➥ CASE SUMMARY OF:
LOUIS ONIAH & ORS. v. CHIEF OBI J.I.G. ONYIA (1989) – SC
by PipAr Chima
➥ COURT:
Supreme Court – SC.70/1986
➥ JUDGEMENT DELIVERED ON:
Friday, the 10th day of February, 1989
➥ AREA(S) OF LAW
Customary title;
Land possession;
Forfeiture;
➥ NOTABLE DICTA
⦿ JUDGMENT MUST BE CONFINED TO ISSUES RAISED
It is well settled that a judgment must be confined to the issues raised on the pleadings. Where it is otherwise the court will be making a case for the parties by formulating its own case from the evidence and then proceeding to give judgment. No gratuitous awards are to be made by the court. – Karibe-Whyte, JSC.
⦿ GENERAL PRINCIPLE OF FORFEITURE IN LAND
It is important to state very concisely the general principles of law governing the claim for and relief from forfeiture. It is well settled that forfeiture is the usual mode for determining a customary tenancy. The real basis of the misconduct or misbehaviour which renders the tenancy liable to forfeiture is the challenge to the title of the overlord. This may be by alienation of part of the land, under claim of ownership, refusal to pay the tribute due or indeed, direct denial of overlord’s title by setting up a rival title in the customary tenant himself, as in the instant case. Although it has been held in Alade v. Aborishade (1960) 5 F.S.C.167 that the non-payment of rent or tribute is not necessarily inconsistent with the ownership of the overlord, the circumstances and the reasons for the refusal to pay tribute may determine whether there is a denial of the title of the overlord. – Karibe-Whyte, JSC.
⦿ FAILURE TO PLEAD RELIEF FROM FORFEITURE
Similarly, it is vital to plead the claim for relief from forfeiture contrary to the submission of counsel to the defendants/respondents- Failure to plead either is fatal to the claim. However, where a grantor claims for recovery of possession and pleads the grounds upon which the right to recovery is based, the action is not incompetent because forfeiture was not specifically claimed. As was said in Dabiri v. Gbajumo (1961) 1 ALL N.L.R.225 – “The mere absence of the technical word “forfeiture” from the pleadings cannot be fatal in the circumstances where, as it is here, the nature of the claim is abundantly clear, and it is this respect that this case on appeal is to be distinguished from Lawani v. Tadeyo” – Karibe-Whyte, JSC.
⦿ WHO IS NOT IN POSSESSION OF LAND CANNOT SUE FOR TRESPASS
As an academic proposition of law, anybody not in possession of land cannot sue for trespass to that particular piece of land. Also it is a correct statement of our law that a plaintiff cannot successfully maintain an action both for trespass to a particular piece of land and recovery of possession of the self same land. These two claims are inconsistent and mutually divergent, one being based on the factum of the Plaintiff’s possession and the other on the fact that he is out of possession and then claim recovery of such possession. – Oputa JSC
⦿ PLEADINGS BOUND PARTIES
Under our law and Rules of Procedure, parties must conduct their cases in accordance with their pleadings. – Oputa JSC.
⦿ WAIVER IS A DEFENCE FOR FORFEITURE
Waiver is apparently a defence to forfeiture. Now a man may relinquish a particular line of defence by not pleading it. If therefore the present Defendants failed to plead waiver, they will be deemed to have relinquished that defence. Quilibet potest renunciare juri pro se introducto – Anyone may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour. – Oputa JSC.
⦿ FORFEITURE ARISES WHERE TENANT CHALLENGES LANDLORD’S TITLE
It is a fundamental principle of land tenure that where a tenant turns round to challenge the title of his landlord he automatically forfeits his right to possession, if the landlord asks for it. This has been the position in the instant case. – Belgore JSC.
➥ PARTIES
1. Louis Oniah
2. Iwegbunam E. Akaraiwe
3. George Ogadi (for themselves and as representing the people of Okwe, Asaba.)
v.
Chief Obi J.I.G. Onyia
➥ LEAD JUDGEMENT DELIVERED BY:
Karibi-whyte, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
– A. Agbamuche, S.A.N.
⦿ FOR THE RESPONDENT
– G. Onyia.
➥ CASE HISTORY
This is an appeal in which both parties in this case have challenged the judgment of the Court of Appeal delivered on the 5th May, 1985. The defendants/Appellants appealed against the whole decision whereas the Plaintiffs/Respondent have appealed against that part of the judgment affirming the refusal of the trial Judge of their claim for forfeiture. Thus, this Court has before it both an appeal and a cross-appeal.
Plaintiffs who brought this action in a representative capacity as representing themselves and the Umuezei family of Asaba, sued the defendants also in a representative capacity, representing themselves and the people of Okwe; and claimed, inter alia, as follows –
1. Declaration that the defendants as the customary tenants of the plaintiffs have forfeited their rights to occupy a portion of plaintiffs’ piece or parcel of land situate and lying at Asaba within Asaba Judicial Division which said piece or parcel of Land as to its true position and boundaries will be shown in the plan to be filed by the Plaintiffs in Court.
In his judgment the learned trial Judge found that the evidence including the several judgments tendered by the plaintiffs established conclusively that title to ANI-OLULAND is vested in plaintiffs. He also found that the Defendants were the customary tenants of the plaintiffs. The learned Judge held that the fact that plaintiffs did not take any action to repossess the land even when they were aware of the acts of defendants inconsistent with their tenancy did not confer title to the land on the defendants. It was also held that although the entire ANIOCHA land was vested in the plaintiffs, and that UWATU land in dispute is part of ANIOCHA land, plaintiffs did not strictly delimit the area which they gave to the Defendants. He therefore held that the expansion into ANIOCHA land by Defendants did not thereby amount to an act of trespass. He rejected the traditional history of the ownership of the land by the defendants.
The defendants appealed; The Court of Appeal could not find any reason why plaintiffs’ witnesses should have been disbelieved and held that the learned Judge did not properly evaluate the evidence before him. In their judgment the Court held that on the evidence, there was ample proof that the defendants were granted a specified area in UWATU LAND. It was also held that the acts of trespass were not denied by the defendants. Since they went outside the area granted them by the plaintiffs and used plaintiffs’ land as it pleased them these were sufficient acts of trespass
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]
I. Were the learned Justices of the Court of Appeal right in holding that a customary tenant in possession can be made liable in trespass?
RULING: IN RESPONDENT’S FAVOUR.
I.A. It is pertinent to mention that the learned trial Judge found that title to all ANIOCHA and ANIOLU land was vested in the plaintiffs and that Defendants were customary tenants of the plaintiffs. It is settled by a respectable line of judicial decisions which are not necessary to be cited here, that where two persons claim to be in possession of the same piece of land, the person with the superior title is ascribed by the law, to be in possession. Both courts have found title to be in the plaintiffs. The Court of Appeal has also found that on the evidence Plaintiffs have delimited the area verged yellow as the area granted the defendants.
I.B. Defendants have admitted entry into other places outside the area verged yellow on their own and without permission by the plaintiffs/appellants. They relied for this on the defence that they had title to the entire ANIOCHA and ANIOLU land. Having failed in their claim to establish title the defendants became trespassers the moment they left the areas granted them.
.
.
II. Whether the Justices of the Court of Appeal can reverse the finding of fact on the evidence of the witnesses made by the trial Judge?
RULING: IN RESPONDENT’S FAVOUR.
II.A. Having himself rejected the traditional evidence of the defendants of how they come to settle on the land, the only evidence extant and available was that of the Plaintiffs which stand uncontradicted. Especially relevant is the fact that the evidence of the plaintiffs was directed at establishing the grant of UWATU land which is a recent event. There is no doubt that his approach to the question was wrong and the Court of Appeal was right to evaluate the evidence as it did.
The Court of Appeal is however entitled to interfere when it is satisfied that the decision of the trial Court is wrong -See Onowan v Iserhien (1976) 1 N.M.L.R. 263. In the instant case the Court of Appeal had observed that the trial Judge stated that he did not believe plaintiffs’ witnesses on the question of delimiting the area granted to the defendants without giving reasons why the witnesses should not be believed. They have accordingly rejected the finding and I think they were right to have done so.
.
.
III. Whether the Justices of the Court of Appeal are right in law to grant injunction to a customary landlord whose only interest in the land is the reversion?
RULING: IN RESPONDENT’S FAVOUR.
III.A. The Court of Trial held that although the Defendants were granted the area verged yellow, there was no accurate delimitation of the boundaries. The reversal of this finding by the Court of Appeal inevitably leaves one with no other conclusion than that any of the lands outside the area verged yellow, in respect of which defendants were not the customary tenants of the plaintiffs were in the possession of the Plaintiffs. Accordingly me Plaintiffs were entitled in law to protect that possession by an action in trespass and to seek for an order of injunction. It is a fundamental rule that the court will grant an injunction to support a legal right. The legal right of the plaintiffs to the area of the Uwatu land having been infringed, the Court of Appeal was right to have granted the order of injunction asked for.
───
[CROSS-APPEAL: ALLOWED]
I. Was the Court of Appeal right in dismissing the appeal in respect of the trial Judge’s refusal to grant the claim for forfeiture on the ground that the plaintiffs had waived their right to forfeiture when the defendants did not claim relief from forfeiture AND waiver was not pleaded or made an issue in the High Court?
RULING: IN CROSS-APPELLANTS FAVOUR.
I.A. It is clear from the proceedings in this case that Defendants did not claim any relief from forfeiture. They remained throughout the trial obdurate in the challenge of the title of their overlord and denied ever paying tribute. They admitted their egregious acts of trespass based on their claim to title and even claim to have sheltered their overlord. Their conduct remained unrepentant. Plaintiffs claimed for forfeiture and expressly pleaded it and established the claim on the evidence. They are therefore entitled to the claim for forfeiture. The ground of social problems which were likely to arise if the claim was granted relied upon by the trial Court is merely a ground enabling grant of relief from forfeiture where this has been claimed. It is not a consideration for refusing a claim for forfeiture established on the evidence.
I.B. Plaintiffs were aware of the misconduct but have not done any unequivocal act to recognise it and that they were prepared to condone.
I.C. Sentiments have no place in the courts’ adjudication process. The receipts of rents for 1976 to 1979 paid on the order of the High Court cannot form the ground for refusal of an order of forfeiture where there is evidence which proved that the defendants had breached their condition of tenancy and incurred forfeiture. Neither was the demand for tribute accrued due in 1975 which was demanded by the plaintiffs a ground for refusal of the said order of forfeiture. The absence of a claim for reliefs from forfeiture in the pleadings is a total bar for consideration of such questions.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
