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FEDERAL SUPREME COURT OF NIGERIA
30TH JANUARY, 1957.
BEFORE THEIR LORDSHIPS:
SIR STAFFORD FOSTER SUTTON, F.C.I. (Presided)
OLUMUYIWA JIBOWU, F.J.
M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)
ALHAJI INOA SALO
O.B. Akin-Olugbade -for the Respondent.
CUSTOMARY LAW – Applicability – Extent thereof.
LAND LAW – Native Law and Custom – Sale of land thereunder – Condition for validity of sale.
LAND LAW – Possession under Native Law and Custom – How conferred.
PRACTICE AND PROCEDURE – APPEAL – Findings of fact not made by trial judge – Duty of appellate court.
DE LESTANG, F.J.(Delivering the judgment of the Court): This appeal arises in the following circumstances. In 1939 Samuel O. Onasanya became the owner by purchase of a piece of land known as No.10 Alfa Atere Street, Surulere. On 3rd May, 1939, he purported to sell the land to Bakare Bankole, as is evidenced by a sale receipt. By a deed of conveyance dated 18th July, 1952, and duly registered, Bankole purported to convey the land to Abudu Raimi Bamgbale. By a further deed of conveyance dated 8th March, 1954, also duly registered, Bamgbale purported to convey the land to the respondent. S.O. Onasanya died in 1944, leaving five children to inherit his estate. They are appellants 2 to 6. These appellants purported to sell the land in the suit to appellant 1 in November, 1951. This transaction is evidenced by a sale receipt. Appellant 1 was put in possession of the land by the other appellants. By a Deed of Conveyance dated 23rd February, 1953, and duly registered, appellants 2 to 6 purported to convey the land to appellant 1. The respondent, being unable to obtain possession, instituted proceedings in which he claimed a declaration of title to the land, possession and an order setting aside the conveyance to appellant 1.
The learned Judge held that the respondent had a mere equitable interest in the land, and was accordingly not entitled to a declaration of title. He did, however, make an order for possession on the ground that the respondent had a better title to the land than appellant 1. As regards the conveyance, he set it aside on the ground that it had not been executed by the vendors. There is no appeal against this last order, but the appellants appeal against the order for possession.
The parties in this case are Africans, natives of Nigeria, and consequently the law applicable to the case is native law and custom in so far as “it is not repugnant to natural justice, equity, and good conscience, nor incompatible with any law for the time being in force” (Section 17, Supreme Court Ordinance, Cap. 211, Laws of Nigeria, 1948). It is well settled that no sale of land can validly take place under native law and custom until the purchaser has been put in possession. In olden days the act of giving possession was done publicly and ceremoniously and this public act was the only evidence of the sale. With the advent of education and the impact of European laws and customs, the practice arose and grew to issue receipts for such transactions. The necessity, however, of obtaining possession was never done away with, and it is not contested that to this day, for the transfer of ownership of land to be effective under native law and custom, it is necessary that the purchaser should obtain possession.
In the present case the respondent derived his title through Bamgbale from Bankole, and can have no better title to the land than Bankole had. To ascertain Bankole’s title, it was necessary to decide whether he obtained at any time possession of the land. If he did, then he became owner of the land by native law and custom. If he did not, then the ownership of the land remained in Onasanya and passed on his death to appellants 2 to 6 who could validly sell it to appellant 1. It is most unfortunate that the question whether Bankole ever had possession was not decided by the learned Judge. He merely refers in passing to this matter in his judgment in these words:
“The evidence of Bankole as to his receipt of rent for those 13 years is not very strong because he says that his vendor received the rent even after he had bought. Certainly he goes on to say that 4th defendant used to collect rents and pay them over to him, but it appears from his evidence that this was not until 1944.”
I do not think that this passage can be understood as a finding of fact that Bankole was in possession either physical or constructive.
On the view which I take of the law as above stated, a finding as to Bankole’s possession was imperative in this case. With a view to putting an end to this litigation and saving the parties unnecessary costs, I have considered whether this Court could decide this question on the evidence on the record, but owing to the conflicting nature of that evidence I have come to the conclusion that it would not be proper to attempt to do so in the circumstances of this case. The only alternative is to set aside the decision and send the case back for re-trial. I would so order.
FOSTER-SUTTON, F.C.J.: 1 concur.
JIBOWU, F.J.: I concur.
Appeal allowed. Retrial Ordered.