Kasunmu Ajeja (On Behalf Of Ajeja Family) V. Ezekiel Adedapo Ajayi & Anor (1969)

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ADEMOLA, C.J.N.

This is an appeal from the judgment of the High Court, Ibadan dismissing the plaintiff’s claim for a declaration of title under native law and custom to a piece of land in Ajeja compound, Oje, Ibadan, and an injunction restraining the defendants from coming on the said land.

The plaintiff sued for and on behalf of Ajeja family. It is not in dispute that the land, the subject-matter of this case, forms a portion of the land in Ajeja’s family compound. It would appear that one Aminu Tade a member of the family was granted a portion of land in the family compound to build on and this is now the subject-matter of the present dispute.

There was a building previously on the land erected by a member of the family but as it fell into ruins, the site was alloted to Aminu Tade to build on.  He erected a building on the land and lived there. He subsequently mortgaged the land and buildings to the Western Region Finance Corporation for a loan. As he failed to repay the loan, the property was sold and purchased by the 1st respondent for £225 by private treaty. Aminu Tade continued to live in the house and paid rent to the 1st respondent.

He was in arrears of rent for about a year and he left the house. The 1st respondent promptly demolished the building on the land and started to build. The Ajeja family protested it was then realised that Aminu Tade had alienated the property. Despite all protests the 1st respondent continued to build on the land. He completed the buildings and sold it to his wife, the 2nd respondent.

The case for the Ajeja family before the trial judge was that the land being family land was allotted to Aminu Tade for his own use but he could not part with possession of it without the consent of the family, such consent being normally given by the Mogaji of the family after consultation; that the mortgage to the Western Region Finance Corporation was without the knowledge of the family and that the subsequent sale was therefore void. The respondents on the other hand relied on the sale to the 1st respondent by the mortgagees – the Finance Corporation.

The learned judge in entering judgment for the defendants/respondents relied on exhibits ‘K’, ‘L’, ‘M’ and ‘N’ which were objected to when tendered but which he ruled were admissible as evidence. The judgment was based particularly on exhibit ‘M’.

The learned judge also found that at the time of the mortgage transaction, one Buraimoh Adegoke was the head or Mogaji of the family and he was aware of it and that he was also aware of the fact that Aminu Tade claimed that the land was an absolute grant to him by the family to do what he liked with it. It is necessary at this stage to consider exhibits ‘K’, ‘L’, ‘M’ and ‘N’.

The first exhibit ‘K’, is a valuation certificate by an auctioneer and valuer made out to Aminu Tade advising him about the value of the property in dispute and the amount of loan he was likely to raise on it. Exhibit ‘L’ is an unsigned plan but numbered and purported to be a plan showing the land of Mr. Aminu Tade. Exhibit ‘M’ is an application made by Aminu Tade for loan referring to his property, Ajeja House at Oje, Ibadan.

It also contains (on the reverse side) some proceedings purported to be by the representative of the Lands Committee in which Buraimoh Adegoke was referred to as head of the family. He was quoted as having said that the applicant built on the land allotted to him by the family and that he was at liberty to sell, mortgage or pledge it. This document is purported to have been signed by one G. Aboderin described as Assistant Registrar of Lands, Ibadan District Council.

The learned Judge of the High Court appeared to have relied on this document. Exhibit ‘N’ is an application for certificate of title made by Aminu Tade in the form of questionnaire and signed not by Aminu Tade but by G. Aboderin the Assistant Registrar. It is significant that these documents are not in the originals; when it was sought to put them in evidence through the 1st defendant who was not competent to give any evidence about them, they were objected to by counsel but the judge admitted them “for all they are worth”. 

In addition to other objections they were certainly not produced from proper custody. Later, one Emmanuel Ayodele Aboderin was called to give evidence. He said that at the material time he was the Assistant Registrar of Lands, Ibadan District Council, he identified two of these documents and stated that exhibit ‘M’ was copied at his instance from the official minutes book and he signed it. Exhibit ‘N’ he said is an application for certificate of title.

No evidence was forthcoming why the originals were not tendered in court, or why they were not brought from proper custody. We are clearly of the view that the learned judge was wrong in admitting exhibits ‘K’, ‘L’, ‘M’ and ‘N’ as evidence in this case and this is in contravention of sec.112(d) of the Evidence Act. In fact it is difficult to say what exhibit ‘M’ is. It is at best an application and notes made by the Assistant Registrar of Lands. It is inconceivable that these notes should be treated as evidence.There is another aspect of this case to which we must refer. In his judg-ment, the learned judge said:-

“The opinion which I form in this matter is that Buraimoh Adegoke was the head (Mogaji) of Ajeja family at the time and not a mere representative, and that if Tade needed any consent to alienate land he would have told the Committee so……. We search in vain in the record of proceedings before us for any evidence to establish that Buraimoh Adegoke was at any time the Mogaji of the family. In exhibit ‘M’ his name was written down as head of the family but this was never proved. On the contrary, it was proved that at the time the land was allotted to Aminu Tade one Adeyemo was the Mogaji of the Ajeja family and he and other members of the family made the allotment to Aminu Tade. It was however stated that as Adeyemo resided more in his farm Buraimoh Adegoke served as his representative in Ajeja compound. After Adeyemo, it would appear that one Fakayode Ajeja became the Mogaji of the family.

It is inconceivable that the learned judge should clothe Buraimoh Adegoke with the paraphernalia of Mogaji of the family without any proof. But the matter did not rest there. The learned judge said in his judgment as follows:-

“The law that no member of a family can alienate family land without the consent of the family or the Mogaji or head thereof is only applicable to vacant land or land analogous to it and does not apply to cases where the family has granted them a clearly defined portion to build”.

We find ourselves unable to support this proposition of law. It is trite customary law that any portion of land allotted to a member of the family to build on and live with his family, unless specifically granted to him absolutely, still remains family land; and as in this case, where the allotee built in the family compound, unless it is an absolute grant (which is rarely made in the family compound), we are of the opinion that he cannot alienate except with the consent of the head and members of the family; to hold otherwise would be to have a total stranger living in the family compound without the knowledge and consent of members of the family.  The plaintiff/appellant averred and called evidence before the learned judge to prove that the land was allotted to Aminu Tade in the family compound to build on for his own use and not to alienate such land; that in their family an absolute grant was never made without the knowledge and consent of the family. It is significant that Aminu Tade was not at the hearing called by the defendants/respondents to say that the land was an absolute grant to him.

Having accepted that this is family land, the onus, in our view, was on Aminu Tade, and anyone claiming through him, to establish a claim to an exclusive grant of the family property – see Samuel Adenle v. Michael Oyegbade [19671 N.M.L.R. 136. It was further held in that case that it is immaterial whether or not the land has been built on. Having held, as we do, that the sale by the Western Region Finance Corporation was void, the question is, what is the position of the present defendants/respondents? The 1st respondent bought from the Western Region Finance Corporation.

Despite protest from the family he quickly demolished the old building on the land, put up a new one and then sold the building to his wife, the 2nd respondent. The plaintiff’s case before the High Court was that the Western Region Finance Corporation has acquired no interest in the property which can be passed on to the defendants/

Case Number: SC.403/1965