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SUIT NO. FCA/I/122/83


(1986) 3 NWLR (PT.30) 575

LN-e-LR/1985/3 (SC)


CHILDREN AND WOMEN LAW: Women and Real Estate ­– Interest in land – Defence of




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





Agbo Olaleye – for the Appellant

  1. Ishola-Gbenla – for the Respondent



LAND LAW:- Claim for title to land – Family land – Plaintiff tracing title to established owner – onus on the defendant

LAND LAW:- Family Property – Partition – How proved – Co-owners of partitioned property – Alienation by some without consent of others – Whether alienation void or voidable.

LAND LAW:- Family Property – Partition – Partition acknowledged by members of family – Effect.

ESTATE ADMINISTRATION:- Land of deceased person under customary law – When deemed family land – Where family has branches – When land deemed partitioned – Relevant considerations

PRACTICE AND PROCEDURE:- Evaluation of evidence – Whether trial Court is under duty to say “I find as a fact.”

PRACTICE AND PROCEDURE:- Issues not raised by Parties – Duty of Court thereto

PRACTICE AND PROCEDURE:- Judgments and orders – Failure to prove title in claim for title – Proper order – Dismissal or non-suit.

PRACTICE AND PROCEDURE:– Pleadings – Facts not denied – Effect.

PRACTICE AND PROCEDURE – Pleadings – Evidence of facts not pleaded – Effect.

PRACTICE AND PROCEDURE – APPEALS:- Raising new points on appeal – Attitude of court

PRACTICE AND PROCEDURE – EVIDENCE:- Cross-examination – Purpose of – Facts obtained contradicting earlier statement of witness – Effect on credibility of witness.





OMOLOLU-THOMAS, O.F.R., J.C.A. (Presiding and Delivering the Lead Judgment):

In an action in the High Court Ibadan, Oyo State, by the plaintiff/respondent for declaration of a right of occupancy over a piece of land at Arolu Village, Iwo Road, Ibadan and an injunction restraining the defendant, his servant, agent or any person claiming through or under her from further acts of trespass on the land, judgment (the subject-matter of this appeal) was given against the defendant/appellant, who being dissatisfied with the judgment has appealed to this Court on four grounds, which for convenience of reference read as follows –

The learned Chief Judge erred in law by his failure to consider at all that Arolu having no land therein (i.e. at Adogba Village) could be allocated to any one by any member of Arolu family under the alleged partition and thereby failed to see that the plaintiff’s evidence of partition is highly improbable and thereby came to a wrong conclusion which occasioned a mis-carriage of Justice.


(a)     Defendant’s averments in paragraphs 1 and 5 of the Statement of Defence and evidence laid in Support thereto were not considered by the learned Chief Judge.

(b)     the evidence of PWs 2 and 3 which support the defendant’s averment as laid in paragraph 5 of the defence and the evidence thereto were not considered by the learned Chief Judge.

  1. The learned Chief Judge erred in law by his failure to consider sufficiently or at all that issue of partition of Arolu’s family land and thereby failed totally to make any specific findings on the issue of partition of the said family land which failure occasioned a mis-carriage of Justice.


(i)       paragraph 12 of the Statement of Claim Respondent pleaded partition.

(ii)     By paragraphs 1 and 17 of the Statement of Defence appellant denied averment of partition and joined issues with the Respondent on same.

(iii)    By judgment dated 15th December 1982 no consideration was given to parties averments on partition neither was any finding made on same.

  1. The learned Chief Judge erred in law by giving Judgment to the Plaintiff when the Plaintiff failed to prove partition in accordance with the principles laid down by the law on partition.


(a)     The Plaintiff neither pleaded nor laid evidence before the Court as to the exact portion and or extent portion and or extent given to each of Arolu’s Son under alleged partition to show whether the alleged partition was made equally among the said children in accordance with the principle enunciated in the case of NIMOTA SULE v. M.A. AJISEGIRI 13 NLR 146 which was cited before the learned Chief Judge.

(b)     From the evidence of P.W.4 (the Surveyor) and Exhibit “A” the plaintiff failed to show any portion alloted to each child of Arolu under the alleged partition.

  1. The Judgment is against the weight of evidence. Further grounds of appeal would be filed on the receipt of the records of appeal.” In the lower Court, pleadings were fully exchanged by the parties. The case proceeded to trial, the respondent calling four witnesses while one witness testified for the defence.


The plaintiff/respondent’s case was that one Arolu, the common ancestor of both parties originally owned the land in dispute edged “Red” on Exhibit “A.” He died 100 years ago survived by five children namely: Odeyele, Igbinbolu, Fadunmi, Akinlehin and Oke Amero. On his death the land was partitioned into 5 portions. The land now in dispute is lgbinbolu’s portion after the partition.
The plaintiff’s/respondent’s father, Ola Aserifa descended from Igbinbolu through Amusan and these ancestors farmed on the land in succession. During Aserifa’s time one Adeleke (i.e. the defendant’s appellant’s father) was made a caretaker of the land by Aserifa. Adeleke was farming there for about 25 years reaping cocoa fruits there, and after Aserifa’s death, the said Adeleke used to give as Ishakole a gallon of palm-oil, N400 and some yams to the respondent. He had been on the land for about 50 years.


It was the plaintiffs/respondent’s case that when Adeleke died about 25 years ago (1957) the plaintiff/respondent took possession of the farmland but the defendant/appellant challenged his title, and according to him, the defendant’s/appellant’s father’s farm is at Adogba Village.


The defendant/appellant on the other hand denied that there was any partition of Arolu’s land. The family tree presented was that Arolu begat Adeyanju who begat Oyedele (female). Oyedele begat Ige (son of Adunran) who begat Lawani Adeleke, the defendant’s appellant’s father. Her case is that Arolu in his life-time gave the land in dispute to Adeyanju. She said that neither her father nor she herself paid Ishakole to any one with respect to the land. The land devolved on her from Arolu, through Adeyanju, Oyedele, Ige to her father, Adeleke. The land is her absolute property.


The Learned trial Judge in his judgment found that the plaintiffs/respondent’s case is more likely to be true, having accepted his case that the land devolved on Arolu’s 5 children at his death. He disbelieved the defendant’s/appellant’s story that the land was given to the appellant’s ancestor, Adeyanju, absolutely.
Briefs were duly exchanged between the parties for the purpose of the appeal. The respective Counsel relied on their briefs and on oral submissions in addition.


The issues arising from the questions put by each party for determination in their briefs can be thus set forth –

  1. Whether there was a partition of the land in dispute between the five children (or whether the said land was granted absolutely to Adeyanju), and as a corollary to the 1st issue above is whether the trial Judge made a specific finding on the issue of partition.
  2. Whether there is, on the available evidence, nexus between Arolu’s land at Arolu Village said to be Igbinbolu’s share and land at Adogba Village said to be Akinlehin’s portion under the alleged partition.
  3. Whether Exhibits A and B attached to the application for a stay of execution is relevant to the issues arising from the judgment being appealed against by the appellant.


The short answer to questions 1 except that bracketted and 2 in my opinion is in the affirmative in each case, and as respects question 3 the exhibits are irrelevant.


Now in detail, the argument of Learned Appellant’s Counsel in his brief relates to the evidence of P. W.2 when he said under cross-examination that –

“Arolu family owns the land at Arolu Village.

Adogba family owns the land at Adogba Village.”

and when the trial Judge asked P. W.2 whether Arolu land is one piece or different pieces, P. W. 2 said –

“It is one piece.”


Counsel referred to paragraphs 18, 22 and 30 of the statement of claim which were denied in paragraph 1 of the statement of defence, and submitted that by the pleadings and answers under cross-examination, on the complaint that the trial Judge failed to consider at all that Arolu had no land at Adogba Village and that no land could be allocated to any one by any member of Arolu family under the alleged partition, the respondent’s case had been demolished. The paragraphs for ease of reference read –

“18.   That Akinlehin begat Akinsanya (M) Oyedele (F) and Biobaku (F), mother of Aremu who begat Salimonu Adio while Oyedele was married to a member of Odunran family at Agodi and begat Ige who in turn begat Adeleke father of the Defendant and who with other member of Akinlehin family makes use of Akinlehin’s portion at Adogba Village.

  1. That about 40 years ago Adeleke, father of the Defendant who was then living at Arolu Village and farming on Akinlehins portion at Adogba Village, approached Ola Aserifa and asked to be permitted to use part of Igbinbolu’s portion for the cultivation of annual food crops only.
  2. The members of Arolu family told the Defendant that Akinlehin’s share of Arolu’s farmland was at Adogba Village otherwise called Wakayaiye Village near Olodo but she refused to yield.”


Counsel’s argument is that if Arolu’s land does not extend to Adogba Village, how could the appellant’s portion under the alleged partition be at that village when Arolu never owned any land there, and there being no nexus between Arolu’s family land at Arolu Village and Adogba family land at Adogba Village. The respondent’s case ought therefore to have been dismissed since their case is predicated on a partition of Arolu’s land, relying on R. O. Ayodele v. Dr. Olumide (1969) 1 ALL NLR. 233 at 237. That case was, inter alia, decided on the general principle that where a plaintiff in an action for declaration of title failed to prove his case, the proper order to make is one of dismissal and not non-suit, except where in the circumstance it will be in the interest of justice to make an order of non-suit. This case is inapposite.


I must observe here that the purpose of cross examination is to demolish an opponent’s case and to establish one’s own case thereby. Facts elicited go towards the credibility of the witness if such facts contradict an earlier statement (vide e.g. Cordelia Mozie v. Francis Mbebie & Anor. (1966) NMLR 167). It also affects weight of evidence of the witness. In this case if the facts can be said to have demolished the plaintiffs case it must be as to the extent of Arolu’s land. Any contradiction with an earlier statement may discredit the witness’ testimony, and affect the weight of his evidence on the particular issue; but this is not the case here.


The submission of Counsel seems to me to be based mainly on the appellant’s case and on a very narrow compass if considered in relation to the pleadings as a whole and the totality of all the evidence before the trial Judge.


It is correct that the appellant stated in paragraphs 5 and 17 of the statement of defence that the entire Arolu family land inclusive of the land in dispute does not extend to “Adogba Village” which is three miles away from “Arolu Village,” and that the land was never partitioned.


The land settled upon by Arolu was defined in the respondent’s pleadings as having a boundary with Adogba family land and that the share of Arolu’s land given to Akinlehin on partition was between Oke Amero’s share and Adogba family land. (Refer to paragraphs 8 and 14 of the respondent’s statement of claim.)


Paragraphs 8 and 14 of the respondent’s statement of claim also read –

“8.     The said large parcel of farmland originally settled on by Arolu formed boundaries with Oloya family land Dele and Elesu families land Adenubi family land, Aroke family land, Adogba and Agoro families land.

  1. That Oke Amero took the portion next to that of Fadunmi while Akinlehin was given the portion between Oke Amero and Adogba family land.”


There is evidence as argued by the respondent’s Counsel that Arolu Village and Adogba Village are less than a mile apart (refer to the evidence of P.W. 1, P.W. 2 and P. W.3 under cross-examination). There is also evidence of a partitioned land to the appellant’s branch at Adogba Village. The evidence of P. W. 1 at p. 25 fines 5 to 6 reads –

“Akinlehin’s portion is at Adogba Village where defendants father had his cocoa trees. “

and P.W.3, a member of the appellant’s branch of the family testifying for the respondent, also said –

“The land in dispute is at Arolu Village on Iwo Road. I am from Akinlehin Branch. Defendant is from the same branch as me. Plaintiff owns the land in dispute. Arolu had 5 children. After Arolu’s death his land was partitioned into 5 parts. The one in dispute was given to Igbinbolu, plaintiffs grandfather. A portion was given to my great grandfather at Adogba. Defendant uses the land at Adogba. “ (Italics mine)


These are the evidence which the trial Judge accepted. They are in support of the pleadings particularly those under reference in appellant’s Counsel’s argument. The evidence were unrebutted, and the submission of the appellant’s Counsel on the issue is therefore misconceived in my view; and indeed, as submitted by the respondent’s Counsel the trial Judge was correct in considering and accepting the respondent’s evidence on the issue (Refer to Chief M.A. Okupe v. Ifemembi (1974) 1 ANLR 375 at 376; Lemomu v. Alli-Balogun (1975) 3 SC. 23 at 35 to 36).


Furthermore, as the respondent’s Counsel has rightly submitted the reference to “At Adogba” cannot surely be properly read to mean that Akinlehin’s share was within “Adogba family land” as respondent’s Counsel argued. It merely describes the location of the land with particular reference to the name of the locality, just as the expression was used in relation to “Arolu Village” by the Appellant in her evidence when she said that Lawani Adeleke had another farmland “at Adogba Village.” (See also paragraphs 14 and 11 of the statement of claim and her admission to the effect that the Mogaji of Arolu family asked her to hold on to her father’s piece of land at Adogba. These averments seem to support in effect paragraphs 8, 14 and 18 of the respondent’s statement of claim in so far as the avernments relate to the respondent’s claim that the Appellant’s portion of the land of Arolu is at Adogba.


Furthermore, paragraph 19 of the statement of claim, to the effect that after the death of Oyedele his descendants continued to use Odeleye’s portion and have sold part thereof to one Niran Ojo, was not specifically denied and must be deemed to have been admitted (Peat v. Akhimien (1976) 7 S.C. 157 at 460 and Atolagbe v. Shorun (1985) 1 NWLR. 360).


The parties seem to me to have clearly expressed what they intended when in the particular instances the expressed words “family land” appear. The respondent’s case is that Arolu’s family land is at Arolu Village. That cannot by any stretch of imagination mean that the land as one piece could not have extended to another village in this case to Adogba Village owned by Adogba family without necessarily importing a reference to the ownership of land by Adogba family. The pleadings and evidence are clear and Counsel’s interpretation of the evidence given by the respondent’s witness (P.W.2) therefore seems to me to be misconceived.


The foregoing also leads to the issue of partition raised by the appellant’s Counsel in the complaint that the trial Judge failed to consider sufficiently or at all the issue and to make specific findings thereon. In arguing the point the appellant’s Counsel adopted his earlier arguments above. His further submission proceeded on the basis that the trial Judge would have had difficulties in locating the portion of appellant’s land allocated in view of the abundant evidence that the Appellant was not given any portion of land at Arolu Village where their ancestor had his land, and the evidence that Arolu’s land is only one piece.
Indeed, it is common ground that the land in dispute is part of land belonging to Arolu, the common ancestor of the parties, and that on his death his entire land became his family property.


The respondent’s case is that the land was partitioned among his 5 children after his death and the appellant claimed to be entitled exclusively to the land in dispute as a result of a grant from Arolu in his life-time through one Adeyanju. ‘
The issues were resolved in the rather concise judgment of the trial Judge. The relevant part of the judgment reads –

“On the death of Arolu therefore his land became family land in which every member of the family had an interest. I believe that Arolu had five children as contended by the plaintiff and his witnesses and that on Arolu’s death his five children Odeleye, Igbinbolu, Fadunmi, Akinlehin and Oke Amero succeeded to Arolu’s land. I disbelieve the defendant when she said one Adeyanju was a direct child of Arolu. I also disbelieve the defendant when she said that Arolu in his lifetime gave the land in dispute to the said Adeyanju absolutely … I think the plaintiffs story is more likely to be true. At any rate after Arolu’s death his land was more likely to be property of the 5 branches or that ‘of Igbinbolu branch alone after partition but certainly the land cannot be that of a member of the Arolu family alone as claimed by the defendant. The plaintiff is not claiming for himself alone but for a substantial portion of Arolu family i.e. the Igbinbolu Branch. The other branches of Arolu family apart from the defendant conceded plaintiffs claim even at the family meeting called by the Mogaji of Arolu family one James Adediran who at the meeting asked the defendant to pay Ishakole if she wanted to make use of the farmland. On the preponderance of evidence I accept the plaintiffs case that the defendant father – Adeleke – farmed on the land in dispute as an Ishakole paying tenant or caretaker-”


The findings of the trial Judge as the above shows seem to me clear. He found that the land in dispute was more likely to be that of the respondent’s branch after partition and that the other branches (except the appellant) conceded the respondent’s claim.


He also found that the appellant did not prove that there was grant to Adeyanju but that Adeleke, the appellant’s father was an Ishakole paying tenant of the respondent.


Implicit in the judgment is the fact, which is in my view incontrovertible, and as he found, that the land in dispute is a portion of the Arolu’s land partitioned to Igbinbolu family, one of the 5 sections of Arolu family, (as represented by his 5 children on which Arolu’s land devolved after his death). The Court need not as the respondent’s Counsel rightly submitted use the phrase “I find as a fact” if the consideration is clear from the judgment and is supported by the evidence.
As to whether partition was proved in accordance with the principle of law governing the issue, there is in my opinion ample evidence from the respondent and his witnesses apart from the admissions of the Appellant on the issues raised in the respondent’s pleadings which were not specifically denied or which were in effect admitted, for example, as in paragraph 19 of the statement of claim to the effect that Oyedele’s branch had sold their share, and the admissions in the oral evidence of the appellant that Arolu family comprising 5 branches at a meeting asked her to pay Ishakole in respect of the land in dispute otherwise she should hold on to her father’s piece of land at Adogba Village.


There is also evidence that Arolu’s land extends to Adogba Village and a plan showing the actual land in dispute and some other portions of Arolu’s land was tendered. There was no counter-plan. Further, the claim is by a member of Igbinbolu family a branch of Arolu family for himself and members of that family.


Contrary to the Appellant’s pleadings she admitted in evidence that Arolu had 5 children and that she and P. W.3 who testified in favour of the respondent are from the same branch. She did not call any witness let alone from any of the other branches including her own branch to testify on her behalf.
The argument of the appellant’s Counsel is that there was no evidence led that all parties interested in the alleged partition agreed to the act of partition. Counsel also relied on his arguments in Ground 1 and submitted that the respondent failed to show portion allotted to each branch of the family in that

(i)      The act of partition could be held valid only if all the parties interested concurred in the act citing Kadiri Balogun v. Tijani Amusa Balogun & Ors. 9 WACA p. 82.

(ii)     A partition which does not make provision for the shares of all the branches of the family is invalid (Vide Latunde Johnson v. Antusa Onisiwo & Ors. 9 WACA. 189.


In Balogun’s case (Supra) the various portions partitioned were specified in a deed. One of those to whom the land was partitioned further acquired one of the remaining partitioned land making two portions. On his death intestate, his two surviving children further partitioned their father’s two portions. One of the children sold his portion to the plaintiff by deed, who then claimed that he was absolute owner of the two portions. It was held that the partition of family land with the consent of all members of the family conferred upon each member an absolute right to his partitioned portion. The only issue between the parties in the case was as to the second partition, the defendant’s case being that it was family property.


In LatundeJohnson v. Amusa Onisowo & ors. (Supra) it was held, inter alia, that a lease entered into by three out of four co-owners of a partitioned property was not void but voidable at the instance of the non-participating member of the family.


Neither of these authorities is of any assistance to the appellant from the fact of the present case on appeal. In any case, no issue as to the validity or otherwise of the partition to show the share of each of the children of Arolu was raised in the pleadings, nor indeed as the respondent’s Counsel contended, was the issue of identity of each portion partitioned to each child in dispute. It will be wrong for the trial Judge to have based his decision on such issues, more so if this Court were to consider and decide such issues. See Jacob Ibanga & Ors. v. Chief Eder Usanga (1982) 5 S.C. 103 pp. 124 – 125 and Yakassai v. Incar Motor Nigeria Ltd. (1985) 1 ALL N.L.R. 287).


Further, the issues not having been raised on the pleadings, the trial Judge must be seen to have ignored them in his judgment, and quite rightly too, although the appellant’s Counsel addressed on it citing Nimota Sale v. Ajisegiri 13 N.L.R. 146. This case deals with the principle that partition must be equally between those entitled to it regardless of sex. The case was inapplicable in any case.
The law is that evidence which go to no issue should be rejected, and the corollary to that is that parties are bound by their pleadings, and that facts not based upon pleadings raise no issue and must be ignored. They are irrelevant (See further Barclays Bank v. Abubakar (1977) 10 S.C. 13, Idahosa v. Oronsanye 4 F.S.C. 166 at 171; N.I.P.C. v. Thompson Organisation (1969) 1 ALL N.L.R. 138; and Usenfowokan v. Idowu (1969)1 ALL N.L.R. 125). To raise the issue in this appeal is therefore incompetent.


The respondent’s case was contested on the basis of the land partitioned to Igbinbolu branch. The onus lies upon the appellant to prove that she is the exclusive owner of the land in dispute (Vide Atuanya v. Onyejekwe (1975) 3 S.C. 161 at 168).


The approach of the trial Judge to the issue which seems to me correct if read together with his findings set out above reads –

“It is common ground between (the) parties that they are both members of the Arolu Family but belonging to different branches thereof. Plaintiff is of Igbinbolu Branch and the defendant is of Akinnilehin branch just as P.W.3, Salimonu Adio. The presumption therefore according to Tijani’s case supra is that the land in dispute after Arolu’s death would be that of Arolu family or Igbinbolu branch or Akinnilehin branch but the defendant is not claiming it for her Akinnilehin branch but for herself personally. P.W.2 and P. W.3 who are members of Arolu Family maintained that the land in dispute is that of the plaintiff’s Igbinbolu Branch of the family.”


Apart from the ipse dixit of the appellant that there was no partition, the preponderance of evidence even coming from a member of the appellant’s branch of the family was that there was partition. The trial Judge was therefore correct in accepting the respondent’s case. Their case was virtually unchallenged and uncontradicted, as against the appellant’s admission of the radical title of their common ancestors.


As per Coker J.S.C. in Okupe v. Ifemembi (1974) 3 S.C. 97 where – … Both parties have claimed through the Oloko Chieftaincy Family. At the Close of the plaintiff’s case to the effect that he possessed a title originating from that family, the onus clearly shifted to the defendant to demonstrate, where, as in this case, he too has accepted the radical title of the same family, that the defendant failed to do this and by resting his case “on the evidence adduced by the plaintiff’ he impliedly accepts the evidence given by the plaintiff and which evidence he himself had not in any way contradicted. See Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 where at p. 80 the West African Court of Appeal observed on a similar point to the one at present in issue thus –

…where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been so 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 and in such case the Court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owner.”


In the case in hand, not only has the appellant failed to prove her exclusive ownership, her possession of the land in dispute has been shown to be that of an Ishakole paying tenant. There is nothing on record to show any proof to the contrary.


The last complaint in this appeal as in Ground 4 is that the trial Judge did not give due consideration to the evidence before him nor did he attach due weight thereto. Counsel referred to his submissions on the previous grounds 1 to 3 and further stated that in view of the affidavit evidence later supplied by the plaintiff during the consideration of the appellants motion for stay of execution of the judgment of the lower Court the plaintiff’s action is incompetent and ought to be dismissed.


Although the affidavit in question forms part of the record of proceedings of this appeal, Learned Counsel cannot in my opinion properly raise the issue on the omnibus ground of appeal. If at all it ought to have been raised, on a substantive ground of appeal, that is: if such affidavit can be taken as fresh evidence for which leave will be required), which could affect the outcome of the decision of the trial Judge in this appeal. Such evidence is irrelevant and cannot be considered as an issue in this appeal.


On the whole I am satisfied that adequate consideration had been given to all the evidence before the trial Judge. Due weight had in my opinion been equally attached to them. The appellant has not in my opinion succeeded in faulting the findings and conclusions of the trial Judge, with the result that all the grounds of appeal fail.


The appeal stands dismissed accordingly with costs assessed at N250.00 in favour of the respondents.



I have had the privilege of reading in advance the judgment just read by my learned brother, Omololu-Thomas, J.C.A., and I entirely agree that this appeal fails and it is hereby dismissed with cost as assessed in the lead judgment.


ONU, J.C.A.:

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


Appeal Dismissed

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