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FEDERAL SUPREME COURT OF NIGERIA
2ND SEPTEMBER, 1960.
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)
ROBERT YORKE HEDGES, C.J. (Western Region)
MYLES JOHN ABBOTT, F.J. (Read the Judgment of the Court)
PROPERTY AND REAL ESTATE LAW – LAND:- Family property – Whether knowledge of sale of land by a family member constitutes knowledge by entire family – Legal implication
CHILDREN AND WOMEN LAW: – Women and Justice Administration/Property interests – Widows – Women and interest in land – Title to land – Widow’s right – Defeat of title to land inuring to widow due to some technical rule of evidence
ETHICS – JUDGE: – Trial Court – Effect of relying upon evidence from a prior judgment relating to the res which is not properly before the court – Attitude of appellate court thereto
PRACTICE AND PROCEDURE – EVIDENCE: – Evidence in previous case – Judge taking same into account – Whether proper
ABBOTT, F.J. (Delivering the Judgment of the Court):
This is an appeal by the plaintiff against the judgment of the High Court of the Western Region sitting at Ikeja, which dismissed the plaintiff’s claim for a declaration of title in fee simple to certain land at Ariba Village. Mr. Dingle Foot, O.C. and Mr. V.O. Munis appeared for the appellant, and Mr. M.O. Moore for the respondent. The original defendant was one J.E. Showonola, but he died after the close of the proceedings in the Court below, and by order of this Court Mrs. H. Payne and Miss E. Showonola were substituted as defendants/respondents.
Before opening his appeal Mr. Foot asked leave to file and argue additional grounds of appeal, and this application was granted, subject to certain amendments thereto which need not be mentioned here.
This is the third in the series of three appeals brought by the appellant against the judgment of the same Court dealing with land in the same area, and we have already given judgment in the other two cases (FSC.3/1960 and FSC.4/1960). In the other two cases, at the suggestion of the learned trial Judge, who tried all three cases, the claim was amended to ask for a declaration of title under Native Law and Custom, whereas in the present case the Judge’s suggestion was not adopted by counsel for the plaintiff/appellant.
It is convenient first to detail the title upon which the deceased defendant purported to base his defence. He purported to buy the land in dispute from one A.B. Williams under a conveyance dated 5th February, 1934, and Williams in his turn purported to buy from two persons stated in a Conveyance of the 31st May, 1952 to be Heads of the Iroko family. Going back further, the Iroko family base their ownership of the property on two documents Exhibit G and Exhibit G1, which acknowledge the receipt from one Jekinniru Iroko of a total sum of £16.15.0d, and these receipts purport to be given by one Ajayi, who placed his mark on each of them, and the learned Judge in his judgment says on this point:
“I would not subscribe to the proposition that Alfred Bankole Williams purchased the fee simple from the Iroko family in the absence of any other consideration as to whether the vendor of the Iroko family had any title to convey to them.”
In order for the title of the defendant to have any validity it was essential to show that Exhibits G and G1 were given by a man named Ajayi Arubo, a prominent member of the Alashe family, though even if they were it is by no means certain that they would prove an indefeasible link in the defendant’s title. However, that point happily does not fall to be decided here, for other reasons which shortly appear.
Mr. G. B. A. Coker, as he then was, who appeared at one stage for the appellant in the court below„ submitted that on the oral evidence before the learned trial Judge there was nothing to show the connection between the Ajayi whose mark appears on Exhibits G and G1, and Ajayi Arubo, and this submission was accepted by the learned trial Judge; but he went on to take into consideration certain evidence given in a previous suit brought by the Alashe family against one Liada and others, in 1951, and from the evidence given in that case, coupled with the evidence given before him at the trial, the learned Judge decided that the Ajayi whose mark appears on Exhibits G and GI, is the same person as Ajayi Arubo of the Alashe family. It seems clear from the wording of the learned trial Judge’s judgment, that without the evidence which was given in the 1951 case he would not have come to that conclusion. The evidence in the 1951 case was not, of course, evidence before him, and to accept it and take it into consideration as evidence in the present case was a misdirection which, apart from anything else, would have rendered necessary an order for a retrial in this case.
We therefore find ourselves constrained to disagree with the learned Judge that the Ajayi who placed his mark on Exhibits G and GI can be identified with anybody belonging to the Alashe family, whether such person had in fact, authority to convey Alashe family land or not.
Later in his judgment the learned Judge says he is satisfied beyond all doubt that Ajayi Arubo sold the land in dispute to Jekinniru Iroko on 30th July, 1909, but this finding, being based upon the identification of the Ajayi who placed his mark on Exhibits G and GI, must likewise also be said to have been founded on wrong premises.
The learned trial Judge goes on to find that the defendant had an indefeasible title, but that finding again being based on wrong premises cannot be supported.
That is sufficient to dispose of the validity of the respondent’s title to the land in dispute and to uphold the first two bulwarks of Mr. Foot’s arguments which were that no fee simple had passed to the respondent and there had been no valid alienation to him of the land in dispute.
Only one further point on this subject needs to be mentioned. There was an attempt by the respondent’s predecessors in title to obtain ratification of the sale to them, but there having been, as we have held, no valid sale, there was nothing which could be ratified.
The appellant bases his title on the conveyance to him by the members of the Alashe family who were invested with authority to transfer the absolute ownership of land belonging to the family, and it will be plain from what follows hereafter that in our view this conveyed upon the appellant an indefeasible title to the land.
The third bulwark of Mr. Foot’s argument related to the question of estoppel by acquiescence. From the evidence of Salu Oke, the third witness for the plaintiff, the learned Judge inferred that the family must have known about the sales purported to be carried out by Exhibits G and GI. The words of the witness from which this inference was drawn were these:
“Ajayi was an important member of the Alashe family. Ajayi used to deliver money to the family and tell the family about the sales he made. My father” (Ajayi Arubo Kijaose) “sold the land with the knowledge and consent of the Alashe family.”
Having regard to what we have already said about the identification of Ajayi who marked Exhibits G and GI, it is plain that we do not agree that this inference could properly be drawn from the evidence quoted.
Later in his judgment the learned trial Judge says this:
“If the Alashe family received no rent from Iroko in 1911 and know as they must have done through their agent Ajayi that he was now asserting title, for the knowledge of the agent is that of the principal, and they did nothing until they sold to the plaintiff in 1947 and even then no steps were taken until 1948 when the defendant himself sought leave to be joined in an action taken out against his tenants – a period of 38 years -I am of the view that the principle established in decided cases would make it inequitable for the plaintiff to rely on Native Law and Custom to support his claim, even if such a claim were made under Native Law and Custom. Since however his claim is under an English title, the absence of any plea of the statutes of limitation makes it idle for me to consider such matters.”
The first part to this passage seeks, in our view wrongly, to engraft upon Native Law and Custom the English principles of the law of principal and agent, and we agree with Mr. Foot’s submission that knowledge possessed (if in fact it was) by one member of the Alashe family, did not involve knowledge by the family.
Mr. Moore, for the respondent, submitted that the learned Judge found that in 1947 when the Alashe family conveyed to the appellant, all that they had to convey was a right of forfeiture. Iroko, if he had any interest in the land whatever, incurred forfeiture by alienating the land. Mr. Moore went on to submit that if Iroko was put in possession by the Alashe Family, the adverse possession by him and his successors in title down to and including the respondent, ousted the interest of the family and consequently the interest of the appellant. Mr. Moore’s next point was that if the respondent had a right of occupancy a title in fee simple could not be granted subject to it, because the claim for a fee simple did not envisage that it should be subject to a right of occupancy. In brief, Mr. Moore based his case on occupation of the land in dispute by Iroko and his successors in title, and did not in fact seek to uphold the purported sale to the respondent.
Replying to these submissions, Mr. Foot urged that customary tenants, which it seems to us it must be accepted that Iroko was, cannot sell anything at all. Iroko had no title and therefore he could transfer nothing to his successors in title. On the question of forfeiture Mr. Foot submitted that it was the case for the respondent that Iroko had abandoned the land, and therefore no right of forfeiture could operate against him, and further, that the Alashe family when they conveyed to the appellant did not have only a right of forfeiture vested in them: they also had, in Mr. Foot’s submission, a reversion which could be transferred.
We have therefore come to the conclusion that this appeal must be allowed, the judgment of the Court below with the order for costs is set aside, and we enter judgment for the appellant for a declaration of title in fee simple to the land claimed by him. The appellant must have the costs of this appeal assessed at 50 guineas, and also his costs of the action in the Court below assessed at 130 guineas.
HEDGES, C.J. (WESTERN REGION):