3PLR – ALFA MURITALA AMOO V. WAHABI ADERIBIGBE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ALFA MURITALA AMOO
V.
WAHABI ADERIBIGBE
COURT OF APPEAL
(IBADAN DIVISION)
WEDNESDAY,8TH DECEMBER, 1993
CA/I/231/87
3PLR/1993/19 (CA)
OTHER CITATIONS
[1994]2 N.W.L.R. PART 324 PG.92
BEFORE THEIR LORDSHIPS
ALOMA MARIAM MUKHTAR;
ISA AYO SALAMI;
SYLVANUS ADIEWERE NSOFOR.
MAIN ISSUES
APPEAL- Grounds of appeal- Ground alleging error in law- Failure to set out particulars of error- Whether renders ground incompetent.
CONVEYANCING- Family property- Alienation of- Principles applicable.
LAND LAW-Family property- Party relying on title documents as evidence of acquisition of- Onus on him- How discharged.
NATIVE LAW AND CUSTOM- Family land – Absolute transfer of- Condition precedent thereto.
PRACTICE AND PROCEDURE – EVIDENCE- Documentary evidence- Title documents- Proof of due execution- Presumption raised- Application of Section 123, Evidence Act.
MAIN JUDGMENT
ISA AYO SALAMI JCA (Delivered the following judgment):
The plaintiff’s claim which eventually went to trial is as set out in paragraph 17 of the statement of Claim wherein the plaintiff claimed as follows –
“WHEREOF the plaintiff’s claim against the defendant are as follows:-
(a) Declaration of title and/or the right to occupy the piece of land together with the building thereon situate at Plot 13 Block A on Olu Akintunde Layout, Aperin, Oniyere Area, Ibadan.
(b) The sum of N5,000.00 (Five Thousand Naira) being special and general damages for trespass as follows:-
PARTICULARS OF DAMAGES
(i) 40 (Forty) 3″ by 4″ Planks at N5.00 each N200.00
(ii) 200 (Two Hundred 2″ by 2″ Planks at N2.50 each. 500.00
(iii) 200 (Two Hundred 2″ by 2″ Planks at N2.50 each 500.00
(iv) 40 (Forty 1″by 12″ Planks at N7.00 each 280.00
(v) 150 (One Hundred and Fifty) 2″ by 4″ at N4.00 each N600.00
(vi) 10 (Ten) 2″ by 6” Planks at 7.00 each 70.00
(vii) 14 (Fourteen) Bundles of iron sheets at N33.00 each 462.00
(viii) Cost of Transport 200.00
(ix) Carpenter’s Workmanship 600.00
SUB TOTAL N3,512.00
(x) General Damages N1,488.00
GRAND TOTAL N5,000.00
(c) An Order of perpetual Injunction Restraining the defendant his servants, agents and/or privy from committing further acts of trespass on the said landed property.
The defendant filed a statement of defence to which the plaintiff filed a reply.
Thereafter, the defendant amended his statement of defence twice by filing amended statement of defence and further amended statement of defence. Having settled pleadings as per statement of claim, further amended statement of defence and reply to statement of defence, the trial court took evidence whereupon the plaintiff called eight witnesses including himself and seven witnesses testified for the defendant. Both counsel then addressed the court before the matter was adjourned for judgment.
In a reserved and well considered judgment Ademakinwa, J found as follows-
“It is trite law that in a case for declaration of title the plaintiff has the onus to satisfy the court that he is entitled to the declaration sought irrespective of the weakness in the case for the defence. See Eboha AND Ors. v Anakwenze AND Anor (1967) NMLR 140 at page 143; Elufisoye v Alabetutu (1968) NMLR 298 at page 302. The defendant in the present case has adduced much stronger evidence than that adduced by the plaintiff in support of his claim. It follows therefore that the plaintiff’s claim for declaration must fail and is hereby dismissed. It is of course true that the success of the claim for trespass need not be tied up with the claim for declaration of title. However, since the plaintiff has not been able to show that he was in possession of the land in dispute his claim for trespass against the defendant must also fail and it is hereby dismissed. (See: Oluwi v Eniola (1967) NMLR 339 at page 341). The claim for trespass must, in the circumstances equally fail.
In the result the plaintiff’s claim fail in their entirety and they are hereby dismissed.”
Dissatisfied with the conclusion arrived thereat, the plaintiff appealed to this court on three original and six additional grounds of appeal. The first two original grounds of appeal are defective and are to be recited along with the third original ground of appeal immediately hereunder;-
“1. The learned trial Judge having held that Adedehin family originally owned the land in dispute erred in law and on the facts by dismissing the plaintiff’s claim for a declaration of title when the plaintiff has discharged the burden of proof.
- The learned trial Judge erred in law and on the facts when he held “It is not clear from the pleadings or evidence whether the alleged sale by Adedehin to Chief M. O Akintunde (2nd plaintiff’s witness) was under Native Law and Custom when there was abundant evidence to the contrary.
- The judgment is against the weight of evidence.
Ground 1 and 2 of the grounds of appeal do not contain the particulars of the respective errors complained of . See Order 3r 2(2) court of Appeal Rules, 1981; Atuyeye v Ashamu (1987) 1 SCNJ 72; (1987) 1 NWLR (pt 49) 267 and Anyaoke AND Ors v Dr. F C Adi AND Ors. (1986) 3 NWLR (pt 31) 731.
The parties, in their respective briefs formulated issues calling for determination in this appeal. Six issues formulated in the brief of the plaintiff (hereinafter referred to as the appellant) read as follows-
(1) Whether the learned trial judge was right in holding that the plaintiff has failed to prove title either under native law and custom or under the English law when there was credible and uncontroverted evidence that the 2nd PW purchased his land under native law and custom before a deed of conveyance was executed in his favour.
(2) Whether it was necessary for the plaintiff to call a member of Adedehin family to prove due execution of Exhibit B the deed of conveyance which conveyed Adedehin family land to the 2nd PW, when the parties derived title from the same family and there was no challenge through the pleading or by evidence that Adedehin family did not sell the land claimed by the plaintiff to PW2.
(3) Whether the learned trial judge was right to say that the plaintiff was never in possession either by himself or through his vendor the PW2 when there was credible and uncontroverted evidence admissible in law of acts done by the 2nd plaintiff witness and the plaintiff himself to prove possession.
(4) Whether the learned trial Judge was right in holding that it was the defendant who built the house on the land in dispute, when there was credible and uncontroverted evidence given by the plaintiff and his witness as to how the house was built and the evidence given by the defendant regarding the building of the house was contradicting and misleading.
(5) Whether the learned trial judge was right in dismissing the plaintiff’s claim having regard to the weight of evidence and a lot of misdirection or non direction regarding the approved layout plan, the relationship between the layout, the land in dispute and the land covered by the deed of conveyance in Exh B.
(6) Whether the learned trial judge was right to hold that the defendant was in possession after he had held that the defendant has failed to prove title either by traditional evidence or by documents when in law such foundation has no foundation.
On the other hand, respondent formulated three issues –
(1) Whether the learned trial judge in the light of the evidence before the court was right to have concluded that the plaintiff had failed to discharge the onus placed on him to satisfy the court that he is entitled to the declaration sought.
(2) Whether the learned trial judge correctly evaluated the evidence and came to a right conclusion as to who was in possession of the land in dispute.
(3) Whether in view of the evidence before the trail court, that court was not right in holding that it was the defendant who built the house on the land in dispute.
I have considered the two formulations and am of the clear view that the issue calling for determination on the issues joined is whether appellant’s immediate predecessor in title acquired title to the land in dispute.
Before I proceed to consider the issues raised in this appeal I propose to deal with the facts of the case albeit succinctly. The appellant’s case, in his statement of claim is to the effect that the land in dispute forms a part of a large tract of land which originally belonged to Abina family through an absolute grant from one Kure. The appellant retracted these allegations, without amending his statement of claim, by admitting in paragraph 3 of his reply to the statement of defence that the averments in paragraphs 3,4,5, 6,7 and 8 of the statement of claim were made in error and that the correct traditional evidence of the land was to the effect that the land originally belonged to Adedehin family through absolute grant by Kure. This in effect, is admission of the statement of defence. The Adedehin family sold a portion of their family land including the land in dispute to one Chief M O Akintunde by virtue of a deed of conveyance, exhibit B in 1971. The parcel of land was laid out into building plots and the appellant bought Plot 13, Block A from Chief Akintunde under native law and custom. The appellant started building operation on his plot in 1980 and the building was being roofed in 1982 when the respondent destroyed and removed all the iron sheets and planks on the said building. It was the destruction that led to the action culminating in this appeal.
The respondent traced his root of title to Adedehin family through Chief S. B. Adewumi who sold the land in dispute to the respondent under native law and custom. Chief Adewunmi bought a large tract of land from Adedehin family by a Deed of Conveyance in 1962. The respondent began development on the land in 1978 without let or hindrance until 1981 when he abandoned the house at Lintel level for want of fund and the appellant commenced roofing the same to the utter dismay of the respondent who went ahead to dismantle the roof appellant had mounted on the respondent’s structure.
At the hearing of the appeal, learned counsel for appellant adopted and relied on the appellant’s brief. Although she intimated her desire to elucidate orally on issue 2 of the appellant’s brief she abandoned the idea later. The respondent’s counsel adopted and relied on the respondent’s brief filed on 25th October, `1993. She made no oral elaboration thereon.
In arguing this issue, appellant’s learned counsel contended that appellant’s vendor gave evidence that he purchased a large piece of land from Adedehin family and the land was handed over to him after he had paid the purchase price before he got Adedehin family to execute a deed of conveyance. He then referred to the cases of Ayinla v Sijuwola (1984) 5 SC 44, 76-7; Animasahun v Olojo (1990) 6 NWLR (pt 154) 111,117 and Inyang v Essiet (1990) 5 NWLR (pt 149) 178. He contended further, on the acquisition of title by his vendor, second P W that learned trial Judge failed to appreciate that a parcel of land sold under native law and custom as was done, in the instant case, can also be conveyed by a means of a deed of conveyance.
Respondent’s counsel in the respondent’s brief read paragraph 6 of the Statement of claim and paragraph 3 and 7 of reply to statement of defence before postulating that appellant’s case is that his vendor acquired title by purchase under customary law. She then submitted that to acquire title to land, bare assertion of appellant was not sufficient nor was it a substitute for evidence of proof of sale under customary law.
In the instant case, the appellant pleaded as follows in paragraphs 3,4,5,6 7 and 8 of his statement of claim.
- Abina of Oke Dada (through absolute grant by Kure) owned the piece of land (including the land in dispute) situate at Aperin, Oniyere Area, Ibadan during the reign of Bashorun Oluyole over 100 years ago under Yoruba Native Law and Custom.
- Abina in his life time exercised various acts of ownership undisturbed on the said land by farming thereon and planting cocoa, palm trees, Kolanuts, maize, yams, cassava and oranges.
- After Abina’s death, the said land was inherited by members of Abina family (including Olalere Abina – Head of Abina family) who also exercised various acts of ownership undisturbed by farming thereon and planting cocoa, palm trees, Kolanuts, maize, yams cassava and oranges and also selling portions of the land to purchasers Chief M O Akintunde.
- Sometime in 1971 in the presence of witnesses, Abina family sold a portion of their family land (and which includes the land in dispute) to Chief M O Akintunde. Abina family subsequently executed a Deed of conveyance in favour of Chief M O Akintunde.
- Chief M O Akintunde undisturbed cause the said land to be surveyed and laid into building plots known as M O Akintunde Layout and given an Approved Layout No L825 by Ibadan Metropolitan Planning Authority.
- Sometime in 1975 when Chief Sunmonu Olayiwola Kure (Head of Kure family) Olasupo Adisa and S A Adeoye trespassed on the said land Chief M O Akintunde sued them in suit No 1/2/299/76- M O Akintunde versus Chief Sunmonu Olayiwola Kure AND Others for trespass and injunction at Ibadan High court of Justice and judgment was given in favour of Chief M O Akintunde.
In his reply to the statement of defence the appellant retraced from all the allegations set out above including the averments that the property was laid out and an approved plan was obtained because they were made in error. The fresh allegations peremptorily made thereafter are recited immediately hereunder –
- The plaintiff admits that paragraphs 3,4,5,6,7 and 8 of the statement of claim were made in error.
- Adedehin of Olukoyi Labo (through absolute grant by Kure) owned the tract piece of land (including the land in dispute) situate at Oniyere Area, Aperin, Ibadan during the reign of Bashorun Oluyole over 100 years ago under Yoruba Native law and custom.
- Adedehin in his life time exercised various acts of ownership on the said land by farming thereon and planting cocoa, palm trees, Kolanuts, maize, yams cassava and oranges.
- After Adedehin’s death the said land was inherited by members of Adedehin family who also exercise various acts of ownership undisturbed by farming thereon and planting cocoa, palm trees, kolanuts, maize, yams cassava and oranges and also selling portions to purchasers including Chief M O Akintunde.
- Sometime in 1971 in the presence of witnesses, Adedehin family sold a portion of their family land (and which include the land in dispute) to Chief M O Akintunde for the sum of N2,200.00 Chief Akintunde was put in possession.
It was with this summersault that pleadings were closed and the matter preceded to trial. The appellant never sought nor obtained leave to amend his statement of claim which is clearly inconsistent with his reply to the statement of defence. The secondary question is, can he do that? I do not think so. The appellant is not entitled to, by way of a reply, introduce a different cause of action. If the appellant as the plaintiff finds that he has raised in error a claim in the statement of claim and he wants to raise the proper or correct claim in substitution for the one already raised in error he ought to raise that claim by amending his statement of claim and not to deliver a reply: Blay v Pollard (1930) 1 K B 628,634 See Order 18 r 10 of the Supreme court Practice 1985 which provides-
“10(1) A party shall not in any pleading make an allegation of fact, or raise any new ground or claim inconsistent with a previous pleading of his.
(2) Paragraph (1) shall not be taken as prejudicing the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.”
In this connection Goff, J while interpreting the provisions of the rule set out above in Herbert v Vaughan (1972) 3 All E R 122 at 126-7 said –
“Light is, however, I think thrown on it by an interlocutory observation of Hall V C in the Williams on case, where, whilst he said that the rule was not always enforced, he did say this –
‘Anything is legitimate which adds to qualifies or explains the allegations of the defence unless it is shown to be wholly irrelevant when the rules were prepared the view was taken that after defence new matter should generally be introduced by way of amendment, and that is, in my opinion, the more consistent course, but it has not been in fact always enforced as the rule under the General Orders.
It will be observed that what Hall V C said is that everything is legitimate which adds to qualifies or explains the allegations of the defence; and that of course, is the real subject matter and proper ambit for a reply.”
See also Re Craig (deed) (1970) 2 All E R 390 395 1971 ch D 95 104 and Bullen AND Leake and Jacobs precedents of pleading 12th Edition Chapter 9 titled Reply and subsequent Pleadings. The learned authors at page 107 clearly state thus-
“The plaintiff must not set up in his reply a new cause of action which is not raised either on the writ or in the statement of claim, since the plaintiff must not in his reply make any allegations of fact, or raise any new ground of claim inconsistent with his statement of claim. Inconsistent for this purpose does not mean mutually exclusive but merely new or different. In other words the reply must not contradict or depart from the statement of claim, or it will be ground for an application to strike out the reply must not contradict or depart from the statement of claim, or it will be ground for an application to strike out the reply in which the defect occurs.”
Paragraphs 4,5,6 and 7 of the reply to the statement of claim make allegation of fact or raise new ground which are inconsistent with statement of claim and, therefore, do not belong to the ambit of a reply, accordingly they ought to be ignored.
The reply to the statement of defence in question was filed on 20th February, 1984.
The power to apply the provisions of the Rules of Supreme court (England) as I did is, therefore, derivable from the provisions of Order 37 rule 10 of the Oyo State High court (Civil Procedure) Rules Cap 44 of the Laws of Oyo State of Nigeria, 1978 which is the applicable enactment at all time material to the filing of the reply to the statement of defence. Rule 10 of the High court (Civil Procedure) Rules (supra) reads as follows-
“10. Where no provision is made by these rules or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the court, provided that no practice which is inconsistent with these rules shall be applied.
See also the case of Laibru Limited v Building and Civil Engineering Contractors (1962) 2 SCNLR 118; (1962) 1 All NLR 387.
I am next to examine the evidence adduced or led pursuance of the averments contained in paragraphs 3,4,5,6 and 7 of the statement of claim. The appellant did not lead evidence in support of the claim contained in the statement of claim, having declared these allegation of facts erroneous and posited alternative averments, though inconsistent to his statement of claim he proceeded to adduce evidence in support of the averments contained in reply to the statement of defence which is a departure or contradiction of the statement of claim. The new grounds of claim raised in the reply to the statement of defence are not in issue. The parties did not join issue on the claim of the appellant raised in or based on paragraphs 3,4,5,6, and 7 of the reply. The case of the appellant on his statement of claim is to the effect that Abina family sold a parcel of land to the second p w who in turn sold to the appellant and that Abina family subsequently conveyed the property to Akintunde – second PW, by a deed of conveyance. What respondent actually joined issue upon with the appellant, as he was expected or bound to do, was the statement of claim.
This is borne out by paragraph 9 of the statement of defence where in respondent averred thus-
“9. With reference to paragraphs 3,4,5,6,7 and 8 of the plaintiff’s statement of claim the defendant avers that Adedehin family land is different from Kure or Abina family land and that the land in dispute is part of the land which originally belonged to Adedehin family.”
The implication of this plea is that the land of Adedehin family, the respondent’s root of title is different from the appellant’s root of title which is through Abina family which had a grant from Kure family.
When the appellant led evidence in support of a sale under customary law and subsequent execution of a deed of conveyance in favour of his immediate predecessor by Adedehin family he had embraced a claim other than the one he went to court to make. The evidence he led to utter neglect of his own case do not go into issue since parties are bound by their pleadings. See Ibanga v Usanga (1982) 5 S C 103,130-131; Akpapuna v Nzeka II (1983) 2 SCNLR 1,14 and Emegokwue v Okadigbo (1973) 4 S C 113,117. Pleadings are no evidence it is, therefore necessary for the appellant to adduce evidence to support his allegations failure to do so is tantamount to abandoning the claim. The appellant having abandoned his claim by his failure to adduce evidence in proof of it he is not entitled to judgement. In the case of Omoregbe v Lawani (1980) 3-4 SC 108, 117 Supreme Court held that the court is at liberty to act on the unchallenged evidence by the party who had the opportunity to do so. The law is that where a fact is pleaded and no evidence is led in support of that fact pleaded, no onus is cast on the other side to disprove that fact not established: Kate Enterprises Ltd v Daewoo Nigeria Ltd. (1985) 2 NWLR (pt 5) 116. The principle is well established that in a case for declaration of title, if the plaintiff failed to prove his case, the proper order is one of dismissal. This is a case where the appellant’s claim is essentially for declaratory order which should succeed on the appellant’s evidence and not on the weakness of the defence: Quo Vadis Hotels AND Restaurants Ltd v Commissioner of Lands Mid Western State AND Ors (1973) 6 S C 71, 96; Agbaje v Agboluaje (1974) 1 All NLR 21, 26, Raimi Sanni Alias R A. Aderibigbe v Jimoh Olanrewaju Oki AND Anor (1971) 1 All NLR 116,121, Sabalemotu AAA Kayaoja AND Ors v Lasisi Egunla (1974) 12 S C 55, 61 See also the case of Nwokafor AND Ors v Nwanko Udegbe AND Ors. (1963) 1 SCNLR 184 at 187; (1963) 1 All NLR 104, 107 where the Supreme Court reconfirmed the principle thus –
“The decision in Kodilinye v Odu (1935) 2 WACA 336 is authority for saying that the proper judgment when a plaintiff claiming a declaration of title fails to prove his case is one of dismissing the claim.”
In case, I am wrong does the evidence produced by the appellant who, incidentally was the plaintiff in the court below prove that his predecessor in title, second p w, established that he acquired valid title to the parcel of land he subsequently sold to the appellant?. The evidence to which I am referred in the appellant’s brief is reproduced hereunder –
“I bought a parcel of land from the Adedehin family in 1971. The land I bought from Adedehin family is at Oniyere are towards Akanran, Ibadan. I bought it for N2,000. After I having paid the purchase price, the land was handed over to me. I then commissioned a surveyor to survey the land for me.”
This is the evidence of how the vendor of the appellant second p w acquired title to the land in dispute. Notwithstanding, the difficulties appellant has with his pleading the evidence set out above grossly falls far short of what is required of him. To acquire title by purchase under native law and custom there should be evidence that there was a sale of the land in dispute by payment of purchase money and delivery of possession.
See Ogunbambi v Aboaba 13 WACA 222,225 and Cole v Folami (1956) 1 FSC 66.68 (1956) SCNLR 180 where Jibowu Ag FCJ said –
“The learned counsel for the appellant himself admitted that it is the rule of native law that an individual member of the family cannot alienate family property without the consent of the family. This principle was upheld by the Supreme court of Nigeria in Kasumu Aralawon v Yesufu Aromire and Elo Aiyedun. Chief Aromire (2)”
And in Erinosho v Owokoniran 1965 NMLR 479 483 it was held per Idigbe, JSC thus-
“In order to transfer an absolute title under native law and custom it is necessary that such a sale should be concluded in the presence of witnesses who saw the actual handing over of the property from the Fafunwa branch of the family to Oladiran. See Cole v Folami (1956) 1 FSC 66,68 (1956) SCNLR 180.”
In the instant appeal, the appellant’s predecessor in interest in the parcel of land in dispute did not satisfy the court below. In the first place, he did not show who were members of Abina (or Adedehin) family from whom second P w bought the land. Nor did he lead evidence showing whether these members included the Mogaji or head of family. The record is silent about the identity of the person or persons to whom the purchase price was paid. And most importantly no evidence was led to establish the identities of the persons who handed over the land to second PW as well as the existence of witnesses to the sale in whose presence the property was handed over to the purchaser, appellant’s vendor, on payment of purchase money.
In the absence of positive answers to these questions and many more, the appellant’s vendor cannot clearly satisfy the court that he acquired title to the land under native law and custom which could validly be transferred to the appellant.
On the question of deed of conveyance, the appellant’s case is to the effect that the property acquired under native law and custom can also be conveyed by means of a deed of conveyance. I agree with the learned counsel for appellant that the case of Alade v Aborisade (1960) 5 FSC 167, 174 (1960) SCNLR 398 cited by him is an authority for saying that if a family is the absolute owner of the land the totality of the family interest in the land may be transferred under English law if the head and all principal members of the family agreed. This phenomenon have been variously described as fee simple absolute, fee simple, absolute title or ownership. But the authority cited by learned counsel for appellant did not dispense with the capacity of the person transferring the property under English law being proved. Alade’s case (supra) at page 174 intonated that the totality of the family interest in the land may be transferred if the Head and all members of the family agree. it does follow that if the appellant proposed to rely on the English law to establish the title of his predecessor in title in respect of a parcel of land previously held under native law and custom he ought to show that the persons who conveyed to his predecessor in title by a deed of conveyance are the people who under the native law and custom entitled to transfer title to such piece of land.
The appellant, apparently to satisfy this condition pleaded in paragraph 6 of the statement of claim thus –
“6. Sometime in 1971 in the presence of witnesses, Abina family sold portion of their family land (and which includes the land in dispute) to Chief M O Akintunde. Abina family subsequently executed a Deed of Conveyance in favour of Chief Akintunde.”
Thus paragraph 6 was denied for whatever it was worth by the respondent who proffered that root of title of the parties are different by averring that the Adedehin family land, his own source, is different from Kure or Abina (the appellant’s root of title) and that the land in dispute formed part of a parcel of land which originally belonged to Adedehin family. In support of the scanty plea, he gave an equally sparse evidence. He told the court below through his second PW and vendor thus:
“I then commissioned a surveyor to survey the land for me. After that, I got the Adedehin family to execute a Deed of Conveyance in my favour. The Deed of Conveyance was executed before a Magistrate. This is the Deed of Conveyance.”
Exhibit B is the deed of conveyance tendered by second PW. Neither the pleading nor the testimony adduced in support thereof stated the capacity in which those who executed the documents and their competence to so act. it is incumbent on the appellant to show not only that the people who conveyed to him are members of the land owning family but also that one of them is the head of the family or Mogaji. It is settled native law and custom that the sale of family land by head of the family without the consent of the members or principal members of the family is voidable at the instance of such a member of the family. A sale, however, by a member or principal member of the family in which the head of family does not concur is void ab initio. See Ekpendu v Erika (1959) 4 FSC 79; (1959) SCNLR 186; Esan v Faro 12 WACA 135; and Agbolie v Sappor 12 WACA 187 Harragin, C J stated at page 189 of the report thus –
“In the first place we can find no authority for the statement that the principal members of the family can give any title in a conveyance of family land without the head of the family joining in the conveyance, even though he may be in agreement. So long ago as 1899 it was held in the case of Insithea AND Ors v Simon AND Ors (1) that family property cannot be sold except by the head of the family with concurrence of the elder members of the family and all through….”
In the case of F C Lukan v M O Ogunsusi (1972) 5 SC 4044-5 the Supreme court observed as follows in relation to sale of family land –
“It is a misconception of the law that three members of a family, one of them not being the Mogaji of the family, and they, not having been appointed by the family to sell family land, could get together and sell family land and thus pass on title to a purchaser merely because the head of the family became aware of the sale and did not nothing about it.”
To succeed appellant is bound to uphold the validity of exhibit B by showing that it was duly executed by the elders and head of the family who sold to the appellant’s predecessor in title, Mr. M O Akintunde. I agree with the learned counsel for respondent that in the absence of proof of a due execution, the appellant is bound to fail except a presumption of a due execution can be inferred. The document which was produced in evidence in 1984 was exfacie made in 1972. The life span of the document between the time it was made and the time it was in issue before trial judge was less than twenty years. There can therefore, be no presumption of due execution of attestation by the persons by whom it purports to be executed or attested. See S.123 of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria, 1990 provides –
“123. Where any document purporting or proved to be twenty years old, is produced from any custody which the court in the particular case considers proper the court may presume that the signature and every other part of such document which purports to be in the hand writing of any particular person is in that person’s hand writing, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed or attested.”
See Paul Cardoso v John Bankole Daniel (1986) 2 NWLR (pt 20) 1.
I hold, therefore that appellant having failed to establish due execution of exhibit B the basis of his claim to the parcel of land under English law, in the manner his claim under customary law failed, he cannot further lay claim to the land in dispute. His failure to establish title of his second witness, his predecessor in interest, either under English law or native law and custom is fatal to the appeal. Appellant’s second witness can only devolve title on him if he himself had title but he has woefully failed to establish one. The appellant having failed to show that his vendor, M O Akintunde, acquired valid title the latter had nothing to part with. His vendor cannot give an interest which he himself does not possess as it is succinctly put in the Latine expression Nemo dat quod non habet.
The answer to the only question framed by me is negative. The appeal therefore fails and it is dismissed. I award the respondent costs of this appeal assessed at N500.00
{Nigerian Cases Referred to}
Agbaje v Agboluaje (1974) 1 All 21
Akpapuna v Obi Nzeka II (1983) 2 SCNLR 1
Alade v Aborishade (1960) SCNLR 398
Atuyeye v Ashamu (187) 1 NWLR (pt 49) 267
Ayua v Adasu (1992) 3 NWLR (pt 231) 598
Bakare v Ibrahim (1973) 3 ECSLR (pt 1) 485
Boshali v Allied Comm Exp Ltd (1961) 2 SCNLR 322
Cardoso v Daniel (1986) 2 NWLR (pt 20) 1
Cole v Folami (1956) SCNLR 180
Ekpendu v Erika (1959) SCNLR 186
Emegokwue v Okadigbo (1973) 4 S C 113
Erinosho v Owokoniran (1965) NMLR 479
Esan v Faro 12 WACA 135
Ibanga v Usanga (1982) 5 SC 103
Kaiyaoja v Egunla (1974) 12 SC 55
Kate Enterprises Ltd v Daewoo (Nig) Ltd (1985) 2 NWLR (pt 5) 116
Laibru Ltd v Building AND Civil Eng Contractors (1962) 2 SCNLR 118
Lukan v Ogunsusi (1972) 5 S C 40
NIPC Ltd v Thompson Organisation Ltd (1969) NMLR 99
Nwokafor v Udegbe (1963) 1 SCNLR 184
Odulaja v Haddah (1973) 11 SC 357
Ogunbambi v Aboaba 13 WACA 222Quo Vadis Hotels AND Restaurants Ltd v Comm
for Lands Mid West (1973) 6. S C 71
Sanni v Oki (1971) 1 All NLR 116
UBA Ltd v Achoru (1990) 6 NWLR (pt 156) 254
Counsel:
W Ogunkeye (Miss)- for the Appellant
F.A Quadri (Mrs) – for the Respondent
