Mark Kele & Ors. v Okoma Nwerebere & Ors. (1998) – SC


Mark Kele & Ors. v Okoma Nwerebere & Ors. (1998) – SC

by “PipAr” B.C. Chima

Supreme Court – SC. 76/1991

Friday, 13th March, 1998

Customary Tenancy.
Farming for a season.

However, grounds two and three of the appellants’ amended notice of appeal from which the appellants distilled issue number two for determination are incompetent. The two grounds of appeal are complaints against the decision of the learned trial Judge and are proper grounds of appeal in the court below. This court has no jurisdiction to hear appeals direct from the High Court. Grounds two and three of the grounds of appeal being incompetent are hereby struck out together with arguments on issue number two in the appellants’ brief. The court is therefore left with the first, third and fourth issues formulated by the appellants and issues one, four and five identified by the respondents. — Ogwuegbu, JSC.

Ogwuegbu, J.S.C.

A.I. Idigbe Esq.

Chukwuemeka Ofodile Esq.

The appellants were annual tenants of the respondents and the evidence on this is clearly in the record of proceedings. Their (‘appellants’) right was seasonal and once the season is at an end all they needed to continue on the land was to seek fresh permission. It would seem they now wanted to claim more than they were customarily entitled to. They were on the land only to farm and their homesteads were not there; they were allotted land to farm each year by the respondents. These were the facts of this case as held by the two lower courts.

The proceedings leading to the appeal started with two suits filed in two separate customary courts in the then Eastern Nigeria. Both suits were transferred to the High Court of Eastern Nigeria holden at Owerri. They were later inherited by the Okigwe Judicial Division of the High Court of the then East Central State and were numbered as HO/l/71 and HO/2/71.

At the close of pleadings, the consolidated suits proceeded to trial and in the end, Obi-Okoye, J. (as he then was) in a reserved judgment, made a declaration of title in favour of the plaintiffs in Suit No. HO/1/71, granted an order of injunction against the defendants and dismissed Suit No. HO/2/71 in its entirety. The plaintiffs’ claim for arrears of rent was dismissed. The defendants in the consolidated suits who are the people of Amachara, were dissatisfied with the decision of the learned trial Judge and appealed to the Court of Appeal, Enugu Division.

That Court dismissed their appeal.
Aggrieved by the decision, they have further appealed to this court.


I. Whether having regard to the issues raised on the appeal, the Court of Appeal was right in affirming the decision of the High Court over Exhibit “I” (Uturu Native Court Suit No. 35/1945) ?

A. “The evidence of P.W. ( in relation to Exhibit “1” can only be regarded as evidence of the fact that there was a settlement out of court and that settlement was the basis for the withdrawal of the suit which was eventually struck out. The learned trial Judge believed and acted upon that piece of evidence which was not challenged by the appellants in their cross-examination of the witness. The court below held that the learned trial Judge was justified in acting on the evidence that there was a settlement out of court which led to the withdrawal of the action. I am also satisfied that the Court of Appeal was right in affirming the finding of the learned trial Judge on the evidence of P.W.1 touching on Exhibit “1 .” The settlement out of court was also the basis ot the resumption of the farming activities of the appellants on the land with the permission of the respondents and on payment of the annual tribute. This situation obtained after Exhibit “1° until the appellants defaulted for three years and the respondents instituted the present proceedings.  The evidence which the learned trial Judge believed and acted upon is the evidence of P.W. 1 that there was a settlement out of court of Suit No. 35/1945 leading to the withdrawal of the suit and the resumption of farming on the land by the appellants. That evidence is an issue of fact.  Finally on this issue, the courts below did not find that Exhibit “1” established an act of possession over the land by the respondent.”
II. Whether having regard to the case of the plaintiffs before the trial court (i.e. THE PLEADINGS AND EVIDENCE) the Court of Appeal was right in upholding the decision of the trial court on the issue of trespass and injunction?

A. “The learned trial Judge made a specific finding that the relationship between the respondents and appellants was on annual basis, that is to say, any year the appellants desired to farm, they applied to the respondents who in turn allotted them specific area for that year on payment of annual tribute. This finding flowed from the evidence of P.W. 1 (Jonas Ukezi) who said:  “The defendants do not live on the land in dispute. They come from where they live on the land of Amaigbo people to farm this land and go back. Each year they come to farm, we allot to them the area to make farm.”  The appellants were therefore not in continuous occupation of the land in dispute and the tenancy between the respondents and the appellants came to an end at the end of each farming season after the crops they planted had been harvested.  The Court of Appeal upheld the finding of the learned trial Judge on the annual nature of the tenancy when it said:  “A temporary grant like the one in question in this case must terminate without any formality once the purpose for which it was granted has been accomplished.  However, it is my view that the appellants cannot be heard to complain that the learned trial Judge was in error to have granted an injunction against them because the respondents neither sought for forfeiture nor possession when they themselves did not admit or plead that the appellants are the customary tenants of the respondents.”
“I am also of the opinion that this is a correct statement of the law and in the circumstance, the appellants had no business to be on the land in dispute after the 1962 farming season since no permission was given to them to farm on any portion of the land in 1963 and it was also from that year that the appellants refused to pay annual tribute. They became trespassers from 1963 when they were on the land without the consent of the respondents.”
III. Whether at the institution of this action the defendants/appellants held such tenancy, interest or right over the land in dispute that an ORDER FOR INJUNCTION OUGHT NOT TO BE ISSUED AGAINST THEM WITHOUT THE PLAINTIFFS/RESPONDENTS FIRST OBTAINING AN ORDER FOR FORFEITURE.

A. “The question of forfeiture did not call for consideration in this case. The appellants were not customary tenants from 1963 when the cause of action arose. They did not even pretend to be customary tenants at any time. In paragraph 4 of their statement of defence, they averred as follows: ‘Except that the land in dispute is verged pink in the plaintiffs’ plan the defendants deny paragraph 3 of the statement of claim. The land in dispute has been from time immemorial in the ownership and possession of the defendants and situate in Amachara which is the village of the defendants. The defendants and their people farm on the land in dispute.’ From the above stand point, the appellants did not claim to be customary tenants of the respondents and one wonders why they should raise the issue of forfeiture which was not their case in the courts below.”
“The end result is that the appeal fails and I hereby dismiss it. The judgment and orders of the Court of Appeal dated 6th June, 1989 are affirmed. The respondents are awarded N10,000.00 costs against the appellants in this appeal.”




Professor B.O. Nwabueze at p. 261 of his book titled “Nigerian Land Law”. It reads:  “A customary tenancy for a specific period e.g. a farming season, comes automatically to an end when the purpose for which the grant was made has been accomplished. In the case of a tenancy granted for one farming season for the cultivation of seasonal crops, the purpose is accomplished when the crops have been harvested, the end of the harvest marks also the end of the tenancy.”

Available:  City Engineering (Nigeria) Limited V. Nigerian Airports Authority (SC.36/1993, 25 Jun 1999)



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