IN THE SUPREME COURT OF NIGERIA
On Tuesday, the 22nd day of January 1963
1. E.T. ADEWOYIN
2. J.L. ADEBOWALE
3. J.K. ADEYEYE
4. G.O. ADEMILUYI
5. ADEBAYO ADEMILUYI
representing the ADEMAKIN/ADEMILUYI family of Ife ................................................... APPELLANT
JONES ADEYEYE ................................................................... RESPONDENT
Appeal by plaintiffs:
The plaintiffs, a branch of the Otutu Family, to which branch the defendant belonged, alleged that in 1933 the Otutus divided their lands and gave the plaintiffs' branch the land in dispute; it was so stated in a petition sent in 1950 to the Ife N.A. which the defendant signed. The plaintiffs also alleged that some time after the division they allowed the defendant to take tenants on condition that the ishakole would be shared among the members of the branch, but that he did not share it with them, and that finally he claimed to be sole owner. They claimed a declaration that the land belonged to the Ademakinj Ademiluyi family, their branch of the Otutus, and an injunction (confined in the Federal Supreme Court to restraining him from collecting the ishakole).
The defendant alleged that he began putting tenants on the land in 1938, when it was virgin forest, that until about 1950 he believed it was Otutu land, but in a case which he brought in 1949, on the family's behalf against one S.O. in the Ife Lands Court, it was ruled finally that the Otutus only had hunting rights which did not give them title to the land, so in 1952 he obtained a grant of the land from the Oni of Ife. The Oni's evidence was that he could grant for cultivation virgin forest only, not land which had been cultivated, and the land granted would become the property of the grantee and his heirs; that when the applicant belonged to a family with hunting rights over the area, he did not consult the family head, but if he was an outsider the Oni would consult the family-head before granting land within the area.
The defendant admitted that if tenants are put on family land the members of the family should share the ishakole; he argued that the Otutus only had hunting rights and could not acquire the land by cultivation, and the Oni had power to grant the land to him in 1952. The defendant's case did not distinguish between Iand under cultivation that he approached the Oni in 1952.
At the hearing of the appeal both sides agreed that the proceeding in the Ife Land Courts were a nullity. Its decision had affected the High Court judgment
The defendant objected that if the land belonged to the Otutu family the plaintiffs were suing not on its behalf but as representing a branch only.
(1) The land, originally Otutu land, had been allotted to the plaintiffs' branch in 1933, consequently the members of the branch were entitled to share the ishakole paid by tenants put on the land, and to have an injunction to restrain the defendant from collecting the ishakole.
(2) As the oni could not grant land which had been cultivated, the grant he made in 1952 to the defendant, for the sake of the land under cultivation in light of the Ife Lands Court judgment, was ineffectual.
(3) As on the evidence the land had been allotted to the plaintiffs' branch, this branch could maintain its claim against the defendant.
The distinction made by the Oni between a grant of bush to a member of the family which has hunting rights there and a grant to an outsider is contrary to natural justice as in either case the grantee becomes sole owner.
PER ADEMOLA, C.J.F. Very strong proof is required that that distinction, which is contrary to common sense and natural justice, is part of native land and custom.
Appeal Allowed; declaration and injunction granted.
APPEAL from the High Court of Western Nigeria.
R.A. Fani-Kayode, Q.C., (with him, A. Ademola and O.A. Duduyemi) for the Appellants.
Chief F.R.A. Williams, Q.C., (with him G.C. Nzegwu) for the Respondent.
Bairamian, F.J.:-The plaintiffs complain against the judgment of the 30th November, 1961, which dismissed their Suit (Ibadan No. 257/58). In their appeal they repeat their claim for a declaration of title to the land in plan CK 160/59 (on which it is shown edged red), abandon mesne profits and confine the old claim for an injunction against the defendant entering the land to one against his gathering "ishakole" from the tenants. The defendant, they said, belongs to the plaintiffs' family and may go on the land like any other member of the family; their complaint is that he is claiming the land to be his own and keeping all the "ishakole" to himself, instead of sharing it with the family. It amounts to £2,000 or more a year.
The defendant admitted in evidence that:-
"If tenants are put on family land members of the family should share the "ishakole"; but the land in dispute is mine.
The issue is whether the land belongs to the family.
Briefly put, the plaintiffs' case is that the land originally belonged to the Otutu family, of which their family is a branch; owing to one of the otutu family, namely Shoko Ademakinwa, monopolizing some of the family land, the Otutu family held a meeting in 1933, at which family land was allotted to various branches; and the land between Omifunfun and Idiako was one of two portions allotted to all the children of Ademiluyi, the head of the Ademakin/Ademiluyi family (who are the plaintiffs by representation), and that allotment included the children of Ademiluyi's younger brothers, Adebowale and Adeyeye, the defendant's father. It is mentioned in the petition which the family, including the defendant, sent to the Native Authority of Ife in 1950. The plaintiffs go on to allege in their pleading that in or about 1947 Adeyemo Eletiko, with the defendant, began putting tenants on the land with the family's consent on the understanding that when the tenants began giving "ishakole", all the members of the family would share. When the tenants began paying, the defendant at first promised to share, but did not, and finally said the land was exclusively his; and he has been keeping all the "ishakole" which the tenants pay.
The defendant's case is, briefly, that he owns the land; it did not originally belong to the Otutus. At one time the Otutus alleged that certain areas of land in Ife district belonged to them because the family had hunting rights, but (says the Defence) later court decisions stated that hunting rights in a forest did not confer ownership. The defendant admits there was a meeting in 1933, but it was over a dispute between Soko Ademakinwa and C.A. Layade over a farm at Osi Soko. The land now in dispute was then unknown virgin forest and was not mentioned. The defendant denies the plaintiffs' allegation of his putting tenants on the land in 1947 on the family's behalf and promising to share the "ishakole"; he alleges that since 1938 he has been farming and putting tenants on the land in his plan in his own right, and that before 1938 all the land in his plan was virgin bush.
I pause to note that his plan (L & L/A 3563) shows the land in dispute and some adjoining land besides, to which the plaintiffs lay no claim. To revert to the Defence: paragraph 18 states:-
"Believing that the Otutu family who had hunting rights over the land also had title to the said land the defendant started to cultivate the said area of land and put tenants in various parts of the land."
Boundary disputes led to his suing one Sanni Odera in the Ife Lands Court in 1949: the plaintiffs allege that the suit was decided in favour of the family, and the defendant points out that on appeal it was held that hunting rights did not confer title but were to be distinguished from farming rights. The Defence goes on to allege that:-
"20. Thereafter the defendant approached the Oni of Ife Sir Adesoji Aderemi for a grant and confirmation of title of his holding of the land delineated in plan No. L & L/A 3563. The Oni of Ife as the custodian of unoccupied virgin forest land in Ife has the right to allocate or grant the land. The confirmation was accordingly made."
Paragraph 23 states that it was on that authority of the Oni that the defendant and his tenants cultivated the land from pure virgin forest and built up villages. Before the grant, he had exercised openly all acts of ownership: the plaintiffs had never exercised any. When there were disputes over boundaries with neighbouring owners, the Oni sent his messengers to settle them.
It is plain that until the second pronouncement in the Lands Court on hunting and farming rights being different, everyone believed that the land was Otutu family land. When the defendant sued Odera, he says he did so on behalf of the Otutu family. Having regard to the fact that he signed the petition of 1950, which represents the land as having been allotted to the plaintiffs' family, which is the defendant's also, I am inclined to think that he sued on behalf of the plaintiffs' branch. Paragraph 18 of the Defence makes it plain that he cultivated and put tenants in the belief that the land was Otutu family land. In cross-examination he said that:-
"According to Otutu family history our ancestors had title to the farmland in dispute and we so contended in the petition but when the petition was turned down and all litigation proved abortive I decided to approach the Oni to obtain title to the land."
He did so unbeknown to his family, in 1952, and obtained a grant of some 3,000 acres for himself alone.
It is not proposed to say more on the judgment under appeal than this-that it is affected by the second decision of the Lands Court in the Odera suit. Both parties at the hearing of the appeal agreed that (for reasons into which there is no need to enter here) the proceedings in that court were a nullity; it was on that basis that arguments were advanced at the hearing.
The plaintiffs' case is simple: it is:-
A This is, or was, rather, Otutu family land which in 1933 was allotted to the plaintiff's branch of that family, and the defendant belongs to that branch;
B The defendant put tenants on family land, so the "ishakole" they pay belongs to the plaintiffs' family;
C The defendant cannot avail himself either of the decision of the Land Court or of the grant from the Oni which he obtained thereafter.
That decision was admittedly a nullity. The grant was a nullity, too. James Itiaran, a witness for the defendant stated (at the end of his cross-examination) that:-
"The Oni grants only virgin forest and not cultivated farmland."
The Oni, too, as a witness for the defendant, admitted that:-
"As the Oni I have no right to grant farmland which had been under cultivation because such land would have been granted by me or by my predecessors."
The Oni's evidence is that before the boundary disputes between the defendant and neighbouring owners, at a time when he was assured that the land was virgin forest, he made a grant, without any defined limits, of the land to the defendant; that later, when boundary disputes arose, he sent messengers to settle the boundaries; and after the Odera case he confirmed his grant to the defendant. That is putting the defendant's case higher than he himself puts it. The defendant admitted that it was after losing the Odera case that he sent someone to the Oni to give him a grant of the farmland-in 1952.
In passing it is useful to note that the Oni, as father of his people, is approached sometimes to settle boundary disputes; it does not mean that he had granted the land in dispute or on either side.
I must now refer to a passage in the Oni's evidence in chief, where he said this:-
"When once the Oni grants virgin forest to a person, such farmland belongs to the grantee and his descendants. The method of granting farmland to people is that if the applicant is from a hunting family the Oni grants to such a person permission to go and farm within the area where his family had hunting rights; in the case of applicants from other families, I would send for the head-hunter in the area and inform him of the request of the applicant and later send Emeses (messengers) to go with them to the virgin forest and cut sufficient forest for the applicant for farming purposes."
The distinction is invalid as in either case the grantee becomes sole owner; and as the rights of the family will be affected by being deprived of an area over which it has a right to hunt, natural justice requires that the family should be consulted. The grant which the Oni made-it was in 1952-sinned against that rule insofar as it included virgin bush, and insofar as it was cultivated land it sinned against the rule which is acknowledged by the Oni that he has no right to grant farmland under cultivation.
The defendant had been cultivating as far back as 1938. Part of his evidence in cross-examination is:-
"The Oni granted me the farmland in dispute in 1952. The farmland was partly cultivated in 1952 and partly virgin forest."
About 1938 he had a dispute with the brother of Comfort Adesola because he encroached on the latter's land; about 1951 he had a dispute with James Odunlate, who said the defendant's tenants encroached on his land; and who, by the way, said that the land on which the defendant was farming then was called Otutu family. There was also the dispute with Odera, which led to the Suit of 1949. Those disputes mean clearing or cultivation at the boundaries. How much of the land was virgin bush in 1952, and how much cultivated land, there is no means of knowing.
The plans in evidence, which were made in 1959, show that there is some light bush here and there, and some thick bush near the boundary; doubtless also in 1952 there was some virgin bush, but nothing hangs from that. Moreover, it was not the defendant's case in the court below that the Oni granted him virgin bush in 1952: there he relied on the Land Court's decision that people with hunting rights in bush had no right to bush had no right to farm it, and he wanted to relate back, to the days before he began cultivating what he believed was family land, the grant made to him in 1952. Likewise on appeal the argument for him does not seek to differentiate between cultivated land and land that was bush in 1952: the argument is that as at the time when cultivation began, many years before 1952, the land did not belong to the family hut was bush, and as the Oni (who was installed in 1930 as such) did not make any grant of the bush, the family could not acquire any rights by surreptitious cultivation of land in which they had only hunting rights, and it was competent to the Oni to make a grant to the defendant in 1952.
That argument depends on the judgment of the Land Court in substance, which is null and void. The fact remains that in 1952 the Oni made a grant of land under cultivation-that there were some bush parts does not matter upon the defendant's case: in fact his aim in approaching the Oni for a grant was to acquire title to the area under cultivation in light of the Odera judgment. The grant was contrary to native law and custom and ineffectual to confer title for the reasons above stated (before the mention of the plans, in dealing with the Oni's evidence on grants)
With the Odera judgment and the grant of 1952 out of the way, the plaintiffs' claim that the land is family land is plain, and cannot be gainsaid by the defendant, who, until the Odera judgment, shared the family belief in the tradition that the land belonged to the family, and it was in that belief that he cultivated it and put tenants on the land: Defence paragraph 18. He objects, however, that if the land belongs to the Otutu family, the plaintiffs are not suing on behalf of the Otutu family, but as representing a branch, namely the Ademakin/Ademiluyi family branch.
That objection does not come with good grace from a member of the family who disavows the family rights he had championed in the suit against Odera, nor is it available to him in view of his having signed the petition of 1950 believing that its contents were correct. According to paragraph 3(a) of the annex to that petition, the land in dispute was allotted to Ademiluyi and his brothers, and the evidence for the plaintiffs is to that effect. It seems to me, therefore, that the plaintiffs, as between themselves and the defendant, can maintain their claim against him. The court is not concerned in this case with any persons whom the defendant did not, because of the case he was putting up, ask to be joined: its only concern and duty is to adjudicate between the parties before it; and in my judgment the plaintiffs are entitled to succeed to the extent of the claims they have urged in their appeal.
In regard to costs, I have to observe that about half the material in the record was superfluous, and to regret that the solicitors of the appellants did not attend when the registrar of the court below was to settle the record, to advise him on what was relevant to the appeal. Appellants and their solicitors should realise that it is their duty to confine the record to what is relevant; and the registrar should look at the grounds of appeal for guidance in that regard. There was no point in including all the material relating to the appointment of a receiver.
The following order is proposed:-
"The appeal of the plaintiffs from the judgment of the High Court of the Western Region in the Ibadan Suit No. 257 of 1958 dated the 30th November, 1961 is allowed and that judgment is hereby set aside and replaced by a judgment declaring that the land at Omifunfun Onigbodogi shown in plan CK 160/59 (exhibit C) edged red is the property of Ademakin/Ademiluyi Family of Ife, and an injunction shall issue restraining the defendant, his servants and or agents, from collecting "ishakole" from the tenants on the land and taking the profits of the land, but the same shall be shared in the said Family, with liberty to apply to the court below in regard to the "ishakole" collected by the receiver and by the defendant, and with costs assessed at three hundred guineas in the court below and at seventy-five guineas as costs of appeal."
Ademola, C.J.F.: I agree with every word of the judgment which has just been read by my learned brother. I only wish to comment on two points in the evidence.
In the first place the Oni of Ife, under cross-examination, said as follows:" At the time the defendant approached me I knew the area was a forest." This cannot possibly be the true state of the area because it was clear that in 1952 (when the defendant said he approached the Oni for the land) the area was not a forest. It is possible, however, that the Oni was misled.
The other point relates to the distinction which the Oni drew between an applicant for virgin forest land over which a family has hunting rights who is a member of that family, and an applicant who is not. The Oni's evidence is that in the latter case he consults the head hunter of the family, but in the former case he does not. If his evidence means that his practice is in accord with native law and custom, then I am bound to say that it is not acceptable. For one thing, it is contrary to common sense and natural justice, for another I should require very strict proof of the implied suggestion that such was the distinction in native law and custom. The Oni was the last witness for the defence, so his suggestion could not be tested by questions to other witnesses. For the time being it must not be regarded as anything more than a mere suggestion on his part, designed as it was no doubt to justify his granting to a single individual member of a large family, without consulting the family or its head, a vast area of three thousand acres of land over which, at the least, the family had hunting rights insofar as it was virgin forest-which, by the way, it was not at the time of the grant except as to an undetermined portion.
Taylor, F.J.:- I agree with both the judgments delivered.