Alhaji Ayinde Awure & Anor V. Alhaji Adisa Iledu (Yusuf Adisa) (2007)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Ilorin, Kwara State delivered by the Honourable Justice M. A. Folayan on the 13th day of June, 2005.

The appellants had claimed the following reliefs at the lower court by writ of summons filed on 7/2/2003:

“1. Declaration of title over the piece or parcel of land on which defendant is encroaching upon.

2. Perpetual injunction restraining the defendant by himself, his agents, servants, successors, privies or workers from further encroaching or trespassing on the plaintiff’s family land at Masudo Village, University of Ilorin Road”

The appellants pleaded the amended statement of claim filed on 4/3/2003 while the respondent’s statement of defence and counterclaim as well as amended statement of defence and counter-claim were filed on 9/5/2003 and 21/2/2004 respectively.

The appellants filed a reply to the amended statement of defence on 23/9/2004.

The 1st and 2nd appellants gave evidence and called a surveyor who surveyed the land in dispute as their witness. The respondent gave evidence and called five witnesses.

There is no dispute according to the evidence on both sides that the land belonged to the Masudo family. There is also no contention about the identity of the land in dispute. It is the evidence of PW 1 that sometimes in 2002 they decided to visit their land and they instructed their lawyer to cause a notice board to be put on the land that anybody having property on the land should come and see them. On a second visit, they met the respondent on the land and told him if he had bought the land from any member of their family he should submit all his title documents to their lawyer but up to the time of giving evidence the respondent has not submitted any title document of the land of Masudo family on which he had encroached or trespassed.

The 2nd appellant admitted that he and 1st appellant had been living in Lagos and 3rd plaintiff a transporter has been living in Ilorin but denied that the 3rd plaintiff had been representing the interest of the family on the land since 1976. He would not know when 1st appellant and 3rd plaintiff started representing the family interest on the land as he only knew he joined them as head of his own unit in 2002. That all the land sold from time immemorial have always been signed by the three units of the family.

The respondent filed a defence and counter-claim which was later amended wherein he admitted appellants’ family to be the customary owners of the land in dispute but denied that he encroached on the said land. He alleged that he bought the land from the 3rd plaintiff who represented the family. The land agreement was tendered as exh. D1 and the vendor’s affidavit was tendered as exh. D2 through the respondent’s son DW3. Respondent also pleaded the purchase receipt. He further claimed that after the purchase, members of the appellants’ family demanded for more money for the land already transferred to him and he paid the additional sum of N30,000.00 due to pressure put to bear on him. The respondents line of defence is that he bought the land from one of the principal members of the Masudo family – the 3rd plaintiff. According to him, there was no trouble again until 2002 when the appellants came back for more money, which he refused to pay. He claimed he had put the land into positive use for years.

He also counter-claimed against the appellants in respect of a land immediately after the main gate (from University main gate) by the right immediately after the Biological Garden measuring 31.295 hectres. He alleged that the land belongs to Sikiti family of Tanke Oke Ode, Ilorin who share boundary with the appellants’ family.

After the appellants had closed their case and the respondent had called two witnesses, the respondent on 31st May, 2004 brought a motion on notice to amend his statement of defence and counter-claim which the Appellants opposed on the grounds that it was made malafide and that the appellants will not have any opportunity to re-open their case to rebut the new issues been raised in the amended statement of defence. The court ruled against the appellants’ objection and allowed the amendment sought by the defence.

The appellants on 22nd September, 2004 moved a motion dated 2/9/2004 and filed on 16/9/2004 praying the court to allow them file a consequential reply to the amended statement of defence filed by the respondent. Though respondent’s counsel at the initial stage raised objection to this but he later withdrew his objection and the court granted the said application.

After the respondent had closed his case, the appellants’ counsel filed a motion to call additional witnesses which was moved on 14th January, 2005, and opposed by the respondent. The court in its ruling of 31st January, 2005 refused the application.

The brief facts of the appellants’ case who sued in a representative capacity is that the land in dispute situate at Masudo Village along University of Ilorin Road belongs to their family known and called Masudo family. It was the contention of the appellants that the respondent did not buy the land in dispute from their family and that no individual member of the family (Masudo) could unilaterally sell family land Without the knowledge and consent of other family members.

Contrary to the appellants, the respondent by his pleading and oral testimony asserted that he bought the portion in question from 3rd plaintiff, Kawu Ora, (the said 3rd plaintiff did not appeal against the judgment of the trial court) who acted as principal member and agent of the appellants’ family and he was given receipt for the land.

The respondent further stated that the appellants later enjoined him to pay again for the land in dispute if he wanted to retain the portion. He testified that he reluctantly paid the agreed sum and peace was maintained until 2002 when the appellants approached him for more money on the land under the pretence that the new village head, called Oba, was appointed. He refused to pay and he was sued. The lower court dismissed the appellants’ claim hence this appeal.

Learned respondent’s counsel raised a preliminary objection to grounds 1,3,5,6,8 & 10 of the appellants’ grounds of appeal and urged this court to strike them out for duplicity, vagueness being repetitive and each containing more than one complaint. He cited Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) pg. 253.

Learned appellants’ counsel replied that the attack is baseless and that nothing in the grounds of appeal is couched in a way to cause embarrassment to the respondent. In my view, a close examination of the grounds of appeal does not show any irregularity in form at all. They are clear and lucid and in my view convey the complaints of the appellants. The preliminary objection hereby is dismissed.

The appellants’ counsel identified eight issues for determination as set out below:

“1. Whether the learned trial Judge was right to have allowed an amendment sought in this case on material issues and evidence to be led on the same by the defence after the close of plaintiff’s case without granting corresponding opportunity to the plaintiffs? (Grounds 1, 3 and 6)

2. Whether the unilateral sale of family land by the 3rd plaintiff to the defendant which was a void act could be subsequently ratified by the plaintiffs’ family with or without the head of the family. (Ground 2)
3. Whether the learned trial Judge was not in error when he laid undue emphasis on the failure of the 3rd plaintiff to give evidence in this case having regards to the circumstances of this case. (Ground 4).
4. Whether the learned trial Judge was not in error to have allowed evidence of family ratification of the earlier sales of family land by 3rd plaintiff to be led when such special defence was not pleaded? (Ground 5).
5. Whether the learned trial Judge was right by holding that issues were not joined by plaintiffs with the defendant as regards paragraphs 5 and 6 of the statement of defence at the close of pleadings? (Ground 7).
6. Whether the learned trial Judge was not in error when he rejected the evidence of the 1st plaintiff (PW3) that he met the defendant in year 2002 when this piece of evidence was not challenged under cross-examination?

(Ground 8)

7. Whether the court below made a proper evaluation of the evidence before it? (Grounds 3, 6 & 9).
8. Whether the trial Judge was right to have disallowed the plaintiffs from re-opening their case after been granted leave to file a reply to the amended statement of defence? (Ground 10)”

Whereas the respondent identified three issues for determination also set down:

“1. Whether the discretionary power of the Honourable trial Court was exercised according to the law and the fact of this matter:

(a) When the defendant was allowed to amend his statement of defence after calling two defence witnesses?

(b) When the plaintiffs/appellants were refused to re-open the matter after the close of the parties evidence?

2. Whether the plaintiffs/appellants were refused to re-open material and credible evidence to convince the Honourable trial Court that the ratification or fresh transfer of the land in dispute was carried out by unauthorized members of Masudo family or title on the defendant/respondent?
3. Whether the action is statute-barred?”

It is my belief that the Justice of this appeal can be met by an examination of issues 1 and 2 as identified by the appellants’ counsel.

The other issues to my mind are mere incidents or offshoot of these first two issues.

Issue 1 – There are two heads to this issue. One is the question of whether the learned trial Judge was right in granting an amendment to the defendant after the close of the plaintiffs’ case at the lower court.

Learned appellants’ counsel conceded that amendment can be granted at any stage in the proceedings before judgment but that in this case when the amendment was brought and it caused injustice to the plaintiff and should have been refused by the lower court. He argued that the additions to paragraphs 6, 7 and 8 of the amended statement of defence introduced new issues of laches and acquiescence and limitation of action to which the plaintiffs who had closed their case earlier could not react to or rebut during cross-examination. He argued that the new issues raised were never used to cross-examine the plaintiffs or their witnesses. He argued that the failure of the defendant to plead these defences before close of plaintiffs’ case is fatal to their defence. He cited Anmorah v. Anyaorah (2001) FWLR (Pt. 73) pg. 178 at pg. 208, (2001) 7 NWLR (Pt. 711) 158; Ndinwa v. Nwaebo (2001) FWLR (Pt. 51) pg. 1903 at 1909, (2001) 6 NWLR (Pt. 709) 311; Ojobaro v. Kuku (1986) 3 NWLR (Pt. 31) pg. 697.

In reply, learned respondent’s counsel argued on this point that since the amendment did not entail injustice or surprise or embarrassment to the other party it was lightly granted by the learned trial Judge. He cited Nabson Ltd. v. Mobile Oil (1995) 7 SCNJ 267 at 277, (1995) 7 NWLR (Pt. 407) 254; Bank of Baroda v. Iyalabani (2002) 7 SCNJ 287 at 308, (2002) 13 NWLR (Pt. 785) 551. He also submitted that appellants’ argument that they could not challenge the respondent’s case after close of their case is untenable. He argued that the plaintiff is entitled to lead evidence through his own witnesses or by cross-examination of the defendants’ witnesses to controvert a fact pleaded by the defence. He cited Gaji v. Paye (2003) 5 SC 53 at 61, (2003) 8 NWLR (Pt. 823) 583. He further submitted that paragraphs 5, 6, 7, 8(a), (b), (c) & (d) of the amended statement of defence are not special defence nor new issues as rightly held by the learned trial Judge.

Both counsels are agreed in my view that generally an amendment can be granted to pleadings any time before judgment as long as it would not perpetrate injustice, overreach the other side or embarrass them. This is moreso desirable if the amendment would bring forward for adjudication all the issues in controversy between the parties, thus serving the overall interest of justice and the other side can be compensated in costs for any delay. See Nwankwo v. Nwankwo (1993) 5 NWLR (Pt. 293) pg. 281 at 294; Oredeyin v. Arowolo (1989) 4 NWLR (Pt. 114) pg. 172; First Bank (Nig.) Plc v. May Medical Clinics and Diagnostic Centre Ltd. (2001) SCNJ 1 at 15-16 or (2001) 9 NWLR (Pt. 717) pg. 28; Chief Ojah v. Chief Ogboni (1976) 4 SC pg. 69 at 77; Gen. Yakubu Gowon v. Mrs. Edith Ike-Okongwu (2003) 1 SCNJ 453, (2003) 6 NWLR (Pt. 815) 38.

The question is, was the discretion to grant an amendment properly exercised in this case by the learned trial Judge? The learned trial Judge in the ruling on this matter held as follows:

“… it is pertinent to look at the paragraphs for which is sought amendment and see whether new issues or different case has been formulated from that which is already before the court or the amendment is capable of substantially altering the case before the court whether in form or in substance.”

For clarity, the relevant paragraphs 5, 6, 7 & 8 of the amended statement of defence with the amendments underlined are set out below:

“5. The defendant further denies the allegation that he encroaches or trespasses on the land of the plaintiff but states that with knowledge of all other plaintiffs, the 3rd plaintiff transferred some plots of land to him for consideration outside the portion of land referred to in paragraphs 1,2,3 and 4 above. Purchase receipt for the said land and other land transferred by the 3rd plaintiff is/are hereby pleaded.

6. That prior to the visit in year 2002, the first and second plaintiffs with some people, the 1st and 2nd plaintiff described as members of the family, demanded for more money for the land already transferred to the defendant and the defendant refused to pay them but later pressure was brought to bear on the defendant and he gave the plaintiffs total sum of N30, 000. 00 to keep peace but made it clear to them that the payment was not a review of the transaction referred to in paragraph 5 above, and peace was maintained until sometime in April 2002 when the plaintiff came back for more money.
7. The defendant further pleads that the plots of land transferred to him was done in accordance with custom and tradition of the parties. The defendant shall rely on the said native laws and equitable defences available to him.
8. The defendant further states that the plots of land transferred to him is distinct and clearly marked out from Sikiti family and referred to in paragraphs 1,2,3 and 4 and the defendant has since put the said land to positive use for years by:

a. building access roads from the main (Unilorin) road to the Mosque opposite the Bekadems sometime in 1980.

b. transferred some plots to some individuals who have built houses on the aforesaid land while others were under construction. The documents relating to the transfer and the improvement are hereby pleaded.

c. fencing the whole land, paragraph 6 above, with cement blocks i.e. about three feet height.

d. maintaining the access road (paragraph 8(a) above) to the Mosque and other roads constructed within the aforesaid land every year.

(Pages 24 – 26 of the record of proceedings)

The learned trial Judge had the following opinion on this issue on pages 94 – 95 of the records:

“1. Paragraph lib) sought to be amended added to the original statement of defence that the 1st, 2nd and 3rd defendants were described as members of the family and he (defendant) gave them additional N30,000.00 instead of N48,000.00 contained in the original statement of defence.

2. Paragraph 7 added – ‘The defendant shall rely on the said native laws and equitable defences available to him”.
3. Al paragraph 8 of the original statement of defence, the defendant stated that he has since put the land to positive use for years and in the proposed amendment he adds that he constructed and maintains a road from the main road to the land. He has transferred some of the plots to some other persons who have built houses on it and he has fenced the whole land.

I am of the view that none of the amendment above is bringing in any new issue or overreaching the plaintiff.

It is already in evidence before the court that the plaintiffs are members of Masudo family. I refer to paragraph 1 of the amended statement of claim. The amendment sought at paragraph 7 that the defendant shall rely on native law and equitable defences available is in line with 1 and 2 of the amended statement of claim in which the plaintiff’s claimed they are customary owners of the land which was transferred to them by virtue of succession. So I held that these paragraphs, if the amendment sought is granted cannot be overreaching the plaintiff or cause any injury or injustice to him.”

In my view, and I am in complete agreement with the learned trial Judge, the amendment merely amplified and sought to give more details of the case already put forward by the patties. The 1st P.W. confirmed under cross-examination that a gate and fence was on the land and that the respondent had already sold a portion of the land to a 3rd party and a Mosque had been built on it. The 2nd P.W. the surveyor admitted that there were beacons on the land and a fence of three coaches of blocks. PW.3 – the 1st plaintiff now appellant also confirmed the existence of fence which they removed and a fence which they were advised not to destroy. The above was already in evidence before the amendment was granted. Amendment may be granted to bring pleading in line with the defence. See Kalu Igwe v. Okuwa Kalu (2002) 2 SCNJ 126, (2002) 14 NWLR (Pt.787) 435.

The appellants’ complaint that they had closed their case to my mind is of no moment since they could easily cross-examine the respondent’s witnesses called as a result of amendment wherein the new issue of laches and acquiescence was purportedly introduced for the first time. However, a look at the old statement of defence shows that the respondent had stated that he had put the land in dispute to “positive use for years”. The amendment only itemized the use he had put the land including improvements he had made on the land since 1980. In my view, the amplification or addition of more details to the respondent’s pleading could not surprise or embarrass or do injustice to the case of the appellants at the lower court to warrant the lower court’s refusal of the application for amendment which the said court rightly granted. This is moreso when the facts were already in evidence.

Moreover the equitable defence of laches and acquiescence which the amended statement of defence purportedly “introduced” need not be stated in any special form.

Having said in the original statement of defence that the respondent had put the land to positive use for years” it was enough to put the appellants on notice. It is not necessary to plead a defence based on an equitable doctrine so long as it is stated in such a manner as to show that it is relied upon. See NBCI v. Integrated Gas (Nig.) Ltd (2005) 1 SC (Pt. 1) pg. 135 at 141; (2005) 4 NWLR (Pt. 916) 617. This leg of the issue is resolved against the appellants.

The second leg of this issue is the appellants’ complaint that the learned trial Judge fell into error when he prevented the appellants from re-opening their case by calling additional witnesses and to tender documents in rebuttal of the new case made out by the respondent.

Learned appellants’ counsel argued that the failure of the learned trial Judge to allow the appellants to call additional witnesses and tender new documents has led to the appellants’ being denied their right to fair hearing, thus the judgment delivered is defective and thereby vitiated. He cited Samuel Jimoh Eshenake v. Chief Napoleon Gbinije & Ors. (2005) All FWLR (Pt. 289) pg. 1270 at 1291.

Learned respondent’s counsel argued that the court has the discretion to refuse an application and that each application must be decided on its own merit. He submitted that the Supreme Court in A.-G., Federation v. Alkali (1972) 12 SC 29 laid down some principles for judicious exercise of the courts power in regard to the calling of additional witnesses. He listed them as enunciated by the Supreme Court as follows:

“(a) The evidence sought to be adduced must be such that a diligent person cannot obtain at the trial.

(b) The evidence if admitted would have important effect on the whole case.

(c) The evidence ex-facie must be credible.

Pages 116 – 119 of the records contains the ruling of the lower court on this issue. It is quite lengthy but the justice of this case demands that it be highlighted in order to appreciate the reasoning of the learned trial Judge.

“Even if the existence of the document was not known at the time the plaintiff was giving evidence, the plaintiffs’ counsel sought for adjournment on 22/7/04 to get the document and confront DW3 with it during cross-examination and the adjournment was granted.

He thereafter brought an application to reply the paragraph 5 of the amended statement of defence which was granted, so to now come with the complaint that they didn’t know of the existence of the said document is not true and cannot now be a genuine and reasonable basis for re-opening the plaintiff’s case after it had been adjourned three times at the instance of the plaintiffs for such application and the case finally adjourned for address after the plaintiffs has satisfied themselves on the said paragraph 5 of the amended statement of defence. I cannot but agree with the defence counsel’s view that this application is a ploy to patch up the plaintiffs’ case and also to delay the case.”

(See page 119 of the record of proceedings)

I cannot fault the reasoning of the learned trial Judge and could not have put matters better myself. I agree absolutely with the learned trial Judge that the appellants had used up all the opportunities allowed to them by the court. The issue of lack of fair hearing in the circumstances of this case just does not arise. A cry by a party that he/she had been denied fair hearing is not a battle cry behind which an appellate court should automatically fall. It calls our immediate attention, but, in our adversarial system of justice, justice is a three way street. It must flow to society, the plaintiff and the defendant in equal parts. It is not the exclusive preserve of any party. Every application must be treated on its own merit. In the exercise of its judicial discretion, the court has to apply its mind, not to any hypothetical set of facts but to the material before it, and if either party wishes to invoke the discretionary power of the court in his favour, it is for him to lay a basis for its exercise. The affidavit in support of the application to call additional witness, must indicate the importance of the document and the witness sought to be called to the merits of the appellants’ case. All the 2nd appellant said in the affidavit was that they were taken by surprise because the respondent who tendered an agreement drawn up by a practicing lawyer rather than the receipt which he had pleaded. Paragraph 8 of the affidavit, indicated their intention to tender a document obtained at the law school the existence of which was unknown to them while they were proving their case against the respondent.

A close look by the trial Judge at the appellants’ application to call additional witnesses showed clearly that in view of the antecedent proceedings in this case, it was not one which the courts in its discretion should allow.

In Samuel Jimoh Eshenake v. Chief Gbinije (2005) All FWLR pg. 289 pg. 1270 at 1291 the court held-

“a court or Tribunal must always at all times and in all odds balance its discretionary power to refuse or allow one form of an act or the other in its duty to endeavour to give to the parties a fair hearing on the merit of the case, provided always that no injustice is thereby caused any of the parties.”

This court is a court of substantial justice. In my view no injustice was caused to the appellants in this case moreso as the learned trial Judge in the judgment on page 132 of the record made little or nothing of the exh. D1 sought to be rebutted by the appellants.

Thus there was in substance no miscarriage of justice caused by the refusal of the trial Judge to grant the application to call additional witnesses. The witness that was refused was the witness from the law school to tender evidence to show that the lawyer who drew up exh. D1 – the agreement could not have been a lawyer in 1977. That agreement was declared void by the learned trial Judge since the principal members of the family were not signatories to it. Let us even assume that the learned trial Judge was in error. Did the error cause substantial injury to the appellants’ case to occasion miscarriage of justice? Error of the lower court is ineffectual when miscarriage of justice has not been occasioned by it in the way it has affected the result of adjudication. See Kraus Thompson Organization Ltd. v. University of Calabar (2004) 4 SCNJ 121; (2004) 9 NWLR (Pt.879) 631. Thus the error of the lower court if it was an error indeed in allowing the amendment to the respondent’s pleadings will only lead to allowing the appeal if it is substantial and has occasioned miscarriage of justice. See: (1) John Owhonda v. Ekpechi (2003) 9 SCNJ 1, (2003) 11 NWLR (Pt. 849) 326; Engr. Osolu v. Engr. Osolu (2003) 6 SCNJ 162; (2003) 11 NWLR (Pt. 832) 608. The judgment of the lower court giving title consideration to exh. D1 thus did not occasion miscarriage of justice in that regard. See Odutola v. Oderinde (2004) 5 SCNJ 285, (2004) 12 NWLR (Pt. 888) 574; Onakoya v. F.R.N. (2002) 6 SCNJ 404, (2002) 11 NWLR (Pt. 779) 595. This aspect of the issue is also resolved against the appellants. Issue two is whether the appellants had established at the lower court credible evidence to show that there was no subsequent ratification of the original sale of the land in dispute and that there was no fresh conferment of valid title on the respondent.

Learned appellants’ counsel argued that from the evidence led by both parties, it is undisputed that the applicants family is made up of three units of which each of the applicants head its own. It is also not challenged that none of the unit or head of a unit can sell or dispose-off any portion of the appellant’s family land without the consent and express approval of the others including the Baale who is the overall head. He submitted that sale of the said land in dispute by 3rd plaintiff who as at 1976 was not even the head of his own unit (see lines 27 and 28 of page 78 of the record) is not voidable but void. It is trite that sale of family land by an ordinary member or principal member without the consent of the head of family is void ab initio. He cited Lukan v. Ogunsusi (1972) 1 NMLR 3 at pg. 16; Usiobaifo v. Usiobaifo (2005) All FWLR (Pt. 250) 131 at pg. 149, (2005) 3 NWLR (Pt. 913) 665; Maya v. Oshuntokun (2001) FWLR (Pt. 80) 1777 at 1803, (2001) 11 NWLR (Pt.723) 62; Akpadiaha v. Owo (2001) FWLR (Pt. 57) pg. 940 at pg. 961.

He further submitted that a void sale of family property cannot be subsequently ratified by other members since you cannot build something on nothing He cited Skenconsult v. Ukey (1981) 1 SC 6. Furthermore, he argued that if there was ratification by ordinary members of the family without the family head, the sale would still be void. He also submitted that there was no cogent evidence on record to show that the Baale as at then who was the head of the Masudo family was present at the meeting to ratify the sale. He argued that there was contradiction in the evidence of both parties as to whether or not the Baale was present at the so-called ratification meeting in which the respondent paid again the sum of N30,000.00. He submitted that the sale of land to the respondent was void ab initio. He cited Mcfoy v. U.A.C. (1961) 3 All ER 1169; Joel Ojo v. Gabriel Awe (1962) WNLR pg. 254 at 256; L. L. Alli v. Ikesubiala (1985) 1 NWLR (Pt. 4) pg. 630. He concluded by arguing that if indeed he got an agreement with the 3rd plaintiff when the land was first sold to him, he should have insisted on an agreement with the principal or heads of the three units signing same when the sale was ratified in 2002. He argued that the failure of the respondent to do so shows he did not deal with the family head.

In reply, learned respondent’s counsel argued that the trial Court agreed that the transfer by the 3rd plaintiff was bad and ineffective but that subsequent agreement by the Masudo family and their acceptance of the extra consideration amounts to fresh transfer or ratification of the earlier ineffective transfer. He opined that the respondent’s evidence on page 15 of the records to the effect that he was called to a family meeting of the Masudo where they demanded the additional sum of N30,000 which he paid to the family through the 3rd plaintiff. He was not the only person who was called to that meeting to pay over money to the family. He even went as far as to track down the person presented to him as family head on his farm one Akano – the Mogaji of Masudo who accepted the fact that the respondent had paid extra money and promised that the family will leave him in peace on the land. He argued that this evidence of the respondent was not seriously debunked under cross-examination and that the trial court was right in placing reliance on it and to use it as the basis of her judgment. Learned respondent’s counsel also submitted that the learned trial Judge was right in concluding in the judgment on pages 123 and 131 of the records that the failure of the appellants to call the 3rd plaintiff to debunk the evidence of the respondent was fatal to their case. He argued that the respondent testified that two of the sub-heads of Masudo family: Awure and Kawu Ora, 1st and 2nd appellants were physically present when extra money was demanded by the family and Akano and Okanla were there. Okanla the family head is called Daudo and Akano the ‘Mogaji’ of Masudo who was in charge of the land. 3rd plaintiff Kawu Ora, who is not appealing against the judgment, and Akano and Okanla represented the Bale on the land. See pages 85 and 124 of the record of proceedings. He therefore submitted that necessary members of the family were present and the sale by implication was approved by the family. He cited Arabambi v. A.B. Ind. Ltd. (2005) 12 SC (Pt. 1) pg. 60 at pg. 81-82, (2005) 19 NWLR (Pt. 959) 1. He urged this court to agree with the lower court that the subsequent transfer by the members of the family is valid and proper in accordance with customary law. He cited Igbokwe v. Nlemchi (1996) 2 NWLR (Pt. 429) pg. 185 at 200.

The evidence before the lower court not seriously disputed and accepted is that the first sale of the Masudo family land to the respondent is void ab initio. The lower court made this finding and conclusion on page 131 of the records in the judgment. The law is that family land can only be sold by the family head or Mogaji with the concurrence of principal members of the family. See Alhaji Adeleke v. Iyanda (2001) 6 SCNJ 101, (2001) 13 NWLR (Pt. 729) 1; Sunday Temile v. Jemide Ebigbeyi Awani (2001) 6 SCNJ 190, (2001) 12 NWLR (Pt. 728) 726.

The law is also that where there is alienation of family land by sale as in this case” the family head and principal members must concur therein. The transaction is void where these persons are not involved. These persons must act in a representative rather than personal capacity. Let us assume that the 3rd plaintiff and some family members concurred in the original sale to the respondent while expressing themselves to be acting on behalf of the family, the sale is valid but voidable at the instance of members of the family whose consent was necessary but not obtained. See Alhaji Odekilekun v. Mrs. Hassan (1997) 12 SCNJ 114, (1997) 12 NWLR (Pt. 531) 56; Daniel Igwe Uche v. Jonah Eke (1998) 7 SCNJ 1. (1998) 9 NWLR (Pt. 564) 24: Babayelu v. Ashamu (1998) 7 SCNJ 158, (1998) 9 NWLR (Pt. 567) 546.

On pages 131-132 of the records, the learned trial Judge accepted the evidence that there was a form of revalidation of the void sale by the members of the Masudo family by their acceptance of the N30,000.00 given to the family prior to 2002 by the respondent.

The learned trial Judge also on page 132 held that since the original sale was void, the respondent was in illegal possession and his length of “illegal” though undisturbed possession did not affect the decision.

The court based the decision on the issue of the revalidation made by family members to the original sale. The court concluded-

“Having considered the totality of the evidence before me and all the considered views above I hold that the plaintiff has not establish their claim of reclaiming the disputed land from the defendant as this will amount to aiding injustice being perpetrated by land owners who would have legally sold their land when it was cheap and realizing the current high prices would want to reclaim and resell again. The plaintiffs’ case is therefore dismissed.”

We have established earlier my Lords that the onus is on the respondent in this case to prove a valid sale given the position of customary land law.

The respondent put up two defences. One, that he bought the land properly ab initio though proper representatives of the family.

Secondly that the family with its principal members validated the sale sometime prior to 2002 by accepting his further payment of N30,000.00.

Let me say right off that I agree with the learned trial Judge that the original transaction was void ab initio and confers no legal title on the respondent. The evidence of the respondent regarding the 1st transaction does not support the claim that it met the requirements of customary law. Also the plea of laches and acquiescence is not normally acceptable under customary law as the length of possession of land cannot confer title. See Ajao v. Obele (2005) 5 NWLR (Pt. 918) pg. 400. Since the original transaction was void, he had no legal interest. However, being a bona fide purchaser for value of family land for consideration, he had acquired equitable interest in the land.

The appellants’ counsel held the view that the subsequent ratification of the void transaction by the family was not properly pleaded at the lower court and this had done injury to the respondent’s case.

In reply, the respondent’s counsel argued that the pleading of the respondent had satisfied and complied with the rules. He cited Ito v. Epe (2000) 2 SCNJ 91 at 111-112, (2000) 3 NWLR (Pt.650) 678 on this point. I have no doubt on reading the records that the respondent made the issue of the revalidation by the family as the pivot of his defence. He pleaded and led evidence in aid of it. See paragraph 6 of the amended statement of defence and evidence of DW4 and DW5 and the evidence of the respondent on pages 108109 of the records.

Let us look at the facts of this case vis-a-vis the position of the law. In an action for declaration of title to land bought by the appellants in this case, upon proof or admission by the defendant now respondent (in paragraph 1 of the amended statement of defence) that the radical title to the piece of land in question was vested in the appellants, the burden of proof shifts on the respondent to prove a valid grant to him. See David Ituama v. Friday Jackson Akpe-Ime (2000) 7 SCNJ 40; (2000) 12 NWLR (Pt. 680) 156. The gravamen of the respondent’s defence is that the appellants are estopped after revalidating the sale to him from turning around to reclaim the land which had been in his possession since the Shagari presidency between 1979-1983.

The respondent gave evidence on pages 108 – 109 of the records in this regard as follows –

“We took the paper to the lawyer and they signed and gave each of his own copy. After this I went to the land to put beacons. I then constructed road on the land and built fence round it, I sold part of the land and the portion I sold was resold to those who built Mosque on it.

Later Kawu Ora called me that their family will like to see me in a meeting called by the family. When I got there I met many of the family member Kawu Ora was there, Alh. Awure 1st plaintiff, Alh. Okanla the family head who is called Daodu, I don’t know his real name, we called him Daodu and other family members that I don’t know their names. Other people who bought land from Kawu Ora were also present. So we were told that we had to add some amount to what we paid to Kawu Ora on the land we bought. I told them I had made an agreement on the land and they said if I still want to retain the land I must pay N600.00 on each plot and I must not pay the money to Kawu Ora if I don’t see other members of the family, The day they came to collect the money, four people came, Kawu Ora, Alh. Raimi Aiyegbajeje, Okanla and one other person light in complexion. I don’t know his name.

The total plot is 50 plots and N600.00 in 50 places is N30,000.00. So I gave Kawu Ora the sum of N30,000,00 and he gave it to Okanla. They were about to go when I told them they should let us go to Akana at Masuda, Akana is the Mogaji of Masuda who is in charge of all the land. When we got to his house at Masuda, we did not meet him, we were told he was on the farm, so we went to him on the farm and met him harvesting groundnut. Akana then told him that I have paid the extra amount the family told me to pay that they should not trouble me on the land again and the man said it is alright, that after all the land belongs to their father. From that day I did not hear anything from them again until year 2002 when Kawu Ora’s sister who was married in our town died and we went to bury her Kawu Ora then informed me that there will be a family meeting at Masudo the next day and I should be there.

When I got there the 2nd day I met the 1st plaintiff, one Alh. Oba and many other members of their family. Alh. Oba then informed me that Daodu has died and he is now the new Daodu. I congratulated him. He then told me he has been given the power of Attorney on the Masudo land and all of us who bought land there must pay extra money again if we want to retain our plots. I told him I had paid extra before and I was not going to add anything to the two payments I had made. Kawu Ora told me to pay and I refused.”

The respondent also called in aid DW4 and DW5. The role played by the 3rd plaintiff at the lower court was not challenged by the appellants during cross-examination.

I must observe also and agree with the learned trial Judge on the implication of the failure of the 3rd plaintiff to give evidence at the lower court. The 3rd plaintiff – Kawu Ora in the lower court did not give evidence to debunk the claims of the respondent as regards the original transaction or the later transaction. He had been at the centre of the drama from the first sale of land till date.

Let us look at the role played by this elusive character from the evidence of the DW4 who claimed to be the friend of the 3rd plaintiff and a companion of the said 3rd plaintiff who witnessed the transactions between the parties from beginning to the end. His evidence on oath is as follows on pages 104 – 105 of the records.

“I know the defendant I know the two plaintiffs now before the court. I also know Kawu Ora. I know about the land that Kawu Ora sold to the defendant. The land is a Masudo on the way to the University of Ilorin permanent site. I know where the late Bale of Masudo lived. I mean the Bale, who was there when the land was sold. If one is going to the University the land is on the right and one hotel own by Gen. Adisa is on the left. Immediately after the hotel, there is a path leading to a village, that place itself is called Masudo. I was there when Kawu Ora sold the land to the defendant.

There was a meeting where all the people who bought land met the Masudo family and the meeting took place at Masudo.

The defendant asked the elders of Masudo family whether Kawu Ora has a right to sell the family land, and the elders said yes, that Kawu Ora is their brother but that those who bought land must add some amount to what they had earlier paid. These two plaintiffs were also present that day and I was there too. The defendant agree to pay extra amount, he didn’t pay it that day. He was told to pay extra N30,000.00 and on a later date, I accompanied Kawu Ora and defendant paid the N30,000.00 to Kawu Ora (3rd plaintiff). I was on the side of Kawu Ora. I didn’t know the defendant before.

They sent to Akano the family head, he came from the farm to Masudo and the defendant paid the money to Kawu Ora. Both the 1st and 2nd money were paid to Kawo Ora. I only saw that the defendant constructed fence on the land. This happened about 2 years ago. It was during the time of Governor Adamu Attah. 1know Masudo it is not possible for somebody to do anything on the land without the Masudo people seeing or noticing it. All I have told the court is what I saw and witness and nobody told me.

Xx – It was about 20 years ago that Kawu Ora sold the land. It is true that the Masudo family who owns the land of Masudo at University Road live at a village called Masudo near Igbaja town but they put some people on the land at Masudo, Ilorin. The head of Masudo is called Bale. I don’t know whether Masudo family is divided into three unit. I am a friend to Kawu Ora, not the defendant. I have never sold land in my life. I don’t know what an acre or how to measure land. There was a written agreement between Kawu Ora and the defendant and the said agreement was shown to the family. When he paid for the 1st time there was an agreement signed by them but when the 2nd payment of N30,000.00 was paid, I am not aware of any agreement made. I did not sign the agreement I only witnessed the payment the agreement was not signed in my presence. The name of Bale Masudo is Alabi. I may not know whether or not he signed the agreement.”

The evidence was also supported by that of DW5 on pages 106 – 107 of the record.

The appellants carefully did not cross-examine the respondent or challenge the fact that he had paid N30,000.00 to members of the family prior to 2002 when he was assured of subsequent peaceable enjoyment of the land.

The learned trial Judge apparently believed the evidence of the respondent’s witnesses regarding the revalidation and the role played by the 3rd plaintiff. I hold the view that the position and the facts in this case would have been clearer if the 3rd plaintiff had given evidence at the lower court. His failure to do so can only be taken to mean that the appellants had something to hide which was against their interest. See A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) pg. 645 at pg. 665-666 where the Supreme Court held-

“Although a party to a suit is not obliged to testify on his behalf, where a party’s case before a court of justice is such that he is expected to swear to its truth, and be cross-examined thereon and he fails to submit to these, as in the instant case, that is a point that can go against his credit and be a good ground for rejection of his case. This is because it is the law that in civil cases, it is the balancing of evidence called by either side to the litigation that is the only acceptable method of making conclusive findings.”

Obviously the appellants have not put their cards on the table.

Be that as it may, what is the effect of the act of revalidation done by the appellant’s family prior to 2002? Let us first consider the issue of whether it was properly pleaded. The amendment to the statement of defence has adequately pleaded the facts to buttress the defence of estoppel by conduct even though it was not put in such formal terms. I believe the respondent pleaded and proved the criteria set up by the courts to successfully plead and prove this defence. There is no special form needed to plead the equitable defences of waiver or estoppel so long as the defendant pleads sufficient facts thereof. See N.B.C.I v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt.916) pg. 617; Adeniran v. Alao (2001) 12 SCNJ 337, (2001) 18 NWLR (Pt. 745) 361; Okereke v. Nwankwo (2003) 4 SCNJ 211, (2003) 9 NWLR (Pt. 826) 592. The defence of estoppel by conduct is also recognized by S. 151 of the Evidence Act. See. Obayan v. Unilorin (2005) 15 NWLR (Pt. 947) pg. 123. I am aware that strict rules of evidence are not applicable to customary transactions, however we can borrow from it in order to do justice as has been done in the past by the Supreme Court.

The incidents of the revalidation is the additional payment made by the respondent to the family of N30,000.00. The respondent’s evidence was that in respect of this second transaction he saw and contacted all principal members of the family, including the appellants in this case and the family head at that time. That part of his evidence was not seriously opposed under cross-examination. That was the finding of the learned trial Judge with which I am in agreement. Can a valid transaction be born from an invalid one? I would like to think so in the circumstances of this case. The principle of agency would hold. The appellants in my view had ratified the earlier transaction of their agent the 3rd plaintiff by accepting the N30,000.00 from the respondent. They as the principals thus acquiescence to the earlier transaction between the 3rd plaintiff and the respondent. There is evidence on record that the 3rd plaintiff was the accredited agent and representative of the family. It is interesting to note this portion of the evidence from the 1st plaintiff/appellant who was PW3. He conceded under cross-examination as follows on page 85 of the record-

“I was not born when the 1st head of our unit reigned. Momodu was head of our unit for 17 years, and Alabi 22 years. The money paid by the Government was during Alabi’s time. It was during Alabi’s time we moved to the present place. Apart from the bale, the 3rd plaintiff is the one assisting us to supervise the land.

3rd plaintiff started this since the construction of the University Road. Apart from this case and Prof. Aro’s case there are other cases our family has with other people. I can’t remember the other cases, I don’t have the files with me.”(Italics mine)

To me this shows clearly that the family held out the 3rd plaintiff as their accredited representative with whom innocent purchasers could deal. I do not agree that in this case a valid transaction cannot be born from an originally void one when it is revalidated. In any event, the second transaction can constitute a separate and valid sale of the land in dispute to the respondent. After all the 3rd plaintiff did not come to court to deny the fact that the respondent was called to a family meeting, he was asked to revalidate, he did so with the sum of N30,000.00 and ensured that all principal members and family head was aware of the revalidation. To me the learned trial Judge rightly sought to do substantial justice in this case. However, we must apply the principles of substantial justice according to the law. See Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) pg. 134. I know that the inflexible principle of customary law is that no prescriptive title can be declared in favour of the respondent in spite of his long possession of the land in dispute. However, the courts are courts of both law and equity. In the exercise of its equitable jurisdiction in this matter the court acts on three principles. First, the right of the occupier must be adverse to those of the real owner. That has been proved in this case by the appellants. Not only must the possession be adverse, it must have lasted a long time. Thirdly, the real owner must have been guilty of acquiescence and/or laches to enable the occupier bring into play the defence of estoppel by conduct.

In its simplest form, acquiescence means conduct from which it can be inferred that a person has agreed to a certain state of affairs affecting his legal rights. Acquiescence therefore operates by way of estoppel.

Even though the learned trial Judge seemed to have rejected the respondent’s defence of acquiescence, I cannot ignore it. The lower court and this court need not agree on the reasons for arriving at the same conclusion.

The focus of an appellate court is the correctness of the decision of the lower court and not the reasons given for it. See Ndulue v. Nwankwo Ibezim & Anor. (2002) 5 SCNJ 247; (2002) 12 NWLR (Pt. 780) 139. The appellants have not denied that the respondent had been on the land since the Shagari administration and when they met him prior to 2002, a fence of three coaches of blocks, a gate which they removed and a Mosque were on the land.

The appellants have shown a high degree of acquiescence which may amount to fraud. It was either they had voided absolutely the first sale to the respondent or they had chosen to revalidate it. They cannot approbate and reprobate. Equity will not allow it. The appellants have lost their reversionary right to title in the land through their conduct of revalidating the 20 years or more possession of the respondent. See Tiamiyu Dania v. Yesufu Soyenu (1937) 13 NLR 143; Kayode v. Odutola (2001) 5 SCNJ 391, (2001) 11 NWLR (Pt.725) 659; Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) pg. 610; Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826) pg. 592; Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) pg. 53. In Abudu v. Eguakun (2003) 14 NWLR (Pt. 840) 311 at pg. 322 the Supreme Court held that the law presumes that the long enjoyment by a party in possession of land indicates that his rights have a legal origin. This is moreso when the party has been in possession nee claim, nee vi, nee precario; that is neither secretly, nor by force nor with legal permission. They are estopped from setting up a claim of their legal right to the land in dispute.

They have set up a system of extorting money from the purchasers of their family land. Prior to 2002 when they took money from the respondent to revalidate a sale more than 20 years old, they gave him the impression that that would be the end of the matter and he would have subsequent peaceable enjoyment of the land. All the principal members including the family head participated in the transaction. Now, a new Mogaji freshly installed wants his own bite from the unending family cake. They cannot eat their cake and have it. It is the duty of the courts to discourage this prevailing practice of land owners extorting money from land purchasers with the excuse that the wrong member of the family alienated the land. This was what the Land Use Act failed to achieve in spite of its lofty objectives.

It is unfortunate in my humble view that the interpretation of the Land Use Act over time by the courts have taken the teeth out of and negatived the desired effect of the Land Use Act. The issue of the revalidation of sale of family land is a recondite point of law and I must say I considered the absolute position of the customary law in relation to alienation of family property vis-a-vis the current trend of the vendors using this position of the law to continue to defraud purchasers who innocently purchase family land. No modem society can progress economically without a high degree of certainty in land tenure and the imposition by law or equity of prescriptive titles to ensure that there is closure of land disputes. One can defend the intervention of equity on many grounds. In fact as long ago as 1913 in Akpan Awo v. Cookey Gam (1913) 2 NLR pg. 100, the full court held that it would be wholly inequitable to deprive the defendants of the land even assuming that “it were as clear as it is upon the evidence doubtful that they entered into possession contrary to the principles of native law”. In that case, the defendant had been in undisputed possession of the land in dispute with the full knowledge of the plaintiff for a period of 21 years and had collected rent and granted leases to individuals. It is also important that public policy should encourage quietude in the enjoyment of land held for a long time without disturbance. See also Koney v. U.TC. (1934) 2 WACA 188.

We must move with the times and the dynamics of social change.

The customary law that principal members must be present to sign or hand over the land to the purchaser may well be good when everyone lived in small farming communities, knew each other and were in fair walking or shouting distance from each other. How do we take care of the modem situation when the so called family head may not necessarily be in the immediate vicinity and have designated someone to act on their behalf as the 1st appellant confessed in his evidence. How do we take care of the cosmopolitan society in which people from all over the country have to make their home and build houses far from their own native villages. When a rule of customary

law in itself not contemptible but established to ensure equal benefit of family interests is now being set up and utilized to perpetrate acts contrary to natural justice, equity and good conscience, I humbly think it is time to revisit it. It is not always easy for a purchaser to investigate and be given correct facts about the pedigree of a piece of land. Where it is clear as in this case that the family are deliberately re-selling the land at regular intervals, then the position of the law must be shifted to meet this current but prevailing social hazard. I believe that there is equitable jurisdiction vested in this court to protect the interest of a person who had been induced or encouraged to expend money under an invalid or unenforceable land transaction. See Bosah v. Orji (2002) 3 SCNJ 52; (2002) 6 NWLR (Pt. 762) 137.

I uphold the revalidation of the original sale as conferring title by purchase on the respondent.

The appellants cannot reap the fruits of their dubiousness in this case. The 2nd issue is resolved in favour of the respondent. For the reasons given above, I dismiss the appeal with N10,000,00 costs against the appellants for the respondent.

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Other Citations: (2007)LCN/2449(CA)