In The Supreme Court of Nigeria
On Friday, the 19th day of May 2006
Before Their Lordships
Judgement of the Court
Umaru Atu Kalgo, J.S.C.
In the High Court of Lagos State holden at Ikeja, the 1st respondent who was the plaintiff claimed against the appellants and the 2nd respondent as defendants, the following reliefts:-
"(i) declaration of title to a customary right of occupancy to all that piece or parcel of agricultural land situate lying and being at Isheri Oshun via Agege Ikeja Division.
(ii) declaration that the said defendants are customary tenants of the plaintiff on the said land.
(iii) declaration that the said defendants have forfeited the customary right of occupancy in that they claimed wrongfully to be the owners of the land and have been dealing with the land inconsistent with the plaintiffs claim by selling and leasing without the plaintiff’s permission.
(iv) Possession of the land in dispute".
Pleadings were ordered, filed and exchanged in the trial court and the appellants in their Amended Statement of Defence counter-claimed for:-
"(1) an order of injunction restraining the 1st respondent (plaintiff) his servants and/ or agents from trespassing on the land subject matter of the action
(2) if the claim for forfeiture is proved by the 1st respondent an order relieving them from forfeiture of the customary tenancy of the land in dispute on such terms, if any as the court may impose".
At the trial, the 1st respondent called 8 witnesses to prove the case of the Oshoboja family and the appellants called only one witness. The 2nd respondent (who was 1st defendant) gave evidence and called one witness in his defence. At the end of the trial, learned counsel for the parties addressed the court and on the 4th of May 1990, the learned trial judge, Oshodi J. delivered a considered judgment as follows (page 508 of the record)
"(i) In respect of the plaintiff’s claim, entitled to a declaration of title to a customary right of occupancy in respect of the parcel of land shown in plan No. AL 19/1979 made on 17/9/79 in the area verged red in Exhibit H as against Laigbo Osu family including the 2nd to 5th Defendants.
(ii) The claim for declaration that the Defendants are customary tenants, forfeiture of the customary right of occupancy and possession are hereby dismissed.
(iii) The plaintiffs claim against the 1st Defendant are wholly dismissed.
(iv) In respect of the counter-claim since there is no forfeiture ordered, the plaintiffs are hereby restrained from disturbing the Defendants the Laigbo Osu family until the relationship between the parties are hereby determined".
The 1st respondent (plaintiffs) appealed to the Court of Appeal for the dismissal of
(a) his claims against the 2nd respondent (as 1st defendant) and
(b) his claim for declaration that the appellants and the 2nd respondent (as defendants) were their customary tenants; and
(c) his claim for forfeiture of the land in dispute against the appellants and the 1st respondent.
The appellants also appealed to the Court of Appeal against the order of declaration of customary right of occupancy of the land in dispute in favour of the 1st respondent (plaintiff).
The Court of Appeal heard the appeal and it dismissed the appeal of the 1st respondent against the dismissal of his claim against the 2nd respondent. It also dismissed the appeal of the appellants in respect of the declaration of title of customary right of occupancy to the 1st respondent. But the 1st respondent's appeal against the refusal of the trial court to declare the 1st respondent and the appellants (2nd - 5th defendants) as their customary tenants was allowed and forfeiture of the land was ordered within 12 months after the judgment. The appellants now further appealed to this court.
In this court the parties filed and exchanged their respective briefs according to the court rules. The appellants formulated the following issues for the determination of the appeal:-
"1. Whether the Court of Appeal had jurisdiction to determine the existence of customary tenancy between the plaintiff (Oshoboja family) 1st respondent herein and the 2nd - 5th defendants (Laigbo-Osu family) appellants herein and reverse the findings of High Court on the point when there is no substantive ground of appeal complaining against the specific issue namely that the Laigbo-Osu family are not customary tenants of the plaintiffs family (Oshoboja family) and the claim for forfeiture and possession were not established.
2. Whether the failure of the Court of Appeal to consider the grounds of appeal contained in 2nd - 5th defendants' notice of appeal (cross-appeal) occasioned a miscarriage of justice.
3. Whether the plaintiff proved title in the High Court to warrant a declaration of title to the land made in his favour by the High Court.
4. Whether the 2nd - 5th defendants (Laigbo-Osu family) appellants herein were entitled to an order of injunction restraining the plaintiff, his servants and / or agents from trespassing on the land subject matter of his action.”
The 1st respondent has adopted and agreed that the above issues arose for determination in the appeal. The 2nd respondent did not file any brief, and on the 20/02/06 when the appeal came up for hearing, it was reported that he died in 2003. He was not substituted or represented by any body. That was the end of the matter as far as he was concerned. The 1st respondent shall from now on in this judgment be referred to as "the respondent" simpliciter.
I shall now consider issue I. this issue is challenging the jurisdiction of the Court of Appeal in determining the existence or otherwise of customary tenancy between the appellants and the respondents’ family (Oshoboja family) when there was no ground of appeal complaining against it from the decision of the trial court. In order to look into this complaint properly, it is essential to set out the grounds of appeal and the issues for determination raised there from by the appellants and the respondent in the Court of Appeal against the decision of the trial court. In the Amended Notice of Appeal filed by the respondent as appellant on 12/10/98 (page 701 - 703 of the record) the grounds read:-
(i) The learned trial judge in law when he decided that the 1st defendant is not a member of Laigbo Osu family because of his ruling on the subject and because there is no appeal on it.
"(a) The learned trial judge failed to evaluate the Power of Attorney made by the 1st Defendant as the Head of Laigbo Osu family and all relevant registered leases made by the 1st Defendant as head of the said Laigbo Osu family:
(b) The learned trial judge failed to consider the admission of the 1st Defendant/respondent that he is a very important member of the Laigbo Osu family contrary to his pleadings.
(c) That the judgment is against weight of evidence".
The respondent formulated the following issues from the above grounds of appeal thus: - (page 659 of the record)
"(a) Are the Laigbo Osu family the customary tenants of the Oshoboja family on the land in dispute?
(b) Was the claim of the Oshoboja family for forfeiture and possession rightly dismissed?
(c) Should the action against the 1st defendant have been dismissed?"
In the notice of appeal filed by the 2nd - 5th respondents on 13/8/90 as cross-appellants in the Court of Appeal, the following grounds of appeal, without particulars were filed.
“(1) The learned trial judge misdirected himself on the law and on the facts when he hold that the plaintiff is entitled to a declaration of title to a customary right of occupancy in respect of the parcel of land in plan No. AL 19/1979 made on 17th September 1979 in the area verged red in Exhibit H as against the Laigbo Osu family including the 2nd - 5th defendants.
(2) The learned trial judge having held that the traditional history was incomplete erred in law when he failed to dismiss the plaintiff’s claims for declaration of title as per Exhibit H.
(3) The learned trial judge erred in law when he hold that the plaintiff cannot be bound by Exhibits K, KI and K2 on the doctrine of res judicata and issue estoppel for the parties are not the same.
(4) The learned trial judge erred in law when he failed to observe that Exhibit D judgment in suit No. IK/5/70 stops the plaintiff and the 2nd – 5th defendants from claiming title to the land in dispute or pressing the present claims against the 2nd - 5th defendants on the doctrine of issue estoppel and res judicata.
(5) The learned trial judge misdirected himself in law in failing to observe that the traditional evidence given by the plaintiff was at variance with his pleadings and cannot support the plaintiff’s claims.
(6) The judgment is against weight of evidence.
(7) The learned trial judge erred in law when he granted injunction against the plaintiff on the conditions that until the relationship between the Laigbo Osu family and the plaintiff was determined".
The issues for determination raised by the appellants from these grounds of appeal are: -
"(i) Whether the learned trial judge was right when he made an order declaring the plaintiff as entitled to a declaration of title to a customary right of occupancy in respect of the parcel of land shown on in plan No. AL/19/1979 made on 17/9/79 of the area verged RED in Exhibit H. as against the Laigbo Osu family including the 2nd - 5th defendants/appellants.
(ii) Did the plaintiff prove the traditional history of his family the basis of his claim for declaration of title to the land in dispute.
(iii) Whether the dismissal of the plaintiffs claim for declaration that the defendants are customary tenants, forfeiture of the customary right of occupancy and possession was right in law.
(iv) Whether the plaintiff can canvass or claim for declaration of title to a customary right of occupancy to the land subject matter of this case when the plaintiff in suit No. IK/5/70 Exhibit D. as defendant did not counterclaim for title.
(v) Whether the doctrine of issue estoppel or re judicata arising from suit No. IK/5/70 Exhibit D. preludes the present plaintiff and the 2nd - 5th defendants (sic) the Laigbo Osu Family from claiming title to the land in dispute.
(vi) Whether the 2nd - 5th defendants were not entitled to an order dismissing the plaintiff’s claim in its entirety.
(vii) Whether the 2nd - 5th Defendants were not entitled to an unconditional order for injunction restraining the plaintiff and his servants and or agents from trespassing on the land subject matter of this action as shown in plan No. AL/19/1979 of the Area verged RED in Exhibit H”.
I have taken the trouble to set out in detail the grounds of appeal in the notices of appeal filed by the appellants and the respondent here in the Court of Appeal and the issue for determination raised by each of them in their respective briefs. This is with a view to seeing clearly what was before the Court of Appeal.
The Court of Appeal in its judgment delivered on 14th July 1999, allowed the appeal of the respondent and declared that the Laigbo Osu family the appellants herein, are customary tenants of the respondent Oshoboja family. The learned counsel for the appellants submitted in his brief that there was no ground of appeal filed by the appellants before them to support that the decision and that issues (iii) and (iv) purportedly raised by the appellants to that effect in the Court of Appeal should have been struck out. The Court of Appeal, counsel submission had therefore no jurisdiction to determine the issue of the existence of customary tenancy, forfeiture and possession in this case since there was no substantive ground of appeal raising those issues. These issues counsel further contended cannot be formulated or distilled from the omnibus ground of appeal filed by the appellants He cited in support the cases of Ndiwe V. Okocha (1992) 7 NWLR (pt 252) 127 a 139 - 140; Sapara V. U. C. H Board (1988) 4 NWER (pt. 86) 58 at 82; Anyaoke V. Adi (1986) 3 NWLR (pt. 31) 731 at 742 -743 and Nwobosi V. ACB (1995) SCNJ 92 at 95.
It is now well settled that issues for determination in an appeal must be formulated or distilled from the grounds of appeal themselves and not from anywhere. In the grounds of appeal filed by the respondent in the Court of Appeal on 12/10/98, no specific complaint was made on customary tenancy, forfeiture or possession of the land in dispute. Thereof for determination by the Court of Appeal. In the grounds of appeal filed by the appellants in the Court of Appeal on 13/8/90, there were 7 grounds including the Omnibus ground. They complained of:
1. declaration of title to customary right of occupancy;
2. traditional evidence on declaration of title;
3. application of doctrine of issue estoppel and res judicata;
4. same as in (3) above
5. traditional evidence at variance with pleading;
6. Omnibus ground of, appeal
7. grant of the injunction pending determination of relationship.
I have earlier in this judgment set out the grounds of appeal and the issues formulated there-from. I have carefully examined them and I find that none of the grounds of appeal filed by the appellants in the Court of Appeal touched on the declaration of customary tenancy.
I now examine the grounds of appeal against the issues formulated by the respondent (p. 659 of the record) in the Court of Appeal. The respondent as appellant in the Court of appeal filed two grounds in his notice of appeal on 12/9/98
(p. 701 - 703 of the record) which I repeat here for purpose of clarity thus:-
"(1) the learned trial judge erred in law when he decided that the 1st defendant is not a member of Laigbo - Osu family because of his ruling on the subject and because there is no appeal on it.
(2) That the judgment is against weight of evidence".
He formulated the following issues for determination in his brief:-
"(i) Are the Laigbo Osu family the customary tenants of the Oshoboja family on the land in dispute?
(ii) Was the claim of the Oshoboja family for forfeiture and possession rightly dismissed?
(iii) Should the action against the 1st defendant have been dismissed?"
From the above, it is abundantly clear that the issue of customary tenancy forfeiture or possession was not mentioned and cannot properly be raised in ground of appeal (i) of the respondent in the Court of Appeal. The second ground is an omnibus ground, the scope of which I shall consider later in this judgment.
It is trite law that a court has no powers to set up a case different from that which the parties have brought before it. It is also well established that although the appeal court has the discretionary power to reframe or formulate issues for determination in an appeal different from those raised by the parties in their briefs, the refrained or formulated issues must be derived from or culled from the grounds of appeal filed by the parties. In this case, no issues were framed by the Court of Appeal and the court only considered together the issues raised by the parties in the appeals of the appellants and the respondent herein. I think that the Court of Appeal was right to classify the appeal of the respondent as the main appeal and that of the appellants as the cross-appeal. I shall refer to them as such in this judgment.
In the brief filed by the respondent herein in the appeal in the Court of Appeal in response to the cross-appeal of the appellants, he raised two- issues for determination, thus:-
"(i) whether the Court below was correct in arriving at the conclusion that the plaintiff is the holder of a customary right of occupancy over the land in dispute,
(ii) Is the order for injunction made by the court below correct?"
Looking at the grounds of appeal in the cross-appeal in the Court of Appeal, these 2 issues are no doubt relevant, but none of them touched on the issue of customary tenancy.
It is very clear to me therefore that none of the grounds of appeal filed in the main appeal or the cross-appeal in the Court of Appeal complained directly against the trial court order on customary tenancy forfeiture and possession which reads:-
"The claim for declaration that the defendants are customary tenants, forfeiture of the customary right of occupancy and possession are hereby dismissed".
However ground 2 of the main appeal and ground 6 of the cross-appeal contained the omnibus ground namely "judgment is against the weight of evidence". Can this be relied upon to enable a party to raise an issue of law or of fact against a specific finding in the case appealed against? What then is an omnibus ground of appeal and what is its scope in civil proceedings.
The main argument of the appellants counsel in the brief is that since no issue was raised from the omnibus ground, the ground is deemed abandoned. He further argued that even if it is assumed that the appellants have raised issues there-from, those issues cannot be accepted as they complained against trial court, i.e. customary tenancy, forfeiture and possession. For the respondent it was simply argued in the brief that the omnibus ground is of necessity a complaint against the totality of evidence adduced before the trial court and not on a finding of fact on any specific, issue and that the question of customary forfeiture and possession arose from the facts pleaded and evidence adduced by the parties at the trial.
An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Aiibana V. Kolawole (1996) 10 NWLR (pt. 476) 22. It therefore follows that for a complaint on a finding of fact on a specific issue, substantive ground of appeal must be raised challenging that finding. . It cannot be covered by an omnibus ground. Where however, no issue is raised in respect of a ground of appeal, the ground of appeal is deemed abandoned and it should be struck out. See Ndiwe V. Okocha (1992) 7 NWLR (pt. 252) 129; Iyaji V. Eyigebe (1987) 3 NWLR (pt. 61) 523; Ajibade V. Pedro (1992) 5 NWLR 257, Are V. Ipave (1986) 3 NWLR (pt. 29) 416.In Mogaii V. Qdofin (1978) 4 SC 91, this court per Fatayi-Williams JSC (as he then was) held:-
"When an appellant complains that a judgment is against the weight of evidence all he means is that when the evidence adduced by him is balanced against that adduced by the respondent the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him".
And on the implication or effect of an omnibus ground of appeal this court per Uwais, JSC (as he then was) in Anyaoke V. Adi (1986) 3 NWLR (pt. 31) 731 also held that: -
"..... An omnibus ground of appeal implies that the judgment of the trial court cannot be supported by the weight of evidence adduced by the successful party which the trial court either wrongly accepted or that the inference drawn or conclusion reached by the trial judge based on the accepted evidence cannot be justified".
In both decisions quoted above, the emphasis is on "evidenced" before the trial court. This in my respectful view could be either evidence given by the successful party or given in his favour.
In the instant case, there is no doubt that the respondent at the trial did not call any material evidence to prove customary tenancy but there was some evidence by D.W 3 as confirmed by P.W. 1 to prove that the portions of the land in dispute were sold by the appellant’s family to one J. K. Adewunmi.
The respondent as plaintiff at the trial pleaded in paragraph 14 of their further Amended Statement of Claim that:-
"14. The plaintiff further avers that the defendants are now selling and leasing portions of the said land in consistent to their right as customary tenants of the plaintiffs’ family".
In reply, the appellants as defendants, in their Further Amended Statement of Defence and counter-claim pleaded in paragraph 7 that:-
"7. With further reference to the said paragraph, these defendants aver that since the judgment in suit IK5/70, they have not sold or leased any land in Ijegun Isheri Osun or otherwise challenged the overlord ship of the plaintiff’s family".
In suit No. IK/5/70 referred to in paragraph 7 above the claim of the appellants as plaintiff as to the title of the land in dispute was dismissed. They now pleaded that since the case; they never disputed or challenged the "over lordship" of the respondent's family over the land in dispute. This is an unequivocal admission in the pleadings which needs no proof.
It is also evident that the appellant in their cross-appeal in the Court of Appeal, at page 631 also filed an omnibus ground of appeal that the judgment is against the weight of evidence. They thereafter raised issue (iii) on page 641 of the record dealing specifically with the question of customary tenancy. This means that both the appellants and the respondent filed an omnibus ground in their notices of appeal, and both raised the issue of customary tenancy and argued it in their respective briefs, All this border on issues of fact to determined the customary tenancy and each party was saying that the evidence it adduced was more cogent and acceptable than that of the other. Therefore in my view, and in line with the decision of this court in Mogaji V. Qdofin (supra) and Anyaoke V. Adi (supra) the Court of Appeal has jurisdiction to entertain the contention of the parties in respect of the issue of customary tenancy based on the evidence adduced by the parties at the trial on the omnibus grounds filed by them and the relevant issues raised thereon. There was no specific finding of fact upon which a substantive ground of appeal should be raised. I therefore resolve this issue against the appellant.
Issue 2 is alleging that the Court of Appeal has failed to consider the grounds of appeal contained in the notice of appeal filed by the 2nd - 5th-defendants i.e. the appellants and this occasioned a miscarriage of justice. Let me say straight away that since the introduction of brief writing in our civil trial procedures, this court has stopped considering grounds of appeal filed by the parties in their notices of appeal.
What the court considers since then and now, are issues for determination, which are properly distilled from those grounds and no more. The Court of Appeal in its judgment set out fully all the issues raised by the parties and said that as the issues are inter-wined and interlocking, they would be considered together. This is what it did before coming to its final decision, and the appellants have not shown what miscarriage of justice they suffered as a result.
Learned counsel for the appellants has cited a number of cases in support of his contention in this issue. I have carefully examined all of them and I found them to be irrelevant to the point issue. I agree with the submission of the learned counsel for the respondent that all the issues raised by the, appellants in their briefs were properly and dully considered in the judgment of the Court of Appeal. In the circumstances, I answer this issue in the negative.
Issue 3 is questioning whether the plaintiff (now respondent) proved title in the High Court to warrant a declaration of title made in his favour by the High Court. Looking at the issue itself as framed, it is complaining about proof of title by evidence in the High Court and the declaration of title by the High Court. It is absolutely clear that the issue is talking about what has happened solely in the High Court and not in the Court of Appeal. Since the promulgation of the 1979 Constitution, this court has ceased to have any jurisdiction to entertain any complain or appeal from the decision of the High Court directly whether civil or criminal, final or interlocutory. Therefore, in my respectful view, this issue is not properly before this court and cannot properly arise from the grounds of appeal filed by the appellants on pages 841 - 845 of the record. Accordingly strike it out as being irrelevant.
Issue 4 is the last of the issues raised in this appeal by the appellants. It asked whether the appellants were entitled to an order of injunction restraining the respondent, his servants and or agents from trespassing on the land in dispute.
On page 506 of the record, the learned trial judge held in his judgment that:-
"On ownership, the plaintiff relies more on traditional evidence and Exhibits A. B. and D... The fact remains that he established the history up to Oshoboja family on whose behalf he is claiming. This traditional evidence remains uncontraverted and it is supported by Exhibits A and B..... Also by Exhibit D the claim of title of Laigbo Osu has been dismissed as against the Oshoboja family although the court did not confirm the ownership on the Oshoboja family as there was no counter claim. I am therefore entitled to hold that the plaintiffs are entitled to the declaration of title as per Exhibit H".
And the Court of Appeal after carefully examined the whole evidence before the trial court came to the conclusion that even if the admission of over lordship of Oshoboja family by the appellants was ignored, the evidence of traditional history adduced by the plaintiff (respondent) was wrong enough to entitle them to a declaration of title. In other words, it confirmed that decision of the trial court. I have also carefully examined the evidence on this issue, and I entirely agree that the declaration of title to the respondent was fully justified. It is also not in doubt that the Court of Appeal has found properly in my view as discussed earlier in this judgment that the appellants are customary tenants of the respondents. Therefore since the plaintiff (respondent) was entitled to declaration of title to the land in dispute and the appellants are customary tenants of the respondents, it is improper and wrong to issue an injunction restraining the respondents from dealing with the land in dispute as they cannot be and are not trespassers on the land I therefore answer this issue in the negative and resolve same against the appellants.
From all what I
have said above, I find that there is no merit in this appeal, accordingly
dismiss it and affirm the decision of the Court of Appeal.
Judgment Delivered By
Salihu Modibbo Alfa Belgore. J.S.C.
It is clear on the evidence at the trial court and upon the pleadings that the appellants abused the right of their overlords, the Oshoboja family. By claiming outright title when they were all along customary tenants, the appellants obviously abused their privilege to remain on the disputed land. I therefore agree with my learned brother, Kalgo JSC, that this appeal lacks merit. I also dismiss it with the same orders as to costs.
Judgment Delivered By
Aloysius Iyorgyer Katsina-Alu. J.S.C.
I also dismiss
the appeal with
Judgment Delivered By
Niki Tobi. J.S.C.
I have read in draft the judgment delivered by my learned brother, Kalgo, JSC and I agree with him. I want to take briefly the issues of customary tenancy and forfeiture.
On customary tenancy, the Court of Appeal said at pages 733 and 734 of the Record:
"With respect to the learned judge, I think that notwithstanding that the plaintiff failed to lead evidence as to the incidents of customary tenancy between the plaintiff and the Laigbo Osu Family of the defendants, I think that the circumstances of this case and the admission of the 2nd to 5th defendants that the Oshoboja Family was their overlord was enough a basis from which to infer customary tenancy. In Yoruba customary law, a grant is always made in perpetuity subject to good behaviour. There are occasions where a grantor secures under a customary grant an arrangement which enables the grantee to pay tributes by way of Ishakole, but this is not an invariable practice. In this case the trial judge rightly made a declaration of title in favour of the plaintiff. So, if the 2nd to 5th defendants were on plaintiff's land, it was for the 2nd to 5th defendants to establish the right by which they were on plaintiff's land. The position would have been otherwise if the lower court had not made a declaration of title in favour of the plaintiff. If the 2nd to 5th defendants were on land adjudged to belong to the plaintiff, by what licence or authority were they on the land? Had the land been given to them as gift? Were they pledgees or mortgagees of the land? The circumstances in my view call for the invocation of the principle in Thomas vs. Holder (1946) 1 NWLR (Pt. 70) 301. This is the more so in this case where the plaintiff was only stating that the Laigbo Osu Family of the 2nd to 5th defendants was his family's customary tenants. It has to be born in mind that customary tenancy in Yoruba land which allows the tenant to remain on the land in perpetuity subject to good behaviour is the least onerous tenure that a person who is not the owner of land can enjoy. In this case, the 2nd to 5th defendants admitted that the plaintiff's family was their overlords. Even if this admission could not be made the basis of the grant of declaration of title, it seems sufficient in my view as a basis to hold that a customary tenancy was in existence."
I cannot fault the above conclusion of the Court of Appeal because it is a clear exposition of the position of the law. The concept of customary tenancy, which creates a relationship of landlord and tenant, is peculiar to customary law and has no equivalent in English law. The concept connotes a situation where strangers or immigrants are granted land by the overlord to be in occupation and continue in peaceable enjoyment, subject to forfeiture of the right on certain grounds, including alienation of the land without the consent of the overlord, denial of the title of the overlord or refusal or failure to pay tribute.
While payment of tribute is a recognised 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. For instance, where the tenant unequivocally recognises the position of the overlord, customary tenancy exists. In other words, where the tenant unequivocally recognises the position of overlord of the landlord, a customary tenancy exists, whether tribute is paid or not. After all, payment of tribute could be overlooked by the landlord who has milk of kindness in him and a flowing charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. The point I am making is that the Court of Appeal is correct in coming to the conclusion that payment of tribute by way of Ishakole is not an invariable practice. The most important condition, if I may say so, is for the tenant to agree that the landlord is his overlord, and there is a plethora of evidence on that by the 2nd to 5th defendants. That settles the issue of customary tenancy.
The final issue I want to take, flowing from the customary tenancy, is the act of forfeiture. On the issue of forfeiture, the Court of Appeal said at pages 737:
"It is apparent from the evidence of the 3rd DW that although the 2nd to 5th defendants pleaded for a relief against forfeiture they did not show any remorse or penitence in their evidence before the lower court. To the end of the trial, they maintained that the land belonged to their family."
After examining the case law in admirable detail, the Court of Appeal finally ordered forfeiture:
"The plaintiff/appellants' appeal against the refusal of the lower court to make an order of forfeiture of customary tenancy against the Laigbo Osu Family of the 2nd to 5th defendants succeeds and is allowed. I accordingly make an order that the customary tenancy of the Laigbo Osu Family of 2nd to 5th defendants be forfeited with effect from 12 months from the date of this judgment."
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 Mozlev and Whiteclev's Law Dictionary, page 151. The punishment of forfeiture attaches to an act or acts of misbehaviour 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. 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. And that was what happened in this case.
It is for the above reasons and the more detailed reasons given by my learned brother, Kalgo, JSC that I too dismiss the appeal. I abide by his orders as to costs.
Judgment Delivered By
Ikechi Francis Ogbuagu. J.S.C.
I have had the privilege of reading before now, the lead Judgment of my learned brother, Kalgo, JSC, just delivered by him. He has meticulously and carefully dealt with all the issues raised and canvassed in this appeal. I also entirely agree with his conclusion that there is no merit in the appeal. For purposes of emphasis, I will make my own contribution.
On 20th February 2006, when this appeal came up for hearing, I noted that the 2nd Respondent was reported dead on 21st November 2003. I also noted that there is an affidavit of "Non-Retention of Counsel by the 2nd Respondent" sworn to by Adewale O. Ade-Makanju, Esqr, who stated that he was the former Counsel for the 2nd Respondent. Unknown to him, I believe, at the time he deposed to the said affidavit, the 2nd Respondent, had died.
The Appellants filed eleven (11) grounds of appeal and formulated four (4) issues for determination, but regrettably, their learned counsel in the Brief of Argument, did not identify any of the said issues with any of the grounds of appeal. It has been stated and re-stated in a legion of decided authorities both in the Court of Appeal and in this Court, that for an issue for determination to be competent, it must be based or related to or distilled from an identified competent ground of appeal. See Amadi v. N.N.P.C. (2000) 10NWLR (Pt. 674) 76\ (2000) 6 SCNJ. /: (2000)6 S.C. (Pt. 1) 66; (2000) FWLR (PL 9) 1527; (2000) WRN. 47 and Archibishop of Jatau v. AlhaiiAhmed & 4 ors. (2003) 1 SCNJ. 382 @ 388. and many others. The consequence of failure to so relate/distil/identify such issue or issues with the ground or grounds of appeal, is that such issue or issues, is or are liable to be struck out.
I note that in the Respondent's Brief of Argument, the Appellants issues have been adopted. But conscious of the fact that a Respondent's issue or issues, (where the Respondent, did not cross-appeal), must also arise or relate and must be based on and correlate with the said ground or grounds of appeal of the Appellants, the learned counsel for the Respondent, has commendably, done this in the following manner:
"(i) Issue one is based on grounds 3, 4, 5 and 10 of the appeal.
(ii) Issue two is based on ground 6.
(iii) Issue three is based on grounds 1, 2 and 9.
(iv) Issue four is based on grounds (sic) 7".
See Animashaun v. University College Hospital (1996) 10 NWLR (Pt.476) 65. Alhaji Arowolo v. Akapo & 2 ors. (2003) 8 NWLR (Pt. 823) 451 (a), 500 C.A.; and Padawa & 8 ors. v. Jatau (2003) 5 NWLR (PL 813)
247@ 264 C.A.
It is submitted that there are no issues raised on grounds 8 and 11 of the appeal and therefore, the Court is urged to strike them out. The Appellants, only on 10th February 2006, filed a Reply Brief, which included this submission. It is settled however, that any issue not distilled from any ground of appeal, is incompetent and must be discountenanced together with the argument advanced there under in the consideration of the appeal. See Madumere v. Okafor (1996) 4 NWLR (Pt. 145) 637 and recently, Adelusola & 4 ors. v. Akinde & 3 ors. (2004) 12 NWLR (Ft. 887) 295 @ 311; (2004) 5 SCNJ. 235 @ 246.
I note that the learned counsel for the Appellants, appreciating what consequences should have befallen his clients through his own fault, in the said Appellants' Reply Brief, identified the issues with the grounds of appeal. But instead of acknowledging his said omission to so identify, has preferred to use the words that the Appellants said issues, "were argued in the Brief in the following manner":
Issue No. 1 is based on grounds 3, 4 and 5.
Issue No. 2 is based on grounds 6, 8 and 10.
Issue No. 3 is based on grounds 1, 2, 9 and 11.
Issue No. 4 is based on ground 7.
I do not like a counsel trying to show or pretend that he is clever.
Now to the merits of the appeal. The 2nd - 5th defendants/Cross-Appellants at the trial court admitted that the Plaintiffs/Respondent's family was their overlords. In effect, they admitted that they were customary tenants in respect of the subject matter of the suit. Firstly, in the claim No. 2 of the Writ of Summons, the Plaintiff/Respondent claimed for a declaration that,
"........the defendants have forfeited the customary right of
Occupancy in that the defendants claim wrongfully to be owners of the land and have been dealing with the land inconsistent with the plaintiffs claim by selling and leasing without the plaintiffs permission".
In paragraph 7 of the Further Amended Statement of Defence at page 420 of Vol. 2 of the Records, the Appellants averred as follows:
"7. With further reference to the said paragraph, these defendants aver that since the judgment in suit IK/5/70, they have not sold or leased any land in Ijegun-Isheri Oshun or otherwise challenged the over lordship of the plaintiffs’ family".
(The underlining mine)
I note that in paragraph 4 of the said Further Amended Statement of Defence, the Appellants averred that the traditional history they pleaded and narrated by them in the said action was rejected by the court and the claim dismissed. That action or suit is IK/5/70. The Appellants were the Plaintiffs and they sued the Respondent and prayed for a declaration of title to an area of land at Ijegun-Isheri Oshun. Their said suit, as admitted by them, was dismissed.
Remarkably again, in their counter-claim in the suit leading to this appeal, they claimed in the alternative, as follows:
"If the averments in paragraphs 12 to 14 of the Statement of Claim (which are denied by the defendants) are proved and a case for forfeiture is made out, an Order relieving them from forfeiture of the customary tenancy of the land in dispute on such terms if any as the Court may impose".
(The underlining mine)
Indeed, in Ground (v) of the Application, in respect of the counterclaim, it is averred as follows:
"(v) The plaintiff has condoned the alleged acts of misconduct".
See page 423 of Vol. 2 of the Records.
I suppose it is now firmly settled, that what is admitted, need no further proof. There are too many decided authorities in respect thereof. But see Akpan Obong Udofia & anor. v. Okon Akpan Udo Afia (1940) 6 WACA 216 @ 218, 219,; Phoenix Motors Ltd. V. Mr. Oiewunmi & 2 ors. (1992) 6 NWLR (Pt. 248) 501 @ 508 C.A.; Qgbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt. 376) 34 @ 53: (1995) 2 SCNJ. 58 and recently, Alhaji Ndayako v. Alhaji Dantoro & 6 ors. (2004) 5 SCNJ. 152 (g), 172.
See also Section 75 of the Evidence Act, which is clear and unambiguous.
It therefore, in my respectful view, becomes idle, for the Appellants who expressly and clearly admitted that they are customary tenants of the Respondent's family, to now argue or submit, (perhaps with their tongue in their cheek), that the incident of customary tenancy, was not proved by the Respondent. There is no evidence by the Appellants that they appealed against the judgment dismissing their said suit. So, as it stands, that said judgment still subsists. However, as noted by me above, the Appellants themselves say or admit that since the judgment in the said action, which they lost, they have not otherwise, challenged the over lordship of the plaintiffs/Respondent's family. In any case, the trial court, rightly, in my view, had no option, than to grant the said declaration sought by the Plaintiffs family. See also Exhibit "H". Honestly, this should have been the end of this appeal.
For the avoidance of doubt, there is Exhibit "A". It is a 1912 judgment, which supports the claim of the Respondent's family that they had a land adjoining a named boundary neighbour - Kudehinbo. See page 506 of vol. 2 of the Records. The trial court held that the traditional evidence of the Plaintiff/Respondent remains or remained uncontroverted and that it is supported by Exhibits "A" and "B". Indeed, in paragraph 9(a) of the Further Amended Statement of Defence at page 421 of vol. 2 of the Records, the Appellants averred as follows.
“9(a) these defendants admit paragraphs 1 and 4 (a) - (f) of the Further Amended Statement of Claim".
In the said paragraphs 4(a) - (f), the Plaintiff/Respondent, traced the root of title as pleaded by him up to Oshoboja's family who are now the owners in possession of the land in dispute. However, since the Appellants are not now claiming ownership of the land in dispute, I need not go further as it would amount to my repeating myself in respect of the same issue.
I note that the issues raised in the Appellants' Brief under Issue 2 in paragraphs 5.13, 5.14. and 5.15 at pages 12 and 13 of the Brief were not raised in the court below. Therefore, I hold that on the decided authorities, they cannot raise them now without the leave of this Court. This is because; the appeal is not from the judgment of the trial High Court. It is now settled that this Court, will only consider the findings of the Court of Appeal that are appealed against and not those of the trial court. See Chief Olatunde & anor. v. Abidogun & anor. (2001) 12 SCNJ. 225 @ 234; Bako & 2 ors. v. Laniyan & 2 ors. (2002) 7 SCNJ. 129 and Engr. Agbi v. Barrister Alabi (2004) 6 NWLR (Ft. 868) 78: (2004) 2 SCNJ. 1 @ 52. See also Section 233 (2) of the Constitution of the Federal Republic of Nigeria, 1999.
As to the issues of customary tenancy and forfeiture, they were before the court below as canvassed by the parties in their respective Briefs. The court below determined the two issues together. The Appellants have not pinpointed the issues they claim, were not considered by the court below.
I will pause here to state that although the Appellants were blowing hot and cold at the same time so to speak by first pleading for a relief from forfeiture, and yet, according to them they did not concede that they are customary tenants of the plaintiffs’ family. They maintained that the land in dispute belonged to their family. It is now firmly established, that the denial of a landlord's title, is a very serious affair or thing. Such a denial is treated or regarded by the courts, as a gross misconduct, and results automatically, in forfeiture. See the cases of Alhaji Suleman & anor. v. Johnson 13 WACA 213 (a), 215; Bello Isiba & ors. v. J.T. Hanson (1968) NMLR 76 (a), 78; Erinle v. Adelaja & 7 ors. (1969) NMLR 132 (a), 136; Taiwo & 3 ors. v. Akinwunmi & 2 ors. (1975) 4 S.C. 143 @ 171 to 173; (1975) 1 ANLR (Ft. 1) 202; Chief Oloto v. Dawuda (1911) 1 NLR 57 @ 60; and Onokpasi v. Onokpasi & anor. (1991) 12 S.C. 19 @ 57 just to mention but a few.
In the case of Chief Onyia v. Onia & ors. (1989) 2 S.CNJ. 120, this Court - per Obaseki, JSC, held that the grant of the remedy for forfeiture is not discretionary. That it follows on the breach of the customary tenancy. Let me add quickly, that it is settled that it is not in all cases of misconduct, or misbehaviour that result in a guilty party becoming liable to forfeiture. See Alhaii Are & anor. v. Ipaye & ors. (1990) 2 NWLR (Ft. 132) 298;(1990) 3 SCNJ. 181. It is said that the best known of such a situation, is where the overlord, fails to take the necessary steps to enforce his rights of forfeiture for the misconduct, in the court. This is why, despite the established misconduct of the customary tenant, forfeiture is not automatic as the overlord, must take the necessary steps to enforce his right of forfeiture as was done in the instant suit leading to this appeal. See Coker v. Jinadu (1958) LL.R. 77 and Lawani v. Tadevo (1944) 10 WACA 37.
It need be stressed and this is settled, that the alienation of land by a customary tenant as was the case in this case and as stated in claim (iii) of the Plaintiff/Respondent, without the consent of the landlord, will result in forfeiture. See Caulcrick v. Harding & anor. ; Idewu Inasa & ors. v. Chief Oshodi (1930) 10 NLR 4 @ 6. Indeed, in the case of Are & anor. v. Ipaye & ors. (1986) 3 NWLR 416, it was held that the court will not grant forfeiture, if undue hardship will be occasioned. See also Ogbakumanwu & ors. v. Chiabolo & ors. 19 NLR 107 where forfeiture, was refused on equitable grounds. But see and compare the case of Oduaran & ors. v. Asarah & ors. (1972) 5 S.C. 272 where forfeiture, was confirmed. Can the courts now grant forfeiture of holdings - i.e. customary right of occupancy, tenancy except as provided for under the Land Use Act, 1978 which deals with revocation of rights of occupancy?
My answer is in the affirmative. This is because, in the case of Madam Salami & ors. v. Eniola Oke & ors. (1987) 9-11 S.C. 43 (a), 49; (1989)9-11 S.C.N.J. 27, it was held again - per Obaseki, JSC, that it is a misstatement of law, to say that the Land Use Act, abolished the remedies or reliefs of forfeiture and injunctions. That forfeiture is available, whenever a tenant (like the Appellants), disputes the title of the overlord or landlord or alienates, without the landlord's consent, the whole or part of the parcel of land, let out to him by the landlord under customary law. See also the cases of Akpagbue v. Qgu ors, (1976) 6 S.C. 63, 74 and Taiwo & ors. v. Akinwunmi (supra) also referred to. That the remedy of injunction in respect of land, is primarily available, to restrain acts of trespass which are a wrong to possession. I note that even the court below at page 788 of vol. 3 of the Records, held that the reliance by the trial court on Section 36 of the Land Use Act, was erroneous. That the purpose of the Act was not to destroy customary tenancy and its incidents.
I can go on and on. I have gone this far, in order to underscore the point or make it abundantly clear to the Appellants, about the uselessness or futility of their Issue 1 and all the arguments in respect thereof. If the trial court, found, as claimed by the Appellants, that Laigbo Osu family of the Appellants, are not the customary tenants of the plaintiffs/Respondent's family (Oshoboja family), surely and certainly, such finding and holding, will be perverse. This must be so, in the face of the said admissions of the Appellants, as I have demonstrated above, that the plaintiffs said family, is/are their overlords and as found by a court of competent jurisdiction in the said Suit IK/5/70 instituted by the Appellants themselves which they lost.
Afterwards, an appeal before an Appellate Court is by way of re-hearing. Where the findings of a trial court, do not depend on credibility or demeanour of witnesses, it is now settled, that an Appellate Court, has the duty to interfere and is entitled, to draw its own inferences, as it is in good a position as the trial court. See the cases of Dr. Ladipo Maja v. Dr. Stacco (1968) NMLR 372; Akpapuna & ors. v. Njeka & ors. (1983) 2 SCNLR 1 @14; Okafor v. Idigo III (1984) 6 S.C. 1; Olade v. Ekwelendu (1989) 4 NWLR (Ft. 115) 326 (a), 347; (1989) 7 SCNJ. 181; and recently, Mrs. Lydia Thompson & anor. v. Alhaji Arowolo (2003) 4 SCNJ. 20 @ 43 -per Ejiwunmi, JSC, just to mention but a few.
The court below at page 779 of vol. 3 of the records, stated inter alias, as follows:
".......I think that the circumstances of this case and the admission of the 2nd to 5th defendants that the Qshoboja family was their overlord was enough a basis from which to infer customary tenancy......”
At page 780 thereof, the court below - per Oguntade, JCA, (as he then was), further stated inter alia, as follows:
“In any case, the 2nd to 5th defendants admitted that the plaintiffs’ family was their overlords. Even if this admission could not be made the basis of the grant of declaration of title, it seems sufficient in my view as a basis to hold that a customary tenancy was in existence….”
(The underlining mine)
I cannot fault the above findings and holding. I therefore, have no hesitation, in rendering answers to Issues 1 to 3, in the Affirmative.
As regards Issue 4, it seems very odd to me, that the very trial court that held thus:
“..... .I am therefore entitled to hold that the plaintiffs are entitled to the declaration of title as per Exhibit "H", - (See page 506 of the records), i. e. entitled to a declaration to a customary right of occupancy in respect of the land in dispute and who was also faced with the said admission of the Appellants in their pleadings that the Respondent's family, is their overlords or landlords, will at the same time, find and hold that on the question of tenancy, besides Exhibit "B", that there is no evidence whatsoever, to determine the relationship between the plaintiffs and Appellants and their Laigbo-Osu family. One of the complaints of the Respondent in both the writ of summons and in paragraph 14 of the Further Amended Statement of Claim at page 391 of vol. 2 of the Records, is that the Appellants, were selling and leasing portions of the said land inconsistent with their right, as customary tenants of the Respondent's family, - i.e. without the consent of the Respondent's family. In paragraph 5 of the Further Amended Reply to the Statement of Defence and counter-claim of the Appellants, at page 397 of vol. 2 of the Records, it is averred that after the dismissal of the Appellants' said Suit No. IK/5/70, that the Appellants, with the active support of the 1st defendant, had resorted to selling and leasing of their farmland and that the people, were building day and night, on the Respondent's farmland without the approval of the Respondent's family”.
Now, in his evidence, D.W. 3 - Alhaji B. Sadiku at page 440 lines 13 to 17 of the Records swore as follows:
"The judgment in Exhibit D was against our family ........ It was alleged that some members of our family sold land to J. K. Adewunmi. I am not one of those who sold to Adewunmi. Oshoboja family did nothing when they knew of the sale. In suit No. AB/24/55 the Oshoboja family sued members of our family".
D.W. 2 - Head of Laigbo Osu family of the Appellants, by Exhibit E - Power of Attorney, confirmed the sale, lease or alienation of portions of the land in dispute. He admitted under cross-examination at page 437 of vol. 2 of the Records, of executing Exhibit E and claimed that he was a relation of Laigbo family.
The court below, having found that the Respondent was entitled to an order of forfeiture of customary tenancy against the Appellant's family and having dismissed the appeal of the Appellants, what must and ought to have followed, as a consequential order, in my respectful view, was/is an order of injunction in favour of the Respondent. The Appellants in all the circumstances, certainly and surely, were not entitled to judgment for trespass and injunction in respect of the land in dispute. My answer therefore, in respect of this issue, is in the Negative. An injunction cannot be made against a person adjudged by a court of competent jurisdiction to be the landlord of a land in dispute and who is entitled to an order of forfeiture in respect thereof. He can also not be a trespasser of the land he has possession of which has been forfeited. I so hold.
It is from the foregoing and the reasoning and conclusion in the lead Judgment of my learned brother, Kalgo, JSC, that I too, dismiss the appeal and affirm the Judgment of the court below. I abide by the consequential order in respect of costs.