ISSUES

Whether it is necessary to tender a written agreement into evidence in order to prove its terms and conditions, when such terms and conditions have been admitted by the other party?

Whether a lease agreement entered into by the parties was governed by customary or English law?

FACTS

The respondent sued the appellant in the High Court, claiming forfeiture of the appellant's tenancy of a certain land which the respondent's predecessor had leased to the appellant for use as a cattle enclosure. The respondent had also claimed payment of arrears of rentals and mesne profit until possession of the property was relinquished.

Both parties lived in Isale Oyo Quarters, Oyo. While the appellant admitted the existence of the lease agreement relied on by the respondent, he denied that the leased land was a portion of the landed property of the respondent's family. Instead, he contended that the land in dispute belonged to the Alaafin of Oyo. He contended further that the respondent's predecessor had acted in his personal capacity in leasing the land and that, he had no right in his personal, representative or official capacity, to let out the land, without having the approval of the Alaafin of Oyo.

The High Court found for the respondent, and the appellant appealed to the Court of Appeal which dismissed the appeal. In a further appeal to the Supreme Court, the appellant essentially challenged the lower courts' finding that the transaction between the parties was one of native law and custom and was not intended to be governed by English law. Appeal was upheld.

HELD (Unanimously allowing the appeal)

1.      On the proof of the terms and provisions of an agreement

In an attempt to counter appellant's contention that the respondent's predecessor, in leasing out the land, had acted in his personal capacity, the respondent tendered its own copy of the agreement. An objection to the tendering of the document led to its withdrawal, but the court posed the question of whether the tender of the document was at all necessary where the appellant had already admitted the terms of the agreement. It was found where the parties agree, a transaction relating to land held under customary law may be subject to English Law. Without the production of the agreement relied on in the Statement of Claim and in evidence it would be mere speculation to conclude that the transaction covered by the agreement was one under customary law. Ogundare, JSC, at pages 293-297.

2.      On the law applicable to agreements regarding land held under customary law

Section 1(3) of the Property and Conveyancing Law, Cap. 100, Laws of Western Region of Nigeria, 1959 provides that where the parties agree, a transaction relating to land held under customary law may be subject to English Law. Ogundare, JSC, at pages 304-305.

3.      On adhering to the pleadings in a trial

Where a trial is by pleadings, the judgment of the court must be based on the pleadings and not on speculation. Ogundare, JSC, at page 305.

4.      On characteristics of customary tenancy

In all customary tenancies, the customary tenant retains, until forfeiture, the right to the use and enjoyment of the land. The denial of his landlord's title is a misconduct which can be a ground for forfeiture. Ogundare, JSC, at page 309.

5.      On restrictions on the right to demand forfeiture of tenancy of property in terms of the Property and Conveyancing Law, Cap. 100, Laws of Western Region of Nigeria, 1959

Under the Property and Conveyancing Law, Cap. 100, Laws of Western Region of Nigeria, 1959 there are statutory restrictions imposed such as the restriction on and relief against forfeiture imposed by Section 161(1). Ogundare, JSC, at page 305.

N. Onukogu (holding brief for T. A. B. Adenipekun) for the appellant.

Chief A. Aluko for the respondent.

The following cases were referred to in this judgment:

Nigeria

Abaye v Ofili (1986) 1 NWLR 134 (Part 15)

Anyaduba v Nigeria Renowned Trading Co Ltd (1992) 5 NWLR (Part 243) 535

Apena v Barclays Bank of Nigeria Limited (1977) 1 SC 47

Awosile v Sotunbo (1992) 5 NWLR (Part 243) 514

Beatrice Anthony v Obi Onyebushi (1974) 11 SC 1

Chief S. N. Okonkwo & others v DR. P.I. Okolo (1988) 2 NWLR (Part 79) 632

Durodola v Oluwafemi (1982) 2 OYSHC 210

Eletu v Omojewonniya (1962) 2 All NLR 13

Etiko v Aroyewun (1959) 4 FSC 129

F.C.D.A. v Naibi (1990) 3 NWLR (Part 138) 270

Famuyiwa v Folawiyo (1972) 5 SC 112

Folami v Coker (1956) 1 FSC 66

Incar (Nigeria) Ltd v Benson Trans Ltd (1975) 3 SC 117

Lawal Owosho and others v Michael Adebowale Dada (1984) 7 SC 149

Lewis and Peat (N.R.I.) Ltd v Akhimien (1976) 7 SC 157

Lion of Africa Insurance v Anuluoha (1972) 5 SC 98

Metal Construction (W.A.) Ltd v Migliore (1979) 6-9 SC 163

Mobil Oil v Coker (1975) 3 SC 175

Okeke Okpata & others v Chief Ekem Obo & others (1959) FSC 201

Okparaeke v Obidike Egbuonu & others 7 WACA 53

Oline v Obodo (1958) 3 FSC 84

Oloto v Dawodu (1904) 1 NLR 58

Onisiwo v Bamigboye (1947) 7 WACA 69

Owosho & others v Dada (1984) 7 SC 149

Salati v Shehu (1986) 1 NWLR 198 (Part 15)

Solana v Olusanya (1975) 6 SC 55

Uwegba v A.G. Bendel State (1986) 1 NWLR (Part 16) 303

Yassin v Barclays Bank (1968) 1 ANLR 171

The following statutes were referred to in this judgment:

Nigeria

Evidence Ordinance: S 131(1); 131(3)

Land Instruments Registration Law of Oyo State: S 16

Land Registration Law of Eastern Nigeria

Land Registration Ordinance

Oyo State Limitation Laws Cap. 64: S 6(2)

Property and Conveyancing Law, Cap. 100 Laws of Western Region of Nigeria 1959: S 1(2); 1(3); 161(a), (b), (c)

PRONOUNCEMENT BY UWAIS, JSC

My learned brother, the late Mohammed, JSC, who took part in the hearing of this appeal and the conference which we held immediately thereafter died in a motor accident on Tuesday, 9 February 1993.

In accordance with the provisions of Section 258 subsection (2) of the Constitution of the Federal Republic of Nigeria, 1979. I hereby pronounce that he was of the opinion that the appeal should succeed and that it should be allowed with N1,000 costs to the appellant.

Ogundare JSC (Delivered the Leading Judgment):- The plaintiff, Chief Amuda Olorunkosebi the Ashipa of Oyo, for and on behalf of himself and the Ashipa family sued the defendant (who is now the appellant before us) for and on behalf of himself and the Hausa Community, claiming forfeiture of the defendant's tenancy in respect of a piece of land situate and being at Sabo market Isale-Oyo quarters in Oyo town, arrears of rent and mesne profits until possession is yielded up. Pleadings having been filed and exchanged and amended by the defence, and the plaintiff having filed a reply to the Statement of Defence, the case proceeded to trial at the conclusion of which the learned trial Judge of the High Court of Oyo State (Oyo Judicial Division) found for the plaintiff and entered judgment in his favour "for an order of forfeiture of the land let by the plaintiff's predecessor to the defendant in 1970 for use by the defendant as cattle enclosure". The learned trial Judge further ordered:-

"However, in view of the nature of the use to which the land is being put and perhaps the possibility of a settlement of the dispute between the parties in the near future, the order of forfeiture hereby granted is suspended for a period of six months."

He also granted the plaintiff's claim for N315 arrears of rent but said nothing on the claim for mesne profits.

The defendant was displeased with this judgment and appealed to the Court of Appeal. The latter court dismissed the appeal and upheld the judgment of the trial court. It is against the dismissal of the appeal and affirmation of the judgment of the trial court that the defendant has further appealed to this Court upon the following four grounds of appeal.

"Grounds of Appeal

1.      The learned Justices of the Court of Appeal erred in law when they held that they 'agreed with the finding of the learned trial Judge that the transaction was one of native law and custom and not intended to be governed by English Law', and thereby reached a wrong decision.

Particulars of Error

(1)

(2)

(3)

(4)

(5)

Ground 2

When in the transaction, none of the incidents of customary grant was present nor complied with, namely, when there was no pleading nor printed evidence to the effect that the grant was made in the presence of witnesses contrary to the decision in Folami v Cole (1956) 1 FSC 66.

When the agreement of the learned trial Judge and the learned Justices of Appeal could not transfer nor convert transaction that was clearly intended and carried out in accordance with rules of English Law into one under native laws and customs.

When the agreement itself that is, the lease was the transaction relied upon by the plaintiff and which transaction was executed very many years before the respondent acceded to the title of the Ashipa of Oyo.

When the lease, that is the document containing the agreement was not before the learned trial Judge.

When on the pleadings the document was the Lease relied upon by the plaintiff and not just a record of transaction under native laws and customs.

The learned Justices of the Court of Appeal erred in law by holding that the lease on which the plaintiff's case rested in the court of first instance was only a record of transaction under native law and custom when the lease was not before the High Court nor the Court of Appeal and when the respondent did not seek leave of the Court of Appeal to tender additional evidence in order to make the lease part of the records and yet reached a conclusion that the transaction is one under native law and custom.

Ground 3

The learned Justices of the Court of Appeal erred in law in holding that the Limitation Laws of Oyo State have no application to the case in hand when there is no material before them on which such a conclusion could be based and thereby allowed a miscarriage of justice.

Ground 4

The learned Justices of the Court of Appeal erred in law in refusing to grant leave to Counsel to the appellant to argue Limitation Law when in fact the points contained in grounds 10 and 11 were canvassed both in the appellant's brief and in oral argument by appellant's Counsel."

Particulars of Error

"When the learned Justices of the Court of Appeal failed to consider in their judgment the aforesaid argument raised in the grounds."

Pursuant to the rules of this Court the parties filed and exchanged their written briefs of argument. In the defendant/appellant's brief the following issues are set down as calling for determination in this appeal:-

"1.     Whether the learned Justices of the Court of Appeal were right or could hold that the agreement dated 11 January 1970 between the parties was:-

(i) one entered into under native laws and customs;

(ii) evidence only of a transaction between the parties and

(iii) an agreement to which the provision of Limitation Laws of Oyo State are inapplicable when the agreement i.e. the lease on which the contract and the case of the plaintiff was fought, was not tendered in evidence and did not form part of the records before the Court of Appeal.

2.      Whether in view of the foregoing the Court of Appeal was right in not allowing arguments to be proffered in support of grounds 10 & 11 of the Grounds of Appeal in that court - see pages 151 & 152 of the records or whether in the Alternative.

The Court of Appeal was right in refusing to follow the ratio decidendi of the Supreme Court in the case of

(1)     Apena v Barclays Bank of Nigeria Limited (1977) 1 SC 47 and affirmed in

(2)     Abaye v Ofili (1986) 1 NWLR 134 (Part 15);

(3)     Salati v Shehu (1986) 1 NWLR 198 (Part 15),

to the effect that an Appellate Court would allow to be raised and considered in the appeal Court matters/issues not raised in the Trial court where:-

(1)     The question involves substantial points of law.

(2)     No further evidence could have been adduced which would affect the decision on it the court would allow the question to be raised and points taken as to prevent an obvious miscarriage of justice.

3.      Whether a written agreement reached or entered into as affecting land by parties who are undoubtedly illiterates per se amounts to an agreement under native laws and customs. And whether such presumption also operates where the parties do not belong to the same ethnic or cultural system.

4.      Whether in view of the state of pleadings - particularly at paragraph 6 of the Statement of Claim that the agreement relied upon was dated 11 January 1970 and paragraph 18 of the Statement of Defence, to the effect 'that the plaintiff's claim is incompetent . . . ' the proper course the learned trial Judge should have taken was dismissal of the plaintiffs case when it was clear to the learned trial Judge that:-

'The action was instituted in January 1984 and the agreement was entered into in January1970' - a period of 14 years.

The provision of the Oyo State Limitation Laws Cap. 64 at Section 6(2) proscribes the institution of any cause of action in such matter after the expiration of twelve years. And that the learned trial Judge was bound to enforce such law - unconditionally."

Contrary however, to the rules of the Court and numerous decided cases both of this Court and of the Court of Appeal, learned Counsel proceeded to argue the grounds of appeal rather than the issues formulated by him. Learned Counsel for the plaintiff/respondent has not faired better either for although he too set out issues for determination, it was the grounds of appeal that he argued in his brief. Considering the relative age at the Bar of both learned Counsel, I would say that the lapse is rather unfortunate and disappointing.

The three issues set down in the respondent's Briefs are as follows: -

"1.     Whether a relationship of landlord and tenant existed between the respondent and the appellant as found by the learned trial Judge and as unanimously affirmed by Justices of Appeal even though the tenancy agreement being a record of the transactions between them as illiterates, was not tendered in evidence, more so when the terms and conditions of the said agreement were admitted by the parties not only on their pleadings but also in their oral testimonies.

2.      If so, whether the appellant had disclaimed and or denied the respondent's title to the land in dispute, thereby incurring a forfeiture as also found by the learned trial Judge and as also, unanimously affirmed by the Justices of Appeal.

3.      Whether, this case reveals exceptional circumstances such as:-

(a)     that the two judgments appealed against were perverse, or

(b)     that there was a radical error of law or procedure leading to such a miscarriage of justice that will compel the Supreme Court to intervene to redress the imbalance in the interest of justice by not upholding the concurrent findings of the two courts below."

Having regard however, to the judgment appealed against and the Grounds of Appeal, it would appear in my considered view that the main issue is as to whether or not on the pleadings and evidence, it could be said that the agreement entered into by the parties and dated 11 January 1970 was one entered into by illiterates under customary law.

I must say, with all respect to learned Counsel for the defendant/appellant, that all arguments by him based on the provisions of the Limitation Law of Oyo State do not amount to much as it was not part of the defence raised in the amended Statement of Defence that the plaintiff's action, or any part of it was barred under the Limitation Law. That defence being a special defence and available to the defendant at the time of the action must have been specifically pleaded and not having been pleaded by him, he could not now raise it even in this Court. See Yassin v Barclays Bank (1968) 1 ANLR 171; Mobil Oil v Coker (1975) 3 SC 175; Famuyiwa v Folawiyo (1972) 5 SC 112; Lion of Africa Insurance v Anuluoha (1972) 5 SC 98; Oline v Obodo (1958) 3 FSC 84; F.C.D.A. v Naibi (1990) 3 NWLR (Part 138) 270, 281F. Consequently, I find no merit in the grounds of appeal attacking the judgments of the courts below on the ground of Limitation Law.

I now come to what I consider to be the main issue arising in this appeal, but before doing so, I like to point out that during the pendency of this appeal, the plaintiff died and on the application of one Gbadamosi Oyelakin the latter was, by order of this Court, substituted as respondent in place of the deceased Chief Amuda Olorunkosebi.

In the Statement of Claim the following facts were pleaded:-

"1.     That the plaintiff is the Ashipa of Oyo and the Head of Ashipa Family, Isale Oyo Quarters, Oyo and lives at Aafin Ashipa in Isale Oyo Quarters, Oyo.

2.      That the plaintiff is a traditional Chief, a farmer and also a businessman.

3.      That there is only one Ashipa Family which also constitutes the Ashipa Chieftaincy family in Isale Oyo Quarters, Oyo.

4.      That the Defendant is the Head and or leader and or Chairman of the Hausa Community in Isale Oyo Quarters, Oyo and he is commonly designated and referred to as Oba Sabo, or "Seriki Hausa" Sabo being the concentration of the Hausa Community in Isale Oyo.

5.      That the land in dispute is situate, lying and being at Sabo Market, Isale Oyo Quarters, Oyo, and it is a portion of the landed property of Ashipa family.

6.      That by virtue of an Agreement dated 11 January 1970, and executed by Chief Bello Oyekola (the then Ashipa of Oyo) as landlord, and the Hausa Community as represented by the defendant, as the tenants the land in dispute was let to the Hausa Community at an annual rent of N 10.10 (now N21).

7.      That the defendant was to pay the rents as they fell due and payable being the Chairman and or Seriki of the Hausa Community in Isale Oyo.

8.      That only the rent for the first year was paid, and the rents from 1971 up-to-date have not been paid despite repeated demands made for same by the plaintiff to the defendant.

9.      That the plaintiff later succeeded Chief Bello Oyekola as the Ashipa of Oyo, thus becoming the Head of Ashipa of Oyo Chieftaincy family and thereby succeeding to all the rights and claims in respect of the land in dispute.

10.     That the plaintiff since becoming the Ashipa of Oyo has both orally and in writing demanded the payment of the rents from the defendant who has refused and or neglected to pay same on the ground that the Ashipa family has never been, and can never be the owner of the land in dispute.

11.     That the defendant has on several occasions threatened to sue the plaintiff to court in respect of the land in dispute, and has made pronouncements adverse to, and in denial of plaintiff's family's title to the land in dispute.

17.     Whereof the plaintiff claims as per his writ as follows:-

Forfeiture of the defendant's tenancy on the parcel of land situate, lying and being at Sabo Market, Isale Oyo Quarters, Oyo let out to the Hausa Community as per agreement dated 11 January 1970 executed by Chief Bello Oyekola (the then Ashipa of Oyo) as Landlord, and the Hausa Community as represented by the defendant as tenants, and arrears of rent up-to-date plus mesne profit until possession is yielded up."

In the amended Statement of Defence the defendant averred as follows:-

"1.     The defendant is not in a position to deny or admit paragraphs 1, 2, 3, 9, 10, 15 and 16 of the Statement of Claim and put the plaintiff to the strictest proof thereof.

2.      The defendant admit paragraph 4 of the Statement of Claim and say further that he is as much a Chief of the Alaafin of Oyo as the plaintiff. The plaintiff avers further that he is responsible only to the Alaafin of Oyo and not the plaintiff or any other Chief for that matter.

3.      The defendant admits paragraph 5 of the Statement of Claim as to the description and location of the land in dispute but denies that the said land is a portion of the landed property of the Ashipa family.

4.      The defendant shall contend at the hearing of this suit that the Ashipa Chieftaincy has no Chieftaincy land and that, in any event, does not own the land in dispute which belongs to the Alaafin of Oyo.

5.      The defendant admits paragraph 6 of the plaintiff's Statement of Claim but contends that Chief Oyekola acted in his personal capacity and that, either in his personal, representative or official capacity, he had no right to let out the land in dispute to either the defendant or any other person having not sought and obtained the approval of the Alaafin of Oyo.

6.      The defendant avers further that it was one Yesufu Carpenter, a member of the Obagbori family who misled him into believing that the land in dispute belonged to Ashipa Oyekola and subsequently into entering into the said agreement.

7.      The defendant admits paragraph 7 of the Statement of Claim but denies the whole of paragraph 8 and states categorically that he never paid any rent to either the plaintiff or his predecessor in office and that he had made it very clear, so soon after the said agreement, to both the plaintiff and his predecessor in office that they did not own the said land and were therefore not entitled to any rents therefor."

Thus the agreement pleaded in paragraph 6 of the Statement of Claim was admitted by the defendant in paragraph 5 of his amended Statement of Defence. The defendant, however, averred that Chief Oyelakin acted in his personal capacity. The evidence proffered appears not to support this averment. An attempt by the plaintiff to tender his copy of the Agreement was resisted by learned Counsel for the defendant. Rather strangely enough, learned Counsel for the plaintiff withdrew the document from being tendered in evidence and made no further attempt throughout the trial to tender the written Agreement. In his final address at the trial, learned Counsel for the defendant made an issue of the non-tendering of the agreement. In his judgment the learned trial Judge has this to say at pages 48-49 of the record:-

"The first one relates to the agreement entered into by the parties over the lease of the land in dispute. An attempt was made to tender the agreement during the proceedings, but due to the objection to the same by Counsel for the defendant on the ground that it was a registrable instrument under the Land Instruments Registration Law Cap. 56 and not having been registered offended against Section 16 of that Law, plaintiff's Counsel withdrew from tendering the same.

I have, in considering that issue in this judgment, looked further into the matter. Both parties are undoubtedly illiterates and in my view the agreement, from the nature of the case put forward and the nature of the transaction indicated was one more in the nature of a Native Law and Custom transaction. Here was an illiterate chief of the higher class in Oyo granting a yearly tenancy of an area of land for cattle enclosure to a lesser chief in Oyo also an illiterate. I do not consider that such transaction is one envisaged to be governed by English law rather than Native Law and Custom and accordingly not required to be registered under the Land Instruments Registration Law. I am fortified in such view by an unreported judgment of the then Federal Supreme Court in Okeke Okpata & another v Chief Ekem Obo & another (1959) FSC 201 delivered by Brett FJ on 18 March 1960 to which Ademola FCJ and Hubbard Ag FJ concurred and quoted in a judgment by Aderemi J in Durodola v Oluwafemi (1982) 2 OYSHC 210 at 215-216 as follows:-

'It is well known that under Native Law and Custom in all parts of Nigeria, dealings in land of every kind, were traditionally carried out orally, and not by means of a written document, the modern tendency is to have some sort of written memorandum and as illiteracy disappears and more and more people come to see the advantages of having a written record of any transaction in land, it may well be normal practice to enter into a written memorandum. This will not necessarily mean however that the parties intend that their dealings should be regulated by English law, and where a written document records a transaction between persons subject to Native Law and custom of a kind which by native law and custom was required to be carried out orally, it seems to me that the court may well hold, without excessive refinement that the oral agreement was the essence of the transaction, and the document merely a record of it. If it should be thought desirable to insist on the registration of such document as a condition of their admissibility in evidence that is a matter for the Legislature.'

Accordingly, I am of the view that the agreement which the plaintiff withdrew from tendering on account of the objection raised on behalf of the defendant was one which, having regard to the law as stated in the aforesaid judgment of the Federal Supreme Court ought to have been admissible. For the purposes of this judgment, however, that issue is no longer of much moment."(My emphasis.)

I pause here to observe that the learned trial Judge was right in concluding that the issue of admissibility of the written agreement was "no longer of much moment". This is so because he was not called upon to rule on the admissibility of the document sought to be tendered by the plaintiff in evidence, as learned Counsel withdrew same.

I need, however, to point out that nowhere in the Statement of Claim was any oral agreement pleaded. There is thus nothing apart from the written agreement pleaded in paragraph 6 of the Statement of Claim to indicate the nature of the transaction between the parties, that is, whether it was one under Customary Law or Statute, (otherwise referred to in the judgment as English Law). I say Statute here because at the time the agreement was entered into, the Property and Conveyancing Law, Cap. 100 Laws of Western Region of Nigeria 1959 was very much alive. Thus, the agreement pleaded in paragraph 6 could have related to a transaction under Customary Law or under the Property and Conveyancing Law.

The learned trial Judge continuing his judgment observes:-

"The paragraphs of the Statement of Claim which raised the issue as to the agreement are its paragraphs 6 and 7 which aver as follows:-

'(6)    That by virtue of an agreement dated 11 January 1970, and executed by Chief Bello Oyekola (the then Ashipa of Oyo) as landlord, and the Hausa Community as represented by the defendant, as the tenants the land in dispute was let to the Hausa Community at an annual rent of N 10.10 (now N21).

(7)     That the defendant was to pay the rents as they fell due and payable being the Chairman and or Seriki of the Hausa Community in Isale Oyo.'

Those paragraphs of the Statement of Claim were unconditionally admitted in paragraphs 5 and 6 of the Statement of Defence. The issue then arises whether in view of such admission by the defendant it was necessary to have the agreement tendered for the purpose of establishing the facts in relation thereto as averred in paragraphs 6 and 7 of the Statement of Claim. In Owosho & others v Dada (1984) 7 SC 149, the Supreme Court dealt with the issue whether proof was necessary in regard to a deed of conveyance which was specifically admitted by a defendant and seemed to be admitted by the other six defendants. Eso JSC stated at page 150:-

'Having regard to the state of pleadings whereby the grantee of the land the seventh defendant specifically admitted paragraph 23 of the Statement of Claim and the first to sixth defendants did not deny specifically this paragraph which stated the fact of a purported execution of a deed of conveyance specifically stated to be registered as No 69 at page 69 in Vol. 1433 of the Land Registry in Lagos and which indeed relates to the land in dispute, I am of the firm view that the plaintiff herein did not need to prove this admitted fact; see Lewis and Peat (NRI ) Ltd v Akhimien (1976) 7 SC 157 as per Idigbe JSC.

The defendants called no evidence and on the balance of probabilities the plaintiff was bound to succeed.'

Aniagolu JSC who read the lead judgment stated as follows:- at pages 165-166:-

'In the instant case, there was no need having regard to the state of pleadings for the respondent/plaintiff to apply to recall the plaintiff in order to tender the deed of conveyance registered as No 69/69/1433 which had been admitted specifically by the seventh defendant and deemed to be admitted by the first to sixth defendants in the pleading . . . 'It must be pointed out that the matters in issue were not the terms of the deed of conveyance in which case it would be necessary that the document should be produced in order that the court might determine the precise contents of the document. What the plaintiff pleaded was that the first to sixth defendants purported to convey the estate which was already vested in him to the seventh defendant. The seventh defendant had admitted that it was that estate which was conveyed to him by the deed of conveyance registered as 69/69/1433 of the Lagos Land Registry.'

In the Supreme Court judgment referred to above one defendant admitted the facts stated above a deed of conveyance in a Statement of Claim whilst the other defendant were deemed to have admitted the same. In the case under consideration the defence admission is specific and not left to implication as regards the averments in relation to the yearly agreement described in the Statement of Claim. Not only were the averments in the Statement of Claim admitted in the Statement of Defence, the defendant, DW1 Asiru Adeyemi and DW4 Oba Lamidi Adeyemi, the Alaafin of Oyo, all gave evidence confirming the said agreement as pleaded in the Statement of Claim. I am therefore bound to hold that such agreement need not be proved or produced having been specifically admitted both in the Statement of Defence and defence evidence and therefore raising no issue."

This conclusion reached by him came under attack in the Court of Appeal. In the lead judgment of Ogwuegbu JCA (as he then was) the learned Judge observed at pages 147-148 of the record:-

"There is no doubt that the appellant specifically admitted paragraphs 5, 6 and 7 of the Statement of Claim in paragraphs 3, 5 and 6 of his Statement of Defence, these paragraphs of the Statement of Claim set out the location of the land, the parties and the annual rent payable. The appellant admitted those paragraphs of the Statement of Claim in his evidence in the court below at page 34 lines 10-16 of the record.

The only fact which the appellant denied was the ownership of the land which he contended is in the Alaafin. From the averments and the evidence, the identity of the land in dispute is well known to both parties as well as the annual rent although the title of the respondent was put in issue by the appellant which issue coupled with non-payment of rent led to this action for forfeiture. Both learned Counsel submitted that parties are bound by their pleadings but for different reasons. The appellant based his argument on non-registration of the agreement pleaded and the respondent's contention was that the appellant having admitted those averments, there was no need for the respondent to prove them. I do not share the view of the learned Counsel for the appellant that the terms or conditions of the agreement were not before the court. There was evidence to that effect even though the document was not admitted in evidence because learned Counsel for the respondent withdrew it when objection was raised that it was caught by Section 16 of the Land instruments Registration Law of Oyo State." (My emphasis.)

After referring to a portion of the judgment of the trial court the learned Justice of the Court of Appeal concluded thus on this issue at pages 148-149:-

"I agree with learned trial Judge that there was no need having regard to the state of the pleadings for the respondent to tender the agreement which had been specifically admitted by the appellant in his pleadings and evidence. The matters in issue were not the terms of the agreement. See the judgment of Aniagolu, JSC in Lawal Owosho & others v Michael Adebowale Dada (1984) 7 SC 149 at page 165.

I also agree with the learned trial Judge that the parties did not envisage that their transaction was one to be governed by English Law as opposed to native law and custom which does not require the agreement to be registered."

This part of the judgment is again under attack in the appeal before us.

Learned Counsel for the appellant in his brief adopted at the hearing of this appeal submits as follows:-

"It is submitted with due respect to both the learned trial Judge and the learned Justices of Appeal that there is nowhere in the records where reference was made to the terms of the agreement or worse still anything which could have formed the basis for approval of the learned trial Judge's conclusions at pages 48-49 and the Justices approval at page 148 of the records. It is further submitted that the judgment of the Court of Appeal in that regard clearly occasioned a miscarriage of justice in this instance and the Supreme Court should not allow such clear and obvious injustice to be perpetuated.

There certainly was not a shred of evidence with regard to the terms of the agreement. It was not before the learned trial Judge, it was also not before the Court of Appeal and any attempt to rationalise the nature of the agreement is speculative and not in the interest of justice between the parties.

Furthermore, at pages 25-33 of the records it was also not part of the plaintiff's case that the incidents of customary tenure were present or complied with in 1970. The respondent merely relied on his agreement - and just rightly as that was all he pleaded in paragraph 6 of his Statement of Claim at page 3 of the records. This was also reproduced at page 136 of the records.

None of the plaintiff's witnesses also testified on this point. That is not surprising as the agreement antedated the plaintiff's incumbency by six years; and the cause of action not taken for another eight years. In so far as the elementary but fundamental rudiments of customary tenure as enunciated in Folami v Coker (sic) (1956) 1 FSC 66 are absent, it is wrong and the Supreme Court is being urged to hold that both the learned trial Judge and the Court of Appeal were wrong in holding that what was pleaded in paragraph 6 of the plaintiff's Statement of Claim amounted without more to a transaction seeped in customary laws and customs. It did not.

In any event it is being submitted with utmost respect that Courts should not construe documents not placed before them and should also not attempt an apologia for such a lapse."

In reply to the above submissions, learned Counsel for the respondent in his brief submits as hereunder:-

"5.01 It is submitted with due respect that the learned trial Judge, after carefully going through the pleadings and thoroughly reviewing and evaluating the evidence adduced by the parties before him, was right to hold that the agreement need not be tendered in evidence, the defendant (appellant herein) having admitted in his amended Statement of Defence (paragraphs 3, 5, 6, 7, 9 and 11 - pages 22-23 of the Record) the averments contained in paragraphs 5, 6 and 7 of the Statement of Claim - pages 3-4 of the Record.

5.02 In coming to this conclusion the learned trial Judge found support in the unreported case of Okede Okpata & others v Chief Edem Obo & others (1959) FSC 201 delivered on 18 March 1960, followed and applied by Aderemi J in Durodola v Oluwafemi (1982) 2 OYSHC 210 at 215-216 and also the case of Owosho & others v Dada (1984) 7 SC 149 where in dealing with the issue whether proof was necessary in regard to a deed of conveyance which was specifically admitted by a defendant and seemed to be admitted by the other six defendants the Supreme Court said as per ESO JSC at page 150 -

'Having regard. . . . . . . as per Idigbe JSC.'

See also Aniagolu JSC at pages 165-166.

5.03 In the case in hand, the matters in issue were not the terms and conditions of the agreement. There is no dispute about that at all, and no issues have been joined thereto. The question of rationalising the nature of the agreement does not therefore arise. Reviewing further the evidence placed before him, the learned trial Judge said 'In the case under consideration, the defence admission is specific and not left to implication as regards the averments in relation to the yearly agreement described in the Statement of Claim. Not only were the averments in the Statement of Claim admitted in the Statement of Defence, the defendant (pages 34-35) DW1 Ashiru Adeyemi (pages 36-37) and DW4 Oba Lamidi Adeyemi (pages 39-41), the Alafin of Oyo all gave evidence confirming the said agreement as pleaded in the Statement of Claim. I am therefore bound to hold that such agreement need not be proved or produced having been specifically admitted both in the Statement of Defence and defence evidence and therefore raising no issue. Pages 50-51 of Records (letters and figures in brackets are mine).

5.04 It is trite that admitted averments in pleadings need not be proved since one of the objects of pleadings is to shorten proceedings by ascertaining what facts are agreed so that evidence need not be led to prove them and the court should accept agreed facts as established.

See: (1) Okparaeke v Obidike Egbuonu & others 7 WACA 53 at 55;         (2) Etiko v Aroyewun (1959) 4 FSC 129; (3) Beatrice Anthony v Obi Onyebushi (1974) 11 SC 1 at 5; (4) Lewis and Peat (N.R.I.) Ltd v Akhimien (1976) 7 SC 157; (5) Owosho v Dada (1984) 7 SC 149 at pages 50 and 165-166; (6) Uwegba v A-G Bendel State, (1986) 1 NWLR (Part 16) 303 at 307 and 329.

5.05 In view of all the above therefore, the Court of Appeal was perfectly right and in order for not sharing the view of the learned Counsel for the appellant that the terms and conditions of the agreement were not before the Court and that there was evidence to the effect even though the document was not admitted in evidence because the learned Counsel for the respondent withdrew it.

5.06 In this case, the following facts are not in dispute; that:-

(a)     the appellant and the respondent are two illiterate chiefs at Isale Oyo. The appellant is a Bale while the respondent is an Oyomesi.

(b)     the land subject/matter of litigation is situated at Isale Oyo.

(c)     there was a transaction or arrangement whereby the land was let by the respondent to the appellant for cattle trade at an annual rent of N21. Appellant said at page 34 of record - 'There was a transaction between us on the land in dispute. When we needed the land in dispute for cattle, one Yesufu Carpenter informed us that the land belonged to the Ashipa. I then approached Ashipa Oyekola who confirmed his ownership but insisted that he would allow the land to us only on the payment of an annual rent of N21. I agreed to such an arrangement but also informed the Alafin about it.' The respondent also said at pages 25-26 of records - 'There is a transaction between the Ashipa family and the Hausa Community. There was an agreement between Bello Oyekola Ashipa by which land was let on behalf of the Ashipa family to the defendant for storage of his cattle. I produce my own copy of the agreement'.

(d)     there was the said agreement between the parties.

5.07 It is most humbly submitted that the said transaction or arrangement is the subject/matter of the said agreement which to all intents and purposes, it is further submitted with due respect, is merely a record of the said transaction or arrangement. By the said agreement it does not mean that the parties who are subject to Native Law and Custom of a kind (Yoruba Native Law and Custom) which requires their transactions to be carried out orally, intend that their dealings or transaction should be regulated by any law other than their Native Law and Custom. I most respectfully refer Your Lordships once again to the case of Okeke Okpata & others v Chief Ekem Obo & others FSC 201/ 1959 unreported but delivered on 18 March 1960 and the relevant portion of the judgment quoted in the present case at pages 48-49 of the Records. See also Chief S. N. Okonkwo & others v DR P.I. Okolo (1988) 2 NWLR (Part 79) 632 at 634-635 (Ratios 9, 10 and 11) and 653 (Pars E-H).

5.08 It is submitted with due respect that paragraphs 6 of the Statement of Claim should not be read in isolation but should be read together with paragraphs 5 and 7 of the same Statement of Claim - pages 3-4 of records as admitted by paragraphs 3, 5, 6, 7 and 11 of the amended Statement of Defence at pages 22-23 of the Records. In view of all the above, it cannot be said and argued that there was no evidence before the learned trial Judge to arrive at the conclusion he reached and that a miscarriage of justice occurred when the Justices of Appeal affirmed that conclusion."

I have taken pains to set out the penultimate passages of the judgments of both the trial High Court and the Court of Appeal on which both courts based their rationale for finding in favour of the plaintiff. I have also set out the arguments of learned Counsel in their respective Briefs in favour of or against the rationale used by the courts below in coming to their respective decisions. The question that arises is: are the courts below justified in finding that the transaction between the defendant and the predecessor-in-office of the late Chief Amuda Olorunkosebi was one under customary law? Both lower courts based their finding on the grounds (a) that the parties to the agreement were illiterates; (b) that the transaction was in the nature of native law and custom transaction; (c) that the defendant admitted the agreement pleaded in paragraph 6 of the plaintiff's Statement of Claim and, therefore, relying on Owosho v Dada (1984) 7 SC 149, there was no need to tender the agreement and (d) that the terms and conditions of the agreement were before the trial court. I shall now proceed to consider these grounds.

As regards (a), that is, the illiteracy of the parties, I cannot find anything on the record to lead the courts below to the finding that the parties were illiterates. Illiteracy was not pleaded by either party nor any evidence led on it. It is just the conjecture of the learned trial Judge adopted by the learned Justices of the court below. A party who wishes to rely on illiteracy must plead that fact. (See Awosile v Sotunbo (1992) 5 NWLR 514, 528).

On (b), I cannot on the record also find anything to lead one to the conclusion that the agreement between the defendant and late Chief Oyekola was one in the nature of a customary law transaction. By paragraph 6 of the Statement of Claim the action was based on an agreement dated 11 January 1970. There is nothing in that paragraph or any other paragraph of the Statement of Claim to inform one that the transaction therein was based on customary law. True enough that paragraph shows that a tenancy was created by the pleaded agreement but there is no indication that the tenancy was one under customary law or under statute to wit, Property and Conveyancing Law, Cap. 100, Laws of Western Region of Nigeria, 1959 (hereinafter is referred to as the Law). The fact that the land was held by the Ashipa under customary law would not, per se, be sufficient to lead one to the conclusion that all transactions relating thereto must be under customary law. It would appear from the judgments of the courts below that they were led to the conclusion they reached because the land was held by the Ashipa under customary law. This reasoning ignored the provisions of Section 1(2) & (3) of the Law. Subsections (2) and (3) of Section 1 of the Law read:-

"(2)    This Law shall apply to land within the State which is not held under customary law and property not held in accordance with customary law.

(3)     As respects land held under customary tenure or property held in accordance with customary law, this Law shall apply in any transaction if the parties agreed, or must from the nature of the transaction be presumed to have agreed, that the transaction should be exclusively regulated otherwise than by customary law."

Thus, where the parties agree, a transaction relating to land held under customary law may be subject to the Law. Without the production in evidence of the Agreement pleaded in paragraph 6 of the Statement of Claim it would be mere speculation to conclude that the transaction covered by the Agreement was one under customary law. It is trite law that where trial is by pleadings, the judgment of the court must be based on the pleadings and not on speculations - see: Incar (Nigeria) Ltd v Benson Trans Ltd (1975) 3 SC 117; Solana v Olusanya (1975) 6 SC 55; Metal Construction (W.A.) Ltd v Migliore (1979) 6-9 SC 163. It is the duty of a plaintiff to prove his case and in so doing he must rely on the strength of that case rather than on the weakness of the defence. He is, however, entitled to take advantage of any admission by the defence favourable to his case. In the instant case, if it was the case of the plaintiff that the defendant was his customary law tenant then he must plead this and prove it. This, the plaintiff has not done and it is wrong, in my respectful view, to suggest, without production of the Agreement pleaded in paragraph 6, that the transaction between the parties to it was in the nature of a customary law transaction.

Reliance was placed by the trial court on the judgment of this Court in FSC 201/1959: Ekeke Okpata & another v Chief Ekem Obo & another, (unreported) a judgment delivered on 18 March 1960 wherein Brett, FJ (as he then was) delivering the judgment of the Court said:-

"We were invited to disregard the oral evidence of the leases to the people of Amachi and Edda, on the ground that the leases had been reduced to writing, and the written documents held inadmissible for want of registration under the Land Registration Ordinance. For this Mr Araka replied on Section 131(1) of the Evidence Ordinance, which provides for the exclusion of oral by documentary evidence. Formal rules of evidence which are thought appropriate in litigation between towns-people can easily work grave injustice when rigidly applied to suits between illiterates from the remote rural areas, and I should have thought it regrettable if this submission had succeeded, but I am satisfied that the oral evidence was rightly admitted under Section 131(3) of the Evidence Ordinance, which provides that 'Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established'.

If I am correct in holding that the oral evidence of the relationship of landlord and tenant between the Obubra and the Izzi was properly admitted it is immaterial whether the leases were properly excluded, and neither side sought to challenge the Chief Justice's ruling that the leases were 'instruments' within the meaning of the Land Registration Ordinance. I think it right, however, to say that it seems to me at least arguable that the ruling was mistaken. An 'instrument' is defined in Section 2 of the Ordinance in the following terms:-

"instrument" means a document affecting land in Nigeria, whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in Nigeria, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will;

The essential part of this definition is that the document must be one which produces a legal result itself, and not merely one which serves as a memorandum of the legal result produced by some other transaction. It is well known that under native law and custom in all parts of Nigeria dealings in land, of every kind, were traditionally carried out orally, and not by means of a written document. The modern tendency is to have some sort of written memorandum, and as illiteracy disappears and more and more people come to see the advantages of having a written record of any transaction in land it may well become normal practice to enter into a written memorandum. This will not necessarily mean, however, that the parties will intend that their dealings should be regulated by English law, and where a written document records a transaction, between persons subject to native law and custom, of a kind which by native law and custom was required to be carried out orally, it seems to me that the courts may well hold, without excessive refinement, that the oral agreement was the essence of the transaction, and the document merely the record of it. If it should be thought desirable to insist on the registration of such documents as a condition of their admissibility in evidence, that is a matter for the legislature."

In the passage above, this Court, per Brett, FJ after dealing with the correctness of the trial court's admissibility of oral evidence of leases undoubtedly pleaded and raised as an issue at the trial, went on to express an opinion on the admissibility of a written agreement or memorandum between the parties, which memorandum reduced into writing the oral agreement between them whereby one party granted customary law leases to the other. The trial court had ruled that as the written memorandum offended against Section 2 of the Land Registration Ordinance, it was inadmissible. Both parties were content with this decision and did not question it on the appeal to this Court nor addressed the court on it. Brett, FJ however expressed an opinion questioning the correctness of the trial court's decision. To that extent, the opinion expressed is obiter and not one of the rationes decidendi of the final decision of the court on the appeal before it. I have no reason, however, to doubt the correctness of the opinion expressed.

This notwithstanding, the case, in my respectful view, does not apply to the case on hand. I say this because, first, the agreement pleaded in the Statement of Claim, unlike the written agreement in the Okpata case, was not tendered and rejected by the trial court. Learned Counsel for the plaintiff sought to tender it but on being faced with an objection by defence Counsel on non-registration under the Land Registration Law of Eastern Nigeria (in pari materia with the Land Registration Ordinance in the Okapata case), withdrew the document and so has never formed part of the record. Secondly, oral evidence was given showing that there had been prior oral agreement of leases under customary law before the written agreement or memorandum witnessing that oral agreement. It must be assumed that it was pleaded that the leases were customary law leases granted in accordance with customary law rules. There is no such pleading nor evidence in the instant case. Thirdly, as the agreement relied on by the plaintiff in the present case was not received in evidence nor forms part of the record before us, it is impossible to decide whether it "produces a legal result itself" or merely serves as a memorandum of the "legal result produced by some other transaction".

In my respectful view, the learned trial Judge was in error to rely on Okpata, without the pleaded agreement being before him, in holding that the transaction between the defendant and the Ashipa Family, as represented by Chief Oyekola was under customary law.

I now turn to consider (c) and (d) together. The defendant admitted the Agreement pleaded in paragraph 6 of the Statement of Claim but Owosho v Dada (supra) is no authority for holding that it was not necessary to tender the Agreement in order to show its terms and conditions. The facts in Owosho v Dada are not apposite to the facts in the case on hand. In Owosho v Dada what was in issue was the failure by the plaintiff to tender in evidence a deed of conveyance he intended to have set aside by the court. The deed was pleaded by him and admitted in the Statement of Defence of one of the defendants. The existence of the deed thus became an admitted fact which the plaintiff need not prove. In the case on hand, however, the issue was whether on the terms and conditions of the Agreement pleaded in paragraph 6 of the Statement of Claim, the plaintiff was entitled to forfeiture. In Owosho v Dada, Aniagolu, JSC in his lead judgment adverted his mind to the difference. He said at pages 165-166 of the Report:-

"In the instant case, there was no need, having regard to the state of the pleadings, for the respondent/plaintiff to apply to recall the plaintiff in order to tender the deed of conveyance registered as 69/69/1433 which had been admitted specifically by the seventh defendant and deemed to be admitted by the first to sixth defendants in the pleadings.

With all due respect to Mr Bashua, Counsel for the appellants, he had conceived the matter erroneously when he kept on harping, in his submission before us, that the learned trial Judge could not set aside a deed of conveyance which was not before him. He argued as if a setting aside of a deed of conveyance would entail a physical tearing up, or destruction, of the deed before it could be said to have been set aside. The particulars of the deed were before the court and were admitted. All that would have happened would have been for a judgment of a court setting aside the deed (in the instant case, deed registered as No 69 at page 69 in Vol. 1433 of the Lagos Lands Registry) to be affixed to the deed in the Land Registry by the Registrar, or for the record of the court's judgment to be made on the deed and the cancellation would then be effective. Mr Bashua must have felt that he had reached his El Dorado when the plaintiff did not produce his deed of conveyance, and this must have been responsible for his taking the unwise step not to call any evidence at the close of the plaintiff's case. Clearly, that was a mistaken failure to appreciate the state of the pleadings in this case.

It must be pointed out that the matters in issues were not the terms of the deed of conveyance in which case it would be necessary that the document should be produced in order that the court might determine the precise contents of the document. What the plaintiff pleaded was that the first to sixth defendants purported to convey that estate which was already vested in him to the seventh defendant. The seventh defendant had admitted that it was that estate which was conveyed to him by the deed of conveyance registered as 69/69/1433 of the Lagos Land Registry."(My emphasis.)

The existence of the agreement is not in dispute. As pleaded in paragraph 6 of the Statement of Claim, the agreement was a tenancy agreement whereby the Ashipa was landlord and the defendant was tenant. The rent payable was N21 per annum. That was all the defendant admitted in his Statement of Defence. Beyond these, nothing else is known about the terms and conditions of the agreement. It is not known, for instance, what the landlord's covenants were nor those of the tenant and the conditions that would give rise to forfeiture of the tenant's holding on the land. Without producing in evidence the agreement, it would be impossible to know whether the landlord was entitled to forfeit the tenant's holding following the latter's refusal to pay rents and denying the landlord's title.

There are incidents attaching to customary tenancy that have been recognised in numerous cases. In all customary tenancies, for instance, the customary tenant retains, until forfeiture, the right to the use and enjoyment of the land. A denial by him of his landlord's title is a misconduct which can be a ground for forfeiture - see Oloto v Dawodu (1904) 1 NLR 58; Onisiwo v Bamigboye (1947) 7 WACA 69; Eletu v Omojewonniya (1962) 2 All NLR 13; Anyaduba v Nig. Renowned Trading Co Ltd (1992) 5 NWLR (Part 243) 535.

Under the Law however, there are statutory restrictions imposed such as, for example, restriction on and relief against forfeiture imposed by Section 161(1) which reads:-

"A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice:-

(a)     specifying the particular breach complained of; and

(b)     if the breach is capable of remedy, requiring the lessee to remedy the breach; and

(c)     in any case, requiring the lessee to make compensation in money for the breach;

and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach." (My emphasis.)

Having regard to the use the land was being put to, is it not possible to suggest that all the agreement gave was a licence? Had the courts below adverted their minds to the various speculations that could arise from the non-production of the agreement pleaded in paragraph 6 and relied on by the plaintiff, they would not have readily found in his favour as they did.

From all I have been saying, the failure by the plaintiff to produce in evidence the Agreement pleaded and relied upon by him is fatal to his case. If the tenancy had been under customary law, I would not have hesitated to dismiss this appeal for, by denying his landlord's title, the defendant would be guilty, on the authorities, of such misconduct that would entitle the landlord to forfeit his holding. But there is nothing in the Statement of Claim to suggest that there was an oral agreement of such a tenancy which was reduced into the written memorandum dated 11 January 1970. I think both the trial High Court and the Court of Appeal are in error to come to the conclusion they reached that there was such oral agreement of a customary law tenancy which the parties reduced into writing.

In view of the importance to the case for the plaintiff of the Agreement pleaded in paragraph 6 of his Statement of Claim - which document formed the basis of his action - it is rather startling, to say the least, that learned Counsel for the plaintiff could not regularise before the close of his case the defect that led to his withdrawing the document from evidence. Neither did he consider it prudent to amend his pleadings to include facts from which it could be inferred that the transaction leading to the Agreement was a customary law transaction. Rather than focus on the kernel of his case, he allowed himself to be carried away by the plea of jus tertii raised by the defendant and focussed his attention more on disproving that plea than proving the case he had set up.

In conclusion, this appeal succeeds and it is allowed by me. I set aside the judgments of the courts below and in their stead I make an order dismissing plaintiff's claims. I award N1,000 costs of this appeal to the defendant/appellant. I also award to the defendant/appellant N350 and N450 costs in the High Court and Court of Appeal respectively.