Adebambo v. Olowosago (1985)

[1985] 3 .
Adebambo v. Olowosago
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1.
ALHAJI AMUDA I. ADEBAMBO

2.
ALHAJA POYE SHANIYONKI

3.
KEHINDE BISIRIYU

(For themselves and on behalf of

the entire members of Otunradewun

Tefojukan Kutimoju Dada branch

of the Aige Family)

                         V.

ALHAJI LAMIDI DAODU OLOWOSAGO

            (DECEASED) substituted by

1.
MISITURA DAODU OLOWOSAGO

2.
MONSURU DAODU OLOWOSAGO

3.
BOLAJI DAODU OLOWOSAGO

COURT OF APPEAL

CA/L/174/83

ADENEKAN ADEMOLA, J.C.A. (Presided)

PHILIP NNAEMEKA-AGU, J.C.A.

OWOLABI KOLAWOLE, J.C.A. (Read the Lead Judgment)

WEDNESDAY, 2ND OCTOBER, 1985

LAND LAW – Family property – Locus of members to bring action to protect family laud.

LAND LAW – Family property – Propriety of member conveying without concurrence of Head and Principal members.

LAND LAW – Family property – Claim of family property by individual – Onus of proof.

LAND LAW – Radical Title – Plaintiff tracing title to established owner – Onus upon defendant.

EVIDENCE – Onus of proof – Defence case supporting plaintiff s case – Effect.

EVIDENCE – Witnesses – Defendants witnesses supporting plaintiffs case – Effect.

EVIDENCE – Witnesses – Giving evidence against party who calls them – Effect on credibility.

Issues:

1.
Can a member of a family bring an action to protect the family’s

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interest over a piece of land.

2.
Can a member of family validly convey title to family land without the consent or concurrence of the head and principal members of the family.

Facts:

The appellants (plaintiffs in the lower court) brought a claim for declaration of title against the respondents (defendants in the court below). Some members of the plaintiffs family had sold the land in dispute to the defendants without the consent or concurrence of the head and principal members of the family. The action was brought on behalf of the plaintiffs family by two members of the family.

The plaintiffs traced their title in the land directly to one Chief Dada whose ownership has been established. Some witnesses called by the defendants to establish their claim, gave evidence which rather supported the plaintiffs claim, and although the defendants did not apply to treat those witnesses as hostile witnesses, the trial judge disbelieved their evidence. The trial judge dismissed the plaintiffs claim, inter alia, on the ground that the land in dispute being family land, the plaintiffs have no sufficient interest to enable them bring such action on behalf of the family.

Plaintiffs then appealed to the Court of Appeal.

Held: (Unanimously allowing the appeal):

1.
A member of a family Is competent to bring an action to protect the family interest in the family land. However, where such member does not possess authority from the family for bring such action, the family would not be bound by the result.

2.
When a person claims to be exclusively entitled to family property, the onus is on him to prove such assertion.

3.
It is a settled rule of Yoruba customary law that a member of a family has no competence to transfer or alienate the family title in land to a purchaser without the consent of the head and principal members of the family. A transfer without such consent by a member will be void.

4.
When in an action for title to land, the plaintiffs have traced their title to the land in dispute directly to one whose title to ownership has been established, the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. Failure of the defendant to discharge such onus will disentitle him from the right to possession.

5.
Though, it is trite law that a plaintiff succeeds on the strength of his own case and not on the weakness of the defendant, this rule must be modified where the dispute involves what was accepted by both sides as originally family land.

6.
Where witnesses called by a defendant give evidence which supports the plaintiffs case, and the plaintiff did not treat them as hostile witnesses the evidence of such witnesses must be treated as an admission upon which the plaintiff is entitled to rely as a further reinforcement of his case.

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The mere fact that witnesses called by a party do not give evidence favouring the party who called them is not sufficient reason for the trial judge to treat the evidence of such witnesses as unreliable.

Nigerian Cases Referred to in the Judgment:

Adenle v. Oyegbade (1967) NMLR. 136

Ajeja v. Ajayi (1969) 1 All NLR. 72

Akinola v. Oluwo (1962-1966) WNLR. 133

Eze v. Igiliegbe 14 WACA. 61

Falaju v. Amosu (1983) 2 SCNLR. 209

Isiba v. Hanson (1968) NMLR. 76

Sogunle v. Akerele (1967) NMLR. 58

Foreign Case Referred to in the Judgment:

Thomas v. Preston Holder 12 WACA. 78

Nigerian Statute Referred to in the Judgment:

Evidence Act, Section 206

Appeal:

This was an appeal from the judgment of Desalu, J. of the Lagos High Court delivered on 4th February, 1985, dismissing the plaintiffs claim against the defendants. Upon appeal to the Court of Appeal, the judgment of the High Court was over-ruled and the plaintiff’s appeal allowed.

History of the Case:

Court of Appeal:

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

Names of Justices in the appeal: Ademola, J.C.A.; Nnaemeka-Agu, J.C.A.; Owolabi, J.C.A. (Read the Lead Judgment)

Date of judgment: 2nd October, 1985

Appeal No.: CA/L/174/83

High Court:

Name of the High Court: Lagos High Court, Ikeja

Name of Judge: Hon. Justice Desalu,

Date of Decision: 4th day of February, 1983

Counsel:

Y.A.O. Akande (with him G.K. Talabi) – For the Plaintiffs/Appellants.

Chief Femi Alokolaro (with him M. O. Phillips) – For the Defendants/ Respondents.

KOLAWOLE, J.C.A. (Delivering the Lead Judgment): This is an appeal by the plaintiffs/appellants against the judgment of Desalu, J. delivered on 4th February, 1983, sitting at the Ikeja Judicial Division of the Lagos State High

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Court. By their amended writ of summons the plaintiffs had claimed:

(1)
A declaration that they are entitled to a Statutory Right of Occupancy or in the alternative a Customary Right of Occupancy in respect of all the piece and parcel of land situate along Lagos Ikorodu Road, Ikorodu, Lagos State which land is more particularly shown and delineated by beacon Nos. WN.2722 and WN.2723 respectively and verged red in the plan No. L and L.CB 21 registered with the Deed of Grant dated 28th day of December, 1959 and registered as No. 17 at page 17 in vol.358 of the land registry, Ibadan.

(2)
Possession of the said land

(3)
Perpetual injunction restraining the defendant, his agents or servants and privies from repeating or continuing the acts of trespass to the said piece or parcel of land.

Pleadings were duly filed and exchanged. In their amended statement of claim, the plaintiffs averred in paragraphs 1 and 2 as follows:

(1)
The land, the subject matter of this action, is situate at mile 20 Lagos Ikorodu Road, Lagos State and is more particularly described on the plan attached to the Deed of conveyance dated 28th day December, 1959, and registered as No. 17 at page 17 in vol. 358 of the register of Deeds kept at Ibadan at that time.

(2)
The land in dispute formed part of a large area of land originally belonging under Native Law and Custom to the Aige family who have been in undisturbed possession of the same for many years.

By his amended statement of defence, the defendant admitted paragraph 2 of the Statement of Claim. Although the defendant denied paragraph 1 of the Statement of Claim, he admitted the identity of the land in dispute by implication because in paragraphs 3 & 4 of his statement of defence he averred that the land in dispute was granted to one Chief Dada and that the said land in dispute Revolved on Chief Dada’s two children. In other words, both parties are agreed as to the identity of the land in dispute. The learned trial Judge also found that the defendant admitted the land in dispute formed portion of land which originally belonged to the Aige family and that the defendant also testified that the land in dispute was sold to him by Oye Dada.

The learned trial Judge dismissed the plaintiffs’ claim on the ground that only the grantees of the land in dispute as evidenced by the Deed of Grant, Exhibit A, are competent to bring an action against the defendant. The learned trial Judge in other words, was saying that the plaintiffs who are the appellants in this case have no connection with the land in dispute and are therefore not competent to maintain the action before the lower court. It is against the dismissal of the appellants’ claim that the present appeal has been lodged.

The real bone of contention as disclosed from the argument in support of the appellants’ brief by Mr. Y.O.A. Akande is whether or not one member of a family may bring an action to protect the family’s interest over a piece of land.

In the present appeal, it appears that the issues have been narrowed down with regard to the person upon whom the onus of proof lies. The land

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in dispute is admittedly family land. It originally belonged to Aige. The plaintiffs arc members of Aige family. The legal position is that where the plaintiffs trace their title to the land in dispute directly to one whose title to ownership has been established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. The original defendant in this action is not a member of Aige family,he alleged that he bought the land in dispute from the two children of Chief T.K. Dada namely Oye otherwise called Oyebanjo and Ore Olorun other-wise called Orefela. The grant of the land in dispute was made to:

(1)
Efunneye

(2)
Raliatu Amope

(3)
Omoyeni Aduke

 
(4)
Olaniwun Odetunde

 
(5)
Tanimowo

 
(6)
Muniratu

 
(7)
Kehinde Muyibatu

 
(8)
Oyebanjo

 
(9)
OreOlorun

who were referred to as (he children and grand children of Chief T.K. Dada. The Aige family is composed of two branches namely Bayan and Otunradewun.

In Exhibit A, it was stated that all the farmland belonging to Aige be partitioned amongst the said Aige family composed of Bayan and Otunradewun descendants and in pursuance of the said agreement the land in dispute was allotted to Chief T.K. Dada (deceased) as one of the descendants of Otunradewun. T.K. Dada according to the plaintiffs/appellants had three children namely Shodipe, Efunneye and Saka Kuli Dada, Shodipe begat:

(1)
Awolesi

(2)
Muniratu who was referred to in Exhibit A as Tanimowo Muniratu

(3)
Kehinde also referred to in Exhibit A as Kehinde Muyibatu, and

(4)
Taiwo

Efunneye had four children namely Alhaja I’oye Shaniyonki (the 2nd plaintiff) Omoyeni Aduke who is also one of the grantees in Exhibit A and Olaniwun referred to as Olaniwun Odetunde in exhibit A and Afuwape.

It appears from exhibit A that the land in dispute had been allotted to Chief T.K. Dada in his life time but no deed of allotment was executed in his favour before his death. The grantees were referred to in exhibit A as the children and the grand children of Chief T.K. Dada who survived him. The said T.K. Dada having died intestate the grantees then approached the grantors as the accredited representatives of Bayan and Otunradewun family for the execution of Exhibit A which conveyed the land in dispute to the grantees.

An important revelation from Exhibit A is that both Oye (otherwise called Oyebanjo) and Ore Olorun (otherwise called Orefela) the vendors of the defendant, are two of the grantees, consequently they also derived their title from the Otunradewun brunch of Aige family. They are, according to the evidence, children of Saka Kuti Dada who is one of the three children of

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Chief T.K. Dada on whose behalf the action was prosecuted.

When two plots out of the land granted to the children and grand children of T.K. Dada were sold to S.O. Gbadamosi and Allison of Ikorodu Trading Company, Oye Dada and Orefela Dada joined with the other grantees to execute a Deed of Conveyance exhibit B on 12 October, 1963. Those who executed Exhibit B were:

(1)   Raliatu Amope

(2)
Omoyemi Aduke

(3)
Olaniwun Odetunde

(4)
Tanimowo

(5)
Muniratu

(6)
Muyibatu Kehinde

(7)
Oye Dada

(8)
Ore Olorun Dada

The execution of exhibit B with the other grantees was confirmed by the second plaintiffs’ witness. The evidence further showed that Oye Dada and Orefela Dada owned the land in dispute together with the plaintiffs and there has been no portion of the land in dispute among the children and grandchildren of T.K. Dada to entitle both Oye Dada and Orefela Dada to dispose of the family land. The learned trial Judge, in his evaluation of the evidence adduced, held, inter alia, as follows:

“It is pertinent to note that there was no averment in the statement of claim that the Aige family ever granted or alloted the land the subject matter of Exhibit A to Chief T.K. Dada”.

“It is my considered view therefore that only the grantees named in Exhibit A, their heirs and assigns have beneficial interest in the grant in respect of the land in dispute”.

It appears to me that the learned trial Judge overlooked two fundamental issues. First, in exhibit A, the deed of grant states inter alia thus:

“AND WHEREAS it was unanimously agreed between the children and grandchildren of Bayan and Otunradewun (deceased) that all the farmland belonging to Aige (deceased) be partitioned amongst the said Aige family composed of Bayan and Otunradewun descendants. WHEREAS in pursuance of the said agreement the hereditaments hereinafter expressed ………were allotted to the said Chief T. K. Dada (now deceased) as one of the descendants of Otunradewun AND whereas the said Chief T.K. Dada died some years intestate leaving the grantees his children and grandchildren him surviving”.

It is clear from this document that the plaintiffs contended that the land in dispute was allotted to Chief T. K. Dada. Exhibit A was pleaded in paragraph 1 of the amended statement of claim. In other words, the plaintiffs averred that the land in dispute was first allotted to the late Chief T. K. Dada and after his death it devolved on his children and grand children who requested for a Deed from the Aige family. The plaintiffs who testified each stated that he was from the family of Chief T.K. Dada. That evidence was not controverted. Furthermore, the second plaintiff was said to be the daughter of Efuneye one of the grantees in Exhibit A. By all accounts therefore the plaintiffs have a locus standi to prosecute the action or at least one

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of them is competent to prosecute the action on behalf of the family even where the others named in Exhibit A show no interest. A member of the family is competent to prosecute the action so as to protect the family interest in the family land. The plaintiffs’ action is therefore competent. There is authority for the view that a member of a family may take steps to protect family property or his interest in it. If he has not the authority of the family to bring the action the family would, of course, not be bound by the result. See Sogunle & Ors. v. Akerele & Ors (1967) NMLR 58, 60).

Secondly, the learned trial Judge appeared to have wrongly put the onus on the plaintiffs in this case rather than, as he should have done, on the defendant to establish his claim to an exclusive grant of the property in dispute or on Oye Dada and Orefela Dada. The learned trial Judge held as follows:

“It is trite law that a plaintiff succeeds on the strength of his own case and not on the weakness of the defendant”.

Whilst this is a correct statement of the law in general it must, however, be modified where the dispute involved what was accepted by both sides as originally family land. Then when a person claims to be exclusively entitled to family property the onus is on him to prove it. (See Adenle v. Oyegbade (1967) NMLR 136, 138, Eze v. Igiliegbe & Ors. 14 WACA 61,63, Ajeja v. Ajayi (1969) 1 ALL NLR72, Thomas v. Preston Holder 12 WACA 78, 80, Bello Isiba & Ors. v. J. T. Hanson (1968) NMLR 76.

In this case the defendant’s vendors Oye Dada and Orefela Dada have the onus to prove that they were entitled exclusively to the land in dispute. That, they failed to do. There was an admission on their part in joining with other members of the plaintiffs’ family to execute exhibit 13 in favour of Ikorodu Trading Company for the sale of part of the family land that they alone cannot dispose of the land in dispute.

Chief Alokolaro, learned counsel for the respondents, submitted in support of the respondents’ brief that the declaration sought by the plaintiffs for themselves and on behalf of the entire members of Otunradewun Tefojukan Kutimoju Dada branch of Aige family is contradicted by the deed of grant exhibit A, because exhibit A indicates that the grant was in favour of the eight named grantees. This submission overlooked the fact that the grant was originally made to T. K. Dada and Exhibit A merely conveyed the land in dispute to the children and grand children of T. K. Dada. The plaintiffs evidence that they are descendants of T.K. Dada was not challenged nor controverted. The claim therefore does not contradict the grant made in Exhibit A.

With regard to the two plots sold out of the land in dispute to Ikorodu Trading Company, I can find no difficulty in excising that area from the area claimed by the plaintiffs. In this case the plan attached to Exhibit A properly defines the boundaries and the location of the area, marked with beacons on Exhibit B and which belongs to the Ikorodu Trading Company, has been included in the area claimed. The inclusion of that area in the appellants’ claim cannot be relied upon by the respondents because they do not claim the area themselves. This case is on all fours with the case of Sogunle & Ors v. Akerele & Ors. (supra). It is therefore clear that the identity of the land in dispute cannot be in doubt.

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Learned counsel further contended that the grant to the plaintiffs by Exhibit A was a nullity in that many years before the grant the land in dispute had been granted to T.K. Dada and so the Aige family had divested themselves of the title to the whole parcel of land. Again, the short answer to that submission is that the grant in Exhibit A conveys a legal estate whereas the grant to the late T. K. Dada was not perfected in his life time; what Exhibit A has done therefore is to perfect the grant to the children and grand children of T.K. Dada who survived him and who were entitled to inherit the real property of the said Dada. Among those who inherited Dada’s estate were the two vendors of the defendant.

Upon the evidence on the record those who conveyed to the defendant are not competent to convey and consequently only parties to Exhibit A can move to pronounce it a nullity. The respondents are strangers to the grant consequently they cannot ask that it be declared a nullity. In any event the defendant never pleaded that Exhibit A is a nullity.

The evidence shows that Alhaja Poye Shaniyonki was head of Otunradewun family to which Oye Dada and Orefela Dada belonged. She died in the course of these proceedings. Each witness who testified maintained that Oye Dada and Orefela Dada had no right to sell the family land without the consent of the Head of the Otunradewun family and its principal members. The land in dispute remained family land. It is common ground that the land in dispute was allotted to T. K. Dada from the Otunradewun branch of Aige family; his children were SHODIPE, EFUNNNEYE AND SAKA KUTI DADA. As earlier stated Shodipe had four children, Efunye had four children among whom was the second plaintiff who was head of the family and Saka Kuti Dada had three children.

It is a settled Yoruba customary law that a member of the family is incompetent to transfer family title in land to a purchaser without the consent of the head and principal members of all the family, such as sale is void. In the instant case only Orefela Dada, Idowu Folorunso Dada and Jonathan Ayodele Dada executed Exhibit E, the Deed of conveyance dated 16th June, 1973, in favour of the defendant. The sale by the defendants’ vendors is in contravention of Yoruba customary law because it was carried out without the consent of the Head and principal members of Otunradewun branch of Aige family. The sale is therefore void.

One fact on which there was no dispute stands out clearly, namely, that the defendant stakes his title on the title of his vendors and that he does not claim any larger title or interest than is possessed by his said vendors. These vendors testified against the defendant. Orefela Dada testified that he is a member of Aige family and that he is a member of Aige family and that the land has not been partitioned among the family. In other words he says that he and Ins brothers have no right to dispose of the family land.

Another signatory to Exhibit E Idowu Folorunso Dada testified as third defence witness. He stated that he was not aware that his father Oye Dada had any piece of land at Ikorodu. He said lie had no land to convey to the defendant. He testified further that he did not know whether there was any land to sell. He card categorically that he did not know where the land sold to the defendant is. He said he signed Exhibit E because his late uncle Suberu Ogunsanya told him to sign.

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It is to be noted that the defendant did not raise any objection or complaint to any portion of the evidence of the two witnesses called by him either when they were testifying or thereafter. The defendant did not seek leave of the court pursuant to section 206 of the Evidence Act to treat them as hostile witnesses nor, indeed, did lie appear to regard them as hostile witnesses.

In his address at the lower court at the conclusion of hearing, learned counsel for the defendant, Chief B. O. Benson, did not treat the witnesses as hostile. Me said nothing about the two witnesses called by the defendant. The evidence of these two witnesses, vis-a-vis the plaintiffs were entitled to rely as a further reinforcement to their assertion of their not having given consent for the sale, and to their claim to the continuity of the vesting of the radical title in the land in their family.

(See John Falaju v. Daniel Amosu (1983) 2 SCNLR 209, 216. The learned trial Judge was therefore in error to hold that the witnesses called by the defendants were not witnesses of truth merely because they did not support the case of the defendant. The learned trial Judge should have used the evidence given by the defence witnesses as strengthening the plaintiffs’ case and not merely as weakness in the defence case. That is clearly in accord with good reasoning and commonsense.

In Josiah Akinola and anor. v. Fatoyinbo Oluwo and 2 ors. (1962-1966) WNLR 133 at 134; Unsworth F.J. said:

“The trial judge held that the plaintiff had failed to establish his case, and said that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants’ case. This is true, subject, of course, to the important point that the defendants’ case may itself support the plaintiffs’ case and contain evidence on which the plaintiff is entitled to rely”.

Now with regard to the claim for possession of the land in dispute, the learned trial Judge held thus:-

“To succeeded in this, the plaintiffs as plaintiffs in this case must prove their title to the land and their entitlement to so hold the land to the exclusion of all others”.

There is no doubt that the learned trial Judge was wrong in placing the onus on the plaintiffs having held earlier that;

“….in this case the defendant did admit, the land in dispute forms portion of land which originally belonged to the Aige family.”

The radical title of the plaintiffs having been so established the onus lay on the defendant to show that his own possession is of such a nature as to oust that of the original owner.

The defendant was warned that he should not have commenced his building operations on the land in dispute. The first plaintiff testified as follows;

“Defendant is on a portion of our land. He has been building since we sued. He builds day and night ……when we saw defendant on our land, I went to him I challenged him. He said Oye Dada sold. I told him Oye Dada had no land to sell. I went to our lawyer to write him …….Defendant despite the letter did not stop construction on our land ……..Defendant started building on our land on 1/1/80”.

When the witness was cross-examined by learned counsel for the defendant

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he stated as follows:

“I first saw defendant on the land in 1979. He then had materials on the land”.

The defendant himself testified in Chief as follows:

“I was first disturbed on the land in 1979 by Alhaji Shoniki who testified in court. He blocked the passage to the land by fencing it. I started building in 1978. Before I started construction I had blocks moulded on the ground and l had iron rods too. This caused the quarrel”.

Under cross examination, the defendant stated that:

“there was an application to restrain me”.

The defendant admitted paragraph 7 of the amended statement of claim that between November and December, 1979, he deposited sand and some building materials on the land in dispute. In spite of the attempt to stop the defendant from building, he carried on the construction without caring for the consequences. The defendant must know the risk he undertook. In as much as the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and having failed to discharge that onus of proof, it follows that the defendant has no right to possession.

It follows, in my judgment, that the learned trial Judge was wrong to have dismissed the plaintiffs’ claim. The plaintiffs/appellants appeal therefore succeeds, the appeal is allowed. Judgment is hereby entered in favour of the plaintiffs/appellants in terms of their amended writ of summons as follows:

(1)
A declaration that the plaintiffs/appellants arc entitled to a statutory right of occupancy in respect of all that piece or parcel of land situate along Lagos Ikorodu Road, Ikorodu, Lagos State which land is more particularly shown and delineated by beacon Nos. WN2722 and WN2733 respectively and marked RED on the plan No. L & L.C.B. 21 attached to the Deed of grant dated 28th December, 1959, and registered as No. 17 at page 17 in Volume 358 of the Land Registry, Ibadan but now kept in Lagos.

(2)
The defendants/respondents, their servants, agents and/or privies are hereby ordered to give up possession of the said land to the plaintiffs/appellants forthwith.

(3)
The plaintiffs/appellants are hereby granted perpetual injunction restraining the defendants/respondents their servants, agents and/or privies from repeating or continuing the acts of trespass on the land in dispute depicted and verged RED on the Plan No. L & L. C.B 21 attached to the Deed of grant recited above.

The plaintiffs/appellants are entitled to the costs of this appeal which I assess at N500 and the costs in the court below which I assess at N750.

ADEMOLA, J.C.A. (Presiding): I have had the privilege of reading before now the judgment just delivered in this appeal. The reasoning and conclusion reached therein accord with my views. I have nothing to add.

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NNAEMEKA-AGU, J.C.A.: I have read in advance the judgment of my brother, Kolawole, J.C.A., just delivered and agree with his conclusion that the learned trial Judge was wrong to have dismissed the plaintiffs case. A careful reading of Exhibit A clearly shows that its intendment was to partition the family property and grant the hereditaments comprised therein unto the grantees in fee simple. As the 1st plaintiff has been conclusively shown to be the son of the 1st grantee, and as the grant was made to the children and grand children of Chief T. K. Dada (one of which the 1st plaintiff is), he alone could have brought the action. All that it means is that the family will not be bound by the results: Sogunle & Ors v. Akerele & Ors. (1967) N.M.L.R. 58, at p.60.

I am also of the view that if the description of the capacity in which the 1st plaintiff and two others have sued is wider then “the children and grand children of Chief T. K. Dada” it is a description which the court could amend suo motu in order to be able to settle the real question as to who owns the property in dispute, the plaintiffs or the defendants. I would therefore amend that description accordingly.

I therefore allow the appeal with the same orders as have been made by my brother.

Appeal Allowed

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