From the Court

LANDMARK JUDGEMENT

 

In The Supreme Court of Nigeria
On Friday, the 30th day of March 1990
SC 225/1986
Before Their Lordships
Augustine Nnamani               –       Justice, Supreme Court
Muhammadu Lawal Uwais   –       Justice, Supreme Court
Saidu Kawu                      –       Justice, Supreme Court
Abdul Ganiyu Olatunji Agbaje    –       Justice, Supreme Court
Philip Nnaemeka-Agu             –       Justice, Supreme Court
Between
Chief Alhaji K. O. S. Are
Alani Akanmu
(For themselves and on behalf of Are Family)    –       Appellants
And
Raji Ipaye
Arasi Ipaye  – (For themselves and on behalf of Ipaye Family)
Wahab Tafa
Muri Salawu – (For themselves and on behalf of Ojo Ogudu Family)
Solel Bonel Overseas and Harbour Works Coy. Ltd –       Respondents
Judgement of the Court Delivered by Augustine Nnamani. J.S.C.
In this Suit commenced in the High Court of Oyo State, the
plaintiffs/appellants claimed the following reliefs against the
defendants/respondents.
1.     Declaration of title according to Native Law and Custom to all
that piece of land situate, lying, being and known as Alashe Village,
Oyo Road, Ibadan.
2.     Declaration that the lst-4th Defendants have incurred
forfeiture of their holdings of portions of the said land by reason of
misconduct under native law and custom.
3.     Possession of all the land held of the plaintiffs by the
defendants within the said land.
4.      N1,000.00 Damages against the 5th defendant for continuing
trespass and waste committed by its servants and agents on the said
land since about February, 1976.
5.     Injunction to restrain the defendant, their servants, agents,
assigns and privies from further entry on the said land.
This writ was subsequently amended in paragraph 4 to claim damages
against all the defendants. Pleadings were ordered and were duly filed
and exchanged. A few paragraphs of the pleadings will bring into focus
the issue in contention in this suit. In paragraphs 2, 3, 4, 10 of the
amended statement of claim the plaintiffs show their root of title and
the relationship to the land of the 1-4th respondents herein. These
paragraphs read as follows:-
2.      The plaintiffs aver that Latosa the Are-Onakakanfo of Ibadan
between 1871-1885, their ancestor, acquired a large piece or parcel of
land including the land verged red in Plan No. KESH/Y/5386, and
Asofunni or Isafunni, Abiola, Soribi, Akingbolo. Tose, and other
villages called together Are farm, Oyo Road, Ibadan by settlement
under the native law and custom, about 150 years ago, and became the
absolute owner thereof.
3.     The said Latosa Are-Onakakanfo called Are for short was warrior
and exercised maximum acts of ownership on the said land which he
acquired including the land verged Red in Plan No. KESH/Y/5386 filed
with the statement of claim.
4.      Are used part of the land as his war depot and war resort; he
granted portions of it to his children, relatives, domestics and
slaves for farming. Are also had a house which has now been rebuilt
and occupied by his descendant Ladipo of Alase Village in the area
verged Red in the Plan. The children of Ladipo who are descendants of
Are still live in that house. Saliu and Ajibola are descended and
relative (sic) respectively of Are who also have houses in Alashe
village …….
10.    Jolaoso and Ipaye were some of the slaves Are put on his farm
to work for him within the area verged red. They became customary
tenants to Are when slavery was abolished. They paid Ishakole of yams,
palm-oil and kolanuts and other crops to Are before his death, and
after Are’s death to the successive Mogajis of Are family.
In their amended statement of defence the 2nd-4th
defendants/respondents denied paragraphs 2, 4, 9, 10 etc. of the
amended statement of claim. in paragraphs 4, 5, 6, 7, 13, and 24, they
averred as follows:
4.      The defendants admit that Are Latosa granted Alashe village to
the defendants but deny that it was Are Latosa that settled people
like Abiola, Saribi, Akingbolo, Tose, Orisafunmi etc. in their
respective villages. Are himself never lived nor farmed at Alashe
village.
5.      The defendants admit paragraph 3 in so far as it stated that
Are Latosa was warrior but say that Are Latosa never exercised any act
of ownership since the grant was made to Ipaye between 1871 and 1885
of the land verged blue and marked “A” on the defendant’s plan.
6.      The defendants further to the denial of paragraph 4 of the
statement of claim say that the descendants of Are Latosa who live and
farm at Alashe village now in dispute are Salawu the son of Ladipo,
and Saliu Babakekere the son of Obadamosi who in turn was the son of
Alli and grants of land were made to them by Ipaye.
7.      Ladipo built on the land in dispute at Alashe village on the
land granted to him by Ipaye. Iyeloja the mother of Ladipo was
pregnant when Are Latosa was going to Kiriji war. tyaloja was left
with Ipaye being a friend of Are Latosa and Ladipo was born on the
land in dispute and he died there. Salawu his son now lives there ……
13.    The land said to be in dispute in paragraph 7 of the statement
of claim is smaller than the parcel of land marked ‘A’ and edged blue
on Plan No.GS218/77 which was granted to the defendants by Are Latosa.
the Ancestor of the plaintiffs between 1877 and 1885
24.    Are Latosa made a permanent grant of the present site of Alashe
village edged blue and marked ‘A’ in plan No.0.5. 218/77 filed by the
defendant to Ipaye …….
At the end of the trial the learned trial Judge dismissed the claims
of the plaintiffs/appellants in their entirety. She clearly identified
the main issue in his case when she said,
The crux of the matter is whether or not the land granted the Ipaye
family at Alashe and Oloko villages was an absolute grant or a
temporary one upon payment of Ishakole.
After evaluating the evidence on Ishakole, Plans etc., she concluded
as follows:-
I therefore cannot regard the defendants – 1st to 4th defendants as
plaintiffs’ customary tenants. It is my view, having regard to the
evidence of the defendants and their witnesses which I very much
believe, that the grant to the defendants by Are was an absolute one
and the defendants had been exercising such numerous and positive acts
of ownership on the land spreading over a long period of years that
they cannot now be dispossessed of their title to it. I am satisfied
from the evidence before the court that the original grant made to
defendants’ ancestors by plaintiffs’ ancestors was not limited to
farming alone. The defendants were allowed to settle on the land,
farming and building permanent houses and mosques on it.
The plaintiffs appealed to the Court of Appeal. That court (coram:
Omo, Sulu-Oambari and Onu, JJ.C.A.) dismissed the appeal after
affirm-F mg all the findings of fact made by the learned trial Judge
Onu, J.C.A.,who wrote the lead judgment said.
I am satisfied that the trial court fully evaluated all the evidence
adduced before it and arrived at the right conclusion.
The plaintiffs/appellants have now appealed to this Court. 9 grounds
of appeal were filed but I do not find it necessary to set them down.
Briefs of argument were also exchanged by the parties. In his brief of
argument, learned Senior Advocate, Chief Williams for the appellants
identified two issues for determination. These are:
(i)    Whether the courts below placed the onus of proof on the wrong person.
(ii)    Whether the courts below drew the proper inference from the
facts proved in evidence.
Now by a long line of decided cases, it has always been recognized
that findings on primary facts, particularly those dependent on belief
or non-belief of witnesses are matters peculiarly within the province
of the court of trial. Where such findings have been confirmed on
appeal and there is sufficient evidence to support such concurrent
findings of fact, it is the policy of this Court not to disturb such
findings. They can only be disturbed where they are perverse, or based
on improper evaluation of evidence, or it is apparent that the trial
court has not taken proper advantage of its seeing and hearing the
witnesses, or otherwise, there is an apparent error on the record or,
generally some miscarriage of justice. For these see:
Kofi v. Kofi l W.A.C.A.284
Fatoyinbo & Ors. v. Williams & Ors. I F.S.C. 87; ~1956] SCNLR 274
Stool of Abinabina v. Enyimiadu 12 W.A.C.A. 171 p.173
Ibodo v. Enarofa (1980) 5-7 S.C. 42
Otogbolu v. Okeluwa (1981) 6-7 S.C. 99
On these well-established principles, the appellant has indeed an
uphill task to perform, as I have not been persuaded that any of them
has been established.
To cap it all, the learned trial Judge also found, on the evidence
before her, that the respondents and their predecessors-in-title never
paid any “Ishakole” to the appellants and their predecessors-in-title.
What was paid was tribute on festive occasions. It is important, I
believe, to appreciate the basic difference between the two. Tribute
is paid as a mere mark of respect for a previous overlord: its payment
does not signify a subsistence of the overlord’s reversionary
interest. Rather it is a customary incident of occupation of land by a
stranger and is usually voluntary and does not depend upon any
agreement: see Chief Braide v. Chief Kalio (1927)7 N.L.R. 34. When the
tribute is paid to an Oba or other paramount chief, it is called an is
in a mere customary token of loyalty or fealty. “Ishakole”, on the
other hand depends on agreement upon the grant of the land. Although
it cannot be equated to a consideration in the sense of a quid pro quo
at common law, it is in the nature of an obligatory rent whose main
purpose is to ensure subsistence of reversionary rights upon
forfeiture of a customary tenancy for any reason: See on this Ife
Overlords v. Modakekes, a judgment of the Supreme Court on December,
3, 1948. See also Adeleke v. Adewusi (1961)1 All N.L.R. 37; [1961)1
SCNLR 58. In my opinion the finding in this case that the respondents
paid only tribute during festive occasions, and not Ishakole coupled
with other conclusions of fact by the learned trial Judge amply
support the inference of an outright grant. So, I agree with the
learned counsel for all the respondents that although the onus of
proving limited grant was on the respondents, they amply discharged
it.
As for the decision in Okoji v. Adejobi (supra), all that it said was
that an outright grant in those early times was improbable, not that
it was impossible. The highest one can say of it is that in those
times, because traditionally land belonged to the community and not to
the individual, an outright sale by an individual was then improbable.
At best, it created a rebuttable presumption. In this case, any
presumption against outright sale has been rebutted by positive
evidence called at the trial which has been believed by the courts
below.
For the above reasons, and the fuller reasons contained in the
judgment of my learned brother, Nnamani, J S. C., which I adopt as my
own, I also dismiss the appeal with the same orders as made by him in
the lead judgment.
Appeal dismissed.
Counsel
Chief F. R. A. Williams, S. A. N.
With him, O. Durojaiye – For the Appellants
R. A. Adekola   -For the 1st – 4th Respondents
B. A. Aiku      -For the 5th Respondents
M. A. Ayoade    -For the 6th Respondents

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