Alhaji Bilawu Badiru V. Alhaji Sulaiman Adeola Bisiriyu (1996)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
By a writ of summons dated 5/4/82, the plaintiff now the respondent claimed as follows from the defendant/appellant:
- Injunction restraining the defendant and or his agents from further trespassing on the piece of land and the 16 rooms and one shop building thereon known as No. 21 formerly No.3 Fabukade Street, Sogunle Lagos State of Nigeria, the adjudged property of the plaintiff as per judgment in suit No. ID/369/78 in favour of the plaintiff.
- N2,600 special and general damages for trespass on the said property.
The respondent had pleaded, and given evidence of the root of title to the subject matter of the action by tracing the devolution of title to one Alhaji Salisu Ajani Fabukade Obidairo who he stated sold the land to him between 1974 and 1975 and for which he paid by instalments. Sometime in 1981, he saw the defendant illegally on the land and despite warnings he continued to constitute himself into a trespasser. The defendant on his part traced the history of the land to one Aderonumu Fabukade who after his death was survived by his children including one Fabukade Owolabi Obidairo. The elder Fabukade’s land was partitioned after his death and a part given to him. His own portion was inherited by his children including of course a son by name Salisu Ajani Fabukade Obidairo who requested and was granted permission to erect a temporary building on the land. The family on discovering that he built in another parcel of land which belonged to him exclusively took back the land and thereafter sold same to the defendant/appellant.
The pleadings of the appellant was in consonance with this evidence. At the end of the proceedings, the court found for the plaintiff/respondent. The Defendant/appellant not happy with the turn of events as regards the decision by the presiding Judge filed notices of appeal wherein he framed 4 grounds of appeal. The main thrust of the grounds of appeal, are on the thematic premise that
(a) the plaintiff is not the head of the family and cannot pass any title.
(b) The court having held that exhibit D is a non registrable instrument that was registered but which he described as being useless and irrelevant could not turn round, to use the same document to fault the appellant case. The court indeed pronounced that exhibit D null and, void and of no effect. In his judgment the court had held as follows; “By virtue of section 10 cap 64 the deed of lease exhibit D should not have been registered. Then what is the effect of this instrument which should not have been registered but has been so registered in law. Here again section 15 of Cap 64 is also relevant; no instrument shall be pleaded or given in evidence in any court as effecting any land unless the same shall have been registered. The instrument exhibit D is registered hence it is my view admissible in evidence. Once admitted in evidence the weight be attached to it should be considered as decided in Kola James v. Lanlehin (1985) 2 NWLR (Pt.6) 262. This instrument, exhibit D is void and of no effect whatsoever in law. Before jettisoning exhibit D he had held.
“By virtue of exhibit D paragraphs “E”, F’, ‘G’, ‘H’, ‘I’,’J’ and K. show clearly that Alhaji Salisu Ajani Fabukade Obidairo is the owner of the land for it was he who agreed to lease and he acknowledged the receipt of N12,000.00.”
The appellant surprisingly framed six issues for determination from a mere three grounds of appeal if one would temporarily leave off the ground on weight of evidence. The issues formulated by the appellant are as follows:
(1) Whether the learned trial Judge having found that the radical title to the land in dispute was in Fabukade Obidairo family, was right in holding that the plaintiff’s vendor, a member of the family, could validly pass a good title to the plaintiff in the absence of any evidence that the said land had ceased to be the family property of Fabukade Obidairo.
(2) Whether the learned trial Judge was, on the evidence right in holding that the plaintiff’s vendor is the first child and Head of Fabukade Obidairo Family, and whether he was also right in so holding when neither of the parties has raised that issue in their pleadings.
(3) Whether upon all the evidence tendered by the plaintiff the learned trial Judge was right to have made an order declaring him the owner and the person entitled to the statutory right of Certificate of Occupancy in respect of the land in dispute.
(4) Whether the learned trial Judge was right to have made an order declaring that the plaintiff was the owner and person entitled to a statutory right of Certificate of Occupancy in respect of the land in dispute when the plaintiff did not make a claim in that regard and did not seek an order in such term.
(5) Whether the learned trial Judge was not in error when he made an award of damages against the Defendant even though the plaintiff did not tender evidence of being in actual or constructive possession of the land.
(6) Whether the learned trial Judge was not in error when he held, that the defendant was in breach of the court dated March 26, 1984.
The respondent on his part framed the following issues:
i. Whether the Learned Trial Judge was right by holding that the plaintiff by virtue of exhibits A to A5 and “B” has established his title to the land in dispute.
ii. Whether the learned trial Judge was right when he held that the plaintiff has a better title than the defendant and he is therefore entitled to his claim for trespass against the defendant.
iii. Whether the learned trial Judge was right when he made an award of damages against (sic) defendant.
iv. Whether the judgment in Suit No. ID/269/78 Lexhibit “B” had any legal effect on the plaintiff.
v. Whether the learned trial Judge was right by holding that “This Instrument Exhibit “D” is void and of no effect whatsoever in Law.
This court, and I dare add the Supreme Court had, on numerous occasions warned against the practice of framing more issues than are contained in the grounds of appeal. A proper consideration will show that there ought not be more than 2 or possibly 3 issues for determination. In his judgment with reference to exhibit D which is a deed of conveyance between the members of Obidairo family and Alhaji Badiru the court below stated as to the status and evidential value of exhibit D. “By virtue of section 10 of Cap. 64 the deed lease exhibit D should not have been registered. Then what is the effect of this instrument which should not have been registered but has been so registered in law? …
“The instrument exhibit D is registered hence it is in my view admissible in evidence. Once admitted in evidence the weight to be attached to it is considered …This instrument exhibit D is void and being the instrument the defendant relies upon for his claim then I am bound to hold that the defendant has no claim to the land in dispute. The plaintiff by virtue of exhibit A to A5 & B has established his title to the land in dispute. In Agbondoloye & Ano. v. Egube (1981) F.N.R. 35 it was held inter alia that when a grant is made of the same parcel of land to two or more persons on different occasions by the same persons title is in him who is able to show that he was the first to obtain his grant.” Earlier on the question as to who was the head of the family the court had held, “I will say that the following facts are not in controversy …
That by the evidence of the 1st D.W in giving the names of the children of Fabukade Obidairo he gave the name of Alhaji Salisu Ajani Fabukade Obidairo as the first child. Also in exhibit A, the name of Alhaji Salisu Ajani Fabukade Obidairo was given as the first child which facts point out that he was the head of the family.” These findings of the court below formed the gravamen of the appellants complaint of the judgment.
I shall take issues of the questions if the headship of Salisu Ajani Fabukalde Obidairo family and the competence to pass an indefeasible title to the plaintiff/respondents. It cannot be a proper statement of the law that because a document or a witness mentioned the name of one of the members of a family who allegedly sold a family property first or that in the deed of conveyance giving legal teeth to he sale the person mentioned first is necessarily the head of the family. There must be direct evidence by some members of the family who are giving evidence as to who really is the head of the family. It is not in all cases that it would be a matter of inference or deduction. Such inference might be based on speculation or conjecture on the part of the Judge and this is not a stance that would enable the beautiful work of proper finding on the facts of the case to be made. One can of course understand situation where a member of the family sold the land without the consent of the members for the family including the family head or where he disposed of his own land. The question of who is the head of the family at anytime is neither a matter of inference nor is it a matter of presumption particularly where the issue is the basis of a conflict and is raising dust. Where people are disposed to telling the truth everyone in a family should know who is the head of a family. In the evidence of Alhaji Aremu Fabukade Obidairo, he stated thus with regards to the headship, “I am the head of the Fabukade Obidairo family of Sogunle xxxxxxxx I know Alhaji Salisu Ajani Fabukade Obidairo. He is my brother I am a senior brother of Alhaji Salisu Ajani. Alhaji Salisu Ajani Obidairo first asked for the consent of the family to have a poultry farm on the land and this was granted.
After about 5 years we then noticed that he had built a house on it. About 10 years ago Salisu called the members of the family and told us that he has left the land to us. When he returned the land to us, the five of us including Alhaji Salisu agreed to lease the land.” In the cross examination he dutifully maintained his headship of the family having remained unshaken in this testimony. It is instructive that this witness spoke in Yoruba which is not the language of the court. The presumption is that he is an illiterate. I will now link this to the testimony of the defendant, which he gave as follows;
Before payment three members of the family took me into the land. On reaching the land he found a structure consisting of rooms and a shop all surrounded by water. I asked why the structure was on the land, I was informed that a member of the family was given the land and it was he who erected the building thereon and after he had finished using it, it reverted back (sic) to the family. I was giving the name of Alhaji Salisu Ajani Obidairo. He was one of the three people that sold the land. The five principal members of the Obidairo family gave me a document which is the exhibit D in this case.” The testimony of P.W.1 and D.W1 which are not really challenged points to one direction. The fact that Alhaji Salisu Ajani whom the land was originally given temporarily and who later surrendered it to the family was not called to challenge the evidence of the headship claimed by DW1 his brother points to one direction. The non-challenge of the testimony of PW1 and DW1, and the failure to call Alhaji Ajani or any of the family relations of the five brothers impresses me that Alhaji Aremu Fabukade Obidairo must be the head of the family and I herefore so hold. In that case axiomatically no one member of the family can dispose of the family property without his consent at least or being a signatory to it. For by joint ownership of family property no one person is legally vested with such a parcel of land, and no person can by the same token pass indefeasible title. Nemo dat quod non habet is worn out aphorism which refuses to accord validity to a sale that is conducted by a non-owner.
The court below relied on Agbondoloye & Ano. v. Egube (1981) F.N.R 35 to hold that where a grant of a parcel of land is made to more than one person by the same vendor the first to obtain the grant is the owner. He has with all due respect read the law upside down. Where the first sale was made by some one who had no right to sell no property passed. The only property that would pass is the one conveyed by the senior members of the family in unison in all that it implies. Even if one were to disregard exhibit D for the moment, it is obvious that even if the Salisu Ajani sold the land, when he was in mere temporary occupation of the land, by sheer goodness of the family, that sale in so far as the permission, authority or consent of the family was not first sought and obtained, is null and void and of no effect.
In his judgment the learned trial Judge said, ‘The defendant relies on exhibit D, to show that the land belongs to Obidairo family. Paras. I, J, K, & L at page 2 of exhibit D show clearly and confirm that Alhaji Salisu Ajani Fabukade Obidairo is the lessor.” For the court to first pronounce on the uselessness of Exhibit D being a non-registrable document that was registered and made a summersault to rely on it, is too much to swallow. He fails to read the preamble to exhibit D. I have carefully read exhibit D and I am hard put to conclude that the property is that of Salisu Ajani for in the recital of sale, the document states thus ” xxxxx the lessors as beneficial owners hereby demise into the lesse all that piece and parcel, of land ”
it did not make reference to one man. When a document is framed in such a way that there is element of obscurity but there appears to convey to the court or the public that it would seem that interest of larger members of people may be inferentially or circumstantially linked in so far as the intent is concerned, then the court should endeavour to give a beneficial construction to protect the interest of all. I am convinced that lessors in exhibit A are the beneficiary owners and they only have the right to sell. In the case of Powell v. Main colliery Co. Ltd. (1900) AC 366 the House of Lords was faced with the construction of section 2(i) of Workmen’s Compensation Act of 1897 which has provided that “unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury.”
It interpreted to mean notice to employer and not the initiation of legal proceedings. See Gill v. Donald Humberstone & Co. Ltd., (1963) 1WLR 929, 933. Kirby v. Leather (1965) 2 Q.B. 367; Attorney-General of Gambia v. N’Jie (1961) AC 617 per Lord Denning.The appeal has merit. I am convinced that the lessors are the real owners of the property and the sale was not approved by them. It is void. In final result the appeal succeeds. The judgment of the court below is hereby set aside.
The respondent to pay costs assessed of N3,000.00
Other Citations: (1996)LCN/0240(CA)
