7 NWLR (Pt. 612) 525.”PER OWOADE, J.C.A

ISSUES FOR DETERMINATION – ISSUES FORMULATED IN A BRIEF MUST BE BASED ON THE GROUNDS OF CROSS- APPEAL

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

CASES CITED

STATUTES REFERRED TO

Chiefs Law Cap 21 of Osun State 2003

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