Abike v. Adedokun (1986)


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16 June 1986

1.
OMOLOLA ABIKE

2.
LATIFU AJIBADE

V.

OLALONPE ADEDOKUN

COURT OF APPEAL

(IBADAN DIVISION)

FCA/I/50/83

JOHN HEZEKIAH OMOLOLU-THOMAS, O.F.R., J.C.A. (Presided and Read the Lead Judgment)

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

SYLVESTER UMARU ONU, J.C.A.

THURSDAY, 20TH FEBRUARY, 1986

EVIDENCE – Inadmissible evidence – Effect of.

EVIDENCE – Witnesses – Memory of witnesses to recall events – Length of time.

LAND LAW – Family land – Claim of exclusive possession by member – Onus of proof.

LAND LAW – Family property – Partition – Meaning – Effect on family land – Evidence of.

LAND LAW – Family property – Partition – Sale of family property – Effect of sale by Head without members’ consent – Effect of sale by members without Head’s consent.

LAND LAW – Weakness in defendant’s case – Effect on plaintiff’s case.

PRACTICE AND PROCEDURE – Pleadings – Non-joinder of issues on a point – Effect of evidence on the issue.

PRACTICE AND PROCEDURE – Pleadings – Use of vague words or expressions – Further and better particulars – Duty of opposing counsel.

Issue:

Whether the trial Judge was right to have held that there was sufficient evidence of partition in favour of the plaintiff.

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Facts:

Both parties derived title from a common ancestor. The plaintiff claimed by virtue of a partition between his predecessors in title while the defendants claimed to have exclusive possession by a grant obtained from the original owner.

The trial court found that there was evidence to support the plaintiff’s claim that there had been partition in his favour and so held. The defendants being dissatisfied appealed to the Court of Appeal.

Held (Unanimously dismissing the appeal):

1.
If parties in a civil case do not join issues on a point any evidence given in respect of that point will be regarded as not being in accordance with the pleadings and going to no issue. Where it has already been accepted wrongly, it ought to be expunged from the record or ignored.

2.
Once there is sufficient evidence from which the court is satisfied that there has been partition of a land, it should so hold, notwithstanding that different witnesses have referred to the act by use of different terms such as ‘dividing’, ‘granting’ and ‘sharing’.

3.
Whether or not an act amounts to partition under Customary Law depends upon the facts in particular cases, the nature of division, sharing or grant, and the circumstances, depending on the Customary Law and acts indicative of such ‘partition’.

4.
Once a piece of evidence is held to be inadmissible, it becomes immaterial and irrelevant, unless if its inadmissibility or otherwise becomes an issue itself e.g., by being made an issue of appeal.

5.
Where a piece of land is admitted to belong to a family of which a party is a member, it is for the party who claims exclusive right thereto to prove how he or she derived such exclusive right.

6.
A plaintiff must lead clear evidence of the nature of his grant.

7.
In a land case, where there are weaknesses in a defendant’s case, which also amount to admissions in favour of the plaintiff, the trial Judge may take advantage of this in finding for the plaintiff.

8.
Where a particular word or expression or averment used in a party’s pleading is vague or ambiguous, it is the duty of the opposing counsel to apply for further and better particulars and for clarification.

9.
A period of “about 40 years” or “more than 50 years” is within the range of probability as to time depending on the level of intelligence of the party giving evidence and the ability of the witness to recall accurate dates and events.

10.
The Dictionary meaning of the word “partition” is “the act of dividing”.

11.
A sale of a family land by the Head of a family without the consent of the principal members of the family is voidable and not void.

12.
A sale of family land by members of a family without the consent of the Head of the family is void ab initio.

13.
Once a previous family land is partitioned and the recipients of the partitioning go into exclusive possession, the land ceases to be family land.

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Nigerian Cases Referred to in the Judgment:

Adenle v. Oyegbade (1967) NMLR 136

Adewunmi v. Aduroja (1975) 2 W.S.C.A. 189

Akibu v. Opaleye (1974) 1 All NLR (Pt. II) 344

Alao v. Disu 3 FSC 104

Ekpendu v. Erika 4 FSC 79

Elias v. Omo-Bare (1982) 5 SC 25

Emegokwe v. Okadigbo (1973) 4 SC 113

Eze v. Igiliegbe 14 WACA61

Kodilinye v. Odu 2 WACA 336

Mogaji v. Nuga 5 FSC 107

Mogaji v. Odofin (1978) LRN 212

National Properties Investment Co. Ltd. v. Thompson Organisations Ltd. (1969) NMLR 94

Njoku v. Eme (1973) 5 SC 293

Onyebashi v. Anthony (1974) 1 All NLR 223

Woluchem v. Gudi (1981) 5 SC 291

Foreign Case Referred to in the Judgment:

Coblah v. Gbeku WACA 294

Appeal:

This was an appeal from the decision of the High Court of Oyo State holden at Ibadan upholding the plaintiff’s claim. The Court of Appeal upheld the trial court’s decision and unanimously dismissed the defendants’ appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Ibadan.

Names of Justices that sat on the Appeal: John Hezekiah Omololu-Thomas, J.C.A. (Presided and Read the Leading Judgment); Ibrahim Kolapo Sulu-Gambari, J.C.A.; Sylvester Umaru Onu, J.C.A.

Appeal No.: FCA/I/50/83

Date of Judgment: Thursday, 20th February, 1986.

High Court:

Name of the High Court: High Court of Oyo State, Ibadan.

Counsel:

Akin Olujimi – for the Defendants/Appellants.

T. L. Peluola – for the Plaintijf/Respondent.

OMOLOLU-THOMAS, O.F.R., J.C.A. (Presiding and Delivering the Lead Judgment): By a writ of summons between the above-named plaintiff/respondent and defendants/appellants. the plaintiff’s claim before the High Court of Oyo State holden at Ibadan is for Declaration that a piece of land at Agoro Village

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Abike v. Adedokun
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Ibadan (Exhibit ‘A’) is in the exclusive possession of the plaintiff, that the purported sale of the land between the 1st defendant and the 2nd defendant is invalid, illegal and be declared null and void, N2,000.00 damages for trespass by the 1st and 2nd defendants, and perpetual injunction against the defendants. The learned trial Judge admirably summarised the cases of the respective parties and from his judgment the facts on which each party relied read –

“It is common ground in this case that the plaintiff and the 1st defendant, Madam Omolola Abike, are descendants of one Solalu who originally settled on a large piece of land of which the land now in dispute forms part. Solalu had two male children: Ajala and Salako. It is also common ground that at a point in time the land in dispute became the property of Ajala. The parties do not agree as to how exactly the land became Ajala’s. The defence denied the averment in paragraph 5 of the statement of claim that Solalu divided his land between Ajala and Salako in his life time but curiously, admitted paragraph 6 of the statement of claim in which it was聽adverted that ‘Ajala and Salako took exclusive possession of portion of land granted to each of them exercising dominion over their respective portion of their land and at their death their respective children inherited their respective portion according to native law and custom The plaintiff’s case on the pleadings as far as the title she relies on for her claim in brief is this: “Ajala divided his portion of land” among his two male children Adedokun and Odedina. These two children ‘took effective possession of their respective portion of land and thereon farmed until the death of their father’. After Ajala’s death the section of Ajala’s family to which Adedokun belonged confirmed to Adedokun that the land was an outright grant to him by their father during his life time. On Adedokun’s death, the plaintiff being his daughter took charge of the land.

The defence, in reply to what is the kernel of the plaintiff’s case, averred in paragraphs 11 and 12 of the statement of defence as follows:

“11. 聽聽聽聽Before Ajala died he called on his two eldest children by his two wives, i.e. the 1st defendant of the one side and handed over unto them all his farmlands including the land in dispute.

  1. 聽聽聽聽The 1st defendant denies paragraph 7 of the statement of claim and avers that it was she (1st defendant) who put Adedokun (plaintiff’s father) on the farmland at Olorunda and one Akanji on the land in dispute to take charge thereof. Akanji planted the oranges in the land.

The defence went further to aver in paragraph 13 of the statement of defence that it was the 1st defendant who called upon Adedokun to manage the farmland in dispute and that Adedokun accepted that responsibility and reported with seasonal yields of the farmland to the 1st defendant.”

After a review of the case of each party and an assessment of the evidence of witnesses in support of their respective cases, the trial Judge found as a fact

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that Adedokun was in occupation of the entire land verged Green in Exhibit A, that Odedina was in exclusive possession of the land adjacent to the land in dispute which formed part of the land which belonged to Ajala, the common immediate predecessor-in-title of Adedokun and Odedina. He found that the defence case on absolute ownership of the property had been inconsistent. He found the evidence of the 1st defendant and her son 2nd D.W. unreliable.

He accepted the plaintiff’s evidence that she succeeded her father on the land and rejected the 1st defendant’s evidence that it was she who put Adedokun on the land.

He also found that just as Odedina was in exclusive possession of his portion of the land adjacent to the land in dispute so was Adedokun the plaintiff’s father.

On the totality of the evidence he found that the plaintiff has proved her entitlement to the declaration sought. The sale of the land by the 1st defendant as owner thereof to the 2nd defendant was declared invalid, null and void. Both defendants were found liable in trespass in the sum of N200.00, but the relief for an order for injunction in terms sought was refused with liberty to apply for the relief in future if she so wished.

Being dissatisfied with the judgment the defendants/appellants had appealed on one original ground of appeal. Briefs were duly exchanged. The appellants sought leave for and obtained it to file 4 additional grounds. Parties relied on their briefs and on their oral submissions.

The appellants’s counsel posed the following questions for determination, namely –

“Whether on the evidence led by both parties there was sufficient evidence from the plaintiff to support:

(a)
the finding of the lower court that the plaintiff’s father had exclusive right to the land in dispute;

(b)
the judgment of the lower court.”

The respondent’s counsel on the other hand put the issues thus:-

“(1) 聽聽聽聽Whether on the totality of evidence before the court the trial court has made correct findings of fact that the land in dispute which originally belonged to Ajala ceased to be Ajala’s family property and in exclusive possession of the plaintiff.

(2) 聽聽聽聽That if the findings in (1) above are correct, whether it is proper to declare the sale by the first defendant to the second defendant of the land in dispute invalid, and if the sale to the 2nd defendant is invalid whether it is proper therefore for the trial court to declare the sale null and void.”

Grounds 1 and 2 of the additional grounds read thus –

“1. 聽聽聽聽The learned trial Judge erred in law when in an attempt to resolve the issue whether Adedokun the plaintiff’s father had exclusive right to the land in dispute he proceeded to consider the weakness in the defendant’s case.

Particulars of error of law

(i) 聽 聽 聽聽In an action for a declaration of title the plaintiff succeeds on the strength of his own case and not on the weakness of the defendant’s case.

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聽 (ii) 聽聽聽聽There was no satisfactory evidence led by the plaintiff as to entitle her 聽to the reliefs granted.

2.
The learned trial Judge erred in law and misdirected himself when聽he held that in view of the finding he had made about Odedina’s exclusive possession of land adjacent to the land in dispute he was satisfied that the plaintiff’s father also had exclusive right to the land in dispute.

Particulars of errors of law and misdirection

聽 聽 (i) 聽聽聽In view of the evidence before the learned trial Judge that Odedina and Adedokun (plaintiff’s father) were of different mothers any finding by the learned trial Judge on Odedina’s right to his holding not being subject of dispute can only be hypothetical and it is therefore misleading to use such hypothetical judgment to resolve a live issue touching on Adedokun’s right to his holding.”

聽 聽 聽 聽Counsel in his submission stated that in an action for declaration of title the onus is on the plaintiff to prove his case and succeeds on the strength of his own title and not on the weakness of the defendant’s case, and that where the evidence in support of the plaintiff’s case is not sufficient the defendant is entitled to judgment (Cobblah v. Gbeku聽12 W.A.C.A. 294. 295 and Kodilinye v. Odu聽2 W.A.C.A. 336 at 337 and Alhaji Adebola Olakunle Elias v. Chief Timothy Omo-Bare (1982) 5 SC 25. 27; where the following passage appears –

“Civil cases, as is well known, are decided on a preponderance of evidence. This is even more so in a case where a plaintiff seeks to be awarded the discretionary relief of a declaration of title to land.”

聽 聽 聽 聽 Counsel then referred to the evidence of the plaintiff that her father had exclusive right to the land by reference to the partitioning of the land between Adedokun and Odedina during Ajala’s life-time.

One observes here that there is no dispute as to the partition between Ajala and Salako and that their children respectively inherited their parent’s portion of the land according to native law and custom. What is in issue is whether Ajala “divided” his portion of the land between Adedokun and Odedina according to the respondent’s case, or whether Ajala merely “handed over” all his farmlands including the land in dispute to his two eldest children by his wives i.e. the 1st appellant who put Adedokun (respondent’s father) on the farmland at Olorunda and one Akanji on the land in dispute to take charge of according to the appellants’ case (see paragraphs 11 to 13 of the statement of defence).

Counsel referred to the following evidence of 5 P.W.. and that of 6 P.W. on the same lines, which read –

“Ajala had two wives in his lifetime. When Ajala was sharing his property he shared it between the two sides. Ajala had three male children. They were Adedokun. Akanji and Odedina. Adedokun and Akanji were of the same mother. Akanji was not given land because the land was shared by branches and Adedokun had been given land. “

(Italics mine).

and submitted that the admission can only mean that there was no partition between

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Adedokun and Odedina. Counsel argued that if the evidence was accepted by the court it means the share of one branch belongs to all members of the branch as tenants in common. He therefore submitted that the trial Judge was in error to have completely disregarded the admission.

He further submitted that there is no rule of law that the evidence, as to partition referred to above, which was rejected by the trial Judge on the basis that it was not pleaded, cannot be used to assess the credibility of a witness where it materially contradicts other pieces of evidence led in the case.

The answer to the point raised by counsel is that since neither party joined issues on the matter, the evidence does not accord with the pleadings as rightly upheld by the trial Judge. The evidence goes to no issue, and if accepted wrongly it ought to be expunged from the record or ignored. [See Emegokwtte v. Okadigbo (1973) 4 S.C. 113, Kalu Njoku & Ors. v. Ukwu Eme (1973) 5 S.C. 293. See also National Properties Investment Co. Ltd. v. The Thompson Organisations Ltd. & Ors. (1969) NMLR 94. Thus, such evidence cannot in any way be made use of by the trial Judge.

Besides, different witnesses referred to the act of “partition” in different terms e.g. as “dividing” “sharing” and “granting”. The question whether the act in question amounts to “a partition under native law and custom” must depend in my humble view upon the facts in the particular case, the nature of the division, sharing or grant, and the circumstances depending on the customary law and acts indicative of such “partition”.

In the case in hand even under cross-examination, the witness (5 P.W.) said聽also –

“When a wife in Ajala family had no male child, the female child is given land. That was how plaintiff got land. Adedokun’s land was shared between the two branches of Adedokun’s family.

Odedina sold his own portion of the land and no one questioned him. I do not know if plaintiff joined in the sale. When Ajala wanted to partition his land he summoned Akinkumbi. Other members of Ajala family present were many. 1st defendant was not present. No woman was present.”

He had earlier said under examination in-chief that when Ajala became old he granted the land to Adedokun and Odedina because the two were quarrelling. He divided the land between them, and he further said that 1st defendant was not granted any land and that no female was granted land during Ajala’s life-time. Needless to say the 1st appellant is a female member of the family.

What is essential here is that no one questioned Odedina when he sold his own portion. Witness did not know whether 1st appellant joined in the sale. Furthermore, the “partition” was in the presence of witnesses – other members of the family. I do not therefore accept the suggestion that there was no partition. The evidence as accepted by the trial Judge is clear. The mere fact that the word “partition” or the word “sharing” was used differently by different witnesses is of no significance and I do not therefore think that there had been such violent con tradiction in the evidence that should have made the trial Judge to have completely disregarded the respondent’s case.

Further, it is not correct that the trial Judge first made a finding at p. 53 lines

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19-20 that Adedokun. the respondent’s father, was in exclusive occupation of the entire land shown verged Green in Exhibit ‘A’ in order to get over the difficulty presented by the respondent’s case as urged by the appellants’ counsel. The finding reads –

“On the totality of the evidence I find as a fact that Adedokun was in occupation of the entire land shown verged Green on Exhibit ‘A’. (Italics mine)

This is precisely the respondent’s case – the basis of their case being that Adedokun was in exclusive occupation of the land, just as Odedina was in exclusive possession of the adjacent piece of land which was part of the land before Ajala partitioned it.

By itself the evidence is not inconsistent with the evidence of 1st appellant聽that –

“When Akanji died I told Adedokun to go on the land.”

Both statements taking out of context suggest that Adedokun was in possession. The only difference, however, is that the “occupation ” the trial Judge was talking about and as supported by the pleadings and evidence is one of exclusive possession, and not just mere possession allegedly authorised by the head of the family as claimed by the appellants. As expressed by the trial Judge –

“It seems common ground therefore that Adedokun used the land in dispute. The main point of divergence is whether he used it as asserted by the plaintiff as a result of a grant or whether he used it by the authority of the 1st defendant as she claims.”

From there, the trial Judge considered that at a time the land was family land. He accepted the evidence that Adedokun used the land. He considered rightly in my view that no inference in favour of the rival contentions of the parties can be drawn merely from the act of occupation. He considered the evidence of Obadamosi Ajani (1st P.W.) and David Ajao (2nd P.W.) and accepted their evidence on the grant of the land to them for farming purposes, and also believed Samson Adebowale’s (3 P.W.’s) evidence before making the finding under consideration. It was on the totality of the evidence before him that he concluded that Adedokun was in occupation of the entire land verged “Green” in Exhibit A. He then proceeded to consider the issue of exclusive possession claimed by the respondent against the appellants’ case.

In the circumstance, I am satisfied that the trial Judge did not proceed to consider the weakness of the appellants’ case before considering the strength of the respondent’s case.

Counsel, again, in referring to the evidence of 5 P.W. and 6 P.W. under cross-examination on partition further submitted that there is no rule of law that the evidence which the trial Judge disregarded cannot be used to assess the credibility of a witness where it materially contradicts other pieces of evidence led. In my view there can be no basis for any contradiction once the evidence has been rejected as being inadmissible. The point is that if the evidence is inadmissible, it becomes immaterial and irrelevant except perhaps if its inadmissibility or otherwise turns out to be an issue itself which is not the case here. There is no appeal on the point.

Counsel further submitted that in view of the evidence of the respondent

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that Ajala had more than two children the respondent should have satisfied the court that the other children were not entitled to share in the land. The evidence is that Ajala’s two male children remained on the land farming but that they quarrelled incessantly as a result of which Ajala partitioned his land between them. The third male child is Akanji who was apprenticed to a carpenter in Ibadan. The respondent’s evidence here was supported by the appellants’. There is also evidence which was accepted that no female child was granted land to farm by Ajala.

The facts clearly show that the other children meaning Akanji and the female members of the family were not considered by Ajala while he w’as partitioning the land during his life-time. The question of disinheritance will not therefore arise as the “family land” had ceased to exist (after the partition) and on the death of Ajala.

The learned trial Judge having so found as stated above, the 1st appellant could not be said to be head of Ajala’s family in relation to the land in dispute as respondent’s counsel urged. The case of Adenle v. Oyegbade (1967) N.M.L.R. 136 is of no assistance to the appellants’ case here.

Another issue of fact on the burden of proof which the appellants’ counsel raised is that the trial Judge made a finding of fact to wit –

“On the evidence before me I come to the conclusion of fact that Odedina was in exclusive individual possession of land adjacent to the land in dispute which formed part of the parcel of land which belonged to Ajala.”

in trying to resolve the issue touching on the respondent’s father’s right; and having made it, he concluded that on the basis of the finding the land in dispute was granted to the respondent’s father, Adedokun.

He submitted that the capacity in which Odedina held his own portion is an issue which can only be properly resolved in a contested suit between members of Odedina’s branch of Ajala’s family. Counsel complained that it is erroneous to use such finding on a purely hypothetical matter to resolve a live issue.

I do not accept the counsel’s proposition that the finding is on a purely hypothetical issue in view of the issues raised in the pleadings by the respondent on partition by Ajala in his lifetime between Adedokun and Odedina, each having exclusive occupation of their respective area of the land. The 1st appellant, having admitted that the respondent was in possession, although under her authority, she further under cross-examination said –

“Odedina was in possession of his own portion of the land till his death. Adetorodid not challenge Odedina on the land till his death. No one challenged Odedina. I聽did not challenge her. I did not challenge Odedina because each had been partitioned his own. The one in Odedina’s possession belonged to (him) exclusively and no one challenged (him) thereon.”

(Italics and bracketted words mine)

The 1st appellant also admitted that both Adedokun and Odedina were using the land during the lifetime of Ajala. All these support the respondent’s case and are devastating to the appellants’ case. As the evidence are material the inferences drawn are irresistible, and the trial Judge was correct to have made a finding on the exclusive nature of the grant to Odedina as a co-grantee, and not the capacity

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in which he held the portion of land as put by counsel. He is justified in my opinion in so finding.

Besides, the trial Judge did not rely solely on the finding. He had found earlier that Adedokun was in occupation of the land verged Green (Exhibit ‘A’). The issue merely strengthened the respondent’s case. The proposition that the use to which he made the finding is on purely hypothetical matter is therefore unfounded.

Without doubt it is settled law that where land is admitted to have belonged to a family of which a party is a member, as submitted by the appellants’ counsel it is for the party who claims exclusive right thereto to prove how he or she derived such exclusive right (Adenle v. Oyegbade (1967) N.M.L.R. 138). The principle applies equally to the respondent as it applies to the appellants.

In my view, there is no basis for the contention of counsel that the respondent failed to lead any evidence of the nature of the grant resulting from the alleged partition contrary to the settled principle of law that a plaintiff must lead clear evidence of the nature of his grant, [vide Onyebashi v. Anthony (1974) 1 All N.L.R. 223].

I am satisfied that clear evidence had been led and accepted by the trial Judge on the point. Apart from the evidence of partitioning, there is the evidence of an undisturbed possession. She continued to cultivate the land. She built a house on it and had tenants there. As put by the trial Judge correctly in my view –

“The acts of putting tenants on the land and reaping palm fruits thereon without accounting therefor to the family are not consistent with joint ownership of the land.”

The evidence is that the grant to Adedokun and Odedina were outright, and as confirmed by the 1st appellant in the case of Odedina until the trespass complained of was committed.

That Akanji had a right to the land in dispute if he were alive does not without more, make the grant to Adedokun the respondent’s father any less absolute, since both the appellants and the respondent agreed in their evidence that Akanji was a carpenter throughout his life. The nature of Akanji’s right as pointed out by the 1st appellant under re-examination was no more than a right to the use of the land. She said –

“It was Adedokun who said Akanji should be using the land in dispute.” (Italics mine)

In my opinion, such a right of a full-blooded brother could not suggest that Adedokun’s right is not absolute. The evidence suggests that the so-called right is no more than a concession or licence. In any case, all the foregoing coming from the appellants’ side do not help the appellants’ case that Ajala family’s right over the land in dispute subsisted after the partition already created according to the evidence. These are weaknesses in the appellants’ case, but they are also admissions in favour of the respondent which may be taken advantage of by the trial Judge, and which he correctly took into consideration in finding for the respondent (Mogaji v. Odofin (1978) LRN 212).

The trial Judge validly found in my opinion that Adedokun, the respondent’s

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father, was in exclusive possession of the land in dispute by way of grant from their father. The answer to the appellants’ question (a) is therefore in the affirmative. Grounds 1 and 2 fail.

Ground 3 of the grounds next argued reads –

“The learned trial Judge erred in law when he proceeded to make findings of fact in this case without evaluating the whole evidence led in the case.

Particulars of error of law

(1) Before making findings of fact it is incumbent on the learned trial Judge to evaluate the whole evidence.”

On the second issue for determination on evaluation of evidence, the learned counsel referred to the fact that the trial Judge reviewed the evidence of the respondent and their witnesses, and then proceeded to identify the weaknesses in the appellants’ case. In the process the trial, Judge found that the respondent’s father was in exclusive possession by way of grant from their father, and counsel then submitted that before a trial Judge makes findings of fact and accept any evidence he has a duty to evaluate the evidence thoroughly. He should consider the evidence of each witness and give reasons for preferring one to the other (vide Mogaji v. Odofin (supra), Adewunmi v. Aduroja聽(1957) 2 W.S.C.A. 16, 30 and Akibu v. Opaleye (1974) 1 All N.L.R. (Part 11) 344.

In support of his contention counsel gave instances. He referred to the statement of claim paragraph 7 where it was said that “Ajala divided ” his portion of land among his two male children over 50 years ago whereas the respondent testified that “Ajala called on his relation to partition ” the land about forty years ago. Counsel said that this evidence does not accord with the pleadings. Strictly speaking one can say that it does not on the surface, but I do not see the real significance in the objection to the word “divided” with reference to the word “partition” used in evidence. If the word “divide” in the pleadings is vague or ambiguous, it is the duty of the opposing counsel to apply for further and better particulars and for clarification.

The dictionary meaning of the word “partition” is “the act of dividing” (See Jowitts Dictionary of English Law). Besides, the references to “over 50 years”, “about 40 years” and “more than 50 years” seem to me to be within the range of probability as to time depending on the level of intelligence of the party giving the evidence and the ability of the witness to re-call accurate dates and events. The trial Judge was in the position to Judge these. The difference does not seem to me to amount to irreconciliable inconsistencies and contradictions as the respondent’s counsel urged. The real issue was whether there was partition during the lifetime of Ajala, and that issue was resolved. The precise time of death of Ajala therefore pales into insignificance, it would seem.

I agree with the contention of the respondent’s counsel that the trial Judge only accepted the facts proved as pleaded that Adedokun used the land, planted economic trees and put tenants there, in the absence of evidence from the appellants which the trial Judge could have held to contradict all the main issues. Looking at the evidence as a whole (particularly pages 54 to 58). he seems to me to have amply evaluated the evidence of both parties. In my view, he could not from the

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H

facts proved and the obvious inconsistencies in the appellants’ case which he could not accept have held that the balance had tilted towards the appellants’ case in terms of the principle in Mogaji v. Odofin (supra) and Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5 SC 291; and consequently, the answer to the question put is that the trial Judge in making his findings and conclusions had evaluated the evidence led. The ground of appeal therefore fails.

The second question put by the respondent’s counsel in his brief relates to ground 4 which reads thus –

“4. 聽聽聽聽聽聽The learned trial Judge erred in law when he granted the plaintiff a declaration that the sale of the land in dispute to the 2nd defendant was void and N200 damages for trespass.

Particulars of errors of law

(i)
On the evidence before the learned trial Judge the sale of the land in dispute was by the 1st defendant who was accepted to be the head of Ajala family the owner of the land and such sale by a family head can only be voidable if done without the consent of the other principal members of the family.

(ii)
Having regard to the evidence that the 2nd defendant was on the land in dispute by leave of the 1st defendant a co-owner the two of them cannot be liable in trespass.

(iii)
It is only at the suit of the family, if at all, that the 2nd defendant can be liable in trespass.”

The principle of law is that the sale of a family land by the Head of a family without the consent of the principal members of the family is only voidable and not void (vide Mogaji v. Nuga聽(1960) 5 F.S.C. 107, Ofondu聽v. Onuoha (1964) N.M.L.R. 120 and Alao v. Disu (1958) 3 F.S.C. 104. It is also a correct law that a sale of family land is void ab initio if carried out by members of the family without’ the consent of the Head of the family (vide Ekpendu v. Erika (1959) 4 F.S.C. 79). The submissions of the learned counsel on these points of law are well taken.

In relation to the facts of this case on appeal however in view of the findings of the trial Judge that Ajala’s land had been partitioned between Adedokun and Odedina and that Adedokun had been in exclusive possession of the land in dispute partitioned to him, the land ceased to be Ajala’s family land (vide Adenle v. Oyegbade (1967) N.M.L.R. 136 and Udeakpu Eze v. Samuel Igiliegbe 14 W.A.C.A. 61); and as rightly submitted by the respondent’s counsel the 1st appellant could not be the Head of Ajala’s family in relation to the land which had ceased to be Ajala’s family land (Nemo dal qui non habet (Jenk. Cent. 250) also expressed as Nihil dat qui non habet (Jur. Civ.). He gives nothing who has nothing). The trial Judge rejected the appellants’ case outright. The particulars in the ground of appeal relate to the case as rejected. He did not hold that the 1st appellant was Head of the family in respect of the land in dispute. He could not have so held in view of his findings in any case.

As rightly held by the trial Judge –

“The sale of the land by the 1st defendant as owner thereof to the 2nd defendant is also null and void and I shall so declare.”

(Italics only for emphasis)

560
.
16 June 1986
(Omololu-Thomas, J.C.A)

A

B

C

D

E

F

G

H

This ground fails and the answer to the question posed is that the land had ceased to be family land in view of the partition and the exclusive possession of the land in dispute by the respondent’s father, and the purported sale by the 1st appellant is void and of no effect.

Ground 5 deals with the omnibus ground. Appellants’ question (b) and the respondent’s question (1) and (2) overlap and in view of the foregoing consideration, the answer in each case is in the affirmative, the omnibus ground having been covered in the consideration of all the grounds of appeal.

In the premises, therefore, all the grounds of appeal fail and the appeal is dismissed with costs which I assess in the sum of N200.00 only in favour of the respondent.

SULU-GAMBARI, J.C.A.: I entirely agree with the judgment just delivered by my learned brother, Omololu-Thomas, J.C.A., a preview of which I have been privileged to have.

This appeal therefore fails and it is dismissed with the costs of N200.00 to the respondent.

ONU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Omololu-Thomas, J.C.A. I agree with his conclusion that this appeal fails. I also support the order of costs as assessed by him.

Appeal dismissed.

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