Mohammed Oladapo Ojengbede V. M. O. Esan (Loja-oke) (2001)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

The proceedings leading to this appeal were first initiated on the 8th day of September, 1982 in the High Court of Justice of Oyo State, holden at Ilesha. In that court, the plaintiff claimed against the defendants jointly and severally as follows:-

“(i) Declaration that the plaintiff is entitled to the grant of certificate of statutory right of occupancy in respect of the piece or parcel of land situate at Omi Asoro, Ajipona, Ibadani/kure Express Road, Ilesha, Oyo State of Nigeria and more particularly delineated in survey plan, Exhibit. A.

(ii) Perpetual injunction restraining the defendants, their servants, agents or privies from further acts of trespass on the said land.

(iii) N20,000.00 being special damages for the cost of concrete blocks and pillars, iron gate and labour incurred on the erection of the fence and other structures destroyed by the defendants and their agents.

(iv) N80,000.00 general damages for trespass on the land in dispute”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The case accordingly proceeding to trial and the parties testified on their own behalf and called witnesses.

The plaintiff’s case as pleaded and testified to is that he purchased the land in dispute in 1977 from the head and members of the Lokoyi family who were the original owners thereof. This transaction was evidenced by a sale agreement dated the 19th day of January, 1978, Exhibit E. The receipts against which he bought the land are Exhibits D-D2. The plaintiff paid the purchase price of N20,000.00 to the Lokoyi family in three installments. It was the plaintiff’s case that he was duly put into possession of the said land. He claimed that the defendants were not members of the Lokoyi family by birth and that they had consequently no right whatever to the land in dispute. The Lokoyi family owned the land, having inherited it from their ancestor, Ojo Lokoyi, the father of Oniseyitan, Fatuase and other children. Oniseyitan and Fatuase were related to the defendants by virtue of being the children of the same mother with the 1st defendant’s father, Loja-Oke and one Molare but were not of the same father. Loja-Oke and Molare were born to a later husband of the mother of Oniseyitan and Fatuase whom she married at another village called Ijemba after the death of Lokoyi. He claimed that the defendants were therefore not members of the Lokoyi family, the vendors of the said plaintiff in respect of the land in dispute and had no right to the said land. The plaintiff stated that following the destruction of his shed and poles on the land in dispute by the defendants, he was obliged to file the present action against them.

The defendants, for their part, claimed that Oniseyitan, Fatuase, Loja – Oke and Molare were all children of the same father and mother. Their father was the said Ojo Lokoyi, who himself was a descendant of Ayankuna, the gentleman that brought the title of Lokoyi from Oyo, a title that remains the chieftancy title of the family. The defendants stressed that they and the plaintiff’s vendors were members of the same family, that they held their family meetings together and that they discharged their family responsibilities inter se as prescribed by customary law. The 1st defendant, being the oldest member of the Lokoyi family, was the head of that family at the time of the institution of this action. The 2nd defendant, his son, was appointed the secretary to the family meetings since the year 1970. It was the case of the defendants that on the 1st October, 1972, a family meeting was held under the chairmanship of the late Catechist, Mogbonjubola, who was the then head of the family. At this meeting, the family landed properties were duly partitioned among the three principal components of the Lokoyi family. The land situate at Omi Asoro, now in dispute, was allotted to Loja-Oke, the subfamily of the defendants. The land at Orugbabu was allotted to the Oniseyitan sub-family. The third piece of the family land situate at Orogoji was allotted to the Dujuelewu sub-family. Each of the said three branches or sub-families accepted and remained in exclusive possession and ownership of the respective piece of the family land partitioned and allotted to it. Each branch of the Lokoyi family controlled, managed and put in tenants on the land partitioned to it and collected Ishakole or rent from such tenants. The family minute book, Exhibit J, was tendered in evidence to buttress the issue of the 1972 partition of family land as testified to by the defendants.

At the conclusion of hearing, the learned trial Judge, Oloko, J. after a careful review of the evidence dismissed the plaintiff’s claims in their entirety, holding that the plaintiffs’ alleged vendors had no title to the land in dispute at the time they purportedly sold the same to him. He stated:

“I am satisfied both by the oral evidence as clearly given by the 1st and 2nd D.W.s coupled with the record of the minutes of the meeting of the family held on 1/10/72 that the land at Omi Asoro had been partitioned to Lojaoke side as from that day.

Arising from the above finding, the maxim nemo dat quod non Habet comes into play. I therefore hold that 3rd P.W. and members of Oniseyitan line have been divested of any interest in the property at Omi Asoro since 1/10/72. The sale made to the plaintiff in 1977 is an exercise in futility. In other words plaintiff bought nothing.

In sum, all the three legs of the plaintiff’s claim against the defendants are hereby dismissed with costs.”