Mr. Esan Asebieko V. Mr. Jimoh Morakinyo (2016)
LawGlobal-Hub Lead Judgment Report
FATIMA OMORO AKINBAMI, J.C.A.
The Appellant as Plaintiff commenced the action in the Ekiti State High Court, Ado-Ekiti Judicial Division against the Respondent and he claimed the following reliefs in Paragraph 21 of the Statement of Claim dated 18th December, 2012:-
“(A) A declaration that the claimant had validly acquired the land in dispute that is Block D Plots 1 and 2 of the Samo family layout by purchase from the same family of Irona Quarters, Ado-Ekiti.
(B) A declaration that the claimant is entitled to a statutory right of occupancy of Block D Plots 1 and 2 of the Samo family layout having validly acquired same from the Samo family of Irona Quarters, Ado-Ekiti.
(C) An order of perpetual injunction restraining the defendant by himself, his agents, servants, privies and whosoever on his behalf from committing further acts of trespass on the said land.
(D) N2,000,000:00 (Two Million Naira Only) being general damages for trespass committed by the defendant on the claimant?s land.”
?The Appellant?s case briefly put, is that he purchased four vacant plots of land from the
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Samo family on the Samo family layout at Amulegun, beside PHCN 132KVA Omisanjana, Ado-Ekiti. That the four plots are known and called Block E Plot 1, Block D Plots 1 and 2 and Block F Plot 10. The purchase of these plots of land by him was with the consent and concurrence of the head and principal members of the Samo family of Ado-Ekiti, who are the original owners of the said land from time immemorial. The Samo family executed a sales agreement of the four plots of land in his favour, a family receipt and an affidavit for change of ownership of the said plots were also given to him by the family. He took possession of these plots and constructed corner-piece on the boundaries of Block D Plot 1 and 2, with the inscription of his name and his GSM number boldly on all the four corner-pieces. On one of his visits to Block D Plots 1 and 2, he discovered that all the corner-pieces or demarcations he constructed on the said land had been demolished. He reconstructed the four corner-pieces. Sometimes around 2012, a Phone number 08139266002 called him that the caller is at his site destroying his corner-pieces or demarcations. He moved in haste to Block D, Plots 1
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and 2 and he met the Respondent in the act of demolishing his corner-piece or demarcations and he immediately challenged him. The Respondent persisted in destroying and demolishing the corner-piece structures, thereafter Appellant reported Respondent to the Police. The Police invited the Respondent, and his family intervened at the Police Station where the Respondent told his family that he needed two (2) plots of land. The Respondent accepted and promised never to trespass on the disputed land. The Samo family informed Appellant that the family had called the Respondent, to give him another land but he refused to answer them. The Respondent denied destroying Appellant?s corner-piece structures.
?The Respondent, in his defence stated that he was not aware that his land Block D, Plot 1 and 2 at Amulegun Omisanjana was sold to the Appellant, until the Appellant erected illegal corner-pieces on the land. Respondent argued that the land belongs to him as a member of Samo family and he had been farming there for over 50 years as his right. That Block D Plots 1 and 2 are part of his Cocoa Plantation, and he uprooted some of the cash crops there, when he
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decided to put his building there some time in 2011, and he deposited some materials there.
That as one of the elders of Samo family, he personally invited Chief Samuel Morakinyo who is his Junior brother from Abuja where he resided, to Ado-Ekiti after he had spent over 40 years outside Ado-Ekiti. When he arrived, he knew nothing about the family land. Respondent took him to the family land, and the land in question. He showed him his farm, where he saw Respondent?s plantation of cash crops.
Respondent stated that he is one of the Committee members that led the agent appointed by the family, to allocate land to any intending purchaser that showed interest in the family land. He further emphasized the fact that there was never a time the committee or the agent allocated or sold his land to the Appellant. That he is a farmer and he goes to the farm nearly everyday, nothing was done on his land until he saw the corner-piece made by Appellant. He removed the illegal corner-piece to enable him to know who could do that. It was that removal that afforded him the opportunity to know the Appellant after which he accused Appellant of trespass on his
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land as well as conversion of his materials like blocks and sand.
Respondent after enquiries discovered that Chief Samuel Morakinyo was behind the Appellant trespassing on his land.
The Samo family, held a meeting in Chief Samuel Morakinyo?s sitting room as the head, to resolve the issue not to escalate the matter further. The resolution arrived at was that Chief Samuel Morakinyo was to relocate the Appellant to other plots of land and allow Respondent to build his house on his land of which he is entitled to from time immemorial. Those in attendance at the meeting include:- (i) Francis Adeniyi (ii) Omoremi Adeleye (iii) Michael Adeniyi (iv) Ayi Babatola (v) Jimoh Sanusi among others.
When Respondent was about to lay the foundation of his building on that plot, the Appellant came there with Police Officer who invited Respondent to the New Iyin Police Division. After Police intervention for settlement failed, the Appellant sued Respondent at the High Court.
?Respondent found out that the documents attached to the Writ of Summons served on him did not emanate from the right channel, they were manufactured by Chief Samuel Morakinyo and
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his men, who are not entitled to be signatories of those documents. It was noted by Respondent, that the Samo family meeting had not been held for over a year, because of some atrocities committed by Chief Samo. Also the agents assigned to allocate land for interested purchasers were not aware of the transaction with the Appellant, also the family Secretary Mr. Ogunjobi Ebenezer was also unaware.
Respondent was categorical that Samo family has not elected Elerebi after the demise of the last Elerebi. Furthermore, that the Chairman of Samo family was the one who presented Chief Samuel Morakinyo at the Palace instead of Elerebi, as the Chief Samo to be installed on behald of the family, this was done simply because the family has not installed new Elerebi after the death of last one up till today, the position is still vacant. Respondent claimed to have bought 650 blocks from Omotola blocks in 2011. That Mr. Emmanuel Ola Ajayi who presented himself as the Elerebi of Samo family was wrong presentation, the family did not elect him as Elerebi of Samo family.
?Respondent replied the letter written to him by Appellant?s Solicitor, stating the fact that
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Block D Plots 1 and 2, was exclusively owned by him, and he has been in possession for more than 50 years. He did not purchase the land from anybody, it is his right to use the land as a member of the family with regards to Block D Plots 1 and 2 of Samo family land, lying being and situate at the Amulegun Layout beside 132 KVA, Omisanjana in Ado-Ekiti, that he had been in possession for over 50 years, therefore he could not have committed trespass on his father’s land, where he enjoyed same rights which Chief Samuel Morakinyo his junior brother from the same father, who had mistakenly sold the land to the Appellant.
The appellant?s case before the trial Court was that he purchased four Plots of land (namely Block E Plot 1, Block D Plots 1 and 2 and Block F Plot 10 of Samo family Layout) from the Samo family of Ado-Ekiti on the 18th day of April, 2012.
Towards the end of 2012, the Respondent (who is a member of the Samo family) started destroying the corner-piece structures which the Appellant erected on Block D, Plots 1 and 2, alleging that the land belongs to him. The aforesaid action of the Respondent culminated in institution of this
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suit against him by the Appellant who is claiming the aforesaid four reliefs contained in Paragraph 21 (a) ? (d) of the Statement of Claim.
In response to the Statement of Claim, the Respondent filed a Statement of defence dated 10th June, 2013. The Appellant called five (5) witnesses in proving his case, while the Respondent called four (4) witnesses.
After the Lower Court had taken oral evidence from the parties and their witnesses, the counsel for the parties adopted their respective Written Addresses as filed before the Lower Court, the Lower Court delivered a considered judgment on 18th day of December, 2014 wherein his Lordship held as follows: –
?The law is clear that where a family member sells family land without the consent of the family such sale is void. It is also the law that where the head of the family sells family land without the concurrence of the principal members of the family, the sale is voidable. I believe the evidence of the defendant witnesses that the head of the family should not have gone ahead to sell the land in dispute without regard to the view of the principal members of the family. Particularly when
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the defendant is his senior brother, the sale is not supported by law and equity. The power vested in the head of the family to deal with the family property is not to be used arbitrarily. It is to be used to protect the interest of the family members as a whole and not selfishly by the family head. I am of the view that from the circumstances of this case, this is an instance where the sale of the family land by the head of the family and some members of the family should be declared void in the interest of justice and it is hereby declared void and set aside. The claimant?s case fails and it is hereby dismissed.?
Aggrieved with the decision, Appellant lodged an appeal to this Court vide his Notice of Appeal filed on 7th October, 2015 containing eight (8) Grounds of Appeal.
?Pursuant to the Rules of this Court, Appellant?s brief of Argument dated 19th February, 2016 was filed on 25th February, 2016 but deemed properly filed and served on 14th March, 2016 pursuant to order of this Court granted on 14th March, 2016. Respondent?s Brief of Argument dated 22nd April, 2016 was filed on same date. Appellant?s Reply Brief was
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filed on the 3rd of June, 2016. At the hearing of the Appeal, both Counsel adopted their respective briefs of argument. Appellant?s counsel urged the Court to allow the appeal. While Respondent?s counsel urged the Court to dismiss the appeal.
Appellant distilled four (4) issues from eight (8) Grounds of Appeal thus:-
“(i) Whether having regard to the pleadings and evidence adduced before the Lower Court, the Appellant has proved his case to warrant giving judgment in his favour? Grounds 1 and 2.
(ii) Whether the sale of the land in dispute to the Appellant by Samo family is valid? Grounds 4, 5, and 6.
(iii) Whether it was right for the trial Court to have set aside and declared void the sale of disputed land when they were not counter-claimed for by the Respondent? Ground 3.
(iv) Whether the trial Court properly evaluated and appraised evidence of the parties in this case? Ground 7.”
Respondent distilled a sole issue for determination thus: –
?Whether the learned trial Judge was right in dismissing the claim of the Appellant.?
All the issues overlap and would be considered together.
?Learned
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counsel for the Appellant commenced his argument by stating the position of the law that in an action for declaration of title to land, as in the instant case, claimant must succeed on the strength of his own case and not on the weakness of the defendant?s case. However, a claimant can rely on any evidence in defendant?s case that is favourable to him. Reliance was placed on Sections 131, 132, 133 and 136 of the Evidence Act, Cap.E14 Laws of Nigeria, 2011. See Rabiu v. Adebajo (2012) 15 NWLR (Pt.1322) 125 at 147 Paragraph G; Ngene v. Igbo (2000) 15 WRN 162 at Page 174 Paragraphs 15-20; Onovo v. Mba (2014) 14 NWLR (Pt.1427) 391 at 414 Paragraph A-E, B-D; Aiyeola v. Pedro (2014) 13 NWLR (Pt.1424) 409 Para F-G; Ebohn v. Anakwese (1967) NMLR 140.
?Learned counsel contended that the Appellant had successfully discharged the burden of proof placed on him with respect to proving the aforesaid two declaratory reliefs contained in legs (a) and (b) of paragraph 21 of the Statement of Claim, as well as the other two reliefs contained in legs (c) and (d) which are for order of perpetual injunction and N2,000,000:00 general damages for trespass committed by
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the Respondent on the land in dispute.
The five recognized ways of proving title to land were enumerated by learned counsel as follows: –
(a) traditional evidence,
(b) production of documents of title which are duly authenticated,
(c) acts of selling, leasing, renting out all or part of the land, or farming on it or on portion of it;
(d) acts of long possession and enjoyment of the land and;
(e) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute.
See: Onovo v. Mba (2014) 14 NWLR (Pt.1427) 391 at 420-421 Paragraph E-B; Bukar v. Bashir (2014) 11 NWLR (Pt.1417) 68 at 55 Paragraphs B-E; Iseagbekun v. Adelakun (2013) 2 NWLR (Pt.1337) 140 at 164 Paras F-H; Achem v. Edo (2012) 4 NWLR (Pt.1290) 130 at 320-321 Para G-B; Awodi v. Alagbe (2015) 3 NWLR (Pt.1447) 578 at 597-598 Paras C-A.
It was submitted by learned counsel that Appellant tendered and relied on Exhibits A, B and C which are documents issued to him as the evidence of sale of Block E Plot 1, Block D Plots 1 and 2 and Block F Plot 10 of the
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Samo family Layout, in order to prove his ownership of the disputed land. The said documents are: –
(a) Receipt dated 18th April, 2012 issued by Chief Samo of Ado-Ekiti who is the head of Samo family – Exhibit ?A?.
(b) Affidavit of change of ownership sworn to on 9th August, 2012 by Chief Ajayi Samuel Morakinyo (the Samo of Ado-Ekiti and head of Samo family) in favour of the Appellant – Exhibit ?B?.
(c) Agreement for the sale of four plots of land dated 18th April, 2012 executed by Chief Ajayi Samuel Morakinyo (the Samo of Ado-Ekiti and head of Samo family) ? Exhibit ?C?.
Learned counsel submitted that five witnesses who testified for the Appellant adduced cogent and credible evidence in favour of Appellant and tendered Exhibit ?A? (purchase receipt issued by Samo family). Exhibit B (affidavit of ownership sworn to by Samo family head) and Exhibit C (Land Sale Agreement).
?The said Appellant?s witnesses are: –
(i) Chief Samuel Ajayi Morakinyo (the incumbent Samo and overall traditional head of Samo family) who testified as CW1 on 29th January, 2014. See pages 96-97 of the
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Record.
(ii) Mr. Isiaka Jegede (a partner in JS & Associates which is Estate Agents employed by the Samo family to take care of the Samo family land) who testified as CW2 on 29th January, 2014 (See, pages 97-98 of the Record).
(iii) Mr. Emmanuel Ola Ajayi (the Elerebi head of Samo family) who testified as CW3 on 6th March, 2014 (See pages 100-101 of the Record).
(iv) Mr. Sunday Kowe (the Secretary of Samo family) who testified as CW4 on 8th April, 2014 (See, pages 103-104 of the Record) and
(v) The Appellant (Mr. Esan Asebieko) who testified on 28th April, 2014 as CW5 (see pages 105-107 of the Record).
Elucidating on the evidence placed before the court, learned counsel submitted that the witnesses for the Respondent agreed under cross-examination that CW1, CW3 and CW4 are members of Samo family, except DW3 (Omodara Abass) who said that he does not know much about the Respondent?s family, yet the Appellant purchased the land in dispute from the Respondent?s family.
?It was noted by learned counsel that there is evidence before the Court, that CW1 and the Appellant executed the Land Sale Agreement. That CW1, CW3,
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CW4 and other principal members of Samo family signed Exhibit C. Exhibit ?A? was issued after, as receipt in consideration for the sale of the said four plots of land. See case of Teriba v. Adeyemo (2010) 47 WRN 155 at 177 Paras 20-30; Adeleke v. Akanji (1994) 4 NWLR (Pt.341) 715 at 727; Balogun v. Akanji (1991) 4 NWLR (Pt.70) 301 at 314.
It was submitted further by learned counsel that where a party relies on a document as an instrument of title, the relevant consideration is
(a) whether the document is genuine or valid.
(b) whether it has been duly executed, stamped and requested.
(c) whether the grantor had the capacity to make the grant.
(d) whether the grantor had what he purported to grant and
(e) whether it has the effect claimed by the holder of the document. See Aremu v. Chukwu (2012) 3 NWLR (Pt.1288) 587 at 617 Para A-G; Sango v. Akure (2015) 1 NWLR (Pt.1441) 535 at 564 Paras A-D.
?Learned Counsel contended that a party claiming ownership of land originally vested in a family has the burden of proving that the land in dispute was actually sold to him by the family, or an accredited representative of the
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family. See Aremu v. Chukwu (2012) 3 NWLR (Pt.1288) 587 at 621 Para F-G. For a sale of family land to be valid, what is important is that the head of the family should concur to the sale and not that he must sign the document of sale. See Timothy v. Busuyi (2013) 1 NWLR (Pt.1335) 379 at 403-404 Paras H-A. That apart from CW1 (who executed Exhibit C (Land Sale Agreement) as the Vendor on behalf of Samo family, other principal members of Samo family namely Mr. Emmanuel Ola Ajayi, Mr. Sunday Kowe, Mr. Michael Ilori Adeniyi, Mr. Dotun Victor Festus and Mr. Olagoke Ajetunmobi all signed as witnesses for the Vendor. See Rabiu v. Adebajo (2012) 15 NWLR (Pt.1322) 125 at Pages 145-146 Para H-B, Page 146 Para B-D and Page 149 Paragraphs B-C.
In his further submissions learned counsel referred to Section 15 of the Court of Appeal Act, 2004, that the Court of Appeal has the general power to evaluate Exhibits ?A?, ?B?, and ?C? and arrive at the conclusion which the trial Court could have reached by virtue of the evidence led. See Mohammed v. Mohammed (2012) 11 NWLR (Pt.1310) 1 at Page 34 Para F.
Learned counsel urged this Court
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to resolve the fact that the sale of the land in dispute to the Appellant by Samo family is valid since the sale of the land in dispute to the Appellant is with the concurrence and consent of the overall head (CW1), Elerebi head (CW3), Secretary (CW4) and Principal members of Samo family, the said sale cannot be said to be void ? see Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 Page 420.
It is the view of learned counsel that the Lower Court was wrong to have set aside and declare void the sale of the disputed land, made in favour of the Appellant by Samo family with the consent of the CW1. That the Respondent did not file a counter-claim before the Lower Court, neither did he plead or seek for reliefs for setting aside and declaring void the sale of the disputed land which had been made by Samo family in favour of the Appellant. See Amalgamated Trustees Ltd. v. NIMB Ltd. (2001) 1 NWLR (Pt.694) 237 at Page 250 Paragraphs B-C; Itauma v. Akpe-Ime (2000) 12 NWLR (Pt.680) 156 at 175 Para H; Ibrahim-Ohida v. M.A. Kogi State (2000) 12 NWLR (Pt.680) 24 at Pages 43-44 Paras H-D; Olusanya v. Olusanya (1983) 3SC 41 at Pages 56-57; Ohonma v. Unosi (1965)
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NWLR 321 at 323. It was contended by learned counsel that the learned trial Judge breached fair hearing as provided for in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) thereby miscarried justice.
On the fourth issue, Learned Counsel adopted his arguments and submissions in respect of Issues 1 and 2. He reiterated the fact that a trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon, and must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principles of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue, and what has been demonstrated upon the evidence by the parties and is supported in law. See:Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1 at Page 20 Para B-D.
?The learned
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counsel complained that the Judge ignored and failed to consider all the material evidence and issues raised by the parties in the case. That some of the issues which the trial Judge failed to consider are:-
(a) That the land in dispute belongs to entire Samo family;
(i) DW1 (the Respondent testified under cross-examination that the land in dispute is Samo family land (See, last Paragraph of Page 108 of the Record and Paragraph 6 of Page 108 of the Record).
(ii) DW2 also testified under cross-examination that the land in dispute belongs to Samo family (See line 1 of Paragraph 1 of Page 116 of the Record) and that the land in dispute is under the control of Samo family (see lines 1 and 2 of Paragraph 1 of Page 116 of the Record).
(iii) Also DW4 (Ebenezer Ogunjobi) testified under cross-examination that the land in dispute is that of Samo family. (See lines 2 and 3 of Paragraph 7 of Page 120 of the Record.)
(iv) Also CW1, CW2, CW3, CW4 and CW5 (Appellant) all testified that the land in dispute originally belonged to Samo family before it was sold to the Appellant.
(b) That the CW1 who is the incumbent Samo, is the overall head of
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Samo family and CW3 (the Elerebi head) of Samo family.
(i) DW1 testified under cross-examination that CW1 is the incumbent Samo (see last paragraph of Page 108 of the Record).
(ii) CW1 also stated in Paragraph 18 of his written statement on oath that CW3 (Mr. Emmanuel Ola Ajayi) is the Head (Elerebi) of Samo family. See Page 177 of the Record.
See the case of Chief Odi & Ors v. Chief Iyala & Ors (2004) All FWLR (Pt.207) 591; Bukar v. Bashir (Supra) at Page 95 Paragraphs F-H, Page 86 Paragraphs D-H, Page 90 Paragraphs A-B; Eya & Ors v. Alhaji Qudus & Anor (2002) FWLR (Pt.106) 1089 at 1122; Ikphinmwin V. Elema (2015) 8 NWLR (Pt.1461) 283 at 310 Para A-F; Mkpinang v. Ndem (2013) 4 NWLR (Pt.1344) 307 at 315 Paras E-H Page 321; Duru v. F.R.N (2012) 16 NWLR (Pt.1325) 129 at Page 195 Para B-C.
It was stated by learned counsel, that the judgment of the Lower Court is perverse, in that it ran counter to the evidence on record, because the trial Court took into account matters which it ought not to have taken into account, while it shut its eyes to the obvious, credible, cogent, unchallenged evidence, and this has occasioned a
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miscarriage of justice. See Adekunle v. State (2002) 4 NWLR (Pt.756) 169 at Page 186 Paras C-4, Page 189 Paragraphs B-C. Learned counsel reiterated the fact that findings of trial Court that are not borne out of, or supported by credible evidence is perverse and liable to be set aside. In that the verdict and findings of the Lower Court run counter to the pleadings and evidence adduced by the parties and their witnesses in this case. It was pointed out by learned counsel that a verdict of a trial Court is said to be perverse when:
(a) it runs counter to the pleadings and evidence before it, or
(b) a Court shuts its eyes to the obvious evidence before it, or
(c) a Court takes into account irrelevant matters or matters it ought not to take into consideration, or
(d) the verdict has occasioned a miscarriage of justice, or
(e) when the circumstances of finding of facts in the decision are mostly unreasonable. See Sango v. Akure (2015) 1 NWLR (Pt.1441) 535 at Pages 560-561 Para H-B; Olaniyan v. Fatoki (2013) 17 NWLR (Pt.1384) 477 at 492 Para D-E; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt.1357) 550 at Page 568-569 Para G-A; Alelu v. Eze (2015) 13
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NWLR (Pt.1475) 74 at 117 Paragraph C-D.
It was urged upon this Court to allow the appeal, set aside the judgment of the trial Court and in its place grant reliefs, a, b, c and d sought by the Appellant in paragraph 21 (a) ? (d) of the Appellant?s statement of claim contained in Pages 3-5 of the Record.
In his Reply, the Respondent?s counsel referred to the evidence of PW1, Chief Samuel Ajayi Morakinyo the Samo of Ado-Ekiti who stated that the land in dispute belongs to Samo family. That it is the evidence of Appellant that the Respondent is a member of Samo family (see Page 96 of the Record of Appeal). It was contended by learned counsel that if combined together with the evidence of PW1 and PW4, case of trespass will fail. A person cannot be a trespasser on his own property.
?Learned counsel pointed out the fact that the totality of evidence adduced by the Appellant at the Lower Court are not sufficient to grant the declaration sought, especially Exhibit ?A?-?C?, which were all prepared to perverse the course of justice. Exhibit ?Areceipt dated 18th April, 2012 is signed solely by
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Chief Samuel Ajayi Morakinyo ? the Samo and the head of Samo family of Ado-Ekiti. Exhibit B ? Affidavit of change of ownership sworn to on 9th August, 2012 was deposed to by Chief Samuel Ajayi Morakinyo?the Samo and the head of Samo family of Ado-Ekiti. Exhibit ?C Agreement for the sale of four plots of land dated 18th April, 2012 was executed solely by Chief Samuel Ajayi Morakinyo ? the Samo and the head of Samo family of Ado-Ekiti, who only assembled some persons tagged principal members of Samo family without a signature of recognizable Secretary of the family. Ebenezer Ogunjobi (Financial Secretary) ? was sidelined (See Page 117 of the Record of Appeal).
?It was the contention of learned counsel that the Samo of Ado-Ekiti sold the plots ? Block E Plot 1, Block D, Plots 1 and 2 and Block F Plot 10 to the Appellant to punish the Respondent, because of the perceived misunderstanding between them. He thereafter submitted that such a sale is void, that the Appellant did not establish his claim, therefore the Court is right in setting aside Exhibits ?A?-?C?. He urged this Court
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to uphold the decision of the Lower Court and dismiss this appeal. He cited the cases of Matanmi v. Dada (2013) 31 WRH (1-186) Para 1; Erinle v. Aluko (2014) 9 WRN; Iriajen v. Osunbor (2012) 52 WRN 1-186; Asiru v. Asiru (2014) 18 WRN 1-188.
Learned counsel referred to the evidence of CW3, who acknowledged as true, the fact that Ebenezer Ogunjobi as family Financial Secretary was denied that role in the sale of the plots to the Appellant. Only Chief Samuel Ajayi signed Exhibit ?A? a receipt issued to the Appellant.
It was the contention of learned counsel that there is nothing to show that the 4th defence witness ? Ogunjobi Ebenezer has been removed either as Financial Secretary or otherwise to prevent him from signing the receipt issued on this transaction.
?CW3 ? Mr. Emmanuel Ajayi who claims to be Elerebi of Samo family admitted that he is from Akogun family but only related to Samo family from mother?s side. (See Page 101 of the Record). Furthermore CW1 ? Chief Ajayi Morakinyo ? The Samo of Ado-Ekiti testified that CW3 (Emmanuel Ajayi) was an Elerebi ? elect of the family but the installation has
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not been done. (See Page 97 of the Record).
CW4 ?Sunday Kowe is laying claim to the Secretary of the family, yet he did not sign as the Secretary in any of the Exhibits ?A?, ?B? and ?C?.
Learned counsel submitted that the sale of the land in dispute is not with the consent of the valid principal members of the family and therefore void ab initio. See the case of Achilihu v. Anyatonwu (2013) 35 WRN 1-180.
The evidence of CW1 was highlighted. See Page 97 of the Record ? ?I know Ebenezer Ogunjobi. He is the Financial Secretary of Samo family. Before I became Chief Samo ? the said Ebenezer Ogunjobi and Jimoh Morakinyo have been selling land on behalf of the Samo family. But as soon as I became the Samo, they are supposed to submit the receipt of the family and the tellers to me but the two of them refused to do so and that is the bone of contention.?
The decision of the Lower Court was acknowledged by learned counsel, wherein the learned trial Judge referred to the problem in the Samo family which caused a division amongst members of the family. That the division made Chief Samo
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to sell the land in dispute to the Appellant.
It was noted by learned counsel that the Respondent did not sell the land in dispute but erected a building on it. The Respondent, a member of Samo family at all times had been in possession of the said land for long. He has right either to farm or build house on the land in as much as he uses it. See Onwugbelu v. Ezebuo (2013) 23 WRN 1-176.
It was reiterated by learned counsel that Respondent is quarreling on his plots that were sold.
He concluded that the trial Court had performed its primary function of evaluating evidence and correctly ascribed probative value to it, the Court of Appeal has no business interfering with its findings on such evidence. See the case of Ero v. Tinubu (2012) 49 WRN 1-183.
He therefore urged this Court to dismiss this appeal as lacking in merit and affirm the judgment of the High Court of Ekiti State, delivered on 18th day of December, 2014.
?In reply to Respondent?s argument on Issue whether Exhibits ?A?, ?B?, and ?C?, cannot sufficiently and validly transfer interest in the disputed land from Samo family to the
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Appellant, having regard to the fact that they were signed solely by Chief Samuel Ajayi Morakinyo. Learned counsel referred to Paragraphs 4.03 ? 4.08 of the Respondent?s Brief of Argument, and submitted that it is a settled principle of law that a sale of family property by the head of the family with the consent of the principal members of the family is valid for all purposes. See Teriba v. Adeyemo (2010) 47 WRN 155 at 171 Paragraphs 20-30.
Exhibit ?C? which is the agreement for sale of four plots of land dated 18th April, 2012 was executed by the head of Samo family and was witnessed by five principal members of the family.
(iii) For a sale of family land to be valid, what is important is that the head of the family and members should concur to the sale and not that they must all sign the document of sale. See Timothy v. Fabusuyi (2013) 1 NWLR (Pt.1335) 379 at Pages 403-404.
(iv) The family head executed the Agreement of Sale (Exhibit ?C?) while the principal members of the family witnessed the document by affixing their respective signatures or thumbprint impressions thereto.
(vi) The mere fact that
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Ebenezer Ogunjobi did not sign Exhibits ?A?, ?B? and ?C? does not affect their legal efficacy since it is not a requirement of law that all principal members of the family should sign.
Paragraph 4.02 line 9 of Respondent?s Brief of Argument, which Appellant?s counsel argued negates the evidence on record, which is to the effect that the land in dispute belonged to Samo family before it was sold to the Appellant by the said family.
The onus is on the party who asserts that the family land belongs to him, to show how exclusive ownership devolved on him and this he must do by cogently proving that there had been partition of the land in his favour. Olodo v. Josiah (2011) 47 NSCQLR 133 at 173.
?The learned counsel urged this Court to discountenance the argument of the Respondent, allow the appeal, set aside the judgment of the Lower Court, in its place hold that the Appellant has successfully proved his case before the Lower Court.
The Appellant by his Issues 1, 2, 3 and 4 is questioning the correctness of the finding of the Lower Court that he (Appellant) did not prove his title to the land in
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dispute for the various reasons highlighted under the said issues.
An appeal I cannot but say is an invitation to a higher Court (i.e. an appellate Court) to review the decision of a Lower Court in order to find out whether the Lower Court arrived at a correct decision on a proper consideration of the facts placed before it and applicable law. Hence an appellate Court is not usually concerned with the correctness of the reasons for the judgment of the Lower Court but the correctness of the findings made by the Lower Court. It would appear that learned counsel for the Respondent has a better grasp of the purpose of an appeal going by the manner in which he couched the Respondent?s lone issue for determination as his argument thereon clearly go to show that the Appellant did not prove his title to the land in dispute, and that the judgment of the Lower Court that the Appellant did not prove his title to the land in dispute is thoroughly founded giving the findings of the Court vis–vis the applicable law.
?The Appellant having regard to the averments in his pleadings glaringly claimed to have purchased four vacant plots of land from the
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Samo family on the Samo family layout at Amulegun beside PHCN 132 KVA Omisanjana, Ado-Ekiti. Law Reports are replete with cases that go to show that though there are five means or methods of proving title or ownership to land in this Country, the manners in which one can acquire land are various and diverse. See the case of Ajiboye v. Ishola (2006) All FWLR (Pt.331) 1209 at 1229. Whereat Onnoghen, JSC; stated thus:-
?It must however be noted that the above methods deal with the means by which title to land can be proved in a Court of law. The said methods have nothing to do with the mode of acquisition of title to land which may be by: –
?(a) First settlement on the land and deforestation of the virgin land;
(b) Conquest during tribal wars;
(c) Gift;
(d) Grant ? customary
(e) Sale;
(f) Inheritance e.t.c?
See also the case of Adesanya v. Aderonmu (2000) FWLR (Pt.15) 2493 where the Supreme Court held amongst others to the effect that in a claim for declaration of title to land, the Court must be satisfied as to (i) the precise nature of title claimed i.e. whether it is title by original ownership,
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customary grant, conveyance, sale under customary law, long possession or otherwise and (ii) evidence establishing the nature of title claimed.
Learned counsel for the Appellant in his submissions said that the Appellant?s claim to the land in dispute is based solely on purchase from Respondent?s family. See Paragraph 5.9, 5.10, 5.11 on Pages 8-9 of the Appellant?s Brief of Argument.
It is to be noted that as rightly demonstrated in the Respondent?s Brief of Argument, the Appellant to the extent that he has disclosed the Samo family as the source of his title also needed to have pleaded and proved all the requirements that would establish the ownership of the land in dispute by his pleaded root of title. Having regard to the portion of the Appellant?s Brief of Argument I have earlier referred to, it is clear that learned counsel for the Appellant is of the view that the Appellant pleaded and proved his ownership of the land in dispute, by proving ownership of the land in dispute by purchase. The foundation of a case tried on pleadings is in the pleadings of the parties, hence admissible and relevant evidence upon which
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the case is to be decided must be those in aid or in support of pleaded facts. The Appellant regarding how he acquired the land in dispute in Paragraphs 4-7 of the Statement of Claim, stated as follows: –
Paragraphs 4:
?The Claimant purchased four vacant plots of land from the Samo family on the Samo family layout at Amulegun beside PHCN 132 KVA, Omisanjana, Ado-Ekiti.
Paragraph 5:
The four plots purchased by the Claimant are Block C Plot 1, Block D Plots 1 and 2 and Block F Plot 10.
Paragraph 6:
The purchase of these plots of land by the Claimant was with the consent and concurrence of the Head and Principal members of the Samo family of Ado-Ekiti who are the bona fide and original owners of the said land from time immemorial.
Paragraph 7:
The Samo family executed a Sales agreement of the four plots of land in favour of the claimant, a family receipt and an affidavit for change of ownership of the said plots, these documents as hereby pleaded and they shall be relied upon at the trial of this case.?
?The law is settled regarding what a person relying on traditional history, grant, inheritance, possession
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e.t.c must plead and prove to sustain the various means herein before stated. The cases of Etajata v. Ologbo (2007) 30 NSCQLR 966; and Folarin v. Durojaiye (1988) NSCQLR 581 are instructive regarding purchase under customary law. The cases show that it is settled law that in order to prove a valid title by purchase under customary law, it is not only necessary for the purchaser to prove the payment of the purchase price, but also the actual handing over of possession in the presence of witnesses who should testify to that fact.
It is in my considered view undisputable in the light of the cases cited above, that a person such as the Appellant who claims to rely on traditional history/evidence in the proof of his title to land, has by that peculiar method of proof shown himself not to be the original owner of the said land and that he knows how the land came to be founded by the original settler thereof. He claimed to have acquired the said land from the original owners i.e. Samo family. The Appellant therefore needed to have pleaded and proved the traditional history of Samo family regarding the land he acquired. See also the case of Otanma v. Youdubagha
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(2006) LPELR ? 2821 (SC).
As it is obvious that the Appellant?s pleadings is totally lacking in averments required by law in order to establish conclusive evidence of tradition in respect of the land in dispute as alleged to be in Samo family, a fortiori whatever evidence the Appellant adduced at the trial cannot found the proof of ownership of the land in dispute of the Appellant, by traditional history.
?The Appellant by law has the duty of proving his ownership to the land in dispute upon his pleadings, setting out all the requisite facts regarding how he acquired his title to the land in dispute and leading credible evidence in support of the requisite facts. I have before now found the Appellant not to have pleaded the requisite facts regarding what one might be tempted to say are the means of acquisition of title he relied upon. The bottom line is that though the Lower Court made observations, which the Appellant is questioning by the issues under consideration. Presently, he has not shown how the observations have in any way affected the correctness of the finding of the Court concerning the fact that he did not establish his
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ownership to the land in dispute by traditional evidence/grant and or by redemption.
The Respondent in his pleadings set up elaborate case to the effect that he had been in possession of the land in dispute for over fifty years. As it has been said before now, the Appellant never controverted that aspect of Respondent?s case.
The Respondent led evidence to the fact that he is a member of Samo family and had been in possession of the land in dispute for over 50 years: –
?(6) That land belongs to me as a member of Samo family and I had been farming there for over 50 years as my right.
(7) That Block D Plot 1 and 2 is part of my Cocoa Plantation. I uprooted some of the cash crops there, when I decided to put my building there sometime in 2011, when I deposited some materials there.
(8) That as one of the elders of Samo family, I personally invited Chief Samuel Morakinyo who is my junior brother from Abuja where he resided to Ado-Ekiti after he had spent over 40 years outside Ado- Ekiti.?
Having regard to the evidence on record, he also did not successfully challenge this aspect of the case of the Respondent by
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demolishing by way of cross-examination the evidence adduced by the Respondent in support of this aspect of the case.
Flowing from all that has been said is that Appellant did not establish his title to the land in dispute. Accordingly, Appellant having not proved his case the Lower Court was right not to have given judgment in his favour.
Dwelling on the issue, whether the trial Court properly evaluated and appraised evidence of the parties in this case ? learned Appellant?s counsel said that ? a trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon, he must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principles of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and has been demonstrated
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upon the evidence by the parties and is supported in law.
The practical application of the principle querying the valuation of facts by a Lower Court, its effect is that the duty of appraising evidence given at a trial is pre-eminently that of the trial Court. See the case of Ogbeide v. Osifo (2007)3 NWLR (Pt1022) 442, where a trial Court unequivocally evaluated the evidence and appraised the facts, as has been done in the instant case, an appellate Court ought to and should decline an invitation to it to substitute its own views for those of the trial Court which was in a better position to assess the credibility of the witnesses, save where the findings of the trial Court are manifestly unreasonable and unsupportable by evidence.
As a general rule the management of family property is put in charge of the family head and he acts as a trustee of such. See: Amodu Tijani v. Secretary Southern Nigeria (1421) A.C. 399; Sunmonu v. Raphael (1927) A.C 881 at 884; Bassey v. Cobham (1924) 5 NLR 90; Archibong v. Archibong (1947) 18 NLR 117. He should exercise his powers not for his own private advantage but for the benefit of the family and he does not enjoy
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absolute power in the management of family land per se. He is required to consult the other members of the family and in the case of important decisions such as sale of family land, he must obtain the consent of the principal members of the family. As the head of the family, he cannot transfer family land as his own exclusive personal property, any transfer of the family property by him without carrying along the principal members is void ab initio. See: D.W. Lewis & Ors v. Bankole & Ors (1908) 1 NLR 80.
Whether to effect a valid sale or alienation of family land the head of the family with the majority of principal members must participate in the exercise.
Perhaps I need to further elaborate on the point being made by stating it in a clear fashion that in order to effect a valid sale or alienation of family land, the head of the family with the majority of principal members must participate in the exercise.
See:Aganran v. Olushi & Ors (1907) 1 NLR 66; Oshodi v. Balogun 4 WACA 1; Cole v. Folami (1956) 1 FSC 66; Adeniji v. Disu (1958) 3 FSC 104 and Alao v. Ajani & Ors (1989) 4 NWLR (Pt.113) 1.
?I have considered carefully the
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submissions of the parties in this appeal. The age long principle in land matters, is that the onus is on a plaintiff who claims declaration of title to land, to satisfy the Court that he is entitled on the evidence adduced by him to the declaration sought, except in a few cases such as where the defendant claims exclusive ownership of family land, the onus never shifts. To discharge the onus, the plaintiff must rely on the strength of his own case and not on the weakness of the defence, except where the defendant?s case supports his case.
Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252; Eze v. Atasie (2000) 9 WRN 73 at 88; Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370. The plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence. If the onus is not discharged, the weakness of the defendant?s case will not help the plaintiff, and the proper judgment is for the defendant. Kodinlinye v. Odu (1935) 2 WACA 336; Atuanya v. Onyejekwe (1975) 3 SC 161 at 168; Onibudo v. Akibu (1982) 7 SC 60 at 84-85; Bello v. Eweka (1981) 1 SC 101; Lawson v. Ajibulu (1997) 6 NWLR (Pt.507) 14 at 41 F-H.
?The methods by which a claimant may
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establish title to land were settled by the Supreme Court in Idundun v. Okumagba (1976) 9 ? 10 SC 227. They are: –
(a) By traditional evidence
(b) by production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By act of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.
The claimant is not required to prove all the five methods. He would succeed in his claim if he is able to establish any one of the five methods.
The Respondent in this appeal having not made a counter-claim for title bears no burden of establishing his title to the land.
?From the evidence led by the Appellant as Claimant in the Lower Court, he relied on documents of title. I shall now examine the evidence led in the case to see whether the learned trial Judge was right in holding that the claims of the Appellant must
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fail in that where the sale of family land by the head of the family and some members of the family should be declared void in the interest of justice.
The Appellant tendered the following documents in proof of his title: –
Exhibits ?A?, ?B? and ?C?.
?Learned counsel for the Respondent faulted Exhibits ?A?-?C? that the totality of the evidence adduced by the Appellant at the Court below are not sufficient to grant the declaration sought. Learned counsel noted that Exhibits ?A?-?C? were all prepared to pervert the course of justice.
In that Exhibit ?A? ? receipt dated 18th April, 2012 was signed solely by Chief Samuel Ajayi Morakinyo ? the Samo and head of Samo family of Ado-Ekiti.
Exhibit ?B? ? Affidavit of change of ownership sworn to on 9th August, 2012 is solely deposed to by Chief Samuel Ajayi Morakinyo ? the Samo and the head of Samo family of Ado-Ekiti.
Exhibit ?C? ? Agreement for the sale of four plots of land dated 18th April, 2012 was signed and executed solely by Chief
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Samuel Ajayi Morakinyo ? the Samo and head of Samo family of Ado-Ekiti. He assembled some persons and tagged them principal members of Samo family without a signature of recognizable Secretary of the family ? Ebenezer Ogunjobi, 4th Defence witness who is the original Secretary was sidelined. See page 117 of the Record.
CW3 ? Mr. Emmanuel Ola Ajayi stated in his statement on oath as follows:-
?I know Ebenezer Ogunjobi. I don?t know him as the Secretary to Samo family. He used to sign as the Secretary on the family receipt of sale of land before we had our Chief Samo.?
During the cross-examination of CW3, he stated as follows:-
?It is not true that Ebenezer Ogunjobi is the one who used to sign land documents with Chief Samo. Ebenezer Ogunjobi used to sign receipt because it involves money and he is the Financial Secretary.?
(See pages 100 and 101 of the Record).
?Respondent?s counsel referring to CW3?s evidence above, contended that it can be deduced that 4th defence witness Ebenezer Ogunjobi used to sign either as Secretary or Financial Secretary on the family receipt of
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sale of land. A function which was denied him in this transaction. Only Chief Samuel Ajayi Morakinyo signed Exhibit ?A? a receipt issued to the Appellant. And there is nothing to show that the 4th defence witness ? Ogunjobi Ebenezer has been removed either as Secretary or Financial Secretary or otherwise to prevent him from signing some family receipt of sale of land. He did not sign as the Secretary in any of the Exhibits ?A?, ?B?, and ?C?.
I have carefully critically examined exhibits ?A? ? ?C? and I am of the view that the documents do not show that they were properly executed to convey the consent of the head of Samo family as well as the principal members. The fact of the sale of family land is not in dispute, the issue in dispute is whether the sale was valid.
From the evidence of the Respondent which has not been demolished in cross-examination, it is clear that he is the elder brother of the Chief Samo of Samo family of Ado-Ekiti.
The traditional evidence acts of ownership extends over a sufficient length of time. Acts of long possession and enjoyment of
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the land relied upon by the Respondent were not challenged by Appellant. The Lower Court was therefore right to have acted on the unchallenged evidence. The appellant failed to rebut the presumption that the Respondent had been on the land for over 50 years.
The findings of the trial Judge are unassailable. The sale of the family land by Chief Samo was without the consent of some principal members of the Samo family and without their concurrence.
The law is clear that where a family member sells family land without the consent of the family, such sale is void.
It is also the law that where the head of the family sells family land without the concurrence of the principal members of the family, the sale is voidable.
The law is that in an action for declaration of title to land, if a party predicates his title, on sale or grant by a particular person, family or community, he is under a duty to plead and prove not only the sale or grant of the land to him but also the origin of the title of the particular person, family or community that sold or granted the land to him, unless that title had been admitted ? See Alade v. Owo (1974) 5 SC
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215; Piaro v. Tenalo (1976) 12 SC 31; Elias v. Omobare (1982) 5 SC 25; and the proof of the origin of the title of the particular person, family or community must be by credible evidence. In Bamgbose v. Olusoga Belgore, JSC, said thus at page 531:-
?Whenever title is claimed through grant or inheritance there must be clear traditional history of how the family or community came into the land and this must be done through clear pleadings and evidence in support of genealogy as continuous exclusive possession. Without this, stating just simply that a grant is from a family without more may not be enough.?
The learned trial Judge, after weighing the evidence adduced by the Appellant and Respondent, on the imaginary scale, had no difficulty in coming to the conclusion, that on the preponderance of evidence led by the parties, the Appellant was unable to establish a valid title to the land in dispute. The learned trial Judge is right in his conclusion.
?In the final result, I hold that this appeal lacks merit and is hereby dismissed. The judgment of Akintayo, J. of the High Court of Ekiti State delivered on 18th December, 2014 in Suit No:
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HAD/105/2012 is affirmed. Costs assessed at N30,000:00 in favour of the Respondent.
Other Citations: (2016)LCN/8839(CA)
