E.C.N. V. OKUPE

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

We are in agreement with learned counsel for the plaintiffs that on the facts

proved in this case, the ancestors of the first defendant were no more than cus-

tomary tenants. It should be mentioned in passing that there was evidence from

the plaintiffs that even during a substantial part of the period of possession claimed

by the defendants, the members of the plaintiff's family still continued to reap the

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economic fruits from the land in question. The learned trial Judge stated in his

judgment that he believed and accepted the traditional story of the plaintiffs and it

is easy to see why an acceptance of the plaintiff's story must involve the conse-

quence that the defendants' ancestors were ever hardly in exclusive possession

of the land in question. Counsel for the defendants contended before us that there

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was no evidence that the ancestors of the first defendant ever paid any rent or trib-

ute on the land in question and that this negatived the claims of the plaintiffs that

the first defendant and his ancestors were customary tenants. No authority was

cited nor evidence given for this proposition. It is however not necessary for us to

decide this point in this appeal since on the facts found by the learned trial Judge

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(and these facts are abundantly justified by the evidence) the first defendant and

his ancestors should consider themselves lucky that they had been accepted by

the plaintiffs as customary tenants instead of as bare licensees.

It was also contended before us on appeal that the learned trial Judge was

wrong to dismiss the plaintiffs' claims on the ground that the land of Oteniya hav-

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ing been apportioned among his children, Dosunmu and lsiba, the present plain-

tiffs could not claim the portion which fell to Dosunmu on that partition as the family

property of Oteniya. The evidence shows that Dosunmu died intestate and with-

out issue and it was conceded in argument before us by both sides that in those

circumstances the portion of Dosunmu reverted to their common ancestor, Ote-

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niya. That being so, the plaintiffs' case should not have been dismissed on this

ground as well.

In the event, this appeal succeeds and the judgment of the Ikeja High Court in

Suit No. H.K/103/60 is hereby set aside and it is ordered that judgment be entered

for the plaintiffs as per their amended writ of summons. The respondents must

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pay the costs of the appellants fixed at 75 guineas in the Court below and in this

Court at 30 guineas.

Appeal allowed with costs:

E.C.N. V. OKUPE

ELECTRICITY CORPORATION OF NIGERIA

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APPELLANTS

V

CHIEF M.A. OKUPE

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RESPONDENT

SUIT NO. SC 45/1966

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

AJEGBO,

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J.S.C.

COKER,

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J.S.C.

11th January, 1967

Land Law - Bonds - sale of land accompanied by Recitals - Effect where

condition clear and unambiguous - conditions - allegations by plaintiff of breach

- Failure by plaintiffs to present conveyance for execution - onus of proof as

regards failure of title.

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