3PLR – ISIBA V. HANSON

ISIBA

V.

HANSON

 

SUPREME COURT OF NIGERIA

11TH JANUARY, 1967.

SUIT NO. SC 624/1965.

3PLR/1967/36  (SC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:    

ADEMOLA, C.J.N.

COKER, J.S.C.

LEWIS, J.S.C.

 

BETWEEN

BELLO ISIBA AND OTHERS

AND

1. J. T. HANSON
2. S. O. THOMAS

 

REPRESENTATION

Chief O. Moore and HA Lardner – for the Appellants

Adewale Thompson – for the Respondents

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]

 

MAIN ISSUES

Yoruba Native Law and Custom – Customary Tenancy – Possession is of the essence – Family land – Reversion to common ancestor on death of allottee intestate without issue – Right of family to sue after reversion

Practice and Procedure – Family land – Family suing in respect of allottee’s portion after reversion to common ancestor on intestacy – Claim for forfeiture of customer tenancy – Land granted to defendant’s ancestor by plaintiff’s ancestor – Onus to prove whether outright gift as against customary tenancy on defendant.

 

MAIN JUDGEMENT

COKER, J.S.C. (Delivering the Judgment of the Court):

This is an appeal from the judgment of Fakayode J. (High Court, Ikeja) whereby he dismissed the claim of the appellants who were the plaintiffs in the court below. They had sued the respondents, who were the defendants and their writ as amended was for:-

‘The plaintiffs, as members of the Oteniya Family, for themselves and on be-half of the said family, claim

 

1. As against the first defendant a declaration that the first defendant as customary tenant has forfeited on ground of misconduct his right to occupy all that piece or parcel of land situate at Isolo, Mushin.

 

2. As against the second defendant £100 (One Hundred Pounds) damages for trespass to a piece or small portion of the said land.

 

3. Injunction against both defendants jointly and severally their servants and or agents restraining them from committing any further acts of trespass to the said land.

 

4. Recovery of possession as against the first defendant of the area edged ‘green.’ As against the second defendant of the area edged ‘blue’ on the plan filed in court in this suit.”

 

By their pleadings and the oral evidence given on their behalf, the plaintiffs, who are Aworis, claimed that the land occupied by the first defendant and his ancestors and edged green on the plan produced was granted to his ancestor one Ojo Alonlo by their Awori ancestor one Dosunmu several years ago on the condition that he, Ojo Alonlo, would use the land for farming only according to Yoruba native law and custom; that recently the first defendant, a descendant of Oio Alonlo, had purported to sell a portion of the said land (edged blue on the plan) to the second defendant and had indeed denied the title of the plaintiffs to the said land and claimed to be the owner. The Statement of Defence of the defendants avers in effect that the said land was, in or about the year 1790, given to Ojo Alonlo by the Awori owners, that the descendants of Ojo Alonlo have since occupied the land as of right, that the present defendant was entitled as he did to sell a portion of the land to the second defendant; and that the second defendant claimed title to the land he bought by virtue of a conveyance duly registered. At the trial it was established that lands surrounding the land in dispute were all owned by Aworis and that the first defendant and his ancestors were not Aworis. It was there-fore not unreasonable for the trial judge to come to the conclusion that that land must have been given to the ancestors of the first defendant by an Awori by the name Oteniya claimed by the plaintiffs to be their progenitor.

 

Having established this the sole question remaining, in view of the defendants admitted dealings with the land and the nature of their defence, was whether the gift of Ojo Alonlo was an absolute gift or a defeasible one under native law and custom. The learned trial Judge took the view that on account of the possession of the land by the ancestors of the first defendant for a very long time, the gift must have been an absolute one. This finding overlooks the established rule that once it is proved that the original ownership of property is in a party the burden of proving that the party has been divested of the ownership rests on the other party. See Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A. 78.

 

Before us on appeal it was contended on behalf     of the plaintiffs that the gift was a conditional one for farming purposes only under Yoruba native law and custom and that such gift is defeated by the misconduct of the customary tenant. That statement of law was not resisted and indeed cannot be resisted by the defend-ants whose claim was rested on the fact that they were absolute owners of the land

 

By their pleadings and the oral evidence given on their behalf, the plaintiffs, who are Aworis, claimed that the land occupied by the first defendant and his ancestors and edged green on the plan produced was granted to his ancestor one Ojo Alonlo by their Awori ancestor one Dosunmu several years ago on the condition that he, Ojo Alonlo, would use the land for farming only according to Yoruba native law and custom; that recently the first defendant, a descendant of Ojo Alonlo, had purported to sell a portion of the said land (edged blue on the plan) to the second defendant and had indeed denied the title of the plaintiffs to the said land and claimed to be the owner. The Statement of Defence of the defendants avers in effect that the said land was, in or about the year 1790, given to Ojo Alonlo by the Awori owners, that the descendants of Ojo Alonlo have since occupied the land as of right, that the present defendant was entitled as he did to sell a portion of the land to the second defendant; and that the second defendant claimed title to the land he bought by virtue of a conveyance duly registered. At the trial it was established that lands surrounding the land in dispute were all owned by Aworis and that the first defendant and his ancestors were not Aworis. It was there-fore not unreasonable for the trial judge to come to the conclusion that that land must have been given to the ancestors of the first defendant by an Awori by the name Oteniya claimed by the plaintiffs to be their progenitor.

 

Having established this the sole question remaining, in view of the defendants admitted dealings with the land and the nature of their defence, was whether the gift of Ojo Alonlo was an absolute gift or a defeasible one under native law and custom. The learned trial Judge took the view that on account of the possession of the land by the ancestors of the first defendant for a very long time, the gift must have been an absolute one. This finding overlooks the established rule that once it is proved that the original ownership of property is in a party the burden of proving that the party has been divested of the ownership rests on the other party. See Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A.78.

 

Before us on appeal it was contended on behalf     of the plaintiffs that the gift was a conditional one for farming purposes only under Yoruba native law and custom and that such gift is defeated by the misconduct of the customary tenant. That statement of law was not resisted and indeed cannot be resisted by the defend-ants whose claim was rested on the fact that they were absolute owners of the land in dispute. The learned trial Judge did not consider that where land is given to a customary tenant under native law and custom it is of the essence of his tenure that he should be in possession of such land and we are unable to agree with him that the mere fact of possession without any other overt acts unequivocably pointing to the assertion of absolute ownership to the knowledge of the plaintiffs was sufficient to divest the plaintiffs of their radical ownership to this property. It is well to recall at this point the dictum of Verity, Acting P., in the West African Court of Appeal in the case of Alhaji B.A. Suleman and Another v. Hannibal Johnson (1951) 13 W.A.C.A. 213 at p.215 that:-

 

“It is clear that when the original owners have granted rights of occupation to another, the possession of the other is not adverse possession and the owner’s acquiescence therein is part and parcel of the grant and cannot affect the owner’s reversionary rights. It is only, therefore, when it comes to the owner’s knowledge that the tenant has alienated or is attempting to alienate the land that the question of acquiescence can arise. The owner is not in possession, and has indeed no right to possession and is not concerned, therefore, with the acts of the tenant unless and until he becomes aware that those acts are inconsistent with and, therefore, a denial of the overlord’s rights.”

 

We are in agreement with learned counsel for the plaintiffs that on the facts proved in this case, the ancestors of the first defendant were no more than customary tenants. It should be mentioned In passing that there was evidence from the plaintiffs that even during a substantial part of the period of possession claimed by the defendants, the members of the plaintiff’s family still continued to reap the economic fruits from the land in question. The learned trial Judge stated in his judgment that he believed and accepted the traditional story of the plaintiffs and it is easy to see why an acceptance of the plaintiff’s story must involve the consequence that the defendants’ ancestors were ever hardly in exclusive possession of the land in question. Counsel for the defendants contended before us that there was no evidence that the ancestors of the first defendant ever paid any rent or tribute on the land in question and that this negatived the claims of the plaintiffs that the first defendant and his ancestors were customary tenants. No authority was cited nor evidence given for this proposition. It is however not necessary for us to decide this point in this appeal since on the facts found by the learned trial Judge (and these facts are abundantly justified by the evidence) the first defendant and his ancestors should consider themselves lucky that they had been accepted by the plaintiffs as customary tenants instead of as bare licensees.

 

It was also contended before us on appeal that the learned trial Judge was wrong to dismiss the plaintiffs’ claims on the ground that the land of Oteniya having been apportioned among his children, Dosunmu and Isiba, the present plaintiffs could not claim the portion which fell to Dosunmu on that partition as the family property of Oteniya. The evidence shows that Dosunmu died intestate and with-out issue and it was conceded in argument before us by both sides that in those circumstances the portion of Dosunmu reverted to their common ancestor, Oteniya. That being so, the plaintiffs’ case should not have been dismissed on this ground as well.

 

In the event, this appeal succeeds and the judgment of the Ikeja High Court in Suit No. H.K/103/60 is hereby set aside and it is ordered that judgment be entered for the plaintiffs as per their amended writ of summons. The respondents must pay the costs of the appellants fixed at 75 guineas in the Court below and in this Court at 30 guineas.

 

Appeal allowed with costs: