Only family head, principal members can validly dispose family land

In the Court of Appeal of Nigeria,

In the Akure Judicial Division,

Holden at Akure on Thursday, November 29, 2012,

Before their lordships:

Kudirat M. O. Kekere-Ekun  Justice, Court of Appeal;

Chima Centus Nweze, Justice, Court of Appeal;

Chinwe Eugenia Iyizoba, Justice, Court of Appeal;

CA/B/133/2005

Between

Bishop C.A. Ajayi  (plaintiff/appellant)

and

1.Oladapo Agidi

2. Ijagbemi

(defendants/respondents).

 

IN other words, the appellant did not prove that Chief Ajongbolo acted as head of the Atantuyin family. As the lower court, indeed found, the chief acted for himself. We agree with the court’s position that if the land Chief Ajongbolo sold was a family property, the sale must be voided because the said chief was not born to be the head of the family. So held the Court of Appeal, Holden at Akure in a unanimous leading judgment delivered by his lordship, Chima Centus Nweze (JCA) his learned brothers Kudirat M. O. Kekere-Ekun and Chinwe Eugenia Iyizoba (JJCA), concurring while dismissing the appellant’s appeal.

The facts are as contained in the body of the judgment.

The appellant in this appeal (as plaintiff) took out a writ of summons against the respondents (as defendants) at the High Court of Ondo State, Akure Judicial Division. He entreated the court, among other reliefs (hereinafter referred to as the lower court) for the following reliefs:

• Declaration of title to all piece/parcel of land known as plot 8 Block 3; Plot 9 Block 3; Plot 13 Block 3, Plot 14 Block 3 and Plot 15 Block 3 on the approved layout plan of Atantuyin Family Layout at Ota Ogoro Area Akure;

• Perpetual injunction restraining the defendants, their agents, servants, workers, privies and all the persons whatsoever claiming through them.

c). N500, 000:00 (Five Hundred Thousand Naira) only, as general and special damages, for trespass and for destruction of materials on the land.

Pleadings were duly filed and exchanged, at the conclusion of the case, the lower court (Coram Fagbe J) on February 17, 2005, dismissed the plaintiff’s case, hence this appeal. He concreted three issues for the determination of this appeal.

In the appellant’s brief of argument, it was contended that exhibit “A” was tendered in evidence, simply, to establish a personal contract already pleaded between the appellant (PW1) and Chief Ajongbolo, the head of Atantuyin Family of Akure, now deceased.

It was observed that the evidence of DW3, Chief Ogunleye Adebusuyi, the Elegiri of Osolo, the family from which DW1 got his root of title, was at variance with the pleading of the respondents.

It was submitted that the rule that the appellant must succeed on the strength of his case and not on the weakness of the respondents’ case is inapplicable where the respondents’ case supports that of the appellant. In such a situation, the appellant can rely on it to strengthen his case, Chukwueke v Okoronkwo (1990) 65 LRCN 57.

It was contended that the lower court was wrong in making a case for either of the parties and without hearing them on the said case proceeded to give its decision. To decide on the appellant’s family status as the lower court did without hearing from the appellant was unjust.

He took the view that the lower court formulated issues that were wider in breadth than the issues placed before it. Above all, the respondents did not claim for a declaration of title.

On PW3, it was submitted that the court overlooked the fact that the competence of a young person to give evidence was not so much a matter of age as of understanding. The test was more on the understanding of the young person than his age. It was explained that PW3, a member of Atantuyin family (now 43 years old), gave a vivid account of what he knew about the traditional history when he was 10 years old. His evidence was that the male members of the Atantuyin family were not available. He was able to mention their names without confusion and mistake. Against this background, it was argued that the lower court’s decision that, unless other members of Atantuyin family corroborated PW3’s evidence of traditional history, no reliance would be placed on his testimony was wrong. This is because, unless otherwise provided by statute, it is not the number of witnesses that is conclusive of the weight to be attached to the evidence led on a particular point.

It was further submitted that in disposing of a family land, the family head and one other member(s) of the family could do so on behalf of the family, Jiaza v Bamgbose (1999) 7 NWLR (pt 610) 183.

It was further contended for the respondents that one of the ways by which ownership of land can be established is by the exercise of the right of ownership/possession of land in dispute. Thus, the plaintiff/appellant must show that he exercised such right of ownership/possession of land in dispute.    It was observed that the appellant, in his evidence at the lower court, stated that he deposited 10,000 cements blocks on the land. Apart from this, he did not do anything more. He failed to state on which of the plots he deposited the blocks over the dispute plots. He had also failed to state when he actually deposited the blocks and at what time the respondents started destroying them.

The respondents argued that if the appellant was actually in possession, he would have been able to give concrete and cogent evidence of all these facts. However, he merely asserted that he deposited 10,000 cement blocks without making any effect to prove the assertion. However, the law is that he who asserts that fact(s) exist must prove the existence of the fact, Suara Yusuf v Adegoke & Anor (Supra).

It was argued for the respondents that the appellant failed to establish the traditional history/evidence of his mode of acquiring the plots of land in dispute. The third witness of the appellant, PW3, at the trial court, Mr. Rotimi Ojo, testified that apart from Ajongbolo and his own father Ojo, there were also other members of the Atantuyin family who used to attend meetings whenever the family land issue was discussed.

Counsel noted that the appellant did not deem it necessary to call of these people to give evidence of traditional history of the land in dispute. Indeed, if any of them had come forward to testify, a case would have been made out against the appellant.

It was observed that exhibit “A”, which the appellant tendered at the lower court, is a registrable instrument. The appellant pleaded it in his Statement of Claim. It was admitted and marked exhibit “A”.     He observed that Exhibit “A” was executed in 1973 by the parties to the Deed of Conveyance. The instrument was not registered. He urged the court to dismiss the appeal and declare the exhibit “A” void.

It was submitted that the respondents had relied on exhibits D1-D3 as their proof of title, page 22, paragraph 2 of the record. These exhibits had shown that the respondents’ vendor was Chief Molik Aminu who was the head of Osolo/Atantuyin family. On this score, it was further submitted that the status of the respondents’ vendors was well stated that they acted for and on behalf of the entire Osolo/Atantuyin families. In his reply, also treated as having been argued, the appellant, substantially reproduced the arguments earlier canvassed in the main brief.

As noted earlier, three issues were formulated in the appellant’s brief of argument. They had been set out earlier. We have considered the two sets of issues formulated by the parties in this appeal. We settle for the three issues, which the appellant put forward. This appeal will, therefore, be determined based on them. After all, it is the appellant’s appeal. We shall take them in the order in which they were presented in the appellant’s brief. As noted, the appellant’s contention was that exhibit “A” was tendered, simply to establish a personal contract between himself and Chief Ajongbolo, whom he described as “the head of Atuntuyin family of Akure”.

The lower court, in its judgment, made findings regarding the above exhibit: findings that contradicted the appellant’s claim that Mr. Ajongbolo sold the land on behalf of the family.

By these findings, the main building blocks in the architecture of the edifice of the appellant’s case at the lower court were defenestrated. Both in his Statement of Claim and his evidence, he maintained that Mr. Ajongbolo was the head of the Atantuyin family.

On the other hand, the first ground of appeal, from which the first issue was formulated, impugned the alleged error of the lower court for not adverting to the fact that an alienation of equitable interest in land does not prevent the owner from claiming for a declaration of title to a statutory right of occupancy in respect of the same land. Learned counsel for the appellant argued that the above exhibit was tendered as “evidence of acknowledgment of personal contract of payment of money and coupled with specific performance by Chief Ajongbolo the head of Atantuyin family of Akure.

Now, it is true that a purchase receipt, which is sought to be put in evidence as a mere acknowledgment of payment, and not as an instrument affecting land is admissible, Ogunbambi v Abowab (1951) 13 WACA 222, 224.

Again, this contention glosses over the fact that the ingredients of a valid sale under customary law of the said land were neither pleaded nor established in evidence, namely, the payment of the purchase price and handing over of the physical possession of the land, both, in the presence of witnesses, Etajata v Olagbo (supra) at 1017; Adedeji v Olaso (2007) 29 NSCQR 888, 921-923.

The net effect of it all is that the appellant did not prove that Chief Ajongbolo acted as head of the Atantuyin family. As the lower court, indeed, found, the Chief acted for himself. This brings us to the contention of the respondents (page 6 of the brief) on the sale of family property. At page 52 of the record, the lower court had held it to be ‘an elementary principle of law that in disposing of a family land, the family head and one or other principle member or members of the family can do so on behalf of the family.”

We entirely agree that this proposition is elementary, indeed. The decisions of the point are legion. The date back to the decision of the West African Court of Appeal in Agbloe v Sappor (1947) 12 WACA 187.

Teriba v Adeyemi (2010) 13 NWLR (pt 1211) 242; Otado v Josiah (2010) 18 NWLR (pt 1225) 653, these case have, consistently, maintained that the alienation of family property without the consent of the family head is void ab initio.

There are equally numerous authorities for the view that an alienation of family property by the family head without the concurrence of the principal members renders the sale voidable at the instance of such members, Esan v Faro 12 WACA 135; Mogaji v Nuga (1960) 5 FSC 107.

Thus, he was required to plead and prove: who founded the land; how they founded it and the particulars of the intervening owners through whom he claimed, Anabaronye v Nwakaihe (1997) 1 NWLR 9 pt 482); Mogaji v Cadbury (Nig) Ltd (1985) 2 NWLR (pt 7) 393; Elegbushi v Oseni (2005) 14 NWLR (pt 94500 348.

In answer, therefore, to this issue, we hold that since the lower court found that, in exhibit “A”, the said Chief Ajongbolo purportedly sold the said land as bona fide owner; he was not acting on behalf of the family. In other words, the appellant did not prove that Chief Ajongbolo acted as head of the Atantuyin Family. As the lower court, indeed, found, the Chief acted for himself. We agree with the court’s position that if the land Chief Ajongbolo sold was family property, the sale must be voided because the said Chief was not proved to be the head of the family. We, therefore, find no merit in the contention that exhibit “A” was tendered as “evidence of acknowledgment of personal contract of payment of money and coupled with specific performance by Chief Ajongbolo the head of Atantuyin family of Akure”.

Finally, having failed to establish his root of title, the appellant’s claim of acts of ownership and possession are, equally, bound to collapse. Thus, his contention that he was in possession, having deposited ten thousand blocks on the land, would, also, be unavailing, Odofin v Ayoola (1984) 11 SC 72, 116; Mogaji v Cadbury (supra) 158.

On issue two, it was submitted on page 8 of the brief, that the evidence of DW1 was at variance with the respondents’ pleadings, citing the evidence of Chief Ogunleye Adebusuyi, the Elegiri of Osolo.

In all, therefore, in respect of actions for declaration of title, facts must be proved by evidence even if they have been admitted in the Statement of Defence, Bello v Eweka (1981) LPELR-SC. 90/1979.

According to Eso JSC (who went the way of all mortals recently), it would be a wrong exercise of discretion on the part of a court, which is aware of the issues of competing interest joined by the parties, to close its eyes, against those issues, and award declaration to a plaintiff who had adduced no evidence in regard thereto. In His Lordship’s view, to shift the onus to the defendant, at that stage, would be awarding declaration, not on the strength of the plaintiff’s case but, on the weakness of the defendant’s case. The net effect, therefore, is that we find no merit on the appellant’s contention on this point.

We entirely agree with the appellant’s submission that evidence which is contrary to the pleadings goes to no issue, Ojiogu v Ojiogu (2010) 9 NWLR (pt 1198) 1; Adekeye v Adesina (2010) 18 NWLR (pt 1225) 449; Chabasaya v Anwasi (2010) 10 NWLR (pt 1201) 163; S. S. GMBTH v T.D. Ind. Ltd (2010) 11 NWLR (pt 1206) 589; Obineche v Akusobi (2010) 12 NWLR (pt 1208) 383.

However, the fact remains that in claim, such as this, the plaintiff will succeed based on the strength of his case, Orlu v Gogo-Abite (2010) 8 NWLR (pt 1196) 307; Nwokidu v Okanu (2010) 3 NWLR (pt 1181) 362. Hence, where his evidence is unsatisfactory, as the lower court found in this case, his action is bound to fail.

With regard to issue three, it was contended that the lower court “raised the issue of the family status of the appellant as regards Oba Osupa, the Deji of Akure, without giving the appellant a hearing on the issue”.

Certainly, the charge that the lower court “coined and manufactured” submissions is a very grave allegation. It is, indeed, scandalous that learned counsel for the appellant thought it fit to level such a heavy accusation against the lower court without affording it the opportunity to responding to it. This, to say the least, is abhorrent and unethical. Our understanding of the law is that the integrity and sanctity of court proceedings, including judgments and rulings, are presumed until the contrary is proved, Odiase v Agha (1972) 1 All NLR (pt 1) 170; Fororunsho v Adeyemi (1975) 1 NMLR 128; Balogun v Adejobi (1995) 2 NWLR (pt 376) 131.

In our understanding, it is this principle that dictated the rule that the court and parties are bound by the records as certified: certified records which are presumed correct unless the contrary is proved, Gonze (Nig) Ltd v NERDC (2005) 13 NWLR 9pt 943) 643, 646.

In all, we find no merit in the appellant’s complaints in this appeal. We hold that this appeal must be, and is hereby, dismissed for lacking in merit. N30,000 costs in favour of the respondents in this appeal. We, hereby, enter an order affirming the judgment of Fagbe J. delivered on February 17, 2005, just three days after the Saint Valentine’s feast day of that year of Gregorian calendar!

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