Adenuga Odu Sewoniku V. Mojidi Orotiosakin & Ors (1986)
LawGlobal-Hub Lead Judgment Report
OMOLOLU-THOMAS, O.F.R., J.C.A.
In this case on appeal the plaintiff was claiming in the High Court of Ijebu-Ode, in Ogun State declaration of title in fee simple to a piece of land, N1,000 general damages for trespass and injunction.
Pleadings were duly exchanged between the parties and the case proceeded to trial. The Plaintiff calling 6 witnesses whilst the 1st defendant testified and the 3rd defendant also testified calling one witness. The 2nd defendant also testified for himself and the 4th defendant.
The plaintiff’s case in brief is that he bought the land in dispute from Sinepo Family between 1955 and 1956 and that the head of that family consented to the sale. He is relying on Conveyance Exhibit B1 and the evidence adduced in support of the claim. The original conveyance of the sale was not tendered because; the document and the purchase receipts of sale were stolen. A certified true copy of the Deed of Conveyance tendered is Exhibit B1. It was not executed by the Head of the family. After the sale the plaintiff caused the land to be surveyed in 1957. He took possession. One Karimu Bogun who planted cassava, maize, plantain and other cash crops on the land was the plaintiff’s care-taker on the land. In 1956 the plaintiff met all the 4 defendants on the land cultivating it and digging it, as a result of which the defendants were reported to the police and this action was instituted.
The case of the defendants was that the land in dispute was given to the father of the 3rd defendant about 35 years ago, and he admitted going to the land and clearing it as a labourer of the 3rd defendant on his instructions. The 4th defendant who also testified in the lower court on behalf of himself and the 2nd defendant also confirmed that the land indispute was given to the 3rd defendant about 50 to 60 years ago, and he admitted that he and the 2nd defendant were among members of the family who sold 2 plots of land to the plaintiff, and that one Muniratu Iyalode Kuforiji was at the time the Head of their family. Their case is that when the first plot of land was sold to the plaintiff they did not inform the Head of the family, and that when the second was about to be sold the said Head of the Family informed them that the land had long been given to the father of the 3rd defendant. The case of the 3rd defendant was that the entire members of Sinepo family granted the land to his father about 50 years ago and that he had started to erect a building on the land in dispute.
The learned trial Judge carefully reviewed the evidence and after giving due consideration to the issues raised on the pleadings found that the Head of the family gave her consent to the execution of Exhibit B, and that the 2nd and 4th defendants executed the document. Further, he found that the conveyance was executed by the principal members of Sinepo family.
The trial Judge also considered the issue whether there were 2 stocks of Sinepo family as contended by the plaintiff on the basis of the Idi-Igi system of inheritance, and as contended by the defendants that there were 6 branches. He resolved the issue in favour of the plaintiff.
He also resolved the issue as to the execution of Exhibit B1, and the issue on the authorization of the sale of land by the Head of the family to the plaintiff. He found that the plaintiff was in possession and awarded judgment in his favour on the claims.
The 1st and 3rd defendants being dissatisfied with the judgment appealed to this Court on one original and 6 additional grounds of appeal, which apart from the omnibus ground, revolved round the issues whether the Head of the family consented to the execution of Exhibit B1 or authorised the same, and the consequences of the failure to give such authorization or consent-in other words: whether Exhibit B is void ab initio.
The question for determination as formulated by the appellants read –
i) Whether on a proper construction of exhibit B1 it can be inferred that the head of family joined or even consented to the execution of exhibit B1.
(ii) Whether the plaintiff can give evidence of authorisation by the head of family to add to the contents of exhibit B1.
(iii) Whether the non-execution of exhibit B1 by the head of the family is fatal to the validity of exhibit B1 notwithstanding the evidence of authorisation.”
In the brief of argument of the appellants’ Counsel it was contended that the respondent did not rely on customary sale but on the conveyance exhibit B. Counsel stated that the respondent is enjoined to prove the due execution of that document and prove its validity by establishing that the Head of the family joined in its execution. He said that what the respondent tried to do was to validate Exhibit B1 by adding to the recitals thereof and importing thereto the authorization of the Head of the family to the execution of the said document. He argued that the respondent cannot adduce evidence to vary or add to the contents of Exhibit B1 in order to show that the Head of the family authorized or consented to the sale.
He further argued to the effect that although the lower Court found that the said Head of the family was old and infirm at the time of the execution of Exhibit B1 the trial Judge found that many years later the said Head of the family executed a Power of Attorney. He therefore contended that if she could execute a Power of Attorney in 1962 why did she not take part in executing Exhibit B1.
He submitted further that the document is null and void and that Section 131 of the Evidence Act does not permit the importation of extraneous matters by any addition or variation of the contents of the document, Exhibit B1.
The argument of the learned Counsel is in my opinion faulty and misconceived. The same argument was raised in the lower Court and was adequately dealt with by the trial Judge when he observed as follows-
“Since so much has been made of the case of Lukan v. Ogunsusi (1972) NMLR. 13, I think I (sic) ought to pause here to say something about it. At page 16 the Supreme Court stated thus: “We think it is convenient in this case to re-state the position on the sale of family property:
(4) Ekpendu v. Erika 4 F.S.C. 79 where Esan v. Faro 12 WACA 187 were both considered. The joint effect of the two cases is that the sale of family land by the head of the family without the concurrence of the principal members of the family is voidable, whilst a sale by principal members of the family in which the head of the family does not concur is void ab initio.
(5) The case of Agbloe v. Sappor (supra) in itself makes it clear that the principal members of the family cannot give any title in the conveyance of family land without the head of the family joining in the conveyance even though he may be in agreement.”
It is the contention of Messrs Bakre and Adekunle that Madam Muniratu 1yalode must join in executing the Deed of Conveyance in favour of the plaintiff in order that he may have a valid title. I do not understand Lukan’s case to lay down such a rigid rule. Lukan’s case is partly a re-statement of what the West African Court of Appeal said in Agbloe v. Sappor 12 W.A.C.A. 187 at 189. There the court stated at page 189 that-
‘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.’
That statement must be read in the light of the facts of the Sappor case “Unless there is clear evidence as in the Sappor case that the Head of the family was unwilling to conveyor join in the transaction, it is sufficient if there is credible evidence that the Head of the family did give his consent and blessing to the transaction.”
(Italics mine)
The requirement of native law and custom is that the Head of the family must give his concurrence to the sale to render the sale valid otherwise it is void, or voidable where the sale is not with the concurrence of the principal members of the family only (Vide Kalio v. Woluchem (1985) 2 N.W.L.R. Part 4, 610, 620-621). There is no law in my view that requires the Head of the family under native law and custom to “join in” meaning “execute” a conveyance of family land, as neither a “receipt” nor a “conveyance” as such is known to native law and custom. (Vide Cole v. Folami (1956) 1 F.S.C. 60 at 68; Ogunbambi v. Aboaba 13 W.A.C.A. 222 at 224 and Akingbade v. Elemosho (1964) 1 ALL N.L.R. 54).
‘The trial Judge obviously accepted the respondent’s evidence that the Head of the family was bed-ridden and unable to move but that she gave her consent to the execution of the document without actually joining in executing it. He accepted the fact that the document was executed by 4 out of 6 principal members of the family, and construing the word “join” and its derivatives as used by the Learned Counsel, I agree with his construction that the word imports consent or concurrence of the head of the family to the execution and not necessarily the physical joining in the said execution.
He held that the 4 principal members of the family, who were the signatories, were the accredited representatives of the family in the sale of family land as admitted by the 4th appellant in his testimony, when he said that those 4 members had carried out previous sales of family land on behalf of the family.
The evidence of 5th P.W. was also accepted. He is the son of the said Madam Muniratu Iyalode. He ought to know more about his mother’s condition at the time. On the issue of execution of the conveyance therefore there can be no doubt as to the execution of that document by the 2nd and 4th appellants in 1957. The admissions support the respondent’s case, and the trial Judge properly in my humble view made use of the admissions. The said admissions (Vide Mogaji v. Odofin (1978) 4 S.C. 24) really showed those two appellants in very bad light and the trial Judge, quite rightly, was unable to accept their testimonies in other respects inconsistent with the admissions.
The findings of the trial Judge therefore seem to me justifiable and I agree with his conclusion that section 131 of the Evidence Act cannot in the circumstance be evoked to support the contention of the appellants’ Counsel.
Furthermore, as submitted by the respondent’s Counsel it will be strange indeed if because the Head of the family could not at a time perform an act in this case execute a document she ought not to be able therefore to perform the same act or similar act 5 years later. The issue here really is whether she was infirm and incapable of moving about in 1957 and that issue was resolved. That does not to me mean that the Head of the family could not be strong enough 5 years later to do a similar act. The probability of her being able to do so or not cannot be said to be remote. The point however seems to me to be highly speculative “and it ought to be ignored.
There is no substance in Counsel’s argument on grounds 2, 3 and 6 of the grounds of appeal which therefore fail.
The appellants’ Counsel in his further submissions said that the 5th P.W., a descendant of one Odukoya, admitted that he did not participate in the execution of Exhibit B and that the appellants executed the document when the Court did not have the advantage of seeing the original document, and also when the 6 P.W. who was present talked about 6 persons executing the said document. He then submitted that the evidence does not support the respondent’s contention that all the principal members executed the document.
The respondent’s Counsel found difficulty in understanding the contention of the appellants’ Counsel particularly when Counsel said –
“Even if all the principal members executed Exhibit B without the head of the family joining, the conveyance is null and void.”
If the submission is related to the earlier contention of the Counsel as stated above too I must admit that these submissions are difficult to understand.
The trial Judge specifically dealt with the evidence of the 6 P.W. when he (6 P.W.) said that 6 principal members executed the document. He observed as follows –
“The execution took place in 1957 and the 6th Plaintiffs witness Odufuwa suffered the tragedy of the loss of his sight in 1971. Evidence as to the execution was led in March 1979 some lapse of 22 years. I think that the slip on the part of the 6th P.W. is not unexpected if one takes into consideration the lapse of 22 years and the tragedy which he suffered in 1971. In any event the 4th Defendant admitted that four of them whose names appeared on the Deed of Conveyance had been representing the Sinepo family in the sale of the family land previous to the sale to the plaintiff. I think that this sort of discrepancy is to be expected judging from human recollection. If the 6th P. W. has not lost his sight I have no doubt that he would have been able to read exhibit B1 and recollect that 4 members of the Sinepo family duly executed the deed Exhibit B1 in favour of the plaintiff. ”
(Italics mine).
The observations of the learned trial Judge seem to me reasonably in order as he did not clearly accept the evidence of the witness in relation to the number of signatories, whereas on the other hand he quite rightly in my opinion accepted the admissions of the 2 appellants on the number of signatories. Grounds 1, 4 and 5 of the grounds of appeal therefore fail.
His reasons for his findings on the totality of all the evidence have not in my opinion been faulted and this Court ought not to interfere with the findings and conclusions in his judgment.
There is no substance in this appeal which I hereby dismiss with costs assessed at N400 in favour of the respondent.
Other Citations: (1986) LCN/0021(CA)
