ARE & ORS. V. IPAYE & ORS

• Pages: 426-442

ARE & ORS.

V. IPAYE & ORS.

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426

could not have been contemplated by them. As I stated in the recent case of

Chief

Kriah Akpana Adomba & Ors. v. Benjamin Odiese & Ors.

(1990) 1 S.C.N.J. 135, at

pp.142-143, it is perfectly legitimate for a person who has had a previous suit in his

favour either to use it as a foundation for an action in trespass or to go to Court again

to add something new to what he already got in the previous judgment in his favour:

See:-

Mobil Oil (Nig.) Ltd. v. O.A. Coker

(1975) 3 S.C. 175 at page 184;

Okoli Ojiako

& Ors. v. Onwuma Ogueze & Ors.

(1962) 1 All N.L.R. 58, page 62.

So, the issue, even if considered, would have been resolved against the appel-

lants.

For these reasons and the fuller reasons contained in the judgment of my learned

brother, Wali, J.S.C., I would dismiss the appeal. It is hereby dismissed with N500.

(Five Hundred Naira) costs against the appellants.

Appeal Dismissed.

ARE & ORS. V. IPAYE & ORS.

ALHAJI K.O.S. ARE AND ANOR.

V

RAJI IPAYE AND ANOR.

SUPREME COURT OF NIGERIA

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KAWU,



J.S.C.

AGBAJE,



J.S.C.

NNAEMEKA-AGU, J.S.C.

30th March, 1990.

APPELLANTS

RESPONDENTS

SUIT NO. SC.225/1986

Land Law - Declaration of title - Grant - Onus of Proof

Evidence - Traditional evidence - Conflicts - How resolved.

Customary Law - Ishakole - Tribute - Distinction - Significance of both.

Practice and Procedure - Appeals - Concurrent Findings - When Supreme Court will

interfere.

ISSUES:

1.

In what circumstances will the Supreme Court interfere with the concurrent

findings of facts of two lower courts?

2.

What amounts to miscarriage of justice as to allow interference on the part of the

Supreme Court with the concurrent findings of the courts below?

3.

In a claim for declaration of title on whom does the onus of proof lie?

4.

How may the Court resolve a conflict in the traditional evidence deposed to or

adduced by both parties?

5.

What is the difference between a tribute and Ishakole, and what is the significance

of both?

FACTS:

The claim before the Ibadan High Court in this case was for a declaration of title

according to Native Law and custom to a piece or parcel of land being and called

Alashe Village, Ibadan - Oyo - Road, for forfeiture against the 1st to 4th defendants,

possession of all the lands held by the defendants, damages for trespass and

injunction. It was common ground that trie land in dispute was originally that of Are's

(Plaintiffs') family. It was agreed that the said family granted the land in dispute to

the ancestors of the 1st to 4th defendants. The main issue was whether, as the

427

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NIGERIAN SUPREME COURT CASES

[1990] 1 N.S.C.C.

defendants maintains, it was an absolute grant or, as the plaintiffs contend, it was

customary tenancy which was determinable. In the High Court, Ige J., accepted the

defendants' case and dismissed the claim. The Court of Appeal, Ibadan Division

affirmed the decision of the High Court.

The Plaintiffs then appealed further to the Supreme Court contending that the 5

Court below placed the onus of proof on the wrong party.

HELD:

1.

The Supreme Court can only interfere with the concurrent findings of two lower

courts if the appellant can show special circumstances, i.e., that there was a

miscarriage of justice or a serious violation of some principle of law or procedure 10

or if the findings are shown to be errorneous, i.e. error in substantive or procedural

law.

In the present case, the Supreme Court upheld the concurrent findings of the

Lower Courts on the ground that there is abundant evidence to support the

decision reached by both Lower Courts.

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2.

As to miscarriage of Justice in relation to inteference of concurrent findings of

Lower Courts by the Supreme Court, it is the violation of some principles of Law

or procedure which must be such an erroneous proposition of law that if that

proposition is corrected the finding cannot stand or it may be neglect of some

principle of law or procedure whose application will have the same effect.

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3.

Ordinarily, in a claim for declaration of title, the onus is on the plaintiff to establish

his title on the strength of his case.

However, in the instant case where the title of the Plaintiffs' ancestor was

conceded and the plaintiffs admitted to the 1st - 4th defendants being given a

limited grant, the onus must necessarily shift to the defendants to establish that 25

the grant was not limited but absolute.

4.

Where there is a conflict of traditional history, one side or the other must be

mistaken, yet both may be honest in their belief. In such a case misdemeanour

is little guide to the truth. The best way for a court to resolve the conflict is to test

the traditional history by reference to the facts in the recent years as established 30

by evidence and by seeing which of the two competing histories is more probable.

In this case, the Supreme Court was of the view that the trial judge's acceptance

of D.W.2's evidence was borne out of recognition of the authority D.W.2, had in

giving evidence on those matters - he was born and bred at Alashe. He also gave

detailed and unequivocal evidence about the parties and their ancestors.

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35

5.

Tribute is paid as a mere mark of respect for a previous over-lord; its payment

does not signify a subsistence of the over-lord's reversioning interest. Rather, it

is a customary incident of occupation of land by a stranger and is usually

voluntary and does not depend upon any agreement. When the tribute is paid

to an Oba or other paramount Chief, it is called an ISIN (a mere customary token 40

of loyalty or fealty). "Ishakole" on the other hand depends on agreement upon

the grant of the land. Although it cannot be equated to a consideration in the

sense of a

quid pro quo

at common law, it is in the nature of an obligatory rent

whose main purpose is to ensure subsistence of reversionary rights upon

forfeiture of a customary tenancy for any reason.

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The finding of the court in this case was that the respondents paid only tribute

during festive occasions, and not Ishakole.

[As to

when the Supreme Court will interfere with concurrent findings of two

Lower Courts,

see

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50

Adimora v. Ajufo

[1988] 19 N.S.C.C. [Pt.1], P 1005;

Akpagbue & Anor. v. Ogu & Ors. [1976] 10 N.S.C.C. P. 311;

Ajadi & Ors. v. Okenihun & Ors. [1985] 16 N.S.C.C. Pt. P.601]

[As to

whom the onus of proof lies upon in a claim for declaration of title,

see

Noibi v. Fikolati & Anor.

[1987] N.S.C.C. (Vol. 18, Part I.] p. 281;