This is an equitable remedy. It is discretionary and never
granted as a matter of course. This is well illustrated in the case of Onisiwo V Fagbenro36 “In this case, the defendants and their ancestors had been
customary tenants of the plaintiffs for about eight years. Without the consent
of the overlords, the defendants granted a lease of the land for fifty years.
The plaintiffs claimed that by this the defendants had forfeited their
possessory right of the land. The court held that the action of the defendants
was such misconduct that it rendered them liable to forfeiture.
However, the
court declined to grant relied against forfeiture on the ground that the
defendant’s conduct disentitled them to that equitable relief as they had
claimed the absolute ownership of the land in question. In deciding whether or
not to grant relief the court consider all the circumstances of the particular
case, including the nature of the tenant’s misconduct and any mitigating
circumstances that might be disclosed. This was succinctly stated by the
Supreme Court in the following words:
“Any decision as to whether to grant relief
or not will depend on credible evidence and on the circumstances of each case
which, invariable turn either on the attitude of the offending customary tenant
or on the nature and length of the act which the claim for forfeiture is based
or on both”.
In that
case, the plaintiffs claimed a declaration of title to the land in dispute a
declaration that the defendants had forfeited all rights possessed of them
under Yoruba Customary law, and for possession in their statements of defense
the defendants averred that they were the absolutes owners of land as their
ancestors came to settle on the land two hundred years ago. Ever since as they
claimed they had exercised maximum acts of ownership over the land leasing and
selling portions of the land to strangers to the knowledge’s of the plaintiffs.
The trial
judge found for the plaintiffs and granted them a declaration of title as he
found that they first settled on the land. He also ordered forfeiture. On
appeal to the Supreme Court, the defendants argued that even if the trial judge
found against them he should have granted relied against forfeiture in
accordance with the frequent practice of the courts in Nigeria particularly is
they acted honestly in the belief of the traditional history handed down to
them by the ancestors more than two hundred year ago. And that if an order of
forfeiture was to be made it should have been made only against the defendants
and those who aided and abated him.
The Supreme
Court affirmed decision of the lower court and refused to grant relief against
forfeiture on the following grounds:
i) The
defendants did not ask for relief in the pleadings and did not do so even
orally at the lower court. They did not ask for relief even in the alternative
in their pleadings. They decided on a straight fight basing all on title or
nothing;
ii) The defendants
were not living on the land in dispute. They admitted in evidence that they
have other hands of their own.
iii) While the
case was going to the defendants continued to lease or sell portions of the
land in dispute”
In Okoia v Faloiu39 the defendants were customary tenants and they not only
denied the landlord’s title but also printed notices, which were put on the
land in dispute warning the public against having any dealings with the
plaintiffs/landlords in connection with the land. They West African Court of
Appeal ordered forfeiture and refused to grant relief against forfeiture having
viewed the misconduct as being very grave. But in Ogbakumanwu v Chiabolo40
the plaintiffs, the Iwollos, claimed rent from the defendants, the Awhas; The
District Officer’s decision on a review was given in such a way as to encourage
the defendants that they were joint owners of the land. Also, in 1944 the
defendants claimed sole ownership of the land and failed. The plaintiffs now
commenced this action against the defendants for damages; for trespass and for
infiltrating into their land in their statement of defense the defendants
averred that the land originally belonged to them whereupon the plaintiffs
replied that having denied their title, the defendants forfeited their rights
in the land and had become trespassers.
The court
held that the plaintiff’s action must succeed, as they were the owners of the
land, but because of the way in which the decision was given the defendants
thought that they had become joint owners of the land. It would therefore, be
inequitable to forfeit their rights in the land. The court further held that
the defendants were not trespassers as they would have still been in possession
had they not been asked by the plaintiffs to quit.
Also, in Uwani V Akom41 three hundred and ten Aros lived in four compounds at Ukpom
in Bende District as customary tenants for over 50 years in about 100 houses
and had many fruit bearing trees planted by themselves and which yielded an
annual income of about £1,000 Some members of the group sold or mortgaged the
farming right of one of the members of the group who was away to another
member. The plaintiff’s owners of the land took proceedings to eject all the
Aros.
It was held
that it would be inequitable to evict the Aros having regard to their
circumstances. However as a punishment the Aros were ordered to pay an annual
tribute of £15 to the overlords in recognition of their ownership of the
land.