3PLR – SABIU AJISHOMO AND ANOR. V WAHABI S. OJIKUTU AND 4 ORS.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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SABIU AJISHOMO AND ANOR.

V

WAHABI S. OJIKUTU AND 4 ORS.

FEDERAL SUPREME COURT OF NIGERIA

3PLR / 15/1962

3RD JANUARY, 1963

BEFORE THEIR LORDSHIP

SIR LIONEL BRETT, F.J. (Presided and Read the Judgment of the Court)

JOHN IDOWU CONRAD TAYLOR, F.J.

SIR VAHE BAIRAMIAN, F.J.

REPRESENTATION:

1. O. COKER – for the Appellants.
2. A. KOTUN – for the Respondents

MAIN ISSUES

LAND LAW:- Family property – When claimed exclusively by member of the family – Claim of having bought out in­terests of other members therein – Onus of proof – How discharged

LAND LAW:– Family property – Occupation of and collection of rents thereon – Whether evidence of exclusive ownership – Partition of family property – When court will so order

CHILDREN AND WOMEN LAW: Succession to property along family branches – Family branches founded by female and male forebears – Claim for partition of property – counterclaim that family property belong to one branch having bought out interest of other members – Onus of proof – Effect of failure thereof

PRACTICE AND PROCEDURE – COURT:- Power to order partition of family property -When exercisable

MAIN JUDGMENT

BRETT, F.J. (Delivering the Judgment of the Court):

The parties in this case are descendants of Taiwo Olupana, who died possessed of a piece of land at 9 Binuyo Street, Lagos, on which he had built a house. He died intes­tate and the land passed as family property to his three children, Moriamo, Sunmonu Ojopeoke and Ebo. Sunmonu, as the only male child, succeeded his father as head of the family, and after him the heads were first Alhadji Belo Ogunmola and then Gbadamosi Ajishomo, the sons of Moriamo. The first and second plaintiffs are descended from Ebo; the third from Sunmonu; and the fourth and fifth from Moriamo by her son Alhadji Belo Ogunmola. The two defendants are descended from Moriamo by her son Gbadamosi Ajishomo. The appeal is brought against the judgment of Coker, J., in the High Court of Lagos, granting the plaintiffs’ claim for a partition of the prop­erty between the three branches of the family and an account of rents re­ceived.

It is not suggested that the property is not susceptible to partition, or that the court has no power to order the partition of family property, but the appellants allege that their father, Gbadamosi Ajishomo, bought out the in­terests of the other members of the family in a series of transactions between 1913 and 1938. The trial Judge found that they had failed to discharge the onus of proving this, and I agree with him. They produced a number of docu­ments showing certain financial transactions between different members of the family, but none which showed a clear intention to surrender any interest in the family property, and the attempt to explain this as due to the illiteracy of the makers of the documents fails: to take one example, no-one in his senses, literate or illiterate, would refer to his grandmother’s “belongings” when he meant his grandfather’s land. Acquiescence was also pleaded, but in the circumstances of this case, and irrespective of whether such a plea is ever available between one member of a family and another in relation to the family land, I share the Judge’s view that no inference favourable to the appellants’ claim is to be drawn from the fact that for some years before his death their father occupied the house and collected rents from rooms in it which he had let.

I would dismiss the appeal with costs assessed at 25 guineas.

TAYLOR, F.J.: I concur.

BAIRAMIAN, F.J.: I concur.

Appeal Dismissed.