IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 16TH DAY OF SEPTEMBER 1983

SC 4/1983

BETWEEN

MOHAMMED OJOMU ............................................... APPELLANT

AND

SALAWU AJAO .................................................... RESPONDENT

BEFORE: Sowemimo, Bello, Obaseki, Eso, Aniagolu, JJ.S.C.

The respondent in this case at the High Court brought a claim for special and general damages against the appellant and another defendant for demolishing a building on a piece of land which the respondent had leased from the Ojora Chieftaincy family under customary tendency and an injunction restraining the appellant and another defendant from further trespass on the said piece of land.

The learned trial Judge gave judgment to the respondent on the two claims and found as a fact that the respondent had been in possession lawfully since 1961 and that at no time was his interest determined. The court also found that respondent had created some structures which was demolished unlawfully by the 1st defendant and that though the 2nd defendant who is appellant was not connected with the demolition of the respondent property, he nevertheless entered unlawfully onto the land and erected a new building. The learned trial Judge after considering these facts, held that since the possessory right of the respondent was never determined, no interest could be conveyed under any registered conveyance to appellant by the Ojora Chieftaincy family and granted the claims of the respondent against the 1st defendant and 2nd defendant (i.e. the appellant).

The Federal Court of Appeal upheld the finding of the High Court.

On a further appeal to the Supreme Court the appellant contended that the respondent did not establish possessory right under customary tenure and that though the appellant was sued with another defendant jointly and severally for claim for special and general damages for the demolition of a building, no evidence was led to connect the appellant with the act relating to the demolition complained of and therefore it was wrong for the trial Judge to have entered judgment against the appellant in respect of special damages claimed for the demolition of the property against the appellant.

HELD:—

(1) The appellant’s right is a lease under customary tenure and is not to be determined or defined by formal English law legal terms of “lease” or “legal estates” or “equitable estates.” The relationship may be defined as belonging to that class in which, under Customary Law, a landlord makes a grant of a piece of land to a tenant who pays a yearly rent to him and utilises the land for the purposes for which they agreed and remains on the land paying the rents thereof, in perpetuity subject to good behaviour, and subject to forfeiture upon bad behaviour such as refusal to pay rents or the denial of Landlord’s ownership of the land.

(2) There were concurrent findings of the courts below that the respondent was in possession of the land as a customary tenant, paying his rents from 1961-1976 and had not been dispossessed at the time of the demolition of the building on the land in dispute and according to standing practice the Supreme Court would not disturb these findings unless some extraordinary circumstances are shown.

(3) Payment of rent or customary tribute as agreed by a customary tenancy following the grant made, coupled with going into possession, gives the customary tenant a right of possession which the law protects even against a subsequent purchaser of a radical title in the land.

(4) There was no evidence from the respondent that the appellant took part in demolishing his building, therefore there appear to be no justification for awarding damages against the appellant in respect of the demolition of the respondent building.

The appeal in the main is dismissed but the sum of N5,200.00 award of special damages for the demolition of the respondent’s building stands against the 1st defendant only.

Cases referred to:–

(1) Abiodun v. Erinmilokun (1961) 1 All N.L.R. 294.

(2) Aderonmu Okiji v. Adejobi (1960) 5 F.S.C. 44.

(3) Aghenghen and others v. Waghoreghor and others (1975) 1 S.C. 1.

(4) Asan Taiwo and others v. Alamo Akinwumi (1975) 4 S.C. 143.

(5) Caulcrick v. Harding (1926) 7 N.L.R. 48.

(6) Ejeanalonye and others v. Omabuike and others (1974) 1 All N.L.R. 298.

(7) Etowa Enang v. Fidelis Adu (1981) 11-12 S.C. 25.

(8) Idewu Inasa v. Sakariyawo Oshodi 10 N.L.R. 4.

(9) Kabiwu v. Lawal (1965) 1 All N.L.R. 329.

(10) Ogunbambi v. Abowaba (1951) 13 W.A.C.A. 222.

(11) Oloto v. Dawuda 1 N.L.R. 57.

(12) Orasanmi v. Idowu (1959) 4 F.S.C. 40.

(13) O. Solomon and others v. A. R. Mogaji and others (1981) 11 S.C. 1.

(14) Umofia v. Ndem (1973) 12 S.C. 69.

(15) Ramsden v. Dyson (1866) L.R. 1 H.L. 129.

Mr H.A. Lardner (S.A.N.) (with S. E. Obi) for the Appellant.

Mr M.A. Olajumoke for the Respondent.

Aniagolu, J.S.C. This is another of those cases in which a land-owning family in Lagos sells the same land to several purchasers leaving them to fight the issues in court as to the priorities of their competing interests in the purchased land.

The land involved in this appeal is situate at 8, Iya Ojo Street, Ajegunle, Apapa, and was the subject of a survey, the plan of which was tendered before the trial Court as exhibit C.

The plaintiff contended that the land was “leased” to him by the Ojora chieftaincy family in 1961 in which year he went into possession and paid his first rent for which a receipt (exhibit A) was given to him by the family and, enjoying peaceable possession, without let or hindrance, until the interference, by the defendants in October 1976 complained of.

The plaintiff’s endorsed writ of summons claimed as follows:

“The plaintiff’s claim is for:–N20,000.00 special and general damages for the wrongful entry by the defendants in or about October, 1976 on the land situate at 8 Iya Ojo Street, Ajegunle, Apapa in the plaintiff’s peaceable possession and for the demolition of the plaintiff’s uncompleted building thereon; and for an injunction restraining the defendants, their servants, workmen and agents, or otherwise from further entry on the said land or from building any structure thereon.”

Pleadings having been ordered, the parties delivered their pleadings which, by reason of their comparative shortness, are reproduced in full. The Statement of Claim was dated 9th May, 1977 and reads:

“Statement of Claim

1. The plaintiff was and is at all material times in possession of the piece or parcel of land in a place now called 8 Iya Ojo Street, Ajegunle, Apapa.

2. The plaintiff, through Alhaji Tunde, a runner for the Ojoro chieftaincy family, the landlords, got a lease of the said piece of land from the landlords in 1961 under customary tenure. He paid rents annually and were (sic) given receipts all of which except that for 1966 were lost. The 1966 receipt and subsequent receipt will be founded upon.

3. At the time of acquiring the said parcel of land, the area in which it is situate was undeveloped, the only buildings there being Nos. 1, 4 and 10 Ojo Street, Ajegunle, Apapa.

4. Having been put in possession, the plaintiff got the piece of land surveyed in 1964. The plan will be founded upon.

5. The plaintiff employed Alhaji Tunde as contractor to fill up the land which was very low lying and to construct a building thereon. He paid to the contractor the sum of £400 now N800.00 for the filling and the sum of £5,000 now N10,000.00 as part payment for the construction of the house. The contractor’s receipts for these sums will be relied upon.

6. The constructor filled the plot and constructed the building up to the window level in accordance with the building plan No. ROM/3/44 which will be founded upon.

7. In October, 1976 labourers were seen demolishing the uncompleted building. They said they were employed by the 1st defendant to do so. The 1st defendant confirmed this statement at the Police Station Ajegunle. The plaintiff did not permit anybody to enter on the land. The plaintiff caused photographs of the demolished building to be taken and this will be founded upon.

8. The plaintiff’s building having been demolished, the 2nd defendant began to build a house on the land and is still building.

9. By reason of the above premises the plaintiff suffered loss and damage.

PARTICULARS

DAMAGES:

10. Wherefore the plaintiff claims from the defendants jointly and severally:—

(a) The sum of N20,000.00 being special and general damages for trespass.

(b) An injunction restraining the defendants, their servants, agents or workmen or otherwise from further acts of trespass on the land or from building any structure thereon.

Dated this 9th day of May, 1977.

(Sgd.) M. NWOKEJI
Plaintiff’s Solicitor,
100 Bale Street,
Ajegunle, Apapa.”

It was replied in a statement of defence dated 29th September, 1977 filed, pursuant to an order granted for extension of time within which to file the defendants’ statement of defence. This was the statement of defence which, again, by reason of its relative shortness, is reproduced in full:

“STATEMENT OF DEFENCE
FILED BY THE 1ST AND 2ND DEFENDANTS

1. SAVE as herein expressly admitted the defendants deny each and every allegation of facts set out in the plaintiff’s Statement of Claim as if each were set out and traversed in seriatim.

2. The defendants deny paragraphs 1, 2, 4, 6, 7, 8 and 9 of the Statement of Claim.

3. The defendants are not in position to admit or deny paragraphs 3 and 5 of the Statement of Claim but put the plaintiff to the strictest proof thereof.

4. The defendants aver that the plot of land in dispute was demised for a term of fifty (50) years by the Ojora chieftaincy family to the second defendant under and by virtue of a deed of lease registered as No. 45 at page 45 in Volume 1591 of the Register of Deeds at the Lands Registry, Lagos.

5. The defendants aver that prior to the lease hold interest granted to the second defendant the land in dispute was in possession of the Ojora chieftaincy family who sometime in 1976 put the second defendant into possession thereof.

6. With reference to paragraph 7 of the Statement of Claim the defendants aver that the plaintiff was never in possession of the land in dispute and that none of the defendants ever demolished any structure on the land.

7. The defendants aver that the first defendant is a principal member of the Ojora chieftaincy family the owners of the land in dispute and contend that the plaintiff has no cause for action against any of the defendants.

8. The defendants aver that the second defendant is the only tenant of the Ojora chieftaincy family who is in lawful and exclusive possession of the land in dispute and has now developed the land by erecting thereon building costing over N60,000 with the knowledge, consent and approval of the owners of the land.

(EXHIBIT A REFERRED TO)

WHEREFOR the defendants contend that the plaintiff’s case is misconceived and that the plaintiff is not entitled to the relief claimed.

Dated this 29th day of September, 1977.

(Sgd.) FEMI ALOKOLARO AND CO.
Defendants’ Solicitors,
11, Martin Street,
(3rd Floor),
Lagos.”

Each party gave evidence in support of his pleadings. The plaintiff, in addition to his evidence, called five witnesses which included the licensed surveyor (one MARCELIN AUGUSTINE SEWEJE PW2) who surveyed the land for him and produced a plan, exhibit C; two members of the Ojora chieftaincy family, JIMOH AKINDELE OJORA (PW3) and ABUDU YEKINI LAWANI (PW4); the mason who built the uncompleted house for him on the land, one ALHAJI GANIYU OLATUNDE, and a policeman, one DAVID AFOLABI OJO.

The defendant, apart from his own evidence called a member of the Ojora chieftaincy family who described himself as “the Supervisor to the Ojora chieftaincy family estate”, one ALHAJI ABDUL LASISI OJORA and his licensed surveyor, MICHAEL OLUDAYO AKANMU. Alhaji Lasisi testified to the deed of conveyance of the land in dispute to the defendant (exhibit F) while surveyor Akanmu testified to a survey plan made by another licensed surveyor to whom he was attached, one A. B. Apatira, but who was not called–a survey plan rejected by court as inadmissible. It is difficult to see why Apatira’s presence was considered necessary when the plan in question had gone in as part of the deed of conveyance, exhibit F, without objection.

The position then was that whereas the plaintiff based his title upon a grant made by the Ojora chieftaincy family in 1961, on payment of yearly rents coupled with his being let into possession, with his exercise of acts of possession by the building of an uncompleted house, the 2nd defendant based his own title on a deed of lease (exhibit F) dated 5th November, 1976 registered as No. 45 at page 45 in Volume 1591 of the register of deeds in Lagos State Land Registry, Lagos.

The matter came for adjudication in the High Court of Lagos, before Okuribido, J., who found for the plaintiff, holding that in the circumstances of the case, the plaintiff had acquired an equitable interest in the land having got his interest under customary tenure and having gone into possession since 1961. He held that although the plaintiff did not have a formal lease and there being no evidence that he had either surrendered his interest to the Ojora chieftaincy family or that steps had been taken by the said family for forfeiture and the land forfeited by the plaintiff, yet the plaintiff was entitled to continue in his possession and his interest preferred to that of the 2nd defendant under the deed of lease, exhibit F. The circumstances, he held, raised a presumption that he entered into possession under a contract from which arose an equitable interest by specific performance on the principle in Ogunbambi v. Abowaba (1951) 13 W.A.C.A. 222.

On the issue of damages the learned trial Judge found that the plaintiff’s uncompleted building on the land was demolished by the 2nd defendant aided by the 1st defendant and, therefore, they were liable in damages, which he assessed at N5,200.00 special damages and N3,800.00 general damages making a total of N9,000.00. He granted a perpetual injunction restraining the 2nd defendant from further entry on the land or building any structures on the same. He awarded the plaintiff his due costs.

Dissatisfied with the judgment, the 2nd defendant appealed to the Federal Court of Appeal on grounds of appeal which were later amended and finalised as follows:

“AMENDED GROUNDS OF APPEAL

The judgment is against the weight of evidence. The learned trial Judge misdirected himself in law and on the evidence by failing to observe that the plaintiff did not establish by evidence what he pleaded, namely, ‘lease under customary tenure.’ Alternatively, if by ‘a lease under customary tenure’ the plaintiff was pleading that he was a customary tenant, he equally did not plead and prove by evidence the incidents of a customary tenancy and that his grant was a valid customary tenancy under Yoruba Customary Law. The learned trial Judge misdirected himself in law and on the evidence in holding that the plaintiff had an equitable interest in the land because he had produced some receipts to prove payment of rent and the 2nd defendant was not a bona fide purchaser of the legal estate without notice of the plaintiff’s equitable interest.

The learned trial Judge misdirected himself in law and on the facts by failing to observe that the evidence against the 2nd defendant was different from the evidence against the 1st defendant and that the 2nd defendant although sued with the 1st defendant was entitled to have the case against him determined by the evidence against him and the lawful inference therefrom and that

(i) there was no evidence that the 2nd defendant participated in the destruction of any house and was liable in special damages;

(ii) there was no evidence that the 2nd defendant had any notice of the alleged interest of the plaintiff in the land at the time of this entry thereon;

(iii) there was no proof that the plaintiff had any interest in this land and that his possession (if any) could prevail over the 2nd defendant’s leasehold title by a registered lease from the Ojora family.

The learned trial Judge misdirected himself in law and on the evidence by failing to observe that there was no evidence or no credible evidence

(a) that the plaintiff paid rents annually and was given receipts which were lost;

(b) that the receipts exhibits A and B referred to any lease by a customary tenant and that accordingly they must be construed and understood according to their clear terms;

(c) as to the dimension of the land covered by exhibits A and B.

the learned trial Judge misdirected himself in law and on the evidence in finding the special damages proved when

(i) there was no credible evidence in proof of such damages: the evidence of PW5 (Olatunde) contradicted the plaintiff’s pleading and the plaintiff’s evidence.

(ii) the learned trial Judge’s own computation is not supported by the evidence.

The plaintiff having claimed special damages, the award by the learned trial Judge of general damages in the sum of N3,800 was manifestly excessive and erred in principle.”

The Federal Court of Appeal (Ademola, Nnaemeka-Agu, and Mohammed, JJ.C.A.) delivered a unanimous judgment on 30th June, 1982 and dismissed the appeal in respect of trespass and injunction, varied the amount of the general damages from N3,800.00 to N1,000.00 and dismissed the appeal in respect of the amount awarded as special damages. In other words, instead of a total of N9,000.00 awarded by the trial Judge, the Federal Court of Appeal awarded a total of N6,200.00.

It was from this judgment that the 2nd defendant appealed to this Court initially on three grounds of appeal as hereunder:

“1. The Federal Court of Appeal misdirected itself in law in upholding the objection of the respondent and striking out additional grounds of appeal Nos. 2-6 on the ground that they were defective because there were no particulars given of the errors of law which were alleged and that the said grounds therefore offended the provisions of Order 3, rule 2(2) of the Federal Court of Appeal Rules.

2. The Federal Court of Appeal misdirected itself in law in holding that

‘It is without doubt that the plaintiff entered into a lease agreement with the Ojora chieftaincy family in respect of the land in dispute’

when there was no evidence whatsoever before the court in proof of the grant of customary tenancy in favour of the plaintiff by the Ojora chieftaincy family.

3. The Federal Court of Appeal misdirected itself when it stated

‘This appeal has been brought by the appellants who were the defendants at the court below against the decision of the learned trial Judge. . .’

when only the 2nd defendant appealed and the court thereby failed to appreciate that the only appellant before them was the 2nd defendant and the appeal was confined to considering the contention of the said 2nd defendant against the plaintiff.’

By a motion dated 17th March, 1983 the 2nd defendant/appellant applied to amend the grounds of appeal into 7 amended grounds of appeal. The 2nd defendant however, failed to obtain leave either of the Court of Appeal or of the Supreme Court and most of the amended grounds of appeal which he was seeking to argue being either grounds of facts or of mixed law and facts, this Court refused to allow them. Some of the grounds being patently unarguable were withdrawn by the appellant. Accordingly, grounds 1, 2, 3, 4, part of 5, and 6 were struck out. Remaining to be argued were part of ground 5 and ground 7. These grounds were as follows:

“5. The Federal Court of Appeal misdirected itself in law in upholding the decision of the learned trial Judge that the plaintiff had acquired an equitable interest in the land in dispute prior to the subsequent lease of the same land to the defendant

PARTICULARS

1. It is not the plaintiff’s case on the pleading that he was an equitable owner or had an equitable interest.2.

2. . . .

3. . . .

4. . . .

6. . . .

7. The Federal Court of Appeal misdirected itself in law in not upholding the submission of learned Counsel for the appellant that upon the relevant facts found and on the undisputed issues of fact, the 2nd defendant was entitled to judgment dismissing the claim against him.

PARTICULARS

(i) The undisputed relevant and material facts are that the plaintiff only proved that he was a tenant for and up to the year 1976.

(ii) The appellant’s entry on the land that year can at best ground only a claim for damages for trespass and not for an injunction, the writ being issued after the expiry of the plaintiff’s tenancy.

(iii) The claim for damages for trespass failed because it was the 1st and not the 2nd defendant who evicted the plaintiff and it was the Ojora family who put the 2nd defendant into possession.”

Arguing the appeal before us based on his brief, Counsel for the appellant, Mr Lardner, S.A.N., contended that the plaintiff’s case was a lease under customary tenure. No-where, he argued, in the pleadings did the issue of equitable interest arise. If the estate pleaded by the plaintiff was established, he contended, it required nothing further to establish it to make it a legal estate. He stated that after plaintiff had given evidence and amended his Statement of Claim to one of “customary tenure”, he did not go further to give evidence on customary tenure. Referring to the decided cases of Ejeanalonye and others v. Omabuike and others (1974) 1 All N.L.R. 298, and Umofia v. Ndem (1973) 12 S.C. 69 on the issue of pleadings, Mr Lardner argued that the plaintiff proved, at best, only a yearly tenancy.

In reply, Mr Olajumoke, pointing to the pleadings and the evidence, submitted that legal terms in English law did not feature in the case and that the nature of the grant to the plaintiff was simply one of “a lease under Customary Law.”

It appears to me that the legal relationship between the plaintiff and the Ojora chieftaincy family is not one to be determined or defined by formal English law legal terms of “lease” or “legal estates” or “equitable estates” and various legal interests thereon as appellant’s Counsel tried to apply. The relationship may be defined as belonging to that class in which, under Customary Law, a landlord makes a grant of a piece of land to a tenant who pays a yearly rent to him and utilises the land for the purposes for which they agreed (such as for residential, or for cultivating seasonal crops etc.) and remains on the land, paying the rents thereof, in perpetuity, subject to good behaviour, and subject to forfeiture upon bad behaviour, such as refusal to pay rents or the denial of the landlord’s ownership of the land.

The tenant, in those circumstances, holds a determinable interest in the land which he may enjoy in perpetuity subject to good behaviour. In practice, the relationship is one regarded by the courts as practically indefeasible once permanent buildings or other structural improvements are erected on the land: Josiah Aghenghen and others v. Chief Maduku Waghoreghor and others (1974) 1 S.C. 1; Asani Taiwo and others v. Alamo Akunwumi and others (1975) 4 S.C. 143 at 183-184.

The customary tenant remains in a fortified position once, being of good behaviour, he is fulfilling the conditions of his grant and may not be removed therefrom, especially after making substantial improvements, even where the landlord sells the land to another landlord. In that case the sale by the landlord is subject to the rights and interests of the customary tenant (Lasisi and another v. Tubi and another (1974) 12 S.C. 71 at 74; (1974) 1 All N.L.R. (Pt. 2) 438. The cardinal point is that the possession of the good-behaving customary tenant is protected by law and dispossession is not allowed. In Aghenghen (supra) where the grantors do not live on the land or farm thereon, the possession of the customary tenants was described by Elias, C.J.N., at 87 as being

“nine-tenths of the law,”

while in Lasisi (supra) at 42, this Court put it this way, namely, that a purchaser of the overlord’s radical title may no doubt have acquired title “but never in the least, possession which, at all times, is reposed in the customary tenant until forfeited.”

The forfeiture may be incurred depending on the circumstances of each case. As stated in Taiwo v. Akunwumi (supra), acts which may constitute misbehaviour justifying forfeiture of the customary tenancy, may vary from the situation to another, depending upon the particular circumstances of each case. The court has a duty to consider the complaints of the landlord against the customary tenant and to determine whether they are of such serious nature as to justify forfeiture.

The solid facts on which the plaintiff’s case was predicated and which were accepted by the learned trial Judge were that the Ojora chieftaincy family made a grant of the land in dispute to the plaintiff in 1961. The plaintiff swore that he paid for the grant and received the receipt, exhibit A, in respect thereof. I have looked at this receipt. It is dated 17th June, 1955 and carried a sum of £4:–:–: There is obviously a mistake as to date but that does not seem to make much difference in terms of the priorities of the competing interests of the plaintiff and the defendant since the grant to the defendant was made in November 1976 for which exhibit F was made as his deed of lease. It would perhaps have been different if the defendant had claimed to have received his own grant at the same time as the plaintiff got his. As it was, the defendant was not making any claim to the ownership of his interest in the land earlier than November 1976.

The learned trial Judge was satisfied, on the evidence, that as far back as 1961, a faction of the Ojora chieftaincy family granted the land to the plaintiff, although no deed of lease was executed in his favour; that the plaintiff paid his yearly rent to the Ojora chieftaincy family for that year and subsequent years, evidenced by another receipt, exhibit B, carrying a payment of N60.00. He found that the plaintiff engaged the contractor (PW5) to erect a building on the land and that he erected the said building to window level; that before he commenced the building he had to fill the ditch existing in the land; that the 1st and 2nd defendants demolished the said structure in 1976 before the 2nd defendant erected his own building costing him about N60,000.00 on the land. He, therefore, held that the plaintiff was in actual possession of the land in dispute before the 1st and 2nd defendants demolished his building in 1976. In the premises, he held that they were trespassers and liable in damages to the plaintiff for breaking his close.

In preferring the evidence of the plaintiff and his witnesses to that of the defendant and his two witnesses, he held the 1st defendant to be an untruthful witness and found him to be one of those people “peddling” with family land without authority. He found him to have fraudulently deceived the accredited representatives of the Ojora chieftaincy family into making a grant of the same land they had granted to the plaintiff in 1961, to the 2nd defendant on 5th November 1976 by deed of lease, exhibit F. He finally found that the receipts exhibits A and B were in respect of monies paid by the plaintiff to the Ojora chieftaincy family in respect of land in dispute of which he became seized as a customary tenant. He held the plaintiff to have been in undisturbed possession of the land in dispute from 1961 until this possession was disturbed in 1976 by the defendants. He bemoaned the double dealing of the Ojora chieftaincy family in these words.

“The conduct of the Ojora chieftaincy family in the whole transaction is to say the least in-glorious. Like their counter-part, the Oloto chieftaincy family, they have either by mere inadvertence or design lease (sic) or purport to lease the same piece of land at different times to different persons. It passes my comprehension how in these days when disputes of this nature have come before the courts over and over again, any person will lease or purchase a piece of land from the Ojora chieftaincy family without the most careful investigation. In this, the second defendant aided by the first, in my opinion, saw the uncompleted building of the plaintiff and regardless of the consequences, demolished it and the second defendant commenced his own building thereon. It is (sic) clear therefore to the second defendant that what he had purported to lease by exhibit F is nothing but a law suit and that is all he has got.”

The Federal Court of Appeal, in its judgment, also accepted that it had been established that the plaintiff/respondent was possessed of the land as a customary tenant of the Ojora chieftaincy family, paying his rents in respect thereof from 1961 to 1976, and that the photograph (exhibit E) was a true picture of his demolished building on the land in dispute.

In respect of these facts, therefore, there were concurrent findings of the courts below and unless some extra-ordinary circumstances are shown why these findings should be disturbed, it has been the standing practice of this Court, on a long line of authorities among the last batch of which were the cases of Etowa Enang and others v. Fidelis Adu (1981) 11-12 S.C. 25 and Victor Woluchem and others v. Simon Gudi and others (1981) 5 S.C. 319 at 326-330, not to disturb those concurrent findings.

Mr Lardner, in a careful argument for the appellant, had submitted in his Brief, that the plaintiff’s case on title was not based on equitable interest in the land and that equitable interest or title was not raised by the defendant and was not an issue during the trial. What was in issue, he said, was that the plaintiff had a perfected or legal title, as distinct from an unperfected, or partly perfected, grant or equitable interest, from the Ojora chieftaincy family. If the estate pleaded by the plaintiff was established, he said, nothing further would have been required to make it a legal estate. Therefore, he contended, the Federal Court of Appeal was wrong in law to have found that judgment must be entered against the appellant unless he could establish that “he was a legal purchaser of the land for value and without notice of the plaintiff’s possession and equitable interest.”

Interesting from point of view of abstract jurisprudence as this line of argument proved to be, another cardinal point is that in indigenous customary tenancy these abstract legal notions, as understood in English law, hardly apply. Payment of rent or customary tribute as agreed, by a customary tenant following the grant made, coupled with going into possession, gives the customary tenant a right of possession which the law protects even against a subsequent purchaser of the radical title in the land.

Whether the tenancy be regarded as a customary tenancy in which case the respondent is regarded as a customary tenant, or the tenancy be regarded as a customary lease by reason of the yearly payments of rents by the respondent to the Ojora chieftaincy family, in which case the respondent is regarded as a customary lease (see: Ejeanalonye and others v. Omabuike (supra) at 301), the practical effect in this case on appeal is the same, namely, that a right of possession had ensured to the respondent which was not defeasible by the subsequent lease of the land by deed, by the Ojora chieftaincy family, or a faction thereof, to the appellant.

Turning to the issue of liability of each of the defendants, the plaintiff/respondent testified before the trial Judge as follows:

“In October 1976 the first defendant caused my building on the land to be demolished. The people who demolished the building were arrested by the police and Alhaji Rasaki Ojora (1st defendant) was sent for. At the Police Station Ajeromi Apapa in my presence the first defendant admitted he instructed the people to demolish the building and he even put into writing at the police station. I did not authorise anyone to enter on the land. Apart from reporting the demolition to the police I caused a photograph of the demolition to be taken. The photographer gave me a printed copy and the negative of the photograph taken. This is the printed copy and negative of the photograph tendered for identification and marked Iden. 3 and 4 respectively. After the demolition the second defendant started erection of a house on the land. I did not permit him to erect any building on the land hence I took this action against them.”

There was no evidence from the plaintiff/respondent that the 2nd defendant/appellant took part in demolishing his building. There would, therefore, not appear to be any justification, in respect of the 2nd defendant/appellant, for the following passages in the judgment of the learned trial Judge:

“There is abundant evidence before me which I believe that the first and 2nd defendants caused the plaintiff’s structure on the land situate at Iya Ojo Street now known as No. 8 Iya Ojo Street, Ojo Road, to be demolished and thereafter the second defendant commenced a new building thereon on which he stated in his evidence that he had expended about sixty thousand Naira (N60,000.00). . .

“Therefore, I hold that at the time the 1st and 2nd defendants demolished the building of the plaintiff on the land, he (plaintiff) was physically in possession of the land.”

Though he might not have taken part in the demolition, yet the 2nd defendant went into the land and commenced erecting his own building–an act of trespass (see: Kabiwu v. Lawal (1965) 1 All N.L.R. 329 at 335).

The Federal Court of Appeal dismissed the appeal and entered judgment against the two defendants in respect of special and general damages, though with a variation. The court did not go into different roles played by each defendant in accordance with the plaintiff’s evidence. But, justice dictates that their different roles should be examined for the purpose of apportionment of damages. It follows that the sum of N5,200.00 which was awarded for the demolition of the building must be borne by the 1st defendant only and the 2nd defendant absolved from responsibility in respect thereof. Both defendants are of course liable for the N1,000.00 general damages for trespass since the 1st defendant put the 2nd defendant into possession–a possession which is held to be a trespass.

This appeal in the main must therefore be dismissed and consequential orders made as follows:

(i) The sum of N5,200.00 awarded a special damages for the demolition of the plaintiff/respondent’s building on the land in dispute must stand but only against the 1st defendant. The appeal of the 2nd defendant/appellant is allowed in respect thereof;

(ii) The general damages of N1,000.00 awarded against both defendants must stand and the appeal in respect thereof hereby dismissed;

(iii) The injunction granted against both defendants restraining them, their servants, agents or workmen from future acts of trespass, whatever, on the land in dispute including building any structures thereon, also must stand and the appeal against the order thereof hereby dismissed.

The respondent is entitled to the costs of this appeal which I hereby assess at N300.00.

Sowemimo, J.S.C. I have read in draft the judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree that this appeal be dismissed, but the judgment on the award of damages against the appellant before us be varied.

The claim before the High Court of Lagos State was for special and general damages against the appellant and another defendant for demolishing a building on a piece of land which the respondent had leased from the Ojora chieftaincy family paying annual rental from 1961 up to the time of the alleged demolition. The second arm of the claim was for an injunction restraining the two defendants from further trespass on the piece of land. The learned trial Judge gave judgment for the plaintiff/respondent on the two claims against the defendants and found as a fact that the plaintiff had been in possession of the land lawfully and that the Ojora chieftaincy family had accepted annual rental payment from 1961 and had at no time determined his interest. It was also established and found as a fact that he developed the land and erected some structures on the land as a result of which the building was given a numbered address because on either side of the building were two completed buildings by other persons. The plaintiff further established that the structure which he made on the land was demolished unlawfully and he reported to the police with the allegation that the 1st defendant was responsible for the demolition. Some pictures of the demolished property were tendered at the hearing of the case. Although there was no allegation against the second defendant, who is the appellant before us, that he was connected with the demolition of the plaintiff’s property, nevertheless, it was established and found as a fact that he entered on the land unlawfully and erected a new building. The defence of the appellant was that he was not aware of the previous holding of the plaintiff as a tenant of the Ojora chieftaincy family and that he obtained a conveyance of the same piece of land from the same family through the agency of the 1st defendant. The learned trial Judge after considering the whole facts, held that since the possessory right of the plaintiff was never determined, no interest could be conveyed under any registered conveyance to another party by the Ojora chieftaincy family because that family had no interest to convey and that, therefore, the entry on the land by the 2nd defendant/appellant constituted a trespass. He, therefore, granted the claims of the plaintiff against the two defendants jointly and severally.

On appeal to the Federal Court of Appeal the findings of the court of first instance on the facts were upheld. On appeal before us learned Counsel for the appellant contended that the plaintiff/respondent did not establish possessory right under a customary tenure. He also contended that although the appellant was sued with another defendant jointly and severally for the claim for special and general damages for the demolition of a building, no evidence was led to connect the appellant with the act relating to the demolition complained of. He was on strong ground on this contention, because on a perusal of the record, the plaintiff never gave evidence connecting the appellant with the direct demolition of his property on the land, and therefore it was wrong for the trial Judge to have entered judgment against the appellant in respect of the special damages claimed for the demolition of the property against the appellant. On the contention that he entered on the piece of land on the authority of a registered leasehold granted to him by the Ojora chieftaincy family, there was a finding, as I have already stated above that the plaintiff’s possessory right was still existing when the purported conveyance was executed. The conclusion, therefore, is that in such a situation he had no claim of right to enter upon the land and erect a building on it. On that ground, therefore, the appellant’s entry on the land constituted a trespass and therefore the plaintiff/respondent was entitled to claim general damages for trespass against the appellant. On the issue of injunction it must follow that since plaintiff/respondent’s right to possession still exists and had not been determined by the Ojora chieftaincy family the defendant/appellant will be ordered to refrain from further trespass on the land, and the judgment of the court of first instance which was upheld by the Federal Court of Appeal granting the claim for injunction shall be upheld.

The appeal therefore fails subject to the variation contained in the judgment of my learned brother Aniagolu, J.S.C., which I hereby adopt. The appeal ought to be dismissed and is hereby dismissed and the judgment of this Court as contained in the judgment of my learned brother Aniagolu, J.S.C., is hereby substituted in respect of the claim for special and general damages, but the claim for injunction is sustained. I hereby award costs of N300 against the appellant in favour of the respondent.

Bello, J.S.C. For the reasons stated by my learned brother, Aniagolu, J.S.C., I agree the appeal should in the main be dismissed except the appeal against the award of N5,200 as special damages, insofar as the award concerns the appellant, which should be allowed. I endorse all the orders made by Aniagolu, J.S.C., including the order as to costs.

Obaseki, J.S.C. I have had the advantage of reading in draft the judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree entirely with all opinions expressed in the judgment and for those reasons, I too, would dismiss the appeal.

The appellant, in his desire to secure a parcel of land free from any dispute to build on, decided to approach one of the land owning families in Lagos in September, 1976. The choice fell on the Ojora chieftaincy family. The appellant was not looking for a free gift. He was prepared to pay for it. Unknown to him, the Ojora chieftaincy family had earlier on split into two factions, each claiming to have the authority of the family to manage the family land. The respondent, haunted by the same desire, was first in time to make the approach. He did so 15 years earlier and the land in dispute was granted to him in 1961. He did not get a freehold title but a customary title to remain on the land provided he pays his yearly rent. He paid the first year’s rent in 1961 and obtained receipt, exhibit ‘A’ from the Ojora family and has continued the yearly payment of rent ever since. The grant has been loosely described as a “lease” but it is not a lease in the strict legal sense of the word. Soon after he acquired his interest, he took immediate steps to have the land surveyed and a plan of the land exhibit ‘B’ was prepared and produced by his surveyor and is in evidence.

He did not stop at that, he proceeded with the construction of a building on the land. The building was at an advanced stage of construction when work on it stopped due probably to lack of funds. The evidence showed that construction had taken the building to window level.

Following the request for land made by the appellant to the Ojora chieftaincy family, the family decided to make the land already given to the respondent available to him. They, particularly Alhaji Rasaki Ojora who was 1st defendant in the High Court in this case, then proceeded to demolish the building on it and thereafter put the appellant in possession in the face of serious protest by the respondent. The appellant entered into possession in November, 1976 and proceeded with all speed to erect his own building on the site. In January, 1977, the plaintiff/respondent instituted in the High Court of Lagos State an action for (1)damages for trespass and (2) an order of injunction against the appellant and Alhaji Rasaki Ojora who represented the Ojora chieftaincy family. He obtained judgment against them jointly and severally and the appellant being dissatisfied appealed to the Federal Court of Appeal. That court dismissed the appeal. The appeal to this Court is a further appeal.

The main issue raised is as to the liability of the appellant for trespass when he had no previous knowledge that the land had been granted to the respondent.

The second question raised was whether it would be in keeping with the law and the spirit of justice to make the appellant pay damages for the demolished building which was carried out, as the evidence shows, on the instruction of Alhaji Rasaki Ojora before the land was granted to him since he took no part directly or indirectly in the demolition.

The third question raised is whether the interest acquired by the respondent as a customary tenant is of the nature of an equitable interest and whether it was termination by the trespass committed by Alhaji Rasaki Ojora and his agents and servants.

These questions have received admirable treatment in the judgment just delivered by my learned brother, Aniagolu, J.S.C., and my observations and comments are only in amplification.

It is well settled law that a customary tenant’s obligations are (1) to pay his rents into which tributes formerly paid in olden times have been converted; (2) be of good behaviour and

(3) at all times acknowledge the title of the landlord.

The proof of money paid for land coupled with an entry into possession is sufficient to defeat the title of a subsequent purchase of the legal estate when the possession is continuous (Orasanmi v. Idowu (1959) 4 F.S.C. 40).

If he complies with his customary obligations and conditions of his tenancy, he is entitled to enjoy his holding in perpetuity be it a farmland or building plot.

To this extent, he has in the long run a larger interest than a person granted a term of 50 years certain in the land which he must vacant at the end of the period prescribed. It should be observed that the interest a customary tenant has in land subject to customary tenancy is possession. It may be possible to have customary tenancy in which the tenant is not given or in physical possession but such a situation is very rare indeed. Its rarity is emphasised by the fact that invariably any alienation of the land held under Customary Law by a customary tenant without the consent and prior approval of the landlord results in forfeiture of the land to the landlord.

Caulcrick v. Harding (1926) 7 N.L.R. 48.

Oloto v. Dawuda 1 N.L.R. 57.

Idewu Inasa v. Chief Sakariyawo Oshodi 10 N.L.R. 4 at 6.

If Customary Law is well established by the decisions of the Superior Courts, judicial notice can be taken of it.

Abiodun v. Erinmilokun (1961) 1 All N.L.R. (Pt. 2) 294.

Aderonmu Okiji v. Adejobi (1960) 5 F.S.C. 44 at 47-48.

The settled law having recognised the possession of the respondent, any disturbance of that possession without the consent of the respondent amounts to trespass. Alhaji Rasaki Ojora on whose instruction the building of the respondent was destroyed was adjudged a trespasser by the trial Court. A trespasser cannot by his trespass acquire the title of the owner of the land whether he is a tenant or absolute owner. He therefore has no title to transfer to a purchaser or third party. The appellant therefore acquired no title (leasehold title) from the Ojora chieftaincy family for at the time of the land transaction, the land in dispute had been granted to the respondent under a perpetually renewable customary tenancy and that tenancy still subsists.

The Ojora chieftaincy family cannot by the act of trespass of Alhaji Rasaki Ojora terminate the tenancy and acquire the reversion.

The 7th plaintiff witness Ezeruoke Nwocha, photographer, in his testimony said:

“In October, 1976, the plaintiff invited me to take photograph at Iya Ojo Street No. 8. When I got there, I saw a demolished building which he asked me to photograph and I did so.”

He produced the negative exhibit ‘D’ and the printed copy of the photograph exhibit E.

The appellant, in his testimony, admitted that he inspected the land in dispute in October, 1976 in the company of the 1st defendant, Alhaji Rasaki Ojora, for his testimony on this point reads:

“I went to the office of Ojora chieftaincy family when I needed a piece of land. I was from there directed to the head of the family. This was sometime in October, 1976. The head of the family I went to see was Chief Asani Banwo. He, in turn, directed me to Alhaji Rasaki Ojora–the first defendant in this case, who would show me the piece of land. When I saw the land, I was satisfied and I later went to pay.”

This testimony must have led the learned trial Judge to conclude that

“There is abundant evidence before me which I believe that the first and second defendants caused the plaintiff’s structure on the land situate at Iya Ojo Street now known as No. 8 Iya Ojo Street, Ojo Road to be demolished and thereafter the second defendant commenced a new building thereon on which he stated in his evidence that he had expended about sixty thousand Naira (N60,000.00). At all material time to this action, the plaintiff having paid rent entered into possession of the land. These are, in my view, acts of physical possession of the land by the plaintiff.”

It is obvious that the respondent who inspected the land in October, 1976 must have known and ought to have known from the physical condition of the land that the land was in possession of the plaintiff/respondent. If with his eyes wide open, he went to expend N60,000.00 to develop the land, he was being reckless with his money and must patiently bear the loss he brought on himself. There is nothing in law or equity to prevent the respondent from claiming the land with the improvement from the appellant for as Lord Cranworth, L.C. observed in the case of Ramsden v. Dyson (1866) L.R. 1 H.L. 129 at 140-141.

“For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct active or passive making it inequitable in me to assert my legal rights.”

See also O. Solomon and others v. A. R. Mogaji and others (1981) 11 S.C. 1 at 45.

For the above reasons and the reasons so ably set out in the judgment of my learned brother, Aniagolu, J.S.C., I hereby dismiss the appeal but vary the damages awarded against the appellant by reducing it to N1,000.00. I entirely endorse all the orders made by my learned brother. I also endorse the order as to costs in this appeal.

Eso, J.S.C. I had the advantage of a preview of the judgment which has just been read by my learned brother Aniagolu, J.S.C. As I think the judgment has fully covered the grounds I will also dismiss the appeal for the reasons given in the aforesaid judgment.

I also abide by the order as to costs contained in the judgment.