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 3RD APRIL, 1970











Declaration-Title to land-Family land-Plaintiffs alleging that land still part of family land-Defendants alleging that there had been a partition of their own branch taking land in dispute absolutely-Burden of proving partition of defendants-Defendants calling no evidence-Evidence Act s.136



Chief Williams for the appellants

Chief Fajemisi (with him, Fadugba) for the respondents.


COKER, J.S.C. (delivering the judgement of the Court):-


The facts of this case are all but simple. The appellants were the defendants in Oshogbo High Court (Suit No. HOS/135/64). The respondents were the plaintiffs and had claimed against the defendants according to their amended writ as follows-


“(1)   The plaintiffs’ claim against the defendants jointly and severally is for a declaration that a piece of farmland situated at the Ologan farm in the area of Olopa village otherwise known as Yekere village in Ife District is the property of Lukugba family.


(2)     The plaintiffs also claim against the 2nd and 3rd defendants the sum of £200 being ishakole due from them as heads Lukugba family tenants residing at Yekere village otherwise known as Olopa village in Ife district in respect of 1963.”


The case of the plaintiffs on their pleadings is that the 1st defendant is the head and representative of the Pabiekun family which is a branch of the Lukugba family on behalf of which the plaintiffs have instructed the present proceedings; and that although the land in dispute belongs to the entire Lukugba family by virtue of a grant to the original Lukugba by one Giesi, an ex-Oni of Ife, yet the Pabiekun sub-branch of the family has wrongly claimed to be the owners of the land and procured the other defendants who are tenants on the land not to pay the usual and agreed ishakole to the plain-tiffs. The plaintiffs also aver in their statement of claim that there had been previous litigation in respect of the land in dispute (called by the plaintiffs Ologan village and shown edged red on plan No. CK/295/64) and that the cases supported the claim that the land belongs to the plaintiffs as representing the Lukugba family. On the other hand, the 1st defendant by his pleadings denies that any such cases were binding on the Pabiekun sub-branch and states that in any case Olopa village was never the subject of any litigation between the parties and that it always belonged to the Pabiekun sub-branch by virtue of an absolute grant of it to his own ancestors “many years ago”. In their statement of defence the other defendants stated that the ishakole claimed by the plaintiffs to be due from them, the defendants, had already been paid by them to the 1 st defendant.


At the trial the parties called evidence in support of their pleadings. The plaintiffs gave evidence to the effect that in Ibadan High Court, Suit No. 1/135/57, i.e. exhibit E (an action between the Lukugba family as such and the Pabiekun sub-branch of it) they obtained a declaration “of title to the piece of farmland known as Ologan which includes the land in dispute and Olopa village”; that the judgement in that case was not appealed against and that it follows therefore that as between the parties it ought to constitute estoppel by res judicata. The plaintiffs are however unable to sustain this plea as the plan they used in the previous proceedings, exhibit E, was lost and so could not be produced in the present proceedings. They therefore gave evidence concerning the boundaries of the land litigated in 1957. The learned trial judge accepted their evidence as to the identity of the land in the 1957 case commenting as follows on this point in the course of his judgement-


“I am firmly of the view that the land in dispute is one and the same piece as in Suit 1/135/57. Alphonso Pabiekun who was the defendant in that case said so during his evidence in this case and none of the defendants gave evidence or called witnesses to contradict him. In other words they accepted his version of the story.”


At the end of his judgement the learned trial judge observed as follows-


“Therefore I hold that the whole land edged red on exhibit D (including the land in dispute which is edged green thereon) is the property of the Lukugba family of which the plaintiffs and the 1st defendant and other descendants of late Ogunsusi Pabiekun are members. The 2nd and 3rd defendants and other tenants on the land edged red on exhibit D which is plan no. CK 295/64 shall be liable henceforth to pay their annual Ishakole or customary dues as tenants to the acknowledged head of the Lukugba family at Yekere’s Compound Ife for the use, benefit and enjoyment of the said family. I hereby order that the 2nd and 3rd defendants are liable accordingly to pay the Ishakole or customary dues for 1964, 1965 and 1966 to the said head of the Lukugba family at Yekere’s Compound, Ife.”


The defendants have now appealed to this Court against that judgement their complaint being that in view of the evidence given at the trial together with the substance of the previous cases between the parties, the plaintiffs should not have got judgement or that at best the plaintiffs should not have got an order of non-suit. Part of the evidence given at the trial and relevant to the complaint on appeal was that although the plaintiffs claim that the lands of Lukugba (the common ancestor of the plaintiffs and the 1st defendant) were not partitioned yet they successfully levied execution pursuant to the judgement in exhibit E against the Pabiekun family or sub-branch in respect of farmlands occupied by them and now being claimed by the plain-tiffs as Lukugba land. Apart from the judgement, exhibit E, which states that Lukugba’s lands belonged to all this descendants and that the Pabiekun sub-branch were not alone entitled to collect and keep the Ishakole payable by the tenants on the lands, the partiese referred to the judgement of this Court in SC. 612/64, Folajin Pabiekun & ors. v. Gbadamosi Ajayi of 29th June, 1966, by which this Court upheld the judgement of the Ibadan High Court given in pursuance of interpleader proceedings at the instance of some members of the Pabiekun sub-branch against the present plaintiffs. That judgement affirmed a judgement of the High Court to the effect that the lands sought to be attached at “Kanga, Ologan and Araromi in Ife District and also the house at Yekere Compound, Ife” were not the private properties of the claimants and that they were attachable for the debt of the Pabiekun sub-branch.


We are of the view however that this appeal will fail. Learned counsel for the defendants had argued the case on the basis that the plaintiffs were bound to elect whether to treat the lands concerned as unpartitioned family property (as they are doing in this action) or as lands of which the Pabiekun sub-branch had its aliquot share (as the judgement in the interpleader proceedings in this Court seems to show). It is clear that the plaintiffs have not been consistent not only with respect to the cases which they had won against the defendants but also in respect of the evidence which they had given in those cases and the way they had argued them. We were ourselves treated to a taste of this inconsistency by learned counsel for the plaintiffs when we called upon him to reconcile for us the claims of the plaintiffs in the present case and in the interpleader proceedings and judgement.


This is however not sufficient to warrant a disturbance of the judgement appealed from. An execution sale disposes only of the right title and interest of the judgement-debtor in the property attached and whatever might have been said in the judgement of this Court in SC. 612/64 and the judgement of the High Court, Ibadan, in the interpleader proceedings it is manifest that no more than the right title and interest possessed by the defendants in the lands were transferred by the sale. The present action concerns the radical title to the land and we must decide that question without reference to the interpleader proceedings and its consequences. The parties eventually agreed that the land in dispute falls within lands at one time owned by Lukugba their common ancestor. The plaintiffs say that the land is still part of his family land. The defendants allege that there was a partition as a result of which their own sub-branch took the land in dispute absolutely. Surely the burden of proving the partition is squarely on them. The defendants called no evidence at the trial and the provisions of section 136 of Evidence Act must apply. The result is that the judge was entitled to find as he did that the ownership of the land in dispute still remains in the Lukugba family which of course includes the Pabiekun sub-branch. This is the point on which the appeal before us turns and we are bound to hold that the judge came to the correct conclusion on the facts given in evidence before him. The appeal fails and it is dismissed. The appellants will pay the costs of the appeal fixed at 32 guineas.


Appeal dismissed.



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