3PLR – KEHINDE V. IRAWO

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KEHINDE

V.

IRAWO

SUPREME COURT OF NIGERIA

SUIT NO. SC 22/1971

 23RD MARCH, 1973

3PLR/1973/39  (SC)

 

OTHER CITATIONS

(1973) 3 S.C. 29.

 

BEFORE THEIR LORDSHIPS

 

ELIAS, C.J.N.

FATAI-WILLIAMS, J.S.C.

IBEKWE, Ag. J.S.C.

 

BETWEEN

ABUDU G. KEHINDE

 

AND

  1. WAHABI IRAWO
  2. J.A. WINFUNKE
  3. MR.ADENEKAN
  4. MR. OBOTIFA

IN RE: J.A. WINFUNKE

REPRESENTATION

Mr. HA. Lardner for the Appellants.

Mr. A.O. Sikuade for the Respondents.

MAIN ISSUES

Land Law-Claim for damages-Trespass-Injunction- Sale of family land by head without consent of other members – Whether void – Failure to produce conveyance – Evidence of title – Numerous acts of possession – Whether sufficient.

MAIN JUDGMENT

ELIAS, C.J.N. (Delivering the Judgment of the Court): In suit No. HK/148/61 Instituted before the Ikeja High Court, the plaintiff (herein respondent) claimed against the defendant as per his writ of summons dated November 14, 1961:

 

“(a)    the sum of £100 being damages for trespass committed by the defendant, his servants and or agents on the plaintiff’s land at Olorunshogo, Mushin District covered by Deed of Conveyance dated the 5th day of February, 1952, registered as No. 74 at Page 74 in Volume 911 of the Lands Registry at Lagos (now at Ibadan).

 

(b)     an injunction restraining the defendant, his servant and/or agents on the said land.”

 

According to the averments in the plaintiff’s Statement of Claim and the evidence adduced in support, the land in dispute is situated at Olorunshogo, Mushin District, Lagos, is covered by a Deed of Conveyance dated February 5, 1952 and registered as No. 74 at page 74, in Volume 911 of the Lands Registry, Lagos. (later removed to Ibadan) as per plan attached and edged red thereon. The land is part of a large area of land belonging to and vested in fee simple in possession in Alhaji Alli Fahm who sold it to one Paul Izinare Samuel under and by virtue of a Deed of Conveyance dated May 1, 1917 and which was duly registered as No. 81 at page 308 in Volume 14 (ex. B); between 1917 and 1933, when Samuel died, there was not disturbance of his possession and use of the land which he then devised by his will date July 5, 1929 to Maurice Adenrele Okuntola Samuel for an estate in fee simple; the latter sold a portion of this land to Lawani Akowonjo (P.W.3) by means of a conveyance (ex. C) dated April 25, 1946 and duly registered as No. 22 at page 22 in Volume 700 in the Lands Registry. Lawani Akowonjo sold this portion to N. A. B. 49 at page 49 in Volume 855, and Animashaun then sold the portion to the plaintiff under a conveyance (ex. E) dated February 5, 1952 and registered as No. 74 at page 74 In Volume 911.

 

The plaintiff adduced further evidence to the effect that, since the land in dispute was sold to him, he had cleared it, fenced it round and put a caretaker in charge; and that there had been no disturbance until 1961 when he learnt that trespassers were laying foundations therein for buildings. He was directed by bricklayers on the site to the 1st and 3rd defendants. In suit No. HK/53/61 (ex. F), he sued unsuccessfully the 1st defendant who, after some prevarication, told him that it was the 2nd and the 4th defendants who were erecting the buildings. He thereafter instructed his solicitor, Mr. Karimu Kotun (who died soon afterwards), to write warning letters to all trespassers, and he himself warned them verbally before deciding to institute the present action against all four defendants because they disregarded all the warnings and continued the buildings.

 

The defendants, on the other hand, averred that the land in dispute belonged to the Ojomo Eyisha Family who had been settled there for over 300 years. Abudu Raimi Apena (D.W.2) gave evidence that in 1961 the Ojomo Eyisha Family sold the land to Fasasi Alamu (D.W.3) by a conveyance dated March 16, 1961 and registered as No. 23 at page 23 in Volume 477 (ex K). Fasasi Alamu made his three parcels of land measuring 100 feet by 50 feet each Into four plots measuring 100 feet by 37112 feet each. On october 10, 1961, Fasasi Alamu sold to Alli Owe and Madam Stella A. Adekunle plots A and B respectively shown and known as No. 58 and 60 Alhaji Otta Street on a plan prepare and tendered as ex 1 by Mr. Alaka, a licensed surveyor. Abudu Raimi Apena (D.W.2) Joined in single ex. K and deposed that there had been no challenge to their right up to the 1961 sale. This principal defence witness also said that Aboki Bade who was the predecessor in title of Alhaji Fahm had not authority to sell since the large area had never been partitioned among the members of the Eyisha Family. He claimed that he a had been a member of the Eyisha Family council since 1922 and that he started signing conveyances as a representative in 1953. He admitted having heard of Fafunmi who was sued by the Osun Apena Branch in Suit No. 113/1913 for selling Ojomo Eyisha Family land. The relevant part of the consent judgment (Ex 0) reads:

 

‘That the Osun Apena and his people in consideration of the various purchasers paying the amount standing against their names in the list attached undertake to put the said purchasers …… into possession of the lands purchased to execute conveyance for the said lands when called on.”

 

On the attached list, AIMi Faun is shown as No. 46 and was to pay £10. Continuing his evidence, Abudu Raimi Apena (D.W.2) was positive that the family had always been known as the Ojomo Enyisha Family, and never as Aboki Bade Family; he further said that the name Ojomo Eyisha Family is not the result of a fusion of the Fafunmi Branch and the Osun Apena Branch, and denied that it came into existence only since the 1913 suit. He, however, admitted under cross-examination that till today the two branches of the family still exist; the Fafunmi Branch headed by Odewale Savage Bade and the Osun Apena Branch headed by himself. He finally agreed that the Ojomo Eyisha Family has no over-all head as such. As to the identity of the land in dispute, the learned trial Judge observed as follows:

 

“A licensed surveyor, Mr. Alaka (P.W.5) was able to confirm that the land sold to plaintiff edged Pink in exhibit 9′ is the same as the land sold by the Eyisha Family in 1916 in exhibit ‘K’ Counsels for all the parties agreed as to the identity of the land in dispute.”

 

It would seem that, in spite of the consent Judgment in suit No. 113/1915, Alhaji Fahm did not pay the £10 stipulated in the list attached to ex 0 and that Fafunmi continued to convey portions of family land. The learned trial Judge found h necessary to draw this analogy:

 

‘This case is similar to the position in Odunsi v. Boulos reported in 4 W.A.A. at page 234. In that case one Anikin was to pay the £70 In accordance with the consent Judgment of 1915 (e)L 0) When the Osun Apena would have given him a conveyance. Anikin did not pay and did not receive a conveyance from Osun Apena. In 1915 Anikin purported to sell and Fafunmi joined in the conveyance. It was held in the court below that Anikin had acquired at most a voidable customary title voidable at the instance of the Osun Apena Branch. In this case, Fafunmi followed up the sale by Abok1 Bads and conveyed as the head of the Aboki Bada Branch to Alhaji Fahm in 1917, as shown in ex-’G’. What Alhaji Fahm got in 1917, through ex. ‘G’ was a voidable customary title voidable at the instance of the Osun Apena Branch. There is however nothing to show that any steps have been taken in this direction which is the proper procedure available.”

 

In the opinion of the learned trial Judge the Ojomo Eyisha Family should have asked the court to set aside the sale to Alhaji Fahm in 1917, as was held by Jibowu, J., in the unreported 1948 Suit No. 105 in which Fafunmi had sold land in 1915 as head of Aboki Bada to one Cardoso; but the Eyisha Family did nothing between 1917 and 1961 when they purported to sell the land in dispute, thus treating the conveyance by Fafunmi in 1917 as a nullity. The learned trial Judge found that the plaintiff had issued sufficient warning to the defendants whilst the building was in progress, that Fasasi Alamu bought on March 16, 1961 (ex. K) and that on October 10, 1961 he sold the two plots to Alli Owe and Madam Stella Adekunle (as per exhibits L & M), that within two months on December 29, 1961, ex. N which Is mortgage of a building thereon from AM Owe to Agbonmagbe Bank Ltd. had been executed, and that the plaintiff had already in November 1961 filed his writ of summons. The learned trial Judge further made this pertinent observation:

 

“It was after action had been instituted that Madam Stella Adekunle conveyed No. 60 Alhaji Otta Street to the 4th defendant in May 1964 by conveyance (ex. ‘P ‘) registered as No. 37 at page 37 in volume 744 at Ibadan. This 1st defendant purchased from Agbonmagbe Bank in October, 1963 witnessed by conveyance (ex. ‘R’) registered as No. 7 at page 7 in volume 699 at the Lands Registry, Ibadan. It is strange that when exhibits ‘L,’ ‘M,’ ‘N,’ ‘Pand ‘R’ were presented for registration no one found out that exhibits ‘B,’ ‘C,’ ‘D,’ ‘E,’ and ‘G’ had previously been registered in respect of the same portion of land. The speed with which the transactions of 1961 took place lend weight to the belief that there was a racket in land going on, and Fasasi Alamu cannot be said to be a purchaser without notice when ex. ‘K’ was executed.”

 

He accordingly held that the plaintiff had neither stood by doing nothing nor acquiesced when the buildings were being erected by the defendants. He gave judgment in favour of the plaintiff as per his writ of summons against all the defendants. Being dissatisfied with this decision, the 2nd defendant has now appealed to this court on seven grounds.

 

The main contentions of counsel for the appellants may, however, be summarised under four headings. The first and most important is that Alhaji Alli Fahm’s title acquired in 1917 was void, not merely voidable. The Ojomo Eyisha family land has never been partitioned among the members, nor has there been an absolute grant of the area of land in dispute to Fafunmi at any time. The alleged grant being void, there was no need to apply to the court to have the 1917 sale set aside, as found by the trial Judge. We observe that when a plaintiff sues for a declaration of title to land, he may rely either on a grant under a conveyance or otherwise, or on the exercise of acts of ownership numerous and positive enough to warrant the Inference that he is such owner, in accordance with the rule in Ekpo v. Ita (1932) 11 N.LR. 68. We think that, even if the plaintiff in the present case could be said to have failed to produce a conveyance in evidence of his title, he had certainly established by evidence sufficient acts of ownership to entitle him to the declaration he now seeks. The learned trial Judge also found as follows:

 

“In 1950 Lawani Akowonjo prepared an Allotment Plan which is recited in, and copy of which is drawn on, ex. ‘D’. Before this he gave evidence that the land was let out to farmers. Plaintiff also gave evidence that mattress makers were using the place after he bought in 1961 and that he erected a fence which was broken down by persons unknown. It was after action had been instituted that Madam Stella Adekunle conveyed No. 60 Alhaji Otte Street to the 4th defendant in May 1964 by conveyance (ex. ‘P’) registered as No. 37 at page 37 in volume 744 at Ibadan. This 1st defendant purchased from Agbonmagbe Bank in October, 1963 witnessed by conveyance (ex. ‘R’) registered as No. 7 at page 7 in volume 699 at the Lands Registry Ibadan. It is strange that when exhibits ‘L,’ ‘M,’ ‘N,’ ‘P’ and ‘R’ were presented for registration no one found out that Exibits ‘B,’ ‘C,’ ‘D,’ ‘E,’ and ‘G’ had previously been registered in respect of the same portion of land. The speed with which the transactions of 1961 took place lend weight to the belief that there was a racket in land going on, and Fasasi Alamu cannot be said to be a purchaser without notice when ex. ‘K’ was executed.” Counsel for the appellant contended that the respondent, having pleaded in paragraph 2 that he sold as an absolute owner, could not be heard to say in evidence that he is claiming a title under customary law. Reference was made to the recital in ex. g, the indenture of May 1, 1917 by which Fafunmi (together with Amodu Tijani) conveyed the land to Alhaji Alli Fahm as “head of the family house of Aboki Bada deceased for himself and the remaining members of the said family house”; the conveyance further reads:

 

“Whereas the said Aboki Bada was during his lifetime seized and possessed to himself his heirs successors and assigns for an estate of Inheritance for ever according to Native Law and Custom of certain hereditaments situate at Ojuwoye in the district of Ebute Metta aforesaid free from all incumbrances whatsoever portion of which is hereinafter described and expressed to be hereby granted……:’

 

To this argument, Mr. Sikuade, learned counsel for the respondent, replied that Fafunmi merely sold as head of the family in circumstances similar to those in which the supreme Court in Akano & anor v. Yisau Ajuwon (1967) N.M.L.R. 7, held as follows:

 

“Plainly, in common parlance people speak of the land of X, the head of the family; and if the members of the family themselves do so, they cannot complain if strangers do. from a lawyer’s point of view it may not be precise; but a lawyer, too, would find it hard to discover and English term by which to describe the position of the family head. In strictness he is not the owner; some think it is unwise to call him the trustee and import English Ideas of trust; perhaps manager is nearest but this term does not altogether fit either, for it is conceded that If the family head sells family land without having obtained the consent of the other members whom he ought to consult the sale is not void but voidable at the instance of the others.

 

As to the point made by Mr. Agbajo that the plaintiff must be tied down to his allegations in paragraph 4, that the land belonged to Omiremi according to customary law, having regard to the evidence we do not think it is to be read as an allegation that it was Omiremi’s private property.”

 

Also, in Ekpendu v. Erika (1959) 4 F.S.C. 79, it was held that such a sale was voidable at the instance of the other members of the family whose consent was necessary but had not been obtained when the family head sold family land.

 

We agree with this finding of the learned trial Judge in the present case:

 

‘What Alhaji Fahm got in 1917, through ex ‘G,’ was a voidable customary title voidable at the instance of the Osun Apena Branch. There is however nothing to show that any steps have been taken in this direction which is the proper procedure available. Instead the Ojomo Eyisha Family seem to have gone round searching for parcels of land in the category of the land in dispute, and having found them, sold to someone else willing to undertake the risk. Thus land in dispute was purported to be sold to Fasasi Alamu in 1961 (ex. ‘K’). The fact Odewale Savage Bada, head of the Aboki Branch, joined in executing exhibit ‘K’.does not make matters better, for neither he nor any other member of the Aboki Bada Branch has any more interest in the land being bound by the conveyance of 1917 from Fafunmi to Alhaji Fahm and the terms of settlement in ex. “O.” What the Osun Apena should have done was to ask the Court to set aside the sale to AIhall Fahm, but they did nothing from 1917 up till now,”

 

The second contention is that there has always been one and only one Ojomo Eyisha Family known and called by that name, and that this family has never been known as Aboki Bada Family as alleged by the respondent. The learned trial Judge, however, referred to the following passage in the judgment of Jibowu, J., in Suit No. 105 of 1946 (ex. H):

 

“I am a member of Eyisha family. We sometimes call the family Ojomo-Eyisha family. The family was known as the Aboki family some 30 or more years ago. The 2nd defendant, who is the 3rd defence witness, at first denied that the Ojomo Eyisha family was or is known by any other name, but later stated in examination-in-chief, ‘Yes, the family was known as Aboki family.”

 

I accept the evidence of these witnesses that Aboki family are one and the same.”

 

One Bakare Apena, an important member of the Ojomo-Eyisha Family, be it noted, gave above vital piece of evidence that the family once bore the other names in respect of this aspect of the family history. Nurudeen Animashaun (P.W.6) who testified in the present case also confirmed this and limed counsel for the respondent contended that this unchallenged piece of evidence is conclusive on the point: see ss.53 and 54 of the Evidence Act. Odunsi v. Boulos (1959) 4 F.S.C. 234, at pp.235 and 236 settles the question of the status in which Fafunmi stood vis-à-vis the Ojomo-Eyisha Family and of the relationship between the two branches of the Eyisha Famiy – the Osun Apena and the Aboki Bada.

 

The third main contention is that the appellants had been right in developing their land as they did in 1961, as there is no evidence that any written warning was ever issued to them by the respondents at any stage of the bolding operation. the learned trial Judge, however, believed the plaintiff/respondents evidence that he not only caused his solicitor to issue warning letters to the appellants but also gave them verbal warnings personally; and also that the defendants/appellants carried out their budding operations as well as dealings in the houses with indecent haste. We see no reason to disagree with this finding of the learned trial Judge. The fourth and last main contention in this appeal is that the appellants had not been guilty of acquiescence either between 1917 and 1961 or since; as customary owners of the Ojomo Eyisha Family, they had not stood by and acquiesced in any unauthorized use and occupation of their land. We do not see any merit in this contention.

 

For the foregoing reasons we are of the view that the appeal fails on all the grounds argued before us, and it is hereby dismissed. The judgment of Sagoe, Ag. J., in the Ikeja High court in Suit No. IK/148/61 of January 20, 1969, including the order as to cost, is affirmed. We assess the costs in this appeal at N60 in favour of the respondent.

 

Appeal dismissed.

 

 

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