Taiwo & Ors. v. Akinwunmi & Ors (1975)

In The Supreme Court of Nigeria

On Wednesday, the 30th day of April, 1975

SC.151/1974

Before Their Lordships

TASLIM OLAWALE ELIAS Justice of The Supreme Court of Nigeria

ATANDA FATAYI-WILLIAMS Justice of The Supreme Court of Nigeria

AYO GABRIEL IRIKEFE Justice of The Supreme Court of Nigeria


Between

Asani Taiwo & Ors.-Appellants

AND

Adamo Akinwunmi & Ors.-Respondents

…………………….A…………………….

A. FATAYI-WILLIAMS, J.S.C. (Delivering the Leading Judgment): In Suit No. IK/174/63, which was commenced in the Ikeja High Court, the Ijeshatedo people, as plaintiffs, claimed from the Itire people and four others, as defendants, jointly and severally the sum of 500 as damages for trespass to their land at Abule Ijeshatedo, Itire, Ikeja District. They also asked for an injunction to restrain the defendants, their agents or servants from further trespassing on the said land.Paragraphs 2 to 13 of the plaintiffs’ amended statement of claim read:”2. The plaintiffs are people of Ijeshatedo Village and are suing for themselves and on behalf of the people of Ijeshatedo Village.

3. The 1st, 2nd and 3rd defendants were substituted by order of court vice one Chief Salawu Lawani as the overlord of the land situate at the said village whereon the plaintiffs are settled and are possessed thereof as customary tenants.

4. The several plots of land in dispute form portion of the said village and they are more specifically shown on the plan filed in this action within the area edged RED.
5. The Ijeshatedo people from whom the plaintiffs are descended have settled on the said land for more than 100 years past and the plaintiffs are possessed of the said land under the native law and custom of the Yorubas.

6. The rights and duties of the plaintiffs and the 1st, 2nd and 3rd defendants are clearly set out in the judgment in the consolidated Suits Nos. 292/47 and 222/48.

7. The plaintiffs have always complied with and exercised rights and performed their duties in respect of the said land in accordance with the said judgment.
8. The 1st, 2nd and 3rd defendants had always disregarded the said judgment and acted against the rights of the plaintiffs by leasing the said land to strangers without the authority or consent of the plaintiffs.
9. The 4th, 5th, 6th and 7th defendants who are not descendants of Ijeshatedo people about the month of June, 1963, without any right whatsoever and without the authority or consent of the plaintiffs entered upon the land in dispute and began to dig up portions of it preparatory to laying foundations for the erection of buildings.
10. The 4th, 5th, 6th and 7th defendants were questioned by the plaintiffs as to their authority for digging up the said land and the plaintiffs were told by the said defendants that the late Chief Salawu Lawani had leased the said land to them in plots.
11. The first plaintiff made enquiries from the said Chief Salawu Lawani whether he had leased any portion of the said land in dispute to the 4th, 5th, 6th and 7th defendants and the said Chief Lawani affirmed to the 1st plaintiff that he had leased the said portions to the said defendants.

12. The said Chief Lawani added further that he had the right to lease the land at Ijeshatedo to strangers and that he would continue to lease the land to whomsoever he pleased.

13. Since the commencement of this action the 4th, 5th, 6th and 7th defendants had completed their several houses indicated on the plan.”
In their own amended statement of defence, the defendants averred in paragraphs 2-9 thereof as follows:
“2. With reference to paragraphs 1 and 4 of the amended statement of claim the defendants are unable to identify the land described as “the subject matter of the Suit” and deny that the area edged in RED on plan SEW/W/409B was the subject matter of any grant by the Onitire Family to the plaintiffs.
3. The defendants deny paragraph 7 of the amended statement of claim and aver that contrary to the terms of the grant to the Ijeshatedos they have been leasing portions of the land granted to them to strangers cutting and destroying economic trees and crops on the land, selling same and appropriating the proceeds to themselves.
4. The defendants deny paragraphs 2, 4, 8, 9, 10, 11, 12 and 13 of the amended statement of claim and put the plaintiffs to strict proof.
5. With reference to paragraph 3 of the amended statement of claim, the defendants admit only that the 1st, 2nd and 3rd defendants were substituted vice the original first defendant, Chief Salawu Lawani deceased.

6. The defendants further aver that the Onitire Family are the owners of a vast area of land in Itire including the land granted by their family to the Ijeshatedos, namely Ijeshatedo Village as customary tenants.
7. The defendants aver, with reference to paragraph 6 of the said amended statement of claim that the rights and duties of the Onitire Family and their grantees are to be found in the judgment in Suits 2920/47 and 222/48 and the other incidents of customary tenancy recognised by native law and custom.
8. The defendants will contend that the grantees of the Onitire Family have never been content with the terms of their grant and have in recent years, in view of the enhanced economic value of land, been arrogating to themselves the right of owners and have granted innumerable leases of Onitire Family land contrary to their grant.

9. The Onitire Family has instituted an action in this honourable court Suit No. IK/204/63, for forfeiture of the plaintiffs’ interest in the land granted to them and recovery of possession thereof.”

As could be gathered from paragraph 9 of the amended statement of defence quoted above, the defendants, before filing their amended statement of defence, had instituted a separate action in Suit No. IK/ 204/63 against the plaintiffs and thirteen others in the same Ikeja High Court. In that suit, the defendants (that is, the Itire people) claimed against the Ijeshatedo people who are the plaintiffs in the earlier case that is in Suit No. IK/174/63, a declaration that as customary tenants under native law and custom, the Ijeshatedo people have forfeited for misconduct all right, title and/or interest

…………………….B…………………….

in all that piece or parcel of land lying and being at Itire and shown on survey plan No. A156/1942. In addition, they claimed 1,000pounds as general damages for unlawfully cutting and destroying the plaintiff’s palm trees and other economic trees and crops on the land. Thirdly, they asked for recovery of possession of the said land.

Pleadings were also ordered and duly delivered in this second case, that is, in Suit No. IK/204/63. Paragraphs 2-6 of the amended statement of claim, filed by the Onitire Family on 24th April, 1965, and in which the claims for declaration and for 1,000pounds general damages were repeated read,:

“2. The said land is vested by native law and custom in the Onitire Family and the plaintiffs herein have been authorised by the Onitire Family to continue these proceedings following the death of Salawu Lawani Onitire of Itire who was head of the said family.

3. The Onitire Family has exercised maximum acts of ownership over the said land for very many years and have granted a portion thereof to the Ijeshatedo people as customary tenants under native law and custom.

4. The defendants have, contrary to native law and to the terms and conditions of their occupational rights:

(i) Granted various pieces of land, which they occupied as the plaintiffs’ customary tenants to strangers without the consent and against the wishes of the plaintiffs;

(ii) By themselves and/or their grantees destroyed palm trees on the land;
(iii) Cut economic trees on the land;
(iv) Gone outside the area originally granted to them and trespassed on portions of the land belonging absolutely to the plaintiffs; and
(v) Denied the title of the plaintiffs to grant portions of the land which were not included in the portion originally granted to the defendants.
5. By native law and custom if tenants commit the acts specified in paragraph 4 above they are liable to forfeit the land granted to them and to be evicted there from.

The plaintiffs will rely on the judgments in the following cases:
Suit No. 405/41-Oriyomi v. G. Abioko
Suit No. 36/47-Oriyomi v. G. Abioko
Suit No. 61/1900-Ejiosu v. Abioko
Suit No. 222/48-Oriyomi v. Abioko.”
While admitting the averments in paragraphs 3 of this amended statement of claim, the Ijeshatedo people (who are now the defendants in this second action) denied the other averments in their statement of defence, which they filed on 13th May, 1965. They then pleaded in paragraphs 2, 4, 5 and 6 thereof as follows:
“2. The defendants admit paragraph 1 of the statement of claim only to the extent that the area in dispute is edged GREEN on the plan filed by the plaintiffs and deny that there is any dispute in regard to any portion of the land outside the area edged GREEN.
4. The defendants deny paragraphs 4 and 5 of the statement of claim and put the plaintiffs to the strict proof of the allegations therein contained.

5. In further denial of paragraph 4 of the statement of claim, the defendants say that none of the Ijeshatedo people has granted leases to strangers, or cut down palm or economic trees or gone outside the area of the grant to Ijeshatedo people or denied the Onitire’s title to portions of land outside their holding.

6. The defendants further aver that the action of the plaintiffs is motivated by an urge for revenge because the Ijeshatedo people were the first in time to take out an action against Chief Salawu Lawani now represented by the plaintiffs among others in Suit No. IK/174/63 for trespass and damages.”

On a close perusal of the pleadings filed in Suit No. IK/174/63, it seems to us that the mis-conduct complained of by the Itire people in paragraphs 4 (iv) and (v) of their statement of claim in Suit No. IK/204/ 63 is based on the claim which the Ijeshatedo people brought against them for damages for trespass and injunction in Suit No. IK/174/63.

However, having filed their defence to the statement of claim of the Itire people in Suit No. IK/204/63 on 13th May, 1965, the Ijeshatedo people later on 23rd February, 1967, filed the following reply to the amended statement of defence of the Itire people in the earlier action in Suit No. IK/174/63:

“The Reply to amended statement of defence
The plaintiffs in answer to paragraph 2 of the amended statement of defence rely on the plan filed in Suit No. 405/41-Oriyomi Bale of Itire v. Gbadamosi Abioko as well as the evidence of Oriyomi Bale of Itire in Suit No. 65/43-Tiamiyu Fagbayi v. Oriyomi Bale of Itire which case was based on the same plan filed in Suit No. 405/41.
The plaintiffs for this purpose will rely on the proceedings in the two Suits.
2. With reference to paragraph 6 of the amended statement of defence, the plaintiffs say that the land granted by the defendants to the ancestors of the plaintiffs has always been known as Ijeshatedo and Oriokiti and is represented in the

…………………….C…………………….

plan exhibited in Suit No. 405/41. Ijeshatedo Village forms a small part of the said land.
3. Paragraph 8 of the amended statement of defence is denied and the defendants are put to the strictest proof thereof.”

After a number of adjournments, the trial court, on 4th April, 1972, granted an application for accelerated hearing of the two cases and fixed May 30th, 1972 to June 2nd, 1972 for the hearing. On 30th May, 1972, when the case was called, the plaintiffs in Suit No. IK/174/63 were absent and the learned trial judge thereupon struck out that case and adjourn the other case (Suit IK/204/63) for hearing on the following day. The second case did not go on that day. Instead an application to relist the earlier case which had been struck out was granted on 12th June, 1972, when the learned trial judge ordered as follows:

“The suit is relisted forthwith for hearing and it is consolidated with IK/204/63. ”

After the order for consolidation, the two cases were first adjourned to 10th October, 1972, and then to 3rd January, 1973, when the hearing eventually commenced.

At the hearing, the Ijeshatedo people (that is, the plaintiffs in Suit No. IK/174/63) began and adduced evidence, not only in support of their claim in that suit, but also partly in answer to the complaints of the Itire people in their claims in Suit No. IK/204/63. Thus, Karimu Ogunlana, the Bale of Ijeshatedo (1st P/W), testified in part as follows:

“There had been a dispute between us and the Itire people prior to the institution of this action in 1963. I am referring to the two consolidated cases of 1947 and 1948. This is the judgment in Suit Nos. 292/47 and 222/48 (tendered, no objection, admitted and marked Ex. ‘A’). In Exhibit ‘A’, the Itire people were declared the owner of the land in dispute and we were declared customary tenants on the land

After the judgment Exhibit ‘A’ was delivered, the defendants brought some people to the land and we did not know the strangers who were building houses on our land. These strangers were destroying our crops on the land and anything sown such as our coconuts on the land. About 20 coconut trees were destroyed. Kolanut trees, orange and banana trees were also destroyed on the land. About 200 kolanut trees were destroyed. About 100 orange trees were destroyed. We have also been sued with respect to the land by the Oba and people of Itire on the ground that as customary tenants we have been selling and leasing the land to strangers but we have never sold any land. Those living in Ijeshatedo and owning houses there are our children. All our people and descendants are living in Ijeshatedo. Among them are farmers and civil servants……. It is not correct that we have always sold or leased land to strangers who are not members of the Ijeshatedo people. We have always complied with the terms set out in Ex. ‘A’.”

The 1st P/W was then cross-examined at length about the particulars of those to whom the Ijeshatedo people have granted land and he replied as follows:
“We do not keep a bank account but we keep accounts of our transaction. We have a record of those to whom lands have been allocated. I cannot remember off hand the number of those who had  been granted permission to build in Ijeshatedo for the past ten years, but there are about 200 people to whom we have given permission as well as those living in Ijeshatedo at present. The list of those to whom we have given permission to build is kept by our secretary Mr Esilokun. He lives in Ijeshatedo. He has been our secretary for the past five years. I can take the book from our secretary and bring it to court tomorrow.”

Having admitted the execution of certain documents (Exhibits B, CC2) which he referred to as conveyances in favour of certain persons to whom they had granted land, the 1st P/W testified as follows:
“Those who built on the land in dispute are no strangers but members of the Ijeshatedo Community. We have never cut down any economic trees on the land. The Itire people have trespassed on the land.”

The court then adjourned to the following day, presumably to enable the witness to produce the book containing the names of those to whom land had been granted. When he was cross-examined about the book at the resumed hearing, the 1st P/W replied:
“I cannot produce the list of those granted land by the Ijeshatedo Community because the list is with my son-SIKIRU who is away to Mecca on pilgrimage.”

We think we should point out at this stage that the book containing the list of grantees was never produced and neither Esilokun (referred to as the Ijeshatedo Community Secretary) nor Sikiru to whom the 1st P/W said he gave the book was called to testify as to why it could not be produced.

Another member of the Ijeshatedo Community who testified for the plaintiffs is Raimi Aguntasolo (2nd P/W), a builder who admitted that all the houses he built for people on the land in dispute “were not with approved building plans.” The witness also admitted that he knew of the grant of land by the Itire people to Adekoya (4th Dft.), Shobade (5th Dft.), and Mutairu (7th Dft.), that they objected to the grant, and later sent delegation to the Onitire (Alhaji Abin Saibu 3rd Dft.) about it. The Onitire saw the delegation but refused to do anything about the grants. The witness described their course of action thereafter as follows:
“On reporting the result of the meeting to our Bale, the Bale said that we should not allow the persons to whom the Itire people had allocated land to build and if the matter resulted into quarrel, the police would intervene. We

…………………….D…………………….

later fought on the matter and we were taken to the Police Station. The police advised both sides to keep the peace and await the decision of the court. We went to the police station on the matter over six times.”

The surveyor, one Augustine Seweje (4th P/W) produced the plan of the land in dispute and which the Ijeshatedo people instructed him to make for them. The plan is No. SEW/W/409A of 23rd May, 1965, and admitted as Exhibit ‘D’. The surveyor said that that the 1st P/W showed him the portion edged RED and marked ‘B’ in Exhibit ‘D’ and said that that was their family land. The surveyor also admitted that it was the 1st P/W who showed him the properties of Adekoya, Sobade (5th Dft.), Ahoko (6th Dft.) and Mutairu (7th Dft.) in the northern part of the portion edged Red in Exhibit ‘D’. About the survey plan Ex. ‘D’ , the surveyor testified under cross-examination as follows:
“While I was preparing Exhibit ‘D’, I discovered from the Survey Department that the portion marked ‘Government Acquisition’ had been acquired by the Government. The Surveyor-General (West) at the time, Mr W. Gasgoyne told me about the acquisition. The plaintiffs showed me the area marked ‘A’ and ‘B’ on Exhibit ‘D’ as their own land. They did not tell me that ‘A’ had been acquired.”

After the Treasurer of the Ijeshatedo Community (5th P/W had testified and had admitted that although he was the Treasurer and kept all their money, he was an illiterate and kept no book of accounts, learned counsel for the plaintiffs, no doubt with the second case in mind, made an application which was granted by the learned trial judge. The application is as follows:
“In view of what has transpired during the trial and the pleadings in IK/204/63, I intend to call one more witness who is not here at present. I am therefore respectfully asking for an adjournment.”

The last witness for the plaintiffs is one Gafari Thanni (6th P/W). He is also a member of the Ijeshatedo Community. He stated that there were many palm trees on the land in dispute, and that if a person wanted to build a house on a piece of land where there were palm trees or kolanut trees, the trees would be cut down if they were in the way. The witness was then cross-examined about the penalty which a customary tenant would incur if he attempted to sell or lease the land held by him as customary tenant and he replied as follows:

“I am aware that under Yoruba customary law, a customary tenant who attempts to sell or sells the land granted to him by his overlord means forfeiture of that tenure. I am also aware of the fact that if  the customary tenant leases or attempted to lease the land to another without the consent of his overlord he incurs forfeiture of his tenure. ”

The Itire people, in their defence to Suit No. IK/174/63 and in support of their own claims in Suit No. IK/204/63, called a number of witnesses. One such witness is Alhaji Aliu Isiba (3rd D/W). He is member of the Onitire Family. He is also the 3rd defendant in Suit No. IK/174/63 and the 3rd plaintiff in Suit No. IK/204/63. In his evidence on 6th April, 1973, (that is, about ten years after the actions commenced), this witness testified inter alia as follows:

“The Itire people have never leased out any portion of the land involved in the 1941 case to anyone . . . .. . . . . . .. It is not correct that the Ijeshatedo people are still farming on the land in dispute up till today. They are in fact at present leasing out the land selling some portions…………………… As a Yoruba man and an Awori, I am conversant with the native law and custom relating to customary land tenure. According to the said custom, if a customary tenant grants portions of his customary tenure on lease or sale to an outsider the customary tenant would forfeit his tenure. If such tenant contrary to his tenure cut down economic trees, such as kolanuts, cocoa trees, he would pay for those economic trees cut down and forfeit his tenure. The Ijeshatedo people as our customary tenants have no right to cut down our economic trees like palm trees and others on our land. They did so before and the court ordered them to pay for the trees cut down Since this case was instituted in 1963, so many houses had been built on the land in dispute. The cutting of our economic trees like palm trees and others started before this case was instituted in 1963 and it still continues by the Ijeshatedo people.”
To questions asked in cross-examination, the witness replied:

“We are not allowed to visit Ijeshatedo because if we do, we may be murdered. I have not been to Ijeshatedo for the past ten years…………………. The population of Itire is more than that of Ijesha. Apart from the twenty-two persons present in court who claim to be Ijesha people, there could not be more than ten others left in the village who are descendants of the Ijeshatedo original settlers.”

The other witnesses called by the defendants were mostly persons to whom the Ijeshatedo people had granted land within the land in dispute. One such witness is Raufu Bankole (1st D/W). He described how the land referred to Exhibit ‘B’ was sold to him. He also admitted that he was not a member of the Ijeshatedo Community, and that when he discovered that he was described as a member of the community in Ex. ‘B’, he expressed his suspicions to the 1st, 2nd and 6th P/Ws. He then described what transpired as follows:
“They said that the land belonged to the Itire people and that they have been on the land for a very long time; that most of the tenants had been given the same copy of agreement. And they passed the gin round and ask us to swear an oath that I would subsequently by the oath become a member of the Ijeshatedo Family. I refused to be sworn and I walked out with Ex. ‘B’.”

Other witnesses who are not related to the Ijeshatedo people and to whom leases of part of the land in dispute were granted by the Ijeshatedo people are Lasisi Sule (2nd D/W) a native of Ikorodu to whom the land described in the document

…………………….E…………………….

(Ex. ‘E’) was granted in 1964, and Etim Eyo Ekpo (4th D/W) to whom the two plots described in Exhibits N and N1 was sold. Ekpo admitted that he is not an Ijesha man and that he is not related to the Ijeshatedo people. Others are Samuel Ifeanyi Agu (6th D/W), an Ibo man who also admitted that he is not related to the Ijeshatedo people but to whom land was sold in 1971, and Jimoh Idowu (8th D/W), a native of Abeokuta to whom the land described in Exs. O and O1 was sold. The last of these witnesses is one Alhaji Tijani (9th D/W) who testified as follows:

“I know one Bisiriyu Saka. I leased a land at Ijeshatedo from him for which I paid 30pounds. I was then asked to be an Ijesha man but I refused. I told him that my father hails from Lagos. I then asked them to refund my money but they refused. I then sued them. After instituting an action, I was paid back my 30pounds.I am a native of Lagos. ”

Thereafter, the Itire people closed their case. It is significant that the Ijeshatedo people, although they are the defendants in Suit No. IK/204/ 63 and notwithstanding the evidence adduced by the Onitire Family in support of their own claim in that action, did not adduce any evidence in rebuttal. The defence of the Ijeshatedo people in IK/204/63 was, therefore, allowed to rest on the evidence they had earlier given in support of their own case in Suit No. IK/174 /63. We shall discuss the effect of this omission later.

In a reserved judgment, the learned trial judge reviewed the evidence adduced before him and considered all the documents and judgments tendered by the parties in support. Although the two cases had been consolidated, he nevertheless referred in his Judgment to the Ijeshatedo people as the plaintiffs in Suit No. IK/174/63 and the Itire people as the defendants; but when he was considering the claims in Suit No. IK/204/ 63 he referred to the Ijeshatedo people as the defendants and the Itire people as the plaintiffs.

The learned trial judge first dealt with the claims of the Ijeshatedo people in Suit No. IK/174/63 wherein they claimed damages for trespass and also an injunction against the Itire people. After observing that the land on which the alleged trespass was committed was not properly identified by the Ijeshatedo people, he found as follows:

“That apart, no evidence whatsoever was adduced about any trespass being committed by the defendants on any area covered by the plan used in Suit No. 405/41- Exhibit ‘L’ which was the one agreed by both parties as that of the land in dispute. Furthermore, Alhaji Isiba (D.W. 3) denied that the defendants ever trespassed on any portion of the area of land granted to the plaintiff’ by the Itire people. Even Mr M. A. Kukoyi (D.W. 11) found it difficult to correlate the feature on Exhibit L with those on Ex. D.

On the totality of the evidence before me, I am not satisfied that the plaintiffs have proved that any of the surviving defendants has trespassed on the land granted by the Itire people to the plaintiffs which is shown on plan No. A156/1942 used in Suit No. 405/41. In the circumstances, the claim for trespass fails and consequently the claim for an injunction cannot stand. The plaintiff’s claims in Suit No. IK/ 174/63 are therefore dismissed.”

In considering the claims in Suit No. IK/204/63 where he referred to the Itire people as the plaintiffs and the Ijeshatedo people as the defendants, the learned trial judge, after referring to the survey plans Exhibits ‘D’ and ‘L’ and to the testimony of Chief Imam Gafar Thanni (P/W 6), a prominent member of the Ijeshatedo community, found that the Ijeshatedo people laid ‘claim to a greater portion of the land than was granted them as customary tenants by the plaintiffs. He then went back to the claims of the Ijeshatedo people against the Itire people for damages for trespass and observed as follows:

“In the action for trespass instituted by the defendants against the plaintiffs in Suit No. IK/174/63, which I have already dismissed, it was alleged that the plaintiffs had granted portions of the land of which the defendants are their customary tenants to strangers but the plaintiffs adduced evidence, which I believe, that the portions allegedly trespassed upon by the grantees fell outside the portion of land originally granted to the defendants. By laying claims to a greater portion of land granted to the defendants by the plaintiffs, it seems clear that the defendants were denying the right of the plaintiffs to grant lands to others outside the land in dispute.”

The learned trial judge then considered the testimony of Alhaji Ogunlana (P.W. 1), the Bale of Ijeshatedo and in particular, his statement that it is not correct that his people have always sold or leased land to strangers who are not members of the Ijeshatedo people. He also gave detailed consideration to the evidence adduced by the Itire people in support of their claim. On the complaint that the Ijeshatedo people had been granting land to strangers, the learned trial judge found as follows:
“Having regard to the evidence before me with respect to the grant of land by the defendants, I am satisfied
(i) That the defendants have been granting leases of land in Ijeshatedo and Ori-Okiti, the subject matter of the action to persons who are not and who could not be members of the Ijeshatedo people whom the defendants represent;
(ii) That those persons (or better still strangers) have been paying them large sums of money other than those shown on the documents “Ex. ‘B”‘;
(iii) That the contents of Exhibits B, C, C1, C2, E, N, N1, O and O1 among others were devised by the defendants in order to conceal the true nature of the transaction and consequently they are calculated to deceive the plaintiffs; and
(iv) That the contents of Exhibit ‘B’ and such like documents are therefore false. ”

The learned trial judge then dealt with the Itire people’s complaint about the indiscriminate felling of palm trees and

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other economic trees by the Ijeshatedo people and observed
“Both parties rely on the judgment in Suits 292/47 and 222/48 as stipulating their rights and duties in relation to the land in dispute. But that judgment reserves the right to cut palm trees and economic trees like Ofun and bamboos to the plaintiffs except when those trees had been planted by the defendants themselves or they were required to build their own houses or to repair them. The defendants have not said that the trees which were felled were planted by them or that they were required for their own personal use. Rather, there is evidence that they were felled to enable plots of land to be allocated to strangers. In the circumstances, I am also satisfied that the defendants have been felling palm trees and other economic trees which were reserved for the plaintiffs, their overlords.”

As a follow-up to the above finding, the learned trial judge considered the totality of the case against the Ijeshatedo people and observed:

“There is another point that is worthy of note in this case. Since 1900, there had been series of litigations between the plaintiffs and the defendants with respect to the land in dispute. On more than two occasions, the defendants were sued for forfeiture and possession; and they virtually admitted having contravened the terms of their customary tenure, but asked that they should be allowed to continue in possession. In sympathy with the defendants, the plaintiffs had to waive the claim for forfeiture and for recovery of possession. In the present case, the defendants again admitted being customary tenants of the plaintiffs, but they denied being in breach of the terms of such customary tenure by leasing or granting land to strangers or by cutting down palm trees or other economic trees. Of course, it has been established that they were all along granting land to strangers in the guise of doing so to members of their community; and they have also been found to have been cutting down palm trees and other economic trees and crops. Moreover, they continued doing so while the case was still pending: see Exhibit N, N1, O, O1 and the grants to Mr Agu and others”.

Having regard to the evidence before me, I am satisfied that the defendants in this case are in breach of their customary tenure in that they not only granted portions of the land in dispute to strangers, and felled palm trees and other economic trees but they are also guilty of other offences of customary tenure as set out in paragraph 4 of the amended statement of claim.”

It is pertinent, at this juncture, to refer again to the averments in paragraph 4 (v) of the amended statement of claim in Suit No. IK/204/63 to which reference has been made by the learned trial judge. The averments are as follows:

“4. The defendants have, contrary to native law and to the terms and conditions of their occupational rights: …………………………
(v) denied the title of the plaintiffs to grant portions of the land which were not included in the portion originally granted to the defendants.”

Having found as above, the learned trial judge ordered that all the rights, title and interest which the defendants (the Ijeshatedo people) have in the land in dispute (that is, the piece of land known as Ijeshatedo and Ori Okiti as shown in the survey plan No. A156/1942 which is admitted in evidence as Exhibit ‘L’) should be forfeited to the plaintiffs (the Itire people). After awarding the plaintiffs the sum of N1,500.00 as damages for the palm trees and other economic trees unlawfully cut down by them, the defendants were also ordered to give up possession of the said land within 90 days.

The defendants did not appeal against the order dismissing their claim against the Itire people in Suit No. IK/174/63, although that claim clearly formed the basis of the misconduct complained of by the Itire people in paragraph 4 (v) of their amended statement of claim in Suit No. IK/204/62. Undoubtedly, the effect of this is that the Ijeshatedo people, as the customary tenants of the Itire people, have wrongfully disputed the title of their overlords to portions of land adjacent to but not included in the area which they hold as customary tenants.

Instead, the Ijeshatedo to people have only appealed against the judgment in Suit No. IK/204/63. Before considering the matters canvassed before us in the appeal, we wish to point out that since the Ijeshatedo people have not appealed against the order made in Suit No. IK/174/63, it would not be open to them in this appeal to complain about the findings of the learned trial judge with respect to the misconduct complained of in paragraph 4 (v) of the amended statement of claim. Of course, whether this misconduct could or should result in the forfeiture of the customary tenancy is, however, still open for consideration.
Before arguing the appeal, the learned counsel for the appellants applied to amend the amended statement of defence in Suit No. IK/204/ 63 by adding the following as paragraph 5A:
“5A. With further reference to paragraph 5 of the amended statement of claim, the defendants will contend at the trial of this action that the acts complained of in paragraph 4 of the said amended statement of claim, even if they are committed by the defendants, do not warrant forfeiture; in the alternative, if the said acts were held to warrant forfeiture, the defendants would pray the court to grant them relief against forfeiture on such terms as to the court may seem fit.”
We refused the application for amendment and now set out our reasons for doing so.
In the first place, unless there is very good and strong justification for so doing, a high court should be reluctant to grant amendments of the pleadings after the close of the case before judgment, even though it has been indicated in the course of the hearing that some amendment might be asked for. Such an amendment may be allowed where the matter involved

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has been raised in the course of the trial and counsel has addressed the court on it, since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties. It may also be allowed where the subject of the amendment has been referred to by counsel in opening and evidence about it has been given so as to enable the court to arrive at the view, if it thinks fit, that what is pleaded is a correct interpretation of the facts. (See Loufti v. Czarnikow Ltd. [1952] 2 All E.R. 823).

Secondly, there was no application for any amendment at any stage of the proceedings before the High Court. As a matter of fact, there was even no application for relief from forfeiture at any time in the court below. Part of the trial judge’s notes on the final address of learned counsel for the Ijeshatedos reads
“Hence urges the court to dismiss IK/204/63. Alternatively, if the court finds that the Ijeshatedos have committed acts which involve forfeiture, urges the court not to make an order for forfeiture, but make an order which is equitable having regard to the circumstances of the case. Such exercise of equitable jurisdiction to restrain the Ijeshatedo people not to commit any further act which might incur forfeiture.”
What learned counsel is saying by this submission is that the court should dismiss the claim for forfeiture and make an order for an injunction instead, an order which would have been erroneous since the Itire people did not ask for it. At no time did learned counsel ask that the IJeshatedo people should be granted relief from forfeiture. In this connection, we wish to refer to the case of Ladega v. Akinliyi (SC. 1/67 delivered on 19th December, 1969) now reported in (1975) 2 S.C. 91, in which this court held at page 96 that where a customary tenant has not claimed relief from forfeiture but has decided on a straight fight, basing all on title or nothing, the trial court ought not to consider the matter.

Thirdly, where a tenant, whether he is a customary tenant or not, commits an act which could incur a forfeiture of the tenancy and a claim for such forfeiture is brought against him in the High Court, the proper procedure is not by just asking for relief in the pleadings as it has been done in the application for amendment. The procedure to be followed and which we recommend for future use, is described in Atkins Court Forms, 2nd Edition, Volume 24 at page 30 as follows:
“A claim for relief from forfeiture for non-payment of rent may be made in a number of ways. If the landlord has not begun any proceedings the tenant or sub-tenant may initiate a claim for relief by writ or originating summons. Alternatively, the tenant may counterclaim for relief in the lessor’s action or simply apply by summons in that action. If the application is made after judgment it is usually by summons.”
(See also Standard Pattern Co. Ltd. v. Ivey [1962] 1 All E.R. 452 and Gill v. Lewis [1956] 1 All E.R. 844). The reason for this somewhat elaborate procedure is not far to seek. By proceeding either by way of an originating summons or a counter-claim where pleadings could be ordered, the tenant will be able to set out in detail the facts upon which he relies such as the circumstances leading to the breach. The landlord or overlord, on the other hand, will be able, in his own defence to the originating summons or counter-claim, to reply to all the facts on which the tenant is relying. Issues as to whether to grant relief or not will then be joined and neither party will be taken by surprise. The court will then hear evidence from both sides based on their pleadings and will thus be in a better position to consider all the circumstances and probabilities and come to a conclusion one way or another. In the case in hand, not only is there no claim for relief from forfeiture in the court below in the manner stated above, the procedure adopted in the application for amendment in this court, even assuming that it can be granted, is irregular. For example, no grounds for such relief were set out in the proposed amendment to enable the Itire people to file a reply if they so desire. It is for all these reasons that we come to the conclusion that the application could not be entertained and so dismissed it.
Various points were raised by the learned counsel for the appellants at the hearing of the appeal against the judgment in Suit No. IK/204/63. The main grounds of complaint, and those are the only ones which merit any serious consideration, may be summarised as follows. The learned trial judge erred in law in not dismissing the claims of the Itire people since there was no evidence before the court of any act of misbehaviour on the part of the Ijeshatedo people, antecedent to 1963, to support the claims. The learned trial judge also erred in admitting inadmissible evidence and taking them into consideration in arriving at his conclusion. Learned counsel also complained that the learned trial judge placed the onus of proof on vital issues-such as the alienation of part of the land in dispute to strangers or whether or not the trees felled by them were for their personal use-on the appellants when the onus was clearly on the Itire people. It was also submitted that the learned trial judge ignored the Awori native law and custom as laid down in the judgments Exhibits ‘A’ and ‘H’ and therefore had a completely erroneous conception of what that law is. In addition to the above, learned counsel for the appellants submitted that the learned trial judge misdirected himself on the facts and gave the following as particulars of such misdirection:
(i) There was no evidence before the court that the Ijeshatedo people granted land to strangers because all the alleged allocations to non-members of the Ijeshatedo Community did not constitute “executed attempts to alienate”.
(ii) The act of cutting down palm trees and other economic trees by the Ijeshatedo people is not contrary to the terms of settlement in Suit No. 292/47 and 222/48 and does not, therefore, constitute misbehaviour if it was done in the course of building operations by the Ijeshatedo Community. They would only constitute a misconduct if such trees are sold after cutting.
(iii) There was no evidence at all of the areas on which the appellants were alleged to have trespassed or the locations of the lands which they had granted to other persons; and
(iv) There was no evidence in support of the finding that the appellants laid claim to a greater portion of land than was granted to them as customary tenants by the Respondents.

On the evidence before the learned trial judge, it was common ground that between 1900 and 1948 there were a number of law suits between the Ijeshatedo people (the appellants) and the Itire people (the respondents) over the land occupied by the Ijeshatedo people as Ijeshatedo and Ori Okiti in the Lagos State. It was also common ground that, over the years, the

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Ijeshatedo people have acknowledged that they were the customary tenants of the Itire people in respect of these lands. The learned trial judge, with commendable clarity, summarised these cases as follows:

“In Suit No. 61 of 1900, the Itire people obtained judgment against the Ijeshatedo people for a sum of 10pounds as damages for wrongfully cutting and carrying away their palm nuts at Ori Okiti; and also an  injunction to restrain them and their servants from repeating the acts complained of: see Exhibit ‘G’.

In Suit No. 405/1941, the action was almost an exact repetition of Suit No. 61 of 1900. Again the Itire people obtained judgment against the Ijeshatedo people for a sum of 20 as damages for the wrongful cutting of palm nuts and trees on land called On Okiti and Ijeshatedo and also for an injunction. See Exhibit ‘L’. The plan used in that case which the parties agreed to as that of the land in dispute, was tendered in this case as Exhibit ‘L’.

In Suit No. 65/1943, Chief Tiamiyu Fagbayi the Oloto of Oto sued the Itire people for a declaration offsite that he was the owner under customary law to all the land situate at Itire as delineated in the plan  filed in Suit No. 405 of 1941. The Ijeshatedo people strongly supported the Oloto and testified for him against the Itire people. Chief Oloto however lost the action and also the subsequent appeal therefrom: see Exhibits ‘K’ and ‘M’. Consequently, the Itire people obviously regarded the attitude of the Ijeshatedo people as a denial of their overlordship over the said land.

Hence in Suit No. 36 of 1947, the Itire people sued ten named defendants (apparently representing the Ijeshatedo people) jointly and severally for:
‘(1) A declaration that the defendants have incurred forfeiture under Native Law and Custom of the land which they occupy as the plaintiffs’ tenants at Ijeshatedo and Ori Okiti and
(2) An Order that the said defendants do deliver up possession of the said land to the plaintiffs.’

Again, the parties relied on the plan filed in Suit No. 405/1941 as that of the land in dispute. In that case, the defendants acknowledged the Itire people as their overlord and expressed the wish to remain on the land and to be considered as occupiers of the said land under customary tenure as customary tenants. The Itire people acquiesced in their requests and the action was settled on the following terms:
‘The action is withdrawn and the forfeiture waived: the plaintiff will accept the ten defendants as customary tenants and allow them to continue in possession as such on condition of their paying tribute of 25/- per annum (assessed as a single sum to cover all of them) to the plaintiff for all their farms.’ See Exhibit ‘F’.

It would appear from the tenure of the aforementioned terms of settlement that there were only ten persons on the land occupied by the Ijeshatedo people at that time.
In Suit No. 292/47, the Ijeshatedo people sued the Itire people claiming 260pounds as damages for trespass in that twelve named men of Itire had entered on their land and reaped fruits planted thereon by the plaintiffs. They also asked for an injunction. Before the case could be heard, the Itire people also brought an action in Suit No. 222 of 1948 claiming
(1) 300pounds as damages for trespass committed by the Ijeshatedo to the Itire farmlands at Ijeshatedo and Ori Okiti by reaping the fruits of the permanent trees;
(2) A declaration that the defendants have incurred forfeiture by so doing; and
(3) Recovery of possession.

The two suits were subsequently consolidated for hearing.
The judgment delivered in that case on 14th September, 1951 gave a history of the previous dispute between the Itire people and the Ijeshatedo people and concluded thus:
“Having heard all the witnesses, I have formed the opinion that the Awori custom is this:
Fruit trees on the other hand which one would not expect to find growing naturally e.g. bananas, kola trees, orange trees, I think in the circumstances of this case I can assume were deliberately planted by the tenants and that they are entitled to the fruits thereof. The tenants, or perhaps settlers is a better word, have been on this land for more than 50 years.

As to the tribute, it is now agreed that it is 25/- per annum. The Ijeshatedos say the 25/- took the place of 2 tins of palm oil and 11 cash which they used to pay to the Olotos and for that they had full use of the land and everything on it. But even if that was the arrangement between themselves and the Oloto, I do not agree that it follows that the Itire people are bound by it. They take their stand on Awori custom and I do not think they have forfeited any of their rights or commuted any of them for 25/- per annum. The 25/- per annum merely entitles the Ijeshatedo people to settle on the land, build houses there and cultivate the soil. They can also plant trees of economic use themselves and harvest the one they themselves planted but not others. The palm trees, bamboos and of un are reserved to the owner of the soil except, as I said, the settlers should be allowed to cut and use sufficient bamboos and of un to make their own house or houses or repair them. They have no right to cut and sell away from the land.’ If strangers come and beg for land it is customary to give land for settlement and for the settlers to pay some tribute to signify the overlordship of the true owners of the land.

Subsequently, the Itire people waived their claim for forfeiture and recovery of possession and the claims of the Ijeshatedo people for damages and for trespass to the palm trees were dismissed.”
The settlers then farm upon the land so given to them. When they enter the land they may well find growing there palm

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trees, bamboos and building poles, (Of un) because those trees grow naturally, uncultivated and without being deliberately planted. So these are reserved for the economic use of the owners of the soil. But I also think that it is usual for the tenants to be allowed to take bamboos and building poles in order to make their own houses on the land, but they must not cut and sell away from the land.

It is with this background of repeated litigation that the learned trial judge proceeded to consider the claims in the two consolidated suits. It will be recalled that the Ijeshatedo people in Suit No. IK/174/63 unsuccessfully claimed damages for trespass and an injunction against their overlords, the Itire people, in respect of the land.
Moreover, contrary to what has been urged on us by the learned counsel for the appellants, the Itire people, following the settlement of their claim against the Ijeshatedo people in Suit No. 36/47-Oriyomi v. Abioko & Ors-(Ex. ‘F’), the Itire people waived their right to forfeiture. The terms of settlement in that case read
“The terms are that the action is withdrawn and forfeiture waived: the plaintiff will accept the ten defendants as customary tenants and allow them to continue in possession as such on condition of their paying tribute of 25/- per annum (assessed as a single sum to cover all of them) to the plaintiff for all their farms.”

Again, in Suit No. 222 of 1948-Oriyomi Bale of Itire & ors v. Abioko & ors-(Ex. ‘H’) in which the Itire people sued the Ijeshatedo people for trespass and for a declaration that they had incurred forfeiture of their customary tenancy, the following issues were formulated and agreed by counsel for determination by the court:
“1. Are the owners of the land, i.e. Itire people, entitled to reap the fruits of palm trees, cut bamboo and cut and remove for sale building poles or not-according to Awori native law and custom?
2. If they are so entitled is it part of the consent judgment given by Brooke, J., (whereby it was agreed that the Ijeshatedo people should pay 25/- per annum as tribute) that the Itire people have waived their customary rights i.e. they have commuted those rights for 25/- per annum?

3. If the rights have not been waived are the Itire people prepared to sell the rights and for how much?”

In determining these issues, the learned trial judge in that case (Suit No. 222 of 1948), after making the observation to which the learned trial judge in the present case had referred in extenso in his judgment, then found as follows:

“I therefore answer the first agreed issue in the affirmative and the second in the negative. As to the third it is for mutual settlement and not for the Court.

The agreed issues took the place of the writ of summons and claims. Mr Agusto on behalf of Itire people waived their claim of forfeiture and recovery of possession.”

This judgment, and that in Suit No. 36/47 to which we have referred earlier, clearly show that the court in each case was of the opinion that the Ijeshatedo people had by their misconduct incurred forfeiture of their customary tenancy and that the Itire people had the right to claim forfeiture but they had agreed, out of sheer magnanimity, to waive their right to forfeiture.

Furthermore, it is our view that the judgment in Suit No. 222 of 1948 did no more than set out the rights and duties of the Ijeshatedo people vis-a-vis their overlord (that is, the Itire people). Contrary to what has been urged on us by the learned counsel for the appellants, it does not affect the general law as to the liability of a customary tenant to forfeiture of his tenancy if he is found guilty of misbehavour. Moreover, we are of the view that whether the act committed by the tenant constitutes a misbehaviour or not or whether such misbehaviour can incur forfeiture depends on the particular circumstances of each case. The list of such acts which constitute misbehaviour is not closed. It is still open to the court in every case brought before it to consider the complaint of the overlord against his customary tenant and to determine whether the complaint is well founded and whether, having regard to the circumstances, the acts complained of are as serious as to warrant the forfeiture of the customary tenancy.

In coming to this conclusion, we are aware of the decision of this Court in Chief Maduku Waghoreghor & ors v. Josiah Aghenghen (1974) 1 S.c. page 1 where we observed at page 8 as follows:
“In customary land law parlance, the defendants are not gifted the land; they are not ‘borrowers’ or ‘lessees’; they are grantees of land under customary tenure and hold, as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviour. This interest has in practice now been regarded by the courts as practically indefeasible, once permanent buildings or other forms of improvements like extensive commercial farming and/or occupation have been established thereon by the grantees. Any proved misbehaviour is usually now punished by a fine, as has happened in the present case.”

We would like to point out, however, that this observation is not intended to mean, and cannot mean, that all proved acts of misbehaviour by a customary tenant are now punished by a fine. Whether or not forfeiture will be ordered by the court will depend on the seriousness and/or repetitive nature of the misbehaviour complained of.

Thus, in Onisiwo v. Gbamgboye (1941) 7 WACA 69, where the descendants of one Gbamgboye, a domestic of the grantors who had been given permission to occupy a portion of the grantors’ family land in accordance with native law and

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custom, leased the property to one Paul Jazzar, the court at page 70 held, on a claim for declaration that the descendants had forfeited their customary rights of occupation, that “The real foundation of the misbehaviour which involves forfeiture is the challenge to the overlord’s rights. This is commonly shown by some form of alienation and such alienation may take the form, as in this case, of leasing under a claim of ownership. But it is not difficult to imagine cases in which the granting of a lease, e.g. for a short period, would carry with it no challenge to the overlord’s right and consequently involve no misbehaviour or forfeiture. Every case must be considered on its own facts.”

Again, in Okota & ors v. Oba Falolu I & ors (unreported but see WACA 2879 delivered on the 28th April, 1949), the court observed:

“As to whether an order of forfeiture of the defendants’ rights as customary tenants should have been made; it was agreed that, under native customary law as recognized by the courts, serious  misconduct of various kinds by a tenant may be a good ground for evicting him, though, as was pointed out in Chief Majolagbo Ashogbon v. Saidu Oduntan, 12 N.L.R. 7, the grant of an order of forfeiture is a matter for consideration in the circumstances of each particular case and it is not an invariable consequence of misconduct. It depends on the degree of misbehaviour. ”

Another decision along the same lines will be found in the case of Salami Sanni v. Alhaja Rabiatu lyalode(unreported but see S.C. 238/ 1959 delivered on 10th May, 1960). In that case Ademola, C.J.N . who delivered the judgment of the court observed:

“The question of misconduct by the appellants in respect of their holdings was then considered by the learned judge. It was quite clear that the appellants pulled down their house, started a new building, took more land for that purpose than was originally granted them, and refused to take any permission to build from the respondent. When questioned, the 1st appellant denied the ownership of the respondent and claimed the land himself through his mother, the 2nd appellant, who also supported the claim. Also without the permission of the respondent, they buried the corpse of a stranger to the land on a portion of the land. When asked to pay the requisite fee for the burial they refused to pay and made a claim of ownership to the land.
Counsel for the appellants, arguing before us, did not deny these allegations but argued that all these did not amount to such misbehaviour as to involve the appellants in forfeiture of their rights as customary tenants, if they are one.

The learned trial judge found that by denying the respondent’s title and making a claim of ownership to the land, the respondents have incurred a forfeiture under native law and custom. I am in entire agreement with his conclusions. There are various ways whereby a customary tenant may incur liability to forfeiture under native law and custom and a denial of the landlord’s title is one of the serious misconducts for which liability to forfeiture may be incurred: see the case Onisiwo v. Fagbenro 21 N.L.R. 3; also Lawani Buraimo & ors v. Taiwo Gbamgboye & ors 15 N.L.R. 1397 WACA 69. I am of the view that the declaration for forfeiture in the circumstances was justified.”

Finally in Nwankwo v. Okoye (unreported but see F.S.C. 254/62 delivered on 19th June, 1963), Taylor, F.J. who delivered the judgment of the court, stated as follows:
“There are decided cases to the effect that if a customary tenant ceases to pay rent, or if he does an act which is a contravention of his tenancy, one of the remedies available to the overlord is an action for forfeiture of the tenancy but not trespass.”

As we have pointed out earlier, the misbehaviour complained of by the Itire people are in paragraph 4 of their amended statement of claim which reads:
“4. The defendants have, contrary to native law and custom and to the terms and conditions of their occupational rights:
(i) Granted various pieces of land which they occupied as the plaintiffs’ customary tenants to strangers without the consent and against the wishes of the plaintiffs;
(ii) By themselves and/or their grantees destroyed palm trees on the land;
(iii) Cut economic trees on the land;
(iv) Gone outside the area originally granted to them and trespassed on portions of the land belonging absolutely to the plaintiffs; and
(v) Denied the title of the plaintiffs to grant portions of the land which were not included in the portion originally granted to the defendants.”

The amended statement of claim of the Itire people, which superseded their writ, was filed on 21st April, 1965. There is evidence, which the learned trial judge accepted, rightly in our view, that the Ijeshatedo people granted a portion of the land in dispute to one Lasisi Sule of Ita Elewa, Ikorodu (2nd D/W) on 9th June, 1964 and gave him the document (Ex. ‘E’). Admittedly, the grants made to Raufu Bankole (1st D/W) in Ex. ‘B’, to Eyo Ekpo (4th D/W) in Ex. C1, to Ifeanyi Agu (6th D/W), to Babatunde Sotade as shown in the documents Ex, C1 and C2, to Esther Sarumi in documents marked as Exs. N and N1 and to Jimoh Idowu in the documents marked as Exhibits O and O1, were all made after the amended

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statement of claim and defence had been filed. Nevertheless, they show what little respect the Ijeshatedo people have for the overlords. One would have thought that they would wait until the claim for forfeiture was determined before proceeding to make further grants to people whom the learned trial judge rightly found to be strangers. Be that as it may, the grant to Lasisi Sule (2nd D/W) who is certainly not a descendant of the ten Ijeshatedo people whom the Itires originally accepted as their customary tenants in Suit No. 36 of 1947 (Ex. ‘F’) was made before the amended statement of claim was filed and constituted a misbehaviour by the Ijeshatedo people. The complaint about inadmissible evidence being admitted by the learned trial judge is in respect of the documents to which we have referred. It is our View, however, that all these documents were admitted, not as deeds of conveyance or evidence of title, but partly as evidence of the transactions between the Ijeshatedo people and these strangers and partly as proof of the Ijeshatedo people’s general behaviour with respect to the land in dispute. For this reason, we think that the complaint about their inadmissibility is misconceived. (See Djukpan v. Orovuyovbe & an ors. [1967] 1 All N.L.R. 134 at pages 139-140; also Nwabuoku v. Otteh [1961] 1 All N.L.R. 4897 at pages 490-491).

As for the indiscriminate destruction of the palm trees on the land by the Ijeshatedo people contrary to the terms of their tenancy, this was amply proved by the admissions made by Raimi Alimi Aguntasholo (2nd P/W) and Abdul Gafar Thanni (6th P/W), and by the evidence of Alhaji Aliu Isiba (3rd D/W) which the learned trial judge accepted. Part of Isiba’s evidence reads:

“There were palm trees on the land from which we normally collect palm nuts every three months with which our women make palm oil. Later the Ijeshatedo people did not allow our people to go on the land again and they cut down all the palm trees. There were also of in and balufon trees on the swampy portion of the land, and those were usually cut by our people for building purposes. All those trees have been cut down and used by the defendants.”

The acceptance of this testimony in addition to the admissions to which we have referred, in our view, is sufficient proof of the misbehaviour referred to in paragraph 4 (ii) and (vi) of the amended statement of claim and the learned trial judge was not in error in accepting them as such.

Implicit in the claim, which the Ijeshatedo people brought against the Itire people in Suit No. IK/174/63 for damages for trespass and for injunction which the learned trial judge dismissed and in respect of which the Ijeshatedo people have not appealed, is the proof of the acts of misconduct in paragraphs 4 (iv) and (v) of the amended statement of claim of the Itire people. We do not think that any further proof by the Itire people was necessary. It will be recalled that the learned trial judge, when considering the Itire people’s claim (as plaintiffs) in Suit No. IK/204/63 in his judgment, referred to this claim for trespass brought by the Ijeshatedo people and found as follows:
“In the action for trespass instituted by the defendants against the plaintiffs in Suit No. IK/174/63, which I have already dismissed, it was alleged that the plaintiffs had granted portions of the land on which the defendants are their customary tenants to strangers but the plaintiffs adduced evidence, which I believe, that the portions allegedly trespassed upon by the grantees fell outside the portion of land originally granted to the defendants. By laying claims to a greater portion of land granted to the defendants by the plaintiffs it seems clear that the defendants were denying the right of the plaintiffs to grant lands to others outside the land in dispute.

We also agree with this finding in toto. It only remains for us to add that there is merit in the submission of learned counsel for the respondents that by interfering with the possession of the tenants whom the Itire people put on their own land, the Ijeshatedo people were interfering with the rights of the Itire people to give land to their own tenants. This, in our view, constitutes a serious misconduct, particularly as the Ijeshatedo people even went as far as suing their overlords for damages for trespass and for injunction with respect to this legitimate exercise of their right as owners of land which is outside the area which they have granted to the Ijeshatedo people as customary tenants.

Undoubtedly, there is a clear indication from all that we have said above that anyone of the acts complained of and proved by the Itire people would have supported their claim for forfeiture of the customary tenancy. Moreover, bearing in mind that since 1900, the Ijeshatedo people, in one form or another, have disputed the customary rights of the Itire as their overlords, the cumulative and serious effect of the various acts of defiance established before the learned trial judge above cannot be too strongly stressed. In fact, we can scarcely conceive of any misbehaviour on the part of a customary tenant more flagrant and deserving of forfeiture of the customary tenancy than the one resulting from the acts, which have been ventilated in this case. The learned trial judge, in our view, was more than justified in making the order for forfeiture asked for by the Itire people.

The appeal fails and it is dismissed. Consequently, we hereby order that the Ijeshatedo people do give up possession of the land in dispute known as Ijeshatedo and Ori Okiti and edged GREEN in the Survey Plan No. A156/1942 of 11th November, 1942 (Ex. ‘L’) to the Itire people on or before the 30th day of June, 1975. Costs to the respondents are assessed at N192.00.

Appearances

Chief Obafemi Awolowo with J.A. Cole, Olaniwun Ajayi and A.O. Sogbesan  –For Appellants

AND

Mr. H.A. Lardner – For RespondentsDAMAGESTRESPASS

In The Supreme Court of Nigeria

On Wednesday, the 30th day of April, 1975

SC.151/1974

Before Their Lordships

TASLIM OLAWALE ELIAS Justice of The Supreme Court of Nigeria

ATANDA FATAYI-WILLIAMS Justice of The Supreme Court of Nigeria

AYO GABRIEL IRIKEFE Justice of The Supreme Court of Nigeria


Between

Asani Taiwo & Ors.-Appellants

AND

Adamo Akinwunmi & Ors.-Respondents

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A. FATAYI-WILLIAMS, J.S.C. (Delivering the Leading Judgment): In Suit No. IK/174/63, which was commenced in the Ikeja High Court, the Ijeshatedo people, as plaintiffs, claimed from the Itire people and four others, as defendants, jointly and severally the sum of 500 as damages for trespass to their land at Abule Ijeshatedo, Itire, Ikeja District. They also asked for an injunction to restrain the defendants, their agents or servants from further trespassing on the said land.Paragraphs 2 to 13 of the plaintiffs’ amended statement of claim read:”2. The plaintiffs are people of Ijeshatedo Village and are suing for themselves and on behalf of the people of Ijeshatedo Village.

3. The 1st, 2nd and 3rd defendants were substituted by order of court vice one Chief Salawu Lawani as the overlord of the land situate at the said village whereon the plaintiffs are settled and are possessed thereof as customary tenants.

4. The several plots of land in dispute form portion of the said village and they are more specifically shown on the plan filed in this action within the area edged RED.
5. The Ijeshatedo people from whom the plaintiffs are descended have settled on the said land for more than 100 years past and the plaintiffs are possessed of the said land under the native law and custom of the Yorubas.

6. The rights and duties of the plaintiffs and the 1st, 2nd and 3rd defendants are clearly set out in the judgment in the consolidated Suits Nos. 292/47 and 222/48.

7. The plaintiffs have always complied with and exercised rights and performed their duties in respect of the said land in accordance with the said judgment.
8. The 1st, 2nd and 3rd defendants had always disregarded the said judgment and acted against the rights of the plaintiffs by leasing the said land to strangers without the authority or consent of the plaintiffs.
9. The 4th, 5th, 6th and 7th defendants who are not descendants of Ijeshatedo people about the month of June, 1963, without any right whatsoever and without the authority or consent of the plaintiffs entered upon the land in dispute and began to dig up portions of it preparatory to laying foundations for the erection of buildings.
10. The 4th, 5th, 6th and 7th defendants were questioned by the plaintiffs as to their authority for digging up the said land and the plaintiffs were told by the said defendants that the late Chief Salawu Lawani had leased the said land to them in plots.
11. The first plaintiff made enquiries from the said Chief Salawu Lawani whether he had leased any portion of the said land in dispute to the 4th, 5th, 6th and 7th defendants and the said Chief Lawani affirmed to the 1st plaintiff that he had leased the said portions to the said defendants.

12. The said Chief Lawani added further that he had the right to lease the land at Ijeshatedo to strangers and that he would continue to lease the land to whomsoever he pleased.

13. Since the commencement of this action the 4th, 5th, 6th and 7th defendants had completed their several houses indicated on the plan.”
In their own amended statement of defence, the defendants averred in paragraphs 2-9 thereof as follows:
“2. With reference to paragraphs 1 and 4 of the amended statement of claim the defendants are unable to identify the land described as “the subject matter of the Suit” and deny that the area edged in RED on plan SEW/W/409B was the subject matter of any grant by the Onitire Family to the plaintiffs.
3. The defendants deny paragraph 7 of the amended statement of claim and aver that contrary to the terms of the grant to the Ijeshatedos they have been leasing portions of the land granted to them to strangers cutting and destroying economic trees and crops on the land, selling same and appropriating the proceeds to themselves.
4. The defendants deny paragraphs 2, 4, 8, 9, 10, 11, 12 and 13 of the amended statement of claim and put the plaintiffs to strict proof.
5. With reference to paragraph 3 of the amended statement of claim, the defendants admit only that the 1st, 2nd and 3rd defendants were substituted vice the original first defendant, Chief Salawu Lawani deceased.

6. The defendants further aver that the Onitire Family are the owners of a vast area of land in Itire including the land granted by their family to the Ijeshatedos, namely Ijeshatedo Village as customary tenants.
7. The defendants aver, with reference to paragraph 6 of the said amended statement of claim that the rights and duties of the Onitire Family and their grantees are to be found in the judgment in Suits 2920/47 and 222/48 and the other incidents of customary tenancy recognised by native law and custom.
8. The defendants will contend that the grantees of the Onitire Family have never been content with the terms of their grant and have in recent years, in view of the enhanced economic value of land, been arrogating to themselves the right of owners and have granted innumerable leases of Onitire Family land contrary to their grant.

9. The Onitire Family has instituted an action in this honourable court Suit No. IK/204/63, for forfeiture of the plaintiffs’ interest in the land granted to them and recovery of possession thereof.”

As could be gathered from paragraph 9 of the amended statement of defence quoted above, the defendants, before filing their amended statement of defence, had instituted a separate action in Suit No. IK/ 204/63 against the plaintiffs and thirteen others in the same Ikeja High Court. In that suit, the defendants (that is, the Itire people) claimed against the Ijeshatedo people who are the plaintiffs in the earlier case that is in Suit No. IK/174/63, a declaration that as customary tenants under native law and custom, the Ijeshatedo people have forfeited for misconduct all right, title and/or interest

…………………….B…………………….

in all that piece or parcel of land lying and being at Itire and shown on survey plan No. A156/1942. In addition, they claimed 1,000pounds as general damages for unlawfully cutting and destroying the plaintiff’s palm trees and other economic trees and crops on the land. Thirdly, they asked for recovery of possession of the said land.

Pleadings were also ordered and duly delivered in this second case, that is, in Suit No. IK/204/63. Paragraphs 2-6 of the amended statement of claim, filed by the Onitire Family on 24th April, 1965, and in which the claims for declaration and for 1,000pounds general damages were repeated read,:

“2. The said land is vested by native law and custom in the Onitire Family and the plaintiffs herein have been authorised by the Onitire Family to continue these proceedings following the death of Salawu Lawani Onitire of Itire who was head of the said family.

3. The Onitire Family has exercised maximum acts of ownership over the said land for very many years and have granted a portion thereof to the Ijeshatedo people as customary tenants under native law and custom.

4. The defendants have, contrary to native law and to the terms and conditions of their occupational rights:

(i) Granted various pieces of land, which they occupied as the plaintiffs’ customary tenants to strangers without the consent and against the wishes of the plaintiffs;

(ii) By themselves and/or their grantees destroyed palm trees on the land;
(iii) Cut economic trees on the land;
(iv) Gone outside the area originally granted to them and trespassed on portions of the land belonging absolutely to the plaintiffs; and
(v) Denied the title of the plaintiffs to grant portions of the land which were not included in the portion originally granted to the defendants.
5. By native law and custom if tenants commit the acts specified in paragraph 4 above they are liable to forfeit the land granted to them and to be evicted there from.

The plaintiffs will rely on the judgments in the following cases:
Suit No. 405/41-Oriyomi v. G. Abioko
Suit No. 36/47-Oriyomi v. G. Abioko
Suit No. 61/1900-Ejiosu v. Abioko
Suit No. 222/48-Oriyomi v. Abioko.”
While admitting the averments in paragraphs 3 of this amended statement of claim, the Ijeshatedo people (who are now the defendants in this second action) denied the other averments in their statement of defence, which they filed on 13th May, 1965. They then pleaded in paragraphs 2, 4, 5 and 6 thereof as follows:
“2. The defendants admit paragraph 1 of the statement of claim only to the extent that the area in dispute is edged GREEN on the plan filed by the plaintiffs and deny that there is any dispute in regard to any portion of the land outside the area edged GREEN.
4. The defendants deny paragraphs 4 and 5 of the statement of claim and put the plaintiffs to the strict proof of the allegations therein contained.

5. In further denial of paragraph 4 of the statement of claim, the defendants say that none of the Ijeshatedo people has granted leases to strangers, or cut down palm or economic trees or gone outside the area of the grant to Ijeshatedo people or denied the Onitire’s title to portions of land outside their holding.

6. The defendants further aver that the action of the plaintiffs is motivated by an urge for revenge because the Ijeshatedo people were the first in time to take out an action against Chief Salawu Lawani now represented by the plaintiffs among others in Suit No. IK/174/63 for trespass and damages.”

On a close perusal of the pleadings filed in Suit No. IK/174/63, it seems to us that the mis-conduct complained of by the Itire people in paragraphs 4 (iv) and (v) of their statement of claim in Suit No. IK/204/ 63 is based on the claim which the Ijeshatedo people brought against them for damages for trespass and injunction in Suit No. IK/174/63.

However, having filed their defence to the statement of claim of the Itire people in Suit No. IK/204/63 on 13th May, 1965, the Ijeshatedo people later on 23rd February, 1967, filed the following reply to the amended statement of defence of the Itire people in the earlier action in Suit No. IK/174/63:

“The Reply to amended statement of defence
The plaintiffs in answer to paragraph 2 of the amended statement of defence rely on the plan filed in Suit No. 405/41-Oriyomi Bale of Itire v. Gbadamosi Abioko as well as the evidence of Oriyomi Bale of Itire in Suit No. 65/43-Tiamiyu Fagbayi v. Oriyomi Bale of Itire which case was based on the same plan filed in Suit No. 405/41.
The plaintiffs for this purpose will rely on the proceedings in the two Suits.
2. With reference to paragraph 6 of the amended statement of defence, the plaintiffs say that the land granted by the defendants to the ancestors of the plaintiffs has always been known as Ijeshatedo and Oriokiti and is represented in the

…………………….C…………………….

plan exhibited in Suit No. 405/41. Ijeshatedo Village forms a small part of the said land.
3. Paragraph 8 of the amended statement of defence is denied and the defendants are put to the strictest proof thereof.”

After a number of adjournments, the trial court, on 4th April, 1972, granted an application for accelerated hearing of the two cases and fixed May 30th, 1972 to June 2nd, 1972 for the hearing. On 30th May, 1972, when the case was called, the plaintiffs in Suit No. IK/174/63 were absent and the learned trial judge thereupon struck out that case and adjourn the other case (Suit IK/204/63) for hearing on the following day. The second case did not go on that day. Instead an application to relist the earlier case which had been struck out was granted on 12th June, 1972, when the learned trial judge ordered as follows:

“The suit is relisted forthwith for hearing and it is consolidated with IK/204/63. ”

After the order for consolidation, the two cases were first adjourned to 10th October, 1972, and then to 3rd January, 1973, when the hearing eventually commenced.

At the hearing, the Ijeshatedo people (that is, the plaintiffs in Suit No. IK/174/63) began and adduced evidence, not only in support of their claim in that suit, but also partly in answer to the complaints of the Itire people in their claims in Suit No. IK/204/63. Thus, Karimu Ogunlana, the Bale of Ijeshatedo (1st P/W), testified in part as follows:

“There had been a dispute between us and the Itire people prior to the institution of this action in 1963. I am referring to the two consolidated cases of 1947 and 1948. This is the judgment in Suit Nos. 292/47 and 222/48 (tendered, no objection, admitted and marked Ex. ‘A’). In Exhibit ‘A’, the Itire people were declared the owner of the land in dispute and we were declared customary tenants on the land

After the judgment Exhibit ‘A’ was delivered, the defendants brought some people to the land and we did not know the strangers who were building houses on our land. These strangers were destroying our crops on the land and anything sown such as our coconuts on the land. About 20 coconut trees were destroyed. Kolanut trees, orange and banana trees were also destroyed on the land. About 200 kolanut trees were destroyed. About 100 orange trees were destroyed. We have also been sued with respect to the land by the Oba and people of Itire on the ground that as customary tenants we have been selling and leasing the land to strangers but we have never sold any land. Those living in Ijeshatedo and owning houses there are our children. All our people and descendants are living in Ijeshatedo. Among them are farmers and civil servants……. It is not correct that we have always sold or leased land to strangers who are not members of the Ijeshatedo people. We have always complied with the terms set out in Ex. ‘A’.”

The 1st P/W was then cross-examined at length about the particulars of those to whom the Ijeshatedo people have granted land and he replied as follows:
“We do not keep a bank account but we keep accounts of our transaction. We have a record of those to whom lands have been allocated. I cannot remember off hand the number of those who had  been granted permission to build in Ijeshatedo for the past ten years, but there are about 200 people to whom we have given permission as well as those living in Ijeshatedo at present. The list of those to whom we have given permission to build is kept by our secretary Mr Esilokun. He lives in Ijeshatedo. He has been our secretary for the past five years. I can take the book from our secretary and bring it to court tomorrow.”

Having admitted the execution of certain documents (Exhibits B, CC2) which he referred to as conveyances in favour of certain persons to whom they had granted land, the 1st P/W testified as follows:
“Those who built on the land in dispute are no strangers but members of the Ijeshatedo Community. We have never cut down any economic trees on the land. The Itire people have trespassed on the land.”

The court then adjourned to the following day, presumably to enable the witness to produce the book containing the names of those to whom land had been granted. When he was cross-examined about the book at the resumed hearing, the 1st P/W replied:
“I cannot produce the list of those granted land by the Ijeshatedo Community because the list is with my son-SIKIRU who is away to Mecca on pilgrimage.”

We think we should point out at this stage that the book containing the list of grantees was never produced and neither Esilokun (referred to as the Ijeshatedo Community Secretary) nor Sikiru to whom the 1st P/W said he gave the book was called to testify as to why it could not be produced.

Another member of the Ijeshatedo Community who testified for the plaintiffs is Raimi Aguntasolo (2nd P/W), a builder who admitted that all the houses he built for people on the land in dispute “were not with approved building plans.” The witness also admitted that he knew of the grant of land by the Itire people to Adekoya (4th Dft.), Shobade (5th Dft.), and Mutairu (7th Dft.), that they objected to the grant, and later sent delegation to the Onitire (Alhaji Abin Saibu 3rd Dft.) about it. The Onitire saw the delegation but refused to do anything about the grants. The witness described their course of action thereafter as follows:
“On reporting the result of the meeting to our Bale, the Bale said that we should not allow the persons to whom the Itire people had allocated land to build and if the matter resulted into quarrel, the police would intervene. We

…………………….D…………………….

later fought on the matter and we were taken to the Police Station. The police advised both sides to keep the peace and await the decision of the court. We went to the police station on the matter over six times.”

The surveyor, one Augustine Seweje (4th P/W) produced the plan of the land in dispute and which the Ijeshatedo people instructed him to make for them. The plan is No. SEW/W/409A of 23rd May, 1965, and admitted as Exhibit ‘D’. The surveyor said that that the 1st P/W showed him the portion edged RED and marked ‘B’ in Exhibit ‘D’ and said that that was their family land. The surveyor also admitted that it was the 1st P/W who showed him the properties of Adekoya, Sobade (5th Dft.), Ahoko (6th Dft.) and Mutairu (7th Dft.) in the northern part of the portion edged Red in Exhibit ‘D’. About the survey plan Ex. ‘D’ , the surveyor testified under cross-examination as follows:
“While I was preparing Exhibit ‘D’, I discovered from the Survey Department that the portion marked ‘Government Acquisition’ had been acquired by the Government. The Surveyor-General (West) at the time, Mr W. Gasgoyne told me about the acquisition. The plaintiffs showed me the area marked ‘A’ and ‘B’ on Exhibit ‘D’ as their own land. They did not tell me that ‘A’ had been acquired.”

After the Treasurer of the Ijeshatedo Community (5th P/W had testified and had admitted that although he was the Treasurer and kept all their money, he was an illiterate and kept no book of accounts, learned counsel for the plaintiffs, no doubt with the second case in mind, made an application which was granted by the learned trial judge. The application is as follows:
“In view of what has transpired during the trial and the pleadings in IK/204/63, I intend to call one more witness who is not here at present. I am therefore respectfully asking for an adjournment.”

The last witness for the plaintiffs is one Gafari Thanni (6th P/W). He is also a member of the Ijeshatedo Community. He stated that there were many palm trees on the land in dispute, and that if a person wanted to build a house on a piece of land where there were palm trees or kolanut trees, the trees would be cut down if they were in the way. The witness was then cross-examined about the penalty which a customary tenant would incur if he attempted to sell or lease the land held by him as customary tenant and he replied as follows:

“I am aware that under Yoruba customary law, a customary tenant who attempts to sell or sells the land granted to him by his overlord means forfeiture of that tenure. I am also aware of the fact that if  the customary tenant leases or attempted to lease the land to another without the consent of his overlord he incurs forfeiture of his tenure. ”

The Itire people, in their defence to Suit No. IK/174/63 and in support of their own claims in Suit No. IK/204/63, called a number of witnesses. One such witness is Alhaji Aliu Isiba (3rd D/W). He is member of the Onitire Family. He is also the 3rd defendant in Suit No. IK/174/63 and the 3rd plaintiff in Suit No. IK/204/63. In his evidence on 6th April, 1973, (that is, about ten years after the actions commenced), this witness testified inter alia as follows:

“The Itire people have never leased out any portion of the land involved in the 1941 case to anyone . . . .. . . . . . .. It is not correct that the Ijeshatedo people are still farming on the land in dispute up till today. They are in fact at present leasing out the land selling some portions…………………… As a Yoruba man and an Awori, I am conversant with the native law and custom relating to customary land tenure. According to the said custom, if a customary tenant grants portions of his customary tenure on lease or sale to an outsider the customary tenant would forfeit his tenure. If such tenant contrary to his tenure cut down economic trees, such as kolanuts, cocoa trees, he would pay for those economic trees cut down and forfeit his tenure. The Ijeshatedo people as our customary tenants have no right to cut down our economic trees like palm trees and others on our land. They did so before and the court ordered them to pay for the trees cut down Since this case was instituted in 1963, so many houses had been built on the land in dispute. The cutting of our economic trees like palm trees and others started before this case was instituted in 1963 and it still continues by the Ijeshatedo people.”
To questions asked in cross-examination, the witness replied:

“We are not allowed to visit Ijeshatedo because if we do, we may be murdered. I have not been to Ijeshatedo for the past ten years…………………. The population of Itire is more than that of Ijesha. Apart from the twenty-two persons present in court who claim to be Ijesha people, there could not be more than ten others left in the village who are descendants of the Ijeshatedo original settlers.”

The other witnesses called by the defendants were mostly persons to whom the Ijeshatedo people had granted land within the land in dispute. One such witness is Raufu Bankole (1st D/W). He described how the land referred to Exhibit ‘B’ was sold to him. He also admitted that he was not a member of the Ijeshatedo Community, and that when he discovered that he was described as a member of the community in Ex. ‘B’, he expressed his suspicions to the 1st, 2nd and 6th P/Ws. He then described what transpired as follows:
“They said that the land belonged to the Itire people and that they have been on the land for a very long time; that most of the tenants had been given the same copy of agreement. And they passed the gin round and ask us to swear an oath that I would subsequently by the oath become a member of the Ijeshatedo Family. I refused to be sworn and I walked out with Ex. ‘B’.”

Other witnesses who are not related to the Ijeshatedo people and to whom leases of part of the land in dispute were granted by the Ijeshatedo people are Lasisi Sule (2nd D/W) a native of Ikorodu to whom the land described in the document

…………………….E…………………….

(Ex. ‘E’) was granted in 1964, and Etim Eyo Ekpo (4th D/W) to whom the two plots described in Exhibits N and N1 was sold. Ekpo admitted that he is not an Ijesha man and that he is not related to the Ijeshatedo people. Others are Samuel Ifeanyi Agu (6th D/W), an Ibo man who also admitted that he is not related to the Ijeshatedo people but to whom land was sold in 1971, and Jimoh Idowu (8th D/W), a native of Abeokuta to whom the land described in Exs. O and O1 was sold. The last of these witnesses is one Alhaji Tijani (9th D/W) who testified as follows:

“I know one Bisiriyu Saka. I leased a land at Ijeshatedo from him for which I paid 30pounds. I was then asked to be an Ijesha man but I refused. I told him that my father hails from Lagos. I then asked them to refund my money but they refused. I then sued them. After instituting an action, I was paid back my 30pounds.I am a native of Lagos. ”

Thereafter, the Itire people closed their case. It is significant that the Ijeshatedo people, although they are the defendants in Suit No. IK/204/ 63 and notwithstanding the evidence adduced by the Onitire Family in support of their own claim in that action, did not adduce any evidence in rebuttal. The defence of the Ijeshatedo people in IK/204/63 was, therefore, allowed to rest on the evidence they had earlier given in support of their own case in Suit No. IK/174 /63. We shall discuss the effect of this omission later.

In a reserved judgment, the learned trial judge reviewed the evidence adduced before him and considered all the documents and judgments tendered by the parties in support. Although the two cases had been consolidated, he nevertheless referred in his Judgment to the Ijeshatedo people as the plaintiffs in Suit No. IK/174/63 and the Itire people as the defendants; but when he was considering the claims in Suit No. IK/204/ 63 he referred to the Ijeshatedo people as the defendants and the Itire people as the plaintiffs.

The learned trial judge first dealt with the claims of the Ijeshatedo people in Suit No. IK/174/63 wherein they claimed damages for trespass and also an injunction against the Itire people. After observing that the land on which the alleged trespass was committed was not properly identified by the Ijeshatedo people, he found as follows:

“That apart, no evidence whatsoever was adduced about any trespass being committed by the defendants on any area covered by the plan used in Suit No. 405/41- Exhibit ‘L’ which was the one agreed by both parties as that of the land in dispute. Furthermore, Alhaji Isiba (D.W. 3) denied that the defendants ever trespassed on any portion of the area of land granted to the plaintiff’ by the Itire people. Even Mr M. A. Kukoyi (D.W. 11) found it difficult to correlate the feature on Exhibit L with those on Ex. D.

On the totality of the evidence before me, I am not satisfied that the plaintiffs have proved that any of the surviving defendants has trespassed on the land granted by the Itire people to the plaintiffs which is shown on plan No. A156/1942 used in Suit No. 405/41. In the circumstances, the claim for trespass fails and consequently the claim for an injunction cannot stand. The plaintiff’s claims in Suit No. IK/ 174/63 are therefore dismissed.”

In considering the claims in Suit No. IK/204/63 where he referred to the Itire people as the plaintiffs and the Ijeshatedo people as the defendants, the learned trial judge, after referring to the survey plans Exhibits ‘D’ and ‘L’ and to the testimony of Chief Imam Gafar Thanni (P/W 6), a prominent member of the Ijeshatedo community, found that the Ijeshatedo people laid ‘claim to a greater portion of the land than was granted them as customary tenants by the plaintiffs. He then went back to the claims of the Ijeshatedo people against the Itire people for damages for trespass and observed as follows:

“In the action for trespass instituted by the defendants against the plaintiffs in Suit No. IK/174/63, which I have already dismissed, it was alleged that the plaintiffs had granted portions of the land of which the defendants are their customary tenants to strangers but the plaintiffs adduced evidence, which I believe, that the portions allegedly trespassed upon by the grantees fell outside the portion of land originally granted to the defendants. By laying claims to a greater portion of land granted to the defendants by the plaintiffs, it seems clear that the defendants were denying the right of the plaintiffs to grant lands to others outside the land in dispute.”

The learned trial judge then considered the testimony of Alhaji Ogunlana (P.W. 1), the Bale of Ijeshatedo and in particular, his statement that it is not correct that his people have always sold or leased land to strangers who are not members of the Ijeshatedo people. He also gave detailed consideration to the evidence adduced by the Itire people in support of their claim. On the complaint that the Ijeshatedo people had been granting land to strangers, the learned trial judge found as follows:
“Having regard to the evidence before me with respect to the grant of land by the defendants, I am satisfied
(i) That the defendants have been granting leases of land in Ijeshatedo and Ori-Okiti, the subject matter of the action to persons who are not and who could not be members of the Ijeshatedo people whom the defendants represent;
(ii) That those persons (or better still strangers) have been paying them large sums of money other than those shown on the documents “Ex. ‘B”‘;
(iii) That the contents of Exhibits B, C, C1, C2, E, N, N1, O and O1 among others were devised by the defendants in order to conceal the true nature of the transaction and consequently they are calculated to deceive the plaintiffs; and
(iv) That the contents of Exhibit ‘B’ and such like documents are therefore false. ”

The learned trial judge then dealt with the Itire people’s complaint about the indiscriminate felling of palm trees and

…………………….F…………………….

other economic trees by the Ijeshatedo people and observed
“Both parties rely on the judgment in Suits 292/47 and 222/48 as stipulating their rights and duties in relation to the land in dispute. But that judgment reserves the right to cut palm trees and economic trees like Ofun and bamboos to the plaintiffs except when those trees had been planted by the defendants themselves or they were required to build their own houses or to repair them. The defendants have not said that the trees which were felled were planted by them or that they were required for their own personal use. Rather, there is evidence that they were felled to enable plots of land to be allocated to strangers. In the circumstances, I am also satisfied that the defendants have been felling palm trees and other economic trees which were reserved for the plaintiffs, their overlords.”

As a follow-up to the above finding, the learned trial judge considered the totality of the case against the Ijeshatedo people and observed:

“There is another point that is worthy of note in this case. Since 1900, there had been series of litigations between the plaintiffs and the defendants with respect to the land in dispute. On more than two occasions, the defendants were sued for forfeiture and possession; and they virtually admitted having contravened the terms of their customary tenure, but asked that they should be allowed to continue in possession. In sympathy with the defendants, the plaintiffs had to waive the claim for forfeiture and for recovery of possession. In the present case, the defendants again admitted being customary tenants of the plaintiffs, but they denied being in breach of the terms of such customary tenure by leasing or granting land to strangers or by cutting down palm trees or other economic trees. Of course, it has been established that they were all along granting land to strangers in the guise of doing so to members of their community; and they have also been found to have been cutting down palm trees and other economic trees and crops. Moreover, they continued doing so while the case was still pending: see Exhibit N, N1, O, O1 and the grants to Mr Agu and others”.

Having regard to the evidence before me, I am satisfied that the defendants in this case are in breach of their customary tenure in that they not only granted portions of the land in dispute to strangers, and felled palm trees and other economic trees but they are also guilty of other offences of customary tenure as set out in paragraph 4 of the amended statement of claim.”

It is pertinent, at this juncture, to refer again to the averments in paragraph 4 (v) of the amended statement of claim in Suit No. IK/204/63 to which reference has been made by the learned trial judge. The averments are as follows:

“4. The defendants have, contrary to native law and to the terms and conditions of their occupational rights: …………………………
(v) denied the title of the plaintiffs to grant portions of the land which were not included in the portion originally granted to the defendants.”

Having found as above, the learned trial judge ordered that all the rights, title and interest which the defendants (the Ijeshatedo people) have in the land in dispute (that is, the piece of land known as Ijeshatedo and Ori Okiti as shown in the survey plan No. A156/1942 which is admitted in evidence as Exhibit ‘L’) should be forfeited to the plaintiffs (the Itire people). After awarding the plaintiffs the sum of N1,500.00 as damages for the palm trees and other economic trees unlawfully cut down by them, the defendants were also ordered to give up possession of the said land within 90 days.

The defendants did not appeal against the order dismissing their claim against the Itire people in Suit No. IK/174/63, although that claim clearly formed the basis of the misconduct complained of by the Itire people in paragraph 4 (v) of their amended statement of claim in Suit No. IK/204/62. Undoubtedly, the effect of this is that the Ijeshatedo people, as the customary tenants of the Itire people, have wrongfully disputed the title of their overlords to portions of land adjacent to but not included in the area which they hold as customary tenants.

Instead, the Ijeshatedo to people have only appealed against the judgment in Suit No. IK/204/63. Before considering the matters canvassed before us in the appeal, we wish to point out that since the Ijeshatedo people have not appealed against the order made in Suit No. IK/174/63, it would not be open to them in this appeal to complain about the findings of the learned trial judge with respect to the misconduct complained of in paragraph 4 (v) of the amended statement of claim. Of course, whether this misconduct could or should result in the forfeiture of the customary tenancy is, however, still open for consideration.
Before arguing the appeal, the learned counsel for the appellants applied to amend the amended statement of defence in Suit No. IK/204/ 63 by adding the following as paragraph 5A:
“5A. With further reference to paragraph 5 of the amended statement of claim, the defendants will contend at the trial of this action that the acts complained of in paragraph 4 of the said amended statement of claim, even if they are committed by the defendants, do not warrant forfeiture; in the alternative, if the said acts were held to warrant forfeiture, the defendants would pray the court to grant them relief against forfeiture on such terms as to the court may seem fit.”
We refused the application for amendment and now set out our reasons for doing so.
In the first place, unless there is very good and strong justification for so doing, a high court should be reluctant to grant amendments of the pleadings after the close of the case before judgment, even though it has been indicated in the course of the hearing that some amendment might be asked for. Such an amendment may be allowed where the matter involved

…………………….G…………………….

has been raised in the course of the trial and counsel has addressed the court on it, since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties. It may also be allowed where the subject of the amendment has been referred to by counsel in opening and evidence about it has been given so as to enable the court to arrive at the view, if it thinks fit, that what is pleaded is a correct interpretation of the facts. (See Loufti v. Czarnikow Ltd. [1952] 2 All E.R. 823).

Secondly, there was no application for any amendment at any stage of the proceedings before the High Court. As a matter of fact, there was even no application for relief from forfeiture at any time in the court below. Part of the trial judge’s notes on the final address of learned counsel for the Ijeshatedos reads
“Hence urges the court to dismiss IK/204/63. Alternatively, if the court finds that the Ijeshatedos have committed acts which involve forfeiture, urges the court not to make an order for forfeiture, but make an order which is equitable having regard to the circumstances of the case. Such exercise of equitable jurisdiction to restrain the Ijeshatedo people not to commit any further act which might incur forfeiture.”
What learned counsel is saying by this submission is that the court should dismiss the claim for forfeiture and make an order for an injunction instead, an order which would have been erroneous since the Itire people did not ask for it. At no time did learned counsel ask that the IJeshatedo people should be granted relief from forfeiture. In this connection, we wish to refer to the case of Ladega v. Akinliyi (SC. 1/67 delivered on 19th December, 1969) now reported in (1975) 2 S.C. 91, in which this court held at page 96 that where a customary tenant has not claimed relief from forfeiture but has decided on a straight fight, basing all on title or nothing, the trial court ought not to consider the matter.

Thirdly, where a tenant, whether he is a customary tenant or not, commits an act which could incur a forfeiture of the tenancy and a claim for such forfeiture is brought against him in the High Court, the proper procedure is not by just asking for relief in the pleadings as it has been done in the application for amendment. The procedure to be followed and which we recommend for future use, is described in Atkins Court Forms, 2nd Edition, Volume 24 at page 30 as follows:
“A claim for relief from forfeiture for non-payment of rent may be made in a number of ways. If the landlord has not begun any proceedings the tenant or sub-tenant may initiate a claim for relief by writ or originating summons. Alternatively, the tenant may counterclaim for relief in the lessor’s action or simply apply by summons in that action. If the application is made after judgment it is usually by summons.”
(See also Standard Pattern Co. Ltd. v. Ivey [1962] 1 All E.R. 452 and Gill v. Lewis [1956] 1 All E.R. 844). The reason for this somewhat elaborate procedure is not far to seek. By proceeding either by way of an originating summons or a counter-claim where pleadings could be ordered, the tenant will be able to set out in detail the facts upon which he relies such as the circumstances leading to the breach. The landlord or overlord, on the other hand, will be able, in his own defence to the originating summons or counter-claim, to reply to all the facts on which the tenant is relying. Issues as to whether to grant relief or not will then be joined and neither party will be taken by surprise. The court will then hear evidence from both sides based on their pleadings and will thus be in a better position to consider all the circumstances and probabilities and come to a conclusion one way or another. In the case in hand, not only is there no claim for relief from forfeiture in the court below in the manner stated above, the procedure adopted in the application for amendment in this court, even assuming that it can be granted, is irregular. For example, no grounds for such relief were set out in the proposed amendment to enable the Itire people to file a reply if they so desire. It is for all these reasons that we come to the conclusion that the application could not be entertained and so dismissed it.
Various points were raised by the learned counsel for the appellants at the hearing of the appeal against the judgment in Suit No. IK/204/63. The main grounds of complaint, and those are the only ones which merit any serious consideration, may be summarised as follows. The learned trial judge erred in law in not dismissing the claims of the Itire people since there was no evidence before the court of any act of misbehaviour on the part of the Ijeshatedo people, antecedent to 1963, to support the claims. The learned trial judge also erred in admitting inadmissible evidence and taking them into consideration in arriving at his conclusion. Learned counsel also complained that the learned trial judge placed the onus of proof on vital issues-such as the alienation of part of the land in dispute to strangers or whether or not the trees felled by them were for their personal use-on the appellants when the onus was clearly on the Itire people. It was also submitted that the learned trial judge ignored the Awori native law and custom as laid down in the judgments Exhibits ‘A’ and ‘H’ and therefore had a completely erroneous conception of what that law is. In addition to the above, learned counsel for the appellants submitted that the learned trial judge misdirected himself on the facts and gave the following as particulars of such misdirection:
(i) There was no evidence before the court that the Ijeshatedo people granted land to strangers because all the alleged allocations to non-members of the Ijeshatedo Community did not constitute “executed attempts to alienate”.
(ii) The act of cutting down palm trees and other economic trees by the Ijeshatedo people is not contrary to the terms of settlement in Suit No. 292/47 and 222/48 and does not, therefore, constitute misbehaviour if it was done in the course of building operations by the Ijeshatedo Community. They would only constitute a misconduct if such trees are sold after cutting.
(iii) There was no evidence at all of the areas on which the appellants were alleged to have trespassed or the locations of the lands which they had granted to other persons; and
(iv) There was no evidence in support of the finding that the appellants laid claim to a greater portion of land than was granted to them as customary tenants by the Respondents.

On the evidence before the learned trial judge, it was common ground that between 1900 and 1948 there were a number of law suits between the Ijeshatedo people (the appellants) and the Itire people (the respondents) over the land occupied by the Ijeshatedo people as Ijeshatedo and Ori Okiti in the Lagos State. It was also common ground that, over the years, the

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Ijeshatedo people have acknowledged that they were the customary tenants of the Itire people in respect of these lands. The learned trial judge, with commendable clarity, summarised these cases as follows:

“In Suit No. 61 of 1900, the Itire people obtained judgment against the Ijeshatedo people for a sum of 10pounds as damages for wrongfully cutting and carrying away their palm nuts at Ori Okiti; and also an  injunction to restrain them and their servants from repeating the acts complained of: see Exhibit ‘G’.

In Suit No. 405/1941, the action was almost an exact repetition of Suit No. 61 of 1900. Again the Itire people obtained judgment against the Ijeshatedo people for a sum of 20 as damages for the wrongful cutting of palm nuts and trees on land called On Okiti and Ijeshatedo and also for an injunction. See Exhibit ‘L’. The plan used in that case which the parties agreed to as that of the land in dispute, was tendered in this case as Exhibit ‘L’.

In Suit No. 65/1943, Chief Tiamiyu Fagbayi the Oloto of Oto sued the Itire people for a declaration offsite that he was the owner under customary law to all the land situate at Itire as delineated in the plan  filed in Suit No. 405 of 1941. The Ijeshatedo people strongly supported the Oloto and testified for him against the Itire people. Chief Oloto however lost the action and also the subsequent appeal therefrom: see Exhibits ‘K’ and ‘M’. Consequently, the Itire people obviously regarded the attitude of the Ijeshatedo people as a denial of their overlordship over the said land.

Hence in Suit No. 36 of 1947, the Itire people sued ten named defendants (apparently representing the Ijeshatedo people) jointly and severally for:
‘(1) A declaration that the defendants have incurred forfeiture under Native Law and Custom of the land which they occupy as the plaintiffs’ tenants at Ijeshatedo and Ori Okiti and
(2) An Order that the said defendants do deliver up possession of the said land to the plaintiffs.’

Again, the parties relied on the plan filed in Suit No. 405/1941 as that of the land in dispute. In that case, the defendants acknowledged the Itire people as their overlord and expressed the wish to remain on the land and to be considered as occupiers of the said land under customary tenure as customary tenants. The Itire people acquiesced in their requests and the action was settled on the following terms:
‘The action is withdrawn and the forfeiture waived: the plaintiff will accept the ten defendants as customary tenants and allow them to continue in possession as such on condition of their paying tribute of 25/- per annum (assessed as a single sum to cover all of them) to the plaintiff for all their farms.’ See Exhibit ‘F’.

It would appear from the tenure of the aforementioned terms of settlement that there were only ten persons on the land occupied by the Ijeshatedo people at that time.
In Suit No. 292/47, the Ijeshatedo people sued the Itire people claiming 260pounds as damages for trespass in that twelve named men of Itire had entered on their land and reaped fruits planted thereon by the plaintiffs. They also asked for an injunction. Before the case could be heard, the Itire people also brought an action in Suit No. 222 of 1948 claiming
(1) 300pounds as damages for trespass committed by the Ijeshatedo to the Itire farmlands at Ijeshatedo and Ori Okiti by reaping the fruits of the permanent trees;
(2) A declaration that the defendants have incurred forfeiture by so doing; and
(3) Recovery of possession.

The two suits were subsequently consolidated for hearing.
The judgment delivered in that case on 14th September, 1951 gave a history of the previous dispute between the Itire people and the Ijeshatedo people and concluded thus:
“Having heard all the witnesses, I have formed the opinion that the Awori custom is this:
Fruit trees on the other hand which one would not expect to find growing naturally e.g. bananas, kola trees, orange trees, I think in the circumstances of this case I can assume were deliberately planted by the tenants and that they are entitled to the fruits thereof. The tenants, or perhaps settlers is a better word, have been on this land for more than 50 years.

As to the tribute, it is now agreed that it is 25/- per annum. The Ijeshatedos say the 25/- took the place of 2 tins of palm oil and 11 cash which they used to pay to the Olotos and for that they had full use of the land and everything on it. But even if that was the arrangement between themselves and the Oloto, I do not agree that it follows that the Itire people are bound by it. They take their stand on Awori custom and I do not think they have forfeited any of their rights or commuted any of them for 25/- per annum. The 25/- per annum merely entitles the Ijeshatedo people to settle on the land, build houses there and cultivate the soil. They can also plant trees of economic use themselves and harvest the one they themselves planted but not others. The palm trees, bamboos and of un are reserved to the owner of the soil except, as I said, the settlers should be allowed to cut and use sufficient bamboos and of un to make their own house or houses or repair them. They have no right to cut and sell away from the land.’ If strangers come and beg for land it is customary to give land for settlement and for the settlers to pay some tribute to signify the overlordship of the true owners of the land.

Subsequently, the Itire people waived their claim for forfeiture and recovery of possession and the claims of the Ijeshatedo people for damages and for trespass to the palm trees were dismissed.”
The settlers then farm upon the land so given to them. When they enter the land they may well find growing there palm

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trees, bamboos and building poles, (Of un) because those trees grow naturally, uncultivated and without being deliberately planted. So these are reserved for the economic use of the owners of the soil. But I also think that it is usual for the tenants to be allowed to take bamboos and building poles in order to make their own houses on the land, but they must not cut and sell away from the land.

It is with this background of repeated litigation that the learned trial judge proceeded to consider the claims in the two consolidated suits. It will be recalled that the Ijeshatedo people in Suit No. IK/174/63 unsuccessfully claimed damages for trespass and an injunction against their overlords, the Itire people, in respect of the land.
Moreover, contrary to what has been urged on us by the learned counsel for the appellants, the Itire people, following the settlement of their claim against the Ijeshatedo people in Suit No. 36/47-Oriyomi v. Abioko & Ors-(Ex. ‘F’), the Itire people waived their right to forfeiture. The terms of settlement in that case read
“The terms are that the action is withdrawn and forfeiture waived: the plaintiff will accept the ten defendants as customary tenants and allow them to continue in possession as such on condition of their paying tribute of 25/- per annum (assessed as a single sum to cover all of them) to the plaintiff for all their farms.”

Again, in Suit No. 222 of 1948-Oriyomi Bale of Itire & ors v. Abioko & ors-(Ex. ‘H’) in which the Itire people sued the Ijeshatedo people for trespass and for a declaration that they had incurred forfeiture of their customary tenancy, the following issues were formulated and agreed by counsel for determination by the court:
“1. Are the owners of the land, i.e. Itire people, entitled to reap the fruits of palm trees, cut bamboo and cut and remove for sale building poles or not-according to Awori native law and custom?
2. If they are so entitled is it part of the consent judgment given by Brooke, J., (whereby it was agreed that the Ijeshatedo people should pay 25/- per annum as tribute) that the Itire people have waived their customary rights i.e. they have commuted those rights for 25/- per annum?

3. If the rights have not been waived are the Itire people prepared to sell the rights and for how much?”

In determining these issues, the learned trial judge in that case (Suit No. 222 of 1948), after making the observation to which the learned trial judge in the present case had referred in extenso in his judgment, then found as follows:

“I therefore answer the first agreed issue in the affirmative and the second in the negative. As to the third it is for mutual settlement and not for the Court.

The agreed issues took the place of the writ of summons and claims. Mr Agusto on behalf of Itire people waived their claim of forfeiture and recovery of possession.”

This judgment, and that in Suit No. 36/47 to which we have referred earlier, clearly show that the court in each case was of the opinion that the Ijeshatedo people had by their misconduct incurred forfeiture of their customary tenancy and that the Itire people had the right to claim forfeiture but they had agreed, out of sheer magnanimity, to waive their right to forfeiture.

Furthermore, it is our view that the judgment in Suit No. 222 of 1948 did no more than set out the rights and duties of the Ijeshatedo people vis-a-vis their overlord (that is, the Itire people). Contrary to what has been urged on us by the learned counsel for the appellants, it does not affect the general law as to the liability of a customary tenant to forfeiture of his tenancy if he is found guilty of misbehavour. Moreover, we are of the view that whether the act committed by the tenant constitutes a misbehaviour or not or whether such misbehaviour can incur forfeiture depends on the particular circumstances of each case. The list of such acts which constitute misbehaviour is not closed. It is still open to the court in every case brought before it to consider the complaint of the overlord against his customary tenant and to determine whether the complaint is well founded and whether, having regard to the circumstances, the acts complained of are as serious as to warrant the forfeiture of the customary tenancy.

In coming to this conclusion, we are aware of the decision of this Court in Chief Maduku Waghoreghor & ors v. Josiah Aghenghen (1974) 1 S.c. page 1 where we observed at page 8 as follows:
“In customary land law parlance, the defendants are not gifted the land; they are not ‘borrowers’ or ‘lessees’; they are grantees of land under customary tenure and hold, as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviour. This interest has in practice now been regarded by the courts as practically indefeasible, once permanent buildings or other forms of improvements like extensive commercial farming and/or occupation have been established thereon by the grantees. Any proved misbehaviour is usually now punished by a fine, as has happened in the present case.”

We would like to point out, however, that this observation is not intended to mean, and cannot mean, that all proved acts of misbehaviour by a customary tenant are now punished by a fine. Whether or not forfeiture will be ordered by the court will depend on the seriousness and/or repetitive nature of the misbehaviour complained of.

Thus, in Onisiwo v. Gbamgboye (1941) 7 WACA 69, where the descendants of one Gbamgboye, a domestic of the grantors who had been given permission to occupy a portion of the grantors’ family land in accordance with native law and

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custom, leased the property to one Paul Jazzar, the court at page 70 held, on a claim for declaration that the descendants had forfeited their customary rights of occupation, that “The real foundation of the misbehaviour which involves forfeiture is the challenge to the overlord’s rights. This is commonly shown by some form of alienation and such alienation may take the form, as in this case, of leasing under a claim of ownership. But it is not difficult to imagine cases in which the granting of a lease, e.g. for a short period, would carry with it no challenge to the overlord’s right and consequently involve no misbehaviour or forfeiture. Every case must be considered on its own facts.”

Again, in Okota & ors v. Oba Falolu I & ors (unreported but see WACA 2879 delivered on the 28th April, 1949), the court observed:

“As to whether an order of forfeiture of the defendants’ rights as customary tenants should have been made; it was agreed that, under native customary law as recognized by the courts, serious  misconduct of various kinds by a tenant may be a good ground for evicting him, though, as was pointed out in Chief Majolagbo Ashogbon v. Saidu Oduntan, 12 N.L.R. 7, the grant of an order of forfeiture is a matter for consideration in the circumstances of each particular case and it is not an invariable consequence of misconduct. It depends on the degree of misbehaviour. ”

Another decision along the same lines will be found in the case of Salami Sanni v. Alhaja Rabiatu lyalode(unreported but see S.C. 238/ 1959 delivered on 10th May, 1960). In that case Ademola, C.J.N . who delivered the judgment of the court observed:

“The question of misconduct by the appellants in respect of their holdings was then considered by the learned judge. It was quite clear that the appellants pulled down their house, started a new building, took more land for that purpose than was originally granted them, and refused to take any permission to build from the respondent. When questioned, the 1st appellant denied the ownership of the respondent and claimed the land himself through his mother, the 2nd appellant, who also supported the claim. Also without the permission of the respondent, they buried the corpse of a stranger to the land on a portion of the land. When asked to pay the requisite fee for the burial they refused to pay and made a claim of ownership to the land.
Counsel for the appellants, arguing before us, did not deny these allegations but argued that all these did not amount to such misbehaviour as to involve the appellants in forfeiture of their rights as customary tenants, if they are one.

The learned trial judge found that by denying the respondent’s title and making a claim of ownership to the land, the respondents have incurred a forfeiture under native law and custom. I am in entire agreement with his conclusions. There are various ways whereby a customary tenant may incur liability to forfeiture under native law and custom and a denial of the landlord’s title is one of the serious misconducts for which liability to forfeiture may be incurred: see the case Onisiwo v. Fagbenro 21 N.L.R. 3; also Lawani Buraimo & ors v. Taiwo Gbamgboye & ors 15 N.L.R. 1397 WACA 69. I am of the view that the declaration for forfeiture in the circumstances was justified.”

Finally in Nwankwo v. Okoye (unreported but see F.S.C. 254/62 delivered on 19th June, 1963), Taylor, F.J. who delivered the judgment of the court, stated as follows:
“There are decided cases to the effect that if a customary tenant ceases to pay rent, or if he does an act which is a contravention of his tenancy, one of the remedies available to the overlord is an action for forfeiture of the tenancy but not trespass.”

As we have pointed out earlier, the misbehaviour complained of by the Itire people are in paragraph 4 of their amended statement of claim which reads:
“4. The defendants have, contrary to native law and custom and to the terms and conditions of their occupational rights:
(i) Granted various pieces of land which they occupied as the plaintiffs’ customary tenants to strangers without the consent and against the wishes of the plaintiffs;
(ii) By themselves and/or their grantees destroyed palm trees on the land;
(iii) Cut economic trees on the land;
(iv) Gone outside the area originally granted to them and trespassed on portions of the land belonging absolutely to the plaintiffs; and
(v) Denied the title of the plaintiffs to grant portions of the land which were not included in the portion originally granted to the defendants.”

The amended statement of claim of the Itire people, which superseded their writ, was filed on 21st April, 1965. There is evidence, which the learned trial judge accepted, rightly in our view, that the Ijeshatedo people granted a portion of the land in dispute to one Lasisi Sule of Ita Elewa, Ikorodu (2nd D/W) on 9th June, 1964 and gave him the document (Ex. ‘E’). Admittedly, the grants made to Raufu Bankole (1st D/W) in Ex. ‘B’, to Eyo Ekpo (4th D/W) in Ex. C1, to Ifeanyi Agu (6th D/W), to Babatunde Sotade as shown in the documents Ex, C1 and C2, to Esther Sarumi in documents marked as Exs. N and N1 and to Jimoh Idowu in the documents marked as Exhibits O and O1, were all made after the amended

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statement of claim and defence had been filed. Nevertheless, they show what little respect the Ijeshatedo people have for the overlords. One would have thought that they would wait until the claim for forfeiture was determined before proceeding to make further grants to people whom the learned trial judge rightly found to be strangers. Be that as it may, the grant to Lasisi Sule (2nd D/W) who is certainly not a descendant of the ten Ijeshatedo people whom the Itires originally accepted as their customary tenants in Suit No. 36 of 1947 (Ex. ‘F’) was made before the amended statement of claim was filed and constituted a misbehaviour by the Ijeshatedo people. The complaint about inadmissible evidence being admitted by the learned trial judge is in respect of the documents to which we have referred. It is our View, however, that all these documents were admitted, not as deeds of conveyance or evidence of title, but partly as evidence of the transactions between the Ijeshatedo people and these strangers and partly as proof of the Ijeshatedo people’s general behaviour with respect to the land in dispute. For this reason, we think that the complaint about their inadmissibility is misconceived. (See Djukpan v. Orovuyovbe & an ors. [1967] 1 All N.L.R. 134 at pages 139-140; also Nwabuoku v. Otteh [1961] 1 All N.L.R. 4897 at pages 490-491).

As for the indiscriminate destruction of the palm trees on the land by the Ijeshatedo people contrary to the terms of their tenancy, this was amply proved by the admissions made by Raimi Alimi Aguntasholo (2nd P/W) and Abdul Gafar Thanni (6th P/W), and by the evidence of Alhaji Aliu Isiba (3rd D/W) which the learned trial judge accepted. Part of Isiba’s evidence reads:

“There were palm trees on the land from which we normally collect palm nuts every three months with which our women make palm oil. Later the Ijeshatedo people did not allow our people to go on the land again and they cut down all the palm trees. There were also of in and balufon trees on the swampy portion of the land, and those were usually cut by our people for building purposes. All those trees have been cut down and used by the defendants.”

The acceptance of this testimony in addition to the admissions to which we have referred, in our view, is sufficient proof of the misbehaviour referred to in paragraph 4 (ii) and (vi) of the amended statement of claim and the learned trial judge was not in error in accepting them as such.

Implicit in the claim, which the Ijeshatedo people brought against the Itire people in Suit No. IK/174/63 for damages for trespass and for injunction which the learned trial judge dismissed and in respect of which the Ijeshatedo people have not appealed, is the proof of the acts of misconduct in paragraphs 4 (iv) and (v) of the amended statement of claim of the Itire people. We do not think that any further proof by the Itire people was necessary. It will be recalled that the learned trial judge, when considering the Itire people’s claim (as plaintiffs) in Suit No. IK/204/63 in his judgment, referred to this claim for trespass brought by the Ijeshatedo people and found as follows:
“In the action for trespass instituted by the defendants against the plaintiffs in Suit No. IK/174/63, which I have already dismissed, it was alleged that the plaintiffs had granted portions of the land on which the defendants are their customary tenants to strangers but the plaintiffs adduced evidence, which I believe, that the portions allegedly trespassed upon by the grantees fell outside the portion of land originally granted to the defendants. By laying claims to a greater portion of land granted to the defendants by the plaintiffs it seems clear that the defendants were denying the right of the plaintiffs to grant lands to others outside the land in dispute.

We also agree with this finding in toto. It only remains for us to add that there is merit in the submission of learned counsel for the respondents that by interfering with the possession of the tenants whom the Itire people put on their own land, the Ijeshatedo people were interfering with the rights of the Itire people to give land to their own tenants. This, in our view, constitutes a serious misconduct, particularly as the Ijeshatedo people even went as far as suing their overlords for damages for trespass and for injunction with respect to this legitimate exercise of their right as owners of land which is outside the area which they have granted to the Ijeshatedo people as customary tenants.

Undoubtedly, there is a clear indication from all that we have said above that anyone of the acts complained of and proved by the Itire people would have supported their claim for forfeiture of the customary tenancy. Moreover, bearing in mind that since 1900, the Ijeshatedo people, in one form or another, have disputed the customary rights of the Itire as their overlords, the cumulative and serious effect of the various acts of defiance established before the learned trial judge above cannot be too strongly stressed. In fact, we can scarcely conceive of any misbehaviour on the part of a customary tenant more flagrant and deserving of forfeiture of the customary tenancy than the one resulting from the acts, which have been ventilated in this case. The learned trial judge, in our view, was more than justified in making the order for forfeiture asked for by the Itire people.

The appeal fails and it is dismissed. Consequently, we hereby order that the Ijeshatedo people do give up possession of the land in dispute known as Ijeshatedo and Ori Okiti and edged GREEN in the Survey Plan No. A156/1942 of 11th November, 1942 (Ex. ‘L’) to the Itire people on or before the 30th day of June, 1975. Costs to the respondents are assessed at N192.00.

Appearances

Chief Obafemi Awolowo with J.A. Cole, Olaniwun Ajayi and A.O. Sogbesan  –For Appellants

AND

Mr. H.A. Lardner – For Respondents

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