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In The Supreme Court of Nigeria

On Friday, the 30th day of March 1990

SC 225/1986

 

Before Their Lordships

 

 

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

    

 

Between

 

Chief Alhaji K. O. S. Are

Alani Akanmu

(For themselves and on behalf of Are Family)

......

Appellants

 And

Raji Ipaye

Arasi Ipaye

(For themselves and on behalf of Ipaye Family)

Wahab Tafa

Muri Salawu

(For themselves and on behalf of Ojo Ogudu Family)

Solel Bonel Overseas and Harbour Works Coy. Ltd

.......

Respondent

 

 

Judgement of the Court

Delivered by

Augustine Nnamani. J.S.C.

 

In this Suit commenced in the High Court of Oyo State, the plaintiffs/appellants claimed the following reliefs against the defendants/respondents.

 

1.     Declaration of title according to Native Law and Custom to all that piece of land situate, lying, being and known as Alashe Village, Oyo Road, Ibadan.

 

2.     Declaration that the lst-4th Defendants have incurred forfeiture of their holdings of portions of the said land by reason of misconduct under native law and custom.

 

3.     Possession of all the land held of the plaintiffs by the defendants within the said land.

 

4.      N1,000.00 Damages against the 5th defendant for continuing trespass and waste committed by its servants and agents on the said land since about February, 1976.

 

5.     Injunction to restrain the defendant, their servants, agents, assigns and privies from further entry on the said land.

 

This writ was subsequently amended in paragraph 4 to claim damages against all the defendants. Pleadings were ordered and were duly filed and exchanged. A few paragraphs of the pleadings will bring into focus the issue in contention in this suit. In paragraphs 2, 3, 4, 10 of the amended statement of claim the plaintiffs show their root of title and the relationship to the land of the 1-4th respondents herein. These paragraphs read as follows:-

 

2.      The plaintiffs aver that Latosa the Are-Onakakanfo of Ibadan between 1871-1885, their ancestor, acquired a large piece or parcel of land including the land verged red in Plan No. KESH/Y/5386, and Asofunni or Isafunni, Abiola, Soribi, Akingbolo. Tose, and other villages called together Are farm, Oyo Road, Ibadan by settlement under the native law and custom, about 150 years ago, and became the absolute owner thereof.

 

3.     The said Latosa Are-Onakakanfo called Are for short was warrior and exercised maximum acts of ownership on the said land which he acquired including the land verged Red in Plan No. KESH/Y/5386 filed with the statement of claim.

 

4.      Are used part of the land as his war depot and war resort; he granted portions of it to his children, relatives, domestics and slaves for farming. Are also had a house which has now been rebuilt and occupied by his descendant Ladipo of Alase Village in the area verged Red in the Plan. The children of Ladipo who are descendants of Are still live in that house. Saliu and Ajibola are descended and relative (sic) respectively of Are who also have houses in Alashe village …….

 

10.    Jolaoso and Ipaye were some of the slaves Are put on his farm to work for him within the area verged red. They became customary tenants to Are when slavery was abolished. They paid Ishakole of yams, palm-oil and kolanuts and other crops to Are before his death, and after Are's death to the successive Mogajis of Are family.

 

In their amended statement of defence the 2nd-4th defendants/respondents denied paragraphs 2, 4, 9, 10 etc. of the amended statement of claim. in paragraphs 4, 5, 6, 7, 13, and 24, they averred as follows:

 

4.      The defendants admit that Are Latosa granted Alashe village to the defendants but deny that it was Are Latosa that settled people like Abiola, Saribi, Akingbolo, Tose, Orisafunmi etc. in their respective villages. Are himself never lived nor farmed at Alashe village.

 

5.      The defendants admit paragraph 3 in so far as it stated that Are Latosa was warrior but say that Are Latosa never exercised any act of ownership since the grant was made to Ipaye between 1871 and 1885 of the land verged blue and marked "A" on the defendant's plan.

 

6.      The defendants further to the denial of paragraph 4 of the statement of claim say that the descendants of Are Latosa who live and farm at Alashe village now in dispute are Salawu the son of Ladipo, and Saliu Babakekere the son of Obadamosi who in turn was the son of Alli and grants of land were made to them by Ipaye.

 

7.      Ladipo built on the land in dispute at Alashe village on the land granted to him by Ipaye. Iyeloja the mother of Ladipo was pregnant when Are Latosa was going to Kiriji war. tyaloja was left with Ipaye being a friend of Are Latosa and Ladipo was born on the land in dispute and he died there. Salawu his son now lives there ……

 

13.    The land said to be in dispute in paragraph 7 of the statement of claim is smaller than the parcel of land marked ‘A’ and edged blue on Plan No.GS218/77 which was granted to the defendants by Are Latosa. the Ancestor of the plaintiffs between 1877 and 1885

 

24.    Are Latosa made a permanent grant of the present site of Alashe village edged blue and marked 'A' in plan No.0.5. 218/77 filed by the defendant to Ipaye …….

 

At the end of the trial the learned trial Judge dismissed the claims of the plaintiffs/appellants in their entirety. She clearly identified the main issue in his case when she said,

 

The crux of the matter is whether or not the land granted the Ipaye family at Alashe and Oloko villages was an absolute grant or a temporary one upon payment of Ishakole.

 

After evaluating the evidence on Ishakole, Plans etc., she concluded as follows:-

 

I therefore cannot regard the defendants - 1st to 4th defendants as plaintiffs' customary tenants. It is my view, having regard to the evidence of the defendants and their witnesses which I very much believe, that the grant to the defendants by Are was an absolute one and the defendants had been exercising such numerous and positive acts of ownership on the land spreading over a long period of years that they cannot now be dispossessed of their title to it. I am satisfied from the evidence before the court that the original grant made to defendants' ancestors by plaintiffs' ancestors was not limited to farming alone. The defendants were allowed to settle on the land, farming and building permanent houses and mosques on it.

 

The plaintiffs appealed to the Court of Appeal. That court (coram: Omo, Sulu-Oambari and Onu, JJ.C.A.) dismissed the appeal after affirm-F mg all the findings of fact made by the learned trial Judge Onu, J.C.A.,who wrote the lead judgment said.

 

I am satisfied that the trial court fully evaluated all the evidence adduced before it and arrived at the right conclusion.

 

The plaintiffs/appellants have now appealed to this Court. 9 grounds of appeal were filed but I do not find it necessary to set them down. Briefs of argument were also exchanged by the parties. In his brief of argument, learned Senior Advocate, Chief Williams for the appellants identified two issues for determination. These are:

 

(i)    Whether the courts below placed the onus of proof on the wrong person.

 

(ii)    Whether the courts below drew the proper inference from the facts proved in evidence.

 

It seems to me that one can also add the issue for determination as identified in the 5th defendant's brief of argument. It was, in my view, the central issue in this appeal. That issue was:-

 

whether the grant to the defendants' ancestors was absolute (as claimed by the defendants) or limited (as claimed by the plaintiffs.

 

As has been shown above, what the plaintiffs/appellants have to deal with in this appeal are concurrent findings of two courts. It was understandable that Chief Williams had to start his submissions in his brief of argument by contending that there were special circumstances which would justify the Supreme Court interfering with those findings. He referred to the decision of the Privy Council in Abinabina V. Enyimadu 12 W.A.C.A. 171 where at page B 173 Lord Cohen said,

 

But the rule as to concurrent findings is subject to certain exceptions of which it is clearly stated by Lord Thankerton at page 259 of the case cited as follows:-

 

In order to obviate the practice there must be some miscarriage of justice or violation of some principle of law or procedure.

 

Chief Williams appeared to have anchored his contentions on his complaints that:-

 

(i)    both the High Court and the Court of Appeal failed to appreciate that the onus was on the 1st to 4th defendants to prove that the original grant by Are Latosa to their ancestor or ancestors was an absolute grant.

 

(ii)    both courts failed to observe that there was no plea by the defendants of any equitable defence which is claimed to have extinguished plaintiff's title or render it inequitable for the plaintiffs to assert such title."

 

I shall now have to examine whether indeed there were any special circumstances in this case. Order 2 Rule 32 of the Supreme Court Rules, 1985 provides that,

 

where in an appeal to the Court from the Court below, the court below has affirmed the findings of fact of the court of first in-stance, any application to the Court in pursuance of its jurisdiction under Section 213(3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.

 

This does indicate the attitude of the Supreme Court to concurrent findings. But that attitude is well established in numerous decisions of this Court. That attitude is that an appellant appealing to this Court against concurrent findings of the two lower courts faces an uphill task for this court can only interfere in those findings if that appellant can show special circumstances - either that there was a miscarriage of justice or a serious violation of some principle of law or procedure or if the findings are shown to be G erroneous i.e. error in substantive or procedural law. See Enang v. Adu (1981) 11-12 S.C. 25 at p.42; Lokoyi v. Olojo (1983) 8 S.C. 61 at page 63-73; [1983) 2 SCNLR 127; Ojomu v. Ajao (1983)9 S.C. 22 at 53; [1983] 2 SCNLR 156; Ukpe Ibodo & Ors. v. Iguasi Enorofia and Ors (1980) 5-7 S.C. 42, 55; Western Steel Works v. Iron & Steel Workers (1987)1 N.W.L.R. (Part 49) 284; Akinsanya v. U.B.A. Ltd. (1986)4 N.W.L. R. (Part 35)273; Nwadike v. H Ibekwe (1987) 4 N.W.L.R. (Part 67) 718. As to miscarriage of justice Lord Thankerton in the Abinabina case supra to which Chief Williams drew our attention said that

 

The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition is corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure whose application will have the same effect.

 

Where then are the errors in procedure or substantive law that would bring this case within the special circumstances? One would have to look at the areas Chief Williams has complained about in his brief of argument and in oral argument. I shall start with the burden of proof. He contends that the two lower courts did not appreciate that the onus was on the 1st-4th defendants to establish the absolute grant from Are Latosa which they claimed. It was common ground between the parties that Are Latosa was the original owner of the land in dispute. The only disagreement was as to whether what he granted the lst-4th defendants' ancestors was a limited or absolute grant. Ordinarily in a claim for declaration of titles, the onus is on the plaintiff to establish his title on the strength of his case. However, in the instant case where Are Latosa's title is conceded, and the plaintiff admit to lst-4th defendants being given a limited grant, the onus must necessarily shift to the defendants to establish that the grant was not limited but absolute. As Brett, J S C said in Samson Ochonma v. Asirim Unosi (1965) N.M.L.R. 321 at 323

 

the defendant having admitted that the plaintiff was the original owner of the land, the onus was on him to establish his plea that there had been an absolute grant to him,

 

See also Isiba and Ors. v. Hanson and Anor. (1967)1 All N.L.R. 8 at 10; Thomas v. Preston Holder (1946)12 W.A.C.A. 78; Agbonifo v. Aiwereoba (1988)1 N.W.L.R. (Pt.70) 325.

 

The next question to consider is whether there is anything to show that the two lower courts did not appreciate where the onus lay. Chief Williams certainly did not refer us to any portions of the record of proceedings to support such a contention. Indeed it would seem that the only complaint can only be that the learned trial Judge did not say specifically that the burden was on the defendants to discharge that onus. In my view she clearly appreciated the issue she had to decide -was there a limited or absolute grant? Her whole consideration of the evidence led before her indicated that she was aware of the burden on the defendants and she was satisfied that that burden had been discharged Her consideration of the evidence on Ishakole, acts of possession, - building of houses and mosques, - grant of land to descendants of Are Latosa by Ipaye not by Are himself, indicated that she knew who had to go beyond the limited grant conceded by the plaintiffs. Ii cannot be said that she ever put a burden on the plaintiffs to establish that the 2nd - 4th defendants did not have an absolute grant. If she dismissed their claims, it was because they were unable to establish the case they put forward - a limited grant to 2nd-4th defendants.

 

The Court of Appeal took exactly the same position. The question of the onus of proof being on the defendants was raised before them, learned counsel to the plaintiffs in that court relying on the case of Thomas v. Holder (supra); Isiba & Ors. v. Hanson & Anor. (supra) and Akinloye v. Eyiyola & Ors. (1968) N.M.L.R. 92, 94. The Court definitely considered all this but at page 236 of the record observed,

 

I am satisfied with the submission of learned counsel for 2nd-4th A defendants that 2nd4th defendants have for so long a time been exercising rights of ownership over the land that the plaintiffs can no longer be heard to complain albeit that they were the original grantors of it to these defendants see Ekpo v. Ita 11 N.L.R. 68. That the defendants' exercise of possessory rights has stretched B over a long time namely, "about 5 generations" can be seen in the evidence of D.W.5, Lamidi Ajibola, and from the overwhelming evidence of 2nd defendant, Arasi Ipaye, 2nd D.W. (Salawu Are). It can be used to defeat a plaintiffs' claim to declaration of title See Joseph Oni v. Samuel Arimoro (1973) N.M.L.R. 237. This manifests itself by the defendants themselves making grants of land to diverse families including even relations of Are.

 

That the Court of Appeal was mindful of where the onus lay is also exemplified by the portion of the judgment where Onu, J.C.A., said that :-

 

It was incumbent on 1st and 2nd defendants to prove that the radical title of Are became vested in them. This is because building of permanent houses, shops, mosques and churches would, in my view, not be enough in themselves to confer title on a person in possession.

 

The other matter on which Chief Williams complained was the use which the two lower courts made of the traditional history in the case. In the pleadings, the plaintiffs' case was that Ipaye the ancestor of the defendants and Jolaoso were Are's slaves who were given land to farm on payment of Ishakole. Ojo Ogudu was also said to be lpaye's relation who came to live E with him and was permitted to farm on Are's land by Shittu, Are's son, The case of the 2nd-4th defendants on the other hand was that Ipaye was a friend to Are so much so that when Are was going to the Kiriji war he left his pregnant wife, Iyeloja with Ipaye. Ladipo the father of Salawu, D.W.2, was born there.

 

The learned trial Judge after reviewing all this evidence, believed the version of the defendants and accepted the testimony of their witnesses. Although she did not refer specifically to the traditional evidence, she made findings on all the points that made up that history, for instance on the assertion that Are granted the land to Ipaye and Jolaoso for farming purposes she asserted,

 

Assuming that Are granted the land to Ipaye and Jolaoso for farming purposes and not absolutely. Why was Ipaye allowed to build on the land? Why was Ishakole not paid yearly but during festivals.

 

The Court of Appeal did not specifically refer to the traditional history given by both parties but, like the trial Court, considered aspects of it and affirmed the findings of the trial Court on them. Onu, J.C.A., generally said that:-

 

the learned trial Judge preferred, rightly in my view, the defendants' own version on the mode of alienation of the land in dispute and rejected plaintiffs' account.

 

In complaining about the traditional evidence, Chief Williams submit-ted that there was conflict in the evidence. He referred particularly to the evidence of Abeke P.W.4 and that of Salawu Are D.W.2. Re contended that where there is such conflict, traditional evidence being hearsay, it cannot be resolved by belief. He referred to Kojo V. Ronsie (1957)1 W.L.R. 1223 and to that often quoted statement of Lord Denning where the Law Lord said at page 1226,

 

In this regard it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case misdemeanour is little guide to the truth.

 

The court in this case decided that it is best to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.

 

In oral argument as mentioned above, Chief Williams focused on the evidence of Abeke P.W.4 and Salawu Are D.W.2. I would like to set down their evidence.

 

Alhaja Humani Abeke P.W.4 who said she lived at Are's compound Oke-Are said:-

 

I know the 2 plaintiffs. They are my brothers. I know Alase village. I know Ladipo. He was my father. He is now dead. Ladipo is a direct son of Are. Salawu Ladipo (D.W.2) is my younger brother. I am the eldest member of Ladipo family. Ladipo had farm at Alase village. He owned it through his father Are. Are owned the land and was my grandfather.

 

Under cross-examination, she said,

 

I was born at Alase village. Since I got married I did not live there. I don't calculate the date of birth of my first child. I had him during the reign of Foke. I wouldn't know what was going on at Alase village since I left the place. Salawu Ladipo built his own house. My father's house is also there.

 

Salawu Are D.W.2 on the other hand said;

 

I am also known as Salawu Ladipo. I live at Alase Ipaye village. I am a Health Inspector under Moniya Akinyele Council. I know the two plaintiffs. They are my fathers. I know the Ipayes very well. I am a member of the Are family but I was born and bred at Alase Ipaye. I came from there today, Ladipo was my father. Are Latosa was father - Ladipo's father. I didn't join the Are family to sue the defendants to Court in this case. My father was born at Alase. I too was born at Alase. I told the plaintiffs I will not have hand in what our fathers had done hence I was left out of the action. Ipaye is the owner of the land in dispute. Are granted the land in Alase to Ipaye absolutely. Ipaye never paid us Ishakole for the land granted him. Ipaye and Are are friends. Ipaye is not a slave.

 

Then referring to Humani Abeke P.W.4 whose testimony I set down above he continued,

 

I know Humani Ladipo she was my father's first born. I called her my mother. Are did not give Ladipo land, we are children of Ipaye's benefactor (sic) in Alase. Ladipo family has only one house in Alase. That is the one I rebuilt. There is no other member of Are family living at Alase village

 

I am unable to see the conflict in the testimony of these two witnesses as a whole. The only conflict one can see is that while Abeke said Ladipo got his land through Are, Salawu said he got it from Ipaye. From the point of view of the traditional history given by both parties, one can hardly talk of conflict when referring to the evidence of these two witnesses. There was nothing in Abeke's evidence referring to the points of difference in the traditional histories proffered by both sides. It was Salawu who dealt with such points as whether Ipaye was a slave; whether Ipaye's family ever paid Ishakole to Are's family and who gave Ladipo Are land at Alase. It is not surprising that the learned trial Judge accepted the testimony of Salawu. Of him she said,

 

Another witness who seems conversant with Alase village is Salawu Are - second defendant witness. He is a member of the Are family and was born and bred at Alase village. I believe his evidence that Are granted land to Ipaye absolutely at Alase without payment of Ishakole. I also believe him when he said that Ipaye in turn granted land to Laosun Akerele and Nojibu freely and absolutely. He gave the history of how several people have succeeded to the land through their ancestors and grantors Ipaye. I quote part of his evidence thus;

 

Are family have no right to drive the defendants away from the land. This is the fifth generation on the land.

 

No one can say that the trial Judge's acceptance of SaIawu's evidence was based just on his demeanour or the undesirable I believe, It was borne out of a recognition of the authority Salawu had in giving evidence on those matters - he was born and bred at Alase He also gave detailed and unequivocal evidence about the parties and their ancestors. I agree with Mr. Adekola for the 2nd 4th defendants that the trial Judge cannot be faulted here. Speaking generally however of the traditional evidence in the light of the reference to Bonsie's case, I do not think that it is the law that once there is conflict in the traditional histories given by two parties in a suit, the trial Judge must promptly declare them inconclusive and proceed to consider recent acts. The true situation, in my view, is that the trial Judge has the duty to find which of the two histories is more probable by testing it against other evidence in the case. It is also when he can neither find any of the two histories probable or conclusive that he would declare both inconclusive and H proceed to decide the case on the basis of numerous and positive acts of p05session and ownership. These principles appear to me discernible from the cases. In Mogaji v. Cadbury (Nigeria) Ltd. (1985) 2 N.W.L.R. (Part 7) 393, this Court decided that it is only where the conflict arises between the traditional history given by one side and the traditional history given by the other side that the test in Kojo II v. Donsie (supra) is resorted to in the ascertainment of the true history. Echoing the principle established in Bonsie's case, this Court again in Awoyale v. Ogunbiyi (1986) 2 N.W.L.R. (Part 24) 626 decided that where traditional evidence of the parties conflict, such conflicts are better resolved not by watching the demeanour of the witnesses who testify, but by testing their evidence against the recent happenings within living memory. As Oputa, J.S.C. said there too,

 

Traditional evidence is but a bit of ancient history. It's weight and value can be better assessed where there also exists factual evidence of contemporaneous events.

 

And recently in the case of Balogun v. Akanji (1988)1 N.W.L.R. (Part 70) 301 at 316, 317, 322-323 to which learned counsel to the 5th defendant, Mr. Bamidele Aiku drew our attention, the applicable principles were again visited. It was again decided that if the evidence led by both parties is inconclusive (not if there is just conflict), then the court will have recourse to recent acts of possession and ownership. If a party's title is proved by traditional evidence, there will be no need to refer to acts of possession and ownership. In my contribution in that case, I referred to the Bonsie case and observed:

 

As my learned brother has rightly referred to, traditional evidence is certainly one of the 5 ways by which title to land can be established (See Idundun v. Okumagba (1976) 9 and 10 S.C. 227). The principle established in Ekpo v. Ita 11 N.L.R. 68 (that is exclusive possession for so long that an inference can be drawn that one is owner) is indeed a different and separate method of establishing title. Of course if the evidence of tradition led by both sides is inconclusive, then the Court will have recourse to recent acts of possession and ownership See Kojo v. Bonsie (1957) 1 W.L.R. 1223.

 

As I said earlier, I think the learned trial Judge and the Court of Appeal decided which traditional history was more probable by reference not to demeanour but to the evidence of recent history and events before them.

 

The final issue I would want to consider in deciding whether there has been error of law or procedure or a miscarriage of justice, is Chief Williams complaint that the learned trial Judge did not properly evaluate the evidence. The two areas he concentrated on were those portions of the learned trial Judge's judgment in which she identified the crux of the matter before her (page 130 line 41), her treatment of payment or non-payment of Ishakole, the question of building on the land etc.

 

I think it has to be appreciated that the evaluation of evidence and findings of facts are within the province of the trial Court, and that an appellate Court will only interfere if such evaluation and findings are perverse and show a misapprehension of the facts. See Ramonu Atolagbe v. Korede Shorun (1985)1 N.W.L.R. (Part 2) 360. Can it be said that the learned trial Judge's evaluation of evidence or findings of fact fell below the accepted standards or that the Court of Appeal condoned any such failure? I think not All through the judgment, the learned trial Judge evaluated the evidence before her before arriving at her conclusions. At page 130 line 41 of the record to which reference was earlier made she identified the matter and proceeded to record the evidence led on both sides: After examining 2nd A plaintiff's evidence in which he said,

 

Ipaye and Ogudu used to collect Ishakole from their fellows and pay whoever was Mogaji. They all used to pay Ishakole until the defendants refused to pay 6 years ago.

 

She examined the Plan tendered by plaintiffs, then considered the fact that the defendants were building on the land, that Ishakole was paid yearly, and B yet the land was said not to have been granted to Ipaye absolutely. She considered the nature of Ishakole before she reached her conclusions, on the question of the absolute grant.

 

More specifically on Ishakole, the learned trial Judge considered its nature and the evidence of the parties before she concluded at page 132,

 

From the above meaning and scope of Ishakole, both the Plain-tiffs and their witnesses have described the nature of tributes paid by the defendants to the plaintiffs family as nothing more than tributes payable at will on festive occasions I therefore cannot regard the defendants, 1st to 4th defendants as plaintiff's customary tenants.

 

From the evidence on record, the learned trial Judge cannot be faulted on her conclusion on Ishakole. The onus was clearly on the plaintiffs to establish that what Ipaye and his descendants paid to Are and plaintiffs was Ishakole and not ISIN. See Onu, J.C.A., at pages 233 and 234 of the Record. Also Bowale, Bale Alaya & Anor. v. Oyekan Oloolo (1975) 1 N.M.L.R. 310, 314. The Court of Appeal copiously referred to the testimonies of several relations of the plaintiffs on the issue of Ishakole. For instance the evidence of Salawu Are on Ishakole has been referred to earlier. Then D.W.5 and D.W.6 Lamidi Ajibola and Murana Ishola testified as follows:-

 

Ipaye granted land to our father. We don't pay Ishakole to Ipaye and "I gave land to Amusa Apapo at Aiyorokun I did not take any Ishakole from him. I don't pay any Ishakole to any one ……..

 

Then Saka Akangbe D.W.9 of Laosun family said, "We don't pay Ishakole to anybody. The land was granted to us absolutely.

 

After referring to the burden on the plaintiffs to establish the nature of the Ishakole, the time of payment etc. the Court concluded,

 

On festival or (chieftaincy) payment, it must be remarked straight away that such a payment is evidence only of goodwill and being voluntary ought not to rank equal to Ishakole. In the appeal herein, the onus which lies on the plaintiffs to show by unequivocal evidence that the defendants paid them Ishakole has, in my view, not been fully discharged. See Frempong II v. Brempong (supra).

 

On building on the land, I would concede that the learned trial Judge made too much of this considering that the defendants were in possession of the land either way (that is whether it was limited or absolute grant) and there was no evidence that customary tenants cannot build on the land with-A out permission. However, I am satisfied that there is abundant evidence to support the decision reached by both lower courts. The defendant's traditional evidence was accepted, their non-payment of Ishakole was accepted, their long possession of the land coupled with acts of ownership such as grants of land to public institutions and even to plaintiffs' relations without permission by plaintiffs were established by evidence. In the course of a sojourn of 5 generations, those to whom Ipaye granted land had infact granted to others all without permission from plaintiffs.

 

I do not find it necessary to deal with the question of forfeiture. It was a claim in the alternative by the 2nd - 4th defendants and having succeeded in establishing an absolute grant to their ancestors, forfeiture does not arise. I do agree with Mr. Adekola learned counsel to the 2nd - 4th defendants, that the Court of Appeal must have made an accidental slip when it thought the trial Judge granted the relief of forfeiture when it had recognised earlier that the counter claim for forfeiture was in the alternative. The respondent's notice filed on 26th February, 1987, therefore, has merit as it sought that the decision of the Court of Appeal should be affirmed not on the ground of any relief against forfeiture, but on the ground that the ancestors of the 2nd - 4th defendants were given an absolute and permanent grant of the land in dispute by Are Latosa.

 

In these circumstances, there are no special circumstances that would justify interference with the concurrent findings of the trial Court and the Court of appeal in this suit. Accordingly this appeal must fail and it is dismissed. The judgment of the Court of Appeal, Ibadan Judicial Division, dated 15th January, 1986 is hereby affirmed. Costs to the respondents are assessed at N500 to each of 2nd-4th, 5th and 6th Respondents.

 

 

Judgement delivered by

Uwais. J.S.C.

 

I have had the opportunity of reading in draft the judgment read by my learned brother Nnamani, J.S.C. I agree with the judgment and the conclusion that the appeal should be dismissed. Accordingly, the appeal is hereby dismissed with N500 costs to each of the three sets of respondents.

 

 

Judgement delivered by

Kawu. J.S.C.

 

I have had the privilege of reading, in draft the lead judgment of my learned brother, Nnamani, J.S.C., which has just been delivered. I am in complete agreement with his reasoning and his conclusion that the appeal is devoid of merit and should be dismissed. In the High Court of Oyo State, the appellants as plaintiffs brought an action against the respondents claiming as follows:-

 

(1)    Declaration of title according to Native Law and Custom to all that piece of land situate, lying, being and known as Alashe Village, Oyo Road, Ibadan.

 

(2)    Declaration that the 1st - 4th defendants have incurred forfeitures of their holdings on portions of the said land by reason of misconduct under native law and custom

 

(3)    Possession of all the land held of the plaintiffs by the defendants within the said land.

 

(4)    N1,000.00 Damages against the 5th defendant for continuing trespass and waste committed by its servants and agents on the said land since about February, 1976.

 

(5)    Injunction to restrain the defendants, their servants, agents, assigns and privies from further entry on the said land. The annual Rental Value of the land cannot be specified.

 

It was common ground that the land in dispute was originally owned by the plaintiffs' ancestors who made a grant of it to the ancestors of the defendants. The bone of contention is whether the grant was an absolute one or not. After hearing evidence adduced by both parties, the learned trial Judge. Ige, J., resolved the matter as follows:-

 

I am satisfied from the evidence before the Court that the original grant made to defendants ancestors by plaintiffs' ancestors was not limited to farming alone. The defendants were allowed to settle on the land, farming and building permanent houses and mosques on it.

 

She accordingly dismissed the plaintiffs' case.

 

The plaintiffs' appealed to the Court of Appeal which Court (Coram, Omo, Sulu-Gambari and Onu, JJ.C.A.) dismissed the appeal and affirmed all the findings of facts made by the learned trial Judge. This appeal is from that decision challenging the concurrent findings of facts of the two lower courts.

 

Where. in a case, there are two concurrent findings of fact, this Court will not interfere with such findings unless there are special circumstances dictating otherwise - Ibodo v. Enarofia (1980) 5-7 S.C. 42. To justify such interference, an appellant must show that there was a miscarriage of justice or a serious violation of some principle of law or procedure. See Lokoyi v. Olojo (1983) 8 S.C. 61 at pp.63-67, [1983] 2 SCNLR 127 and Enang v. Adu (1981)11-12 S.C. at p.42. In this appeal.in mv view no special circumstances have been made out to justify our interfering with the decisions of the two lower courts.

 

For the reasons contained in the lead judgment of my learned brother, Nnamani. J.S.C., I too will dismiss the appeal and affirm the judgments of he two lower courts. I abide by the order as to costs as contained in the lead Judgment.

 

 

Judgement delivered by

Agbaje. J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother Nnamani, J.S.C. I agree entirely with him and his reasoning that this appeal lacks merit. The appellants, Chief Alhaji K.O.S. Are and another for themselves and on behalf of Are family as plaintiffs sued the respondents, Raji Ipaye and 5 others, as defendants in an Ibadan High Court claiming against them as follows:-

 

(1)    Declaration of title according to Native Law and Custom to all that piece of land situate, lying, being and known as Alashe Village. Oyo Road, Ibadan.

 

(2)    Declaration that the 1st - 4th defendants have incurred forfeitures of their holdings on portions of the said land by reason of misconduct under native law and custom.

 

(3)    Possession of all the land held of the plaintiffs by the defendants within the said land.

 

(4)    N1,000.00 Damages against the 5th defendant for continuing trespass and waste committed by its servants and agents on the said land since about February, 1976.

 

(5)    Injunction to restrain the defendants, their servants, agents, assigns and privies from further entry on the said land.

 

Pleadings were ordered, filed and delivered.

 

The case eventually proceeded to trial before A.O. Ige, J., on 10th June, 1980. The parties and their witnesses gave evidence. At the end of the day it became clear that the parties agreed that the land in dispute originally belonged to the plaintiff’s family, Are family, which later made grant of the same land to the ancestor of the 1st - 4th defendants.

 

In her judgment in the case given on 2nd March, 1981 the learned trial Judge correctly appraised the main issue in the case when she said, in her own words: -

 

The crux of the matter is whether or not the land granted the Ipaye family at Alashe and Oloko villages was an absolute grant or a temporary one upon payment of Ishakole.

 

And she resolved the issue as follows:-

 

I am satisfied from the evidence before the Court that the original grant made to defendants' ancestors by plaintiff's ancestors was not limited to farming alone. The defendants were allowed to settle on the land, farming and building permanent houses and mosques on it.

 

In short she came to the conclusion that the land in dispute was granted by the plaintiffs' ancestors to the ancestors of the lst-4th defendants absolutely and without any condition as to payment of Ishakole. In consequence she dismissed the plaintiffs' claim.

 

On appeal by the plaintiffs against the judgment, the Court of Appeal, Ibadan Division, Coram Omo, Omololu-Thomas, Onu, JJ.C.A., confirmed the findings of fact of the learned trial Judge and dismissed the plaintiffs' appeal.

 

This is a further appeal by the plaintiffs against the concurrent findings of fact of the two courts below. In a situation like this, the authorities are clear that in the absence of special circumstances this court will not allow such a question of fact to be re-opened. See for instance Ibodo v. Enarofia (1980) 5-7 S.C.42 at 57.

 

Counsel for the plaintiffs/appellants Chief F. R.A. Williams, S .A N. 'is, no doubt, aware of this situation and that is why it is submitted in the appellants' brief of arguments and in oral submissions in court that it is necessary for the plaintiffs to show special circumstances why the findings of fact of the two courts below ought to be disturbed before the plaintiffs' appeal can succeed. And relying on the special circumstances identified in Abinabina v. Enyimadu 12 W.A.C.A. 171 at 173 which will permit an appellate court to disturb concurrent findings of fact of two courts below, counsel submitted A that there had been violations of some principles of law by the two lower courts in that:-

 

(1)    both the High Court and Court of Appeal failed to appreciate that the onus was on the 1st to 4th defendants to prove that the original grant by Are Latosa to their ancestor or ancestors was an absolute grant

 

(2)    both courts failed to observe that there was no B plea by the defendants of any equitable defence which is claimed to have extinguished plaintiffs' title or render it inequitable for the plaintiffs to assert such title.

 

It is the further submission of counsel that if the erroneous propositions of law he alleged be corrected, the findings of fact cannot stand. Therefore the issues identified for determination in this appeal by the plaintiffs are as follows:-

 

(i)    Whether the courts below placed the onus of proof on the wrong person

 

(ii)    Whether the courts below drew the proper inference from the facts proved in evidence.

 

It is clear that the defendants, having admitted that the plaintiffs were the original owners of the land in dispute, the onus was on the defendants to prove that the plaintiffs had made an absolute grant of the land to them. See Ochonma v. Unosi (1965) N.M.L.R. 321 at 325.

 

The following passages from the judgment of the learned trial Judge leave me in no doubt, although she did not say so in so many words, that she put this onus squarely on the defendants.

 

The first passage is this:-

 

It is my view, having regard to the evidence of the defendants and their witnesses which I very much believe that the grant to the defendants family by Are was an absolute one and the defendant had been exercising such numerous and positive acts of ownership on the land spreading over a long period of years that they cannot now be dispossessed of their title to it.

 

The next passage is:-

 

Another witness who seems to be conversant with Alashe village is Salawu Are - Second Defendant Witness. He is a member of Are family and was born and bread at Alashe village. I believe his evidence that Are granted land to Ipaye absolutely at Alashe 6 without payment of Ishakole.

 

The lower courts having held, and properly so, in my view, that Are family made an absolute grant of the land in dispute to Ipaye , the defendants' ancestor, Are family has thereby divested itself of title to the land. The question of the plaintiffs having any further title to the land, which a plea of an equitable defence from the defendants can only prevent them from asserting no longer, arises.

 

For the reasons given in the lead judgment I am satisfied too that the two courts below drew the proper inferences from the facts proved in evidence.

 

 

Judgement delivered by

Nnaemeka-Agu. J.S.C.

 

The claim before an Ibadan High Court in this case was for a declaration of title according to native law and custom to a piece or parcel of land being and called Alashe Village, Ibadan-Oyo Road, for forfeiture against the 1st to 4th defendants, possession of all the lands held by the defendants, damages for trespass and injunction. It was common ground that the land in dispute was originally that of Are (plaintiffs') family. It was also agreed that the said family granted the land in dispute to the ancestors of the 1st to 4th defendants. The main issue was whether, as the defendants maintain, it was an absolute grant or, as the plaintiffs claim, it was a customary tenancy, which was determinable. In the High Court, Ige, J., accepted the defendants' case and dismissed the claim. The Court of Appeal, coram: Omo, Sulu-Oambari and Onu, JJ.C.A., affirmed the decision of the High Court.

 

The plaintiffs have appealed further to this Court. Part of their task in this appeal is to show that there are special circumstances which will make it proper for this Court to intervene in view of the concurrent findings of fact by the two lower Courts. In trying to persuade this Court to intervene, learned Senior Advocate for the appellants, Chief Williams, contended:-

 

(i)    that the onus of proving a limited grant was on the defendants/respondents but that they did not discharge it;

 

(ii)    that the issue as to whether the grant was an absolute or a limited respondents but that they did not discharge it; one was resolved by the learned trial Judge from the evidence of tradition, wrongly he contended, because it should have been resolved from evidence of facts and events in the recent past;

 

(iii)    that the courts below erred in not paying any or due regard to the fact that in early days outright sale was improbable: Okiji v. Adejobi 5 F.S.C. 44, pp.47-48; [1960] SCNLR 133

 

(iv)   that the learned trial Judge was wrong in her finding that what the defendants, numbered 1 to 4 paid was tribute on festive occasions and not Ishakole.

 

The learned counsel for the respondents did not seriously dispute that, as it had been conceded that the original title was in appellants' predecessor-in-title, Are Latosa, the onus was on the respondents to prove absolute grant. But learned counsel on their behalf contended that that onus was discharged and that the learned trial Judge was right to have preferred the evidence by and on behalf of the respondents to that for and on behalf of the appellants. As it was so, the Court of Appeal was right to have confirmed it.

 

Now, it has not been suggested that there was not some evidence on either side in support of the crucial issues. It is also noteworthy that among the numerous pieces of evidence believed by the learned trial Judge was that which showed that the 1st and 2nd respondents' family had made numerous grants of pieces of land in the area in dispute to several strangers, with the knowledge of, but without reference to the appellants' family and that several of the grantees have erected permanent buildings on their lands. Equally remarkable is the fact that D.W.2, Salawu Are, also called Salawu A Ladipo, a grandson of Are Latosa, the admitted original owner of the land in dispute, testified for the defence (respondents) and supported their case for an absolute grant, the non-payment of Ishakole by the respondents as well as other crucial issues upon which the respondents hoisted their case. He was not cross-examined on many of the facts testified to by him. In so far as the appellants were prosecuting the case on behalf of Are Family to which ~ D.W.5 belongs, T regard the evidence of the latter, which was believed, as a strong piece of evidence of admission by a person who has a proprietory interest in the subject-matter in litigation, and which further strengthens the respondents' case. There was also evidence that among the several grantees of portions of the land in dispute by the respondents were some of the appellants' kith and kin. It is unusual for a grantor to accept a grant from his customary grantee. All the above features in the evidence for the respondents made it rather compelling that the learned trial Judge should prefer the evidence by and on behalf of the respondents to that for and on behalf of the appellants.

 

I believe it is the correct principle of law that, although, where conflicting evidence is called on both sides on a primary issue of fact, it is left for the court of trial to accredit one version and discredit the other, that exercise is not properly performed as a rule of thumb. Where it is purely a question of credibility of witnesses, trie exercise ought to represent a logical and dispassionate reaction of the trial court to the circumstances surrounding the facts as testified to by the witnesses before the court, in the absence of, say, documentary' evidence to the contrary. Bearing this principle in mind and considering the above facts and circumstances, I cannot say that the learned trial Judge was wrong to have believed the respondents and disbelieved the appellants. The Court of Appeal was equally right to have affirmed the findings.

 

Now by a long line of decided cases, it has always been recognized that findings on primary facts, particularly those dependent on belief or non-belief of witnesses are matters peculiarly within the province of the court of trial. Where such findings have been confirmed on appeal and there is sufficient evidence to support such concurrent findings of fact, it is the policy of this Court not to disturb such findings. They can only be disturbed where they are perverse, or based on improper evaluation of evidence, or it is apparent that the trial court has not taken proper advantage of its seeing and hearing the witnesses, or otherwise, there is an apparent error on the record or, generally some miscarriage of justice. For these see:

 

Kofi v. Kofi l W.A.C.A.284

Fatoyinbo & Ors. v. Williams & Ors. I F.S.C. 87; ~1956] SCNLR 274

Stool of Abinabina v. Enyimiadu 12 W.A.C.A. 171 p.173

Ibodo v. Enarofa (1980) 5-7 S.C. 42

Otogbolu v. Okeluwa (1981) 6-7 S.C. 99

 

On these well-established principles, the appellant has indeed an uphill task to perform, as I have not been persuaded that any of them has been established.

 

To cap it all, the learned trial Judge also found, on the evidence before her, that the respondents and their predecessors-in-title never paid any "Ishakole" to the appellants and their predecessors-in-title. What was paid was tribute on festive occasions. It is important, I believe, to appreciate the basic difference between the two. Tribute is paid as a mere mark of respect for a previous overlord: its payment does not signify a subsistence of the overlord's reversionary interest. Rather it is a customary incident of occupation of land by a stranger and is usually voluntary and does not depend upon any agreement: see Chief Braide v. Chief Kalio (1927)7 N.L.R. 34. When the tribute is paid to an Oba or other paramount chief, it is called an is in a mere customary token of loyalty or fealty. "Ishakole", on the other hand depends on agreement upon the grant of the land. Although it cannot be equated to a consideration in the sense of a quid pro quo at common law, it is in the nature of an obligatory rent whose main purpose is to ensure subsistence of reversionary rights upon forfeiture of a customary tenancy for any reason: See on this Ife Overlords v. Modakekes, a judgment of the Supreme Court on December, 3, 1948. See also Adeleke v. Adewusi (1961)1 All N.L.R. 37; [1961)1 SCNLR 58. In my opinion the finding in this case that the respondents paid only tribute during festive occasions, and not Ishakole coupled with other conclusions of fact by the learned trial Judge amply support the inference of an outright grant. So, I agree with the learned counsel for all the respondents that although the onus of proving limited grant was on the respondents, they amply discharged it.

 

As for the decision in Okoji v. Adejobi (supra), all that it said was that an outright grant in those early times was improbable, not that it was impossible. The highest one can say of it is that in those times, because traditionally land belonged to the community and not to the individual, an outright sale by an individual was then improbable. At best, it created a rebuttable presumption. In this case, any presumption against outright sale has been rebutted by positive evidence called at the trial which has been believed by the courts below.

 

For the above reasons, and the fuller reasons contained in the judgment of my learned brother, Nnamani, J S. C., which I adopt as my own, I also dismiss the appeal with the same orders as made by him in the lead judgment.

 

Appeal dismissed.

 

Counsel

 

Chief F. R. A. Williams, S. A. N. 

With him, O. Durojaiye

  ........

For the Appellants

R. A. Adekola

  ........

For the 1st - 4th Respondents

B. A. Aiku

  ........

For the 5th Respondents

M. A. Ayoade

  ........

For the 6th Respondents