O. Solomon & Ors V. A. R. Mogaji & Ors (1982)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
On 13th October, 1982 we dismissed this appeal and reserved the reasons for our action. I now give my reasons for dismissing the appeal.
The facts of this case are germane to the issues canvassed in this appeal. I will therefore set them out, if only concisely. The plaintiffs, who are now the respondents in this court and who will hereinafter be referred to as plaintiffs/respondents, are members of the family of Chief Iposu. One Kadiri Oniga, whose name featured throughout the case, was also a member of the family. In fact, he was the head of that family between 1925 and 1968. He died in 1968. I will come back to Kadiri Oniga presently.
Chief Iposu came about the land in dispute as a result of his having accompanied Chief Kosoko of Lagos to settle at Epe about 1851. Iposu settled on the land in dispute, remained in possession until his death after which his descendants continued in possession.
And now, to Kadari Oniga. This gentleman, as I have said earlier on became the head of the family in 1927 and remained such head until his death in 1968. However, about 1957, there was a complaint against him that he was making a personal claim to the land and that he was exercising a right of ownership over it. Some of the descendants of Iposu challenged this in court, and in an action before Fatayi-Williams, J., (as he then was), the learned Judge declared that all the members of the Iposu family (be they male or female) were entitled to the land. He granted a declaration of title accordingly in favour of all the members of the family as against Kadiri Oniga who was laying personal claim to the land.
Now, it is of great significance that the defendants had knowledge of the judgment of Fatayi-Williams, J., (as he then was) for indeed they, as well as the plaintiffs/respondents, pleaded it. And perhaps it would be convenient at this stage to make reference to the pleadings as they refer to this aforementioned judgment of Fatayi-Williams, J., (as he then was). The plaintiffs/respondents in paragraph 13 of their statement of claim had said –
“13. The plaintiffs will rely on the general historical tracts and various judgments in particular suit Nos. 138/27, IK/96/69 and AB/17/59”.
It is suit AB/17/59 that I am concerned with here, it being the suit wherein Fatayi-Williams, J., (as he then was) gave the decision I have earlier referred to. In a joint statement of defence filed on behalf of all the defendants, except the sixth defendant, who did not appear either to have filed a statement of defence, given evidence or indeed shown much interest in the case, the defendants said in paragraph 11 thereof –
“11. The defendants will contend at the hearing that Suit AB/17/59 is not relevant to the land in dispute and that by the outcome of the judgment in that suit, the plaintiffs are estopped from laying claim to the land in dispute.”
By this pleading I do not think the defendants could claim ignorance of the judgment in AB/17/59 but more importantly is the fact that it was the defendants that tendered this judgment which was admitted as Exhibit C.
At no time did the defendants claim that Oniga sold land to them in his capacity as head of the Iposu family. Their contention throughout was that the land was personally owned by Oniga. They said so in paragraph 8 of their statement of defence-
“8. The whole area marked yellow in the plan attached to the Statement of Claim was the undisputed land and possessed by Chief Kadiri Oniga as confirmed in the judgment in Suit No. 138/27 being relied upon by the plaintiffs.”
The suit (that is, No. 138/27) was not tendered throughout the trial by either party, and there was no evidence to support the contention of the defendants. In any events, the onus lies on the defendants who pleaded the suit to have produced it. And so the learned trial Judge (Adeoba J.), though he refused to grant the plaintiffs/respondents a declaration of title and also although he struck out the claim for possession, found the defendants liable in trespass and awarded damages against them. He also granted an injunction against them.
The defendants appealed to the Federal Court of Appeal (Ogunkeye, Coker and Okagbue JJ.C.A.), and in a lucid judgment of that court delivered by Coker J.C.A., the court dismissed the appeal of the defendants. The learned Justice of Appeal said –
“There was no suggestion that plaintiffs who were members of Iposu family ever described Iposu Family land as Kadari Oniga’s land as in Akano’s case that is Akano & Anor. v. Yisa Ajuwon 1967 NMLR 7. They had always resisted such a description.”
The court then referred to Exhibit C and said further -“The law is clear that the onus of proof is on any person who claim exclusive ownership of family land and that long possession of family land is not adverse and therefore cannot confer exclusive right of ownership on any of its members.”
The Federal Court of Appeal also discussed the issue of laches and acquiescence and said-
“The 1st respondent said they warned the appellants as soon as they saw them clearing the land before they started building. Also they took legal action against Kadiri Oniga concerning his dealing on the land (Exhibit C) published warning Notice in the Daily Times Exhibit A of 18/4/61.”
The court dismissed the appeal.
The defendants have now appealed to this court against that decision of the Federal Court of Appeal. They filed several grounds of appeal and this court granted them leave to file additional grounds of appeal. These, coupled with the brief of the appellant range between complaints on matters of procedure and substantive matters as to the ownership of the land and issues of laches and acquiescence. It would appear to me however, after the oral arguments, that the appellants’ reliance on procedural points is half-hearted and the real issues in this appeal are –
(1) whether the sale to the defendants by Kadiri Oniga was void or at least voidable and
(2) whether or not the plaintiffs/ respondents had slept too long on their rights (if any) and the defence of the appellants of laches and acquiescence should have been upheld by the court.
After we had adjourned for judgment in this appeal we recalled learned counsel to address on the issue as to whether or not the defendants were trespassers having regard to the fact that it was the head of family (Oniga) who let them unto the land. Thus, there is a third issue to wit –
(3) were the defendants trespassers qua the plaintiffs having regard to the fact that they got to the land via Oniga the head of the family
I think the points raised in this appeal, though they look simple, are of considerable importance. To start with the first issue: Kadiri Oniga was no doubt the head of the Iposu family at the time of sale to the appellants. It is settled law that sale of family property by the head of the family alone without the consent of the other members is voidable. See Bello Adedibu & Anor. v. Makanjuola 10 WACA 33. (The head of the family cannot dispose of family property without the consent of the family. Such sale is voidable and can be avoided as “the native law and custom throughout West Africa in regard to the alienation of family land quite naturally has as its basis the interest of the family and not the interest of strangers who may wish to acquire family land”). Adewuyi v. Ishola 1958 WRNL 1120 (majority of the accredited representatives or principal members of the family have to join the head of family to save the sale from being avoided) Ekpendu v. Erika 4 FSC 79; Lukan v. Ogunsusi (1972) 1 All NLR (Part 2) 41 at p.45. I can only add that after the days of the West African Court of Appeal (WACA), it would be unwise to generalise about the native law and custom throughout West Africa. Suffice it to say that in so far as the Yoruba Customary Law is concerned this is still the law. In the instant case, the claim is not that the head of family, Kadiri Oniga sold qua his position as head of family. The plain claim was that it was his own land and not family land that he sold to the appellants. Paragraphs 6, 8, 10 and 12 of their Statement of defence are clear –
“6. The defendants derive respective roots of title from one Chief Kadiri Oniga Oba Kadiri Posu who died on or about 1968.
- The whole area marked yellow on the Plan attached to the Statement of Claim was the undisputed land owned and possessed by Chief Kadiri Oniga…………
- The plaintiffs are opportunists and brought this action in their attempt to cause confusion upon the death of Chief Kadiri Oniga in respect of all his properties.
- The defendants will also contend at the hearing of this suit that the traditional history professed by the plaintiffs in their statement of claim is an outrageous concoction.”
Now, the traditional history proffered by the plaintiffs/respondents in their statement of claim is that the land was family land, that of Iposu family, and not that of Oniga personally. Exhibit C which was pleaded by the plaintiffs/respondents and also by the appellants and tendered by the appellants show beyond any doubt this contention of the plaintiffs/respondents. In other words, by Exhibit C, the appellants were aware or ought to be aware that the land was not that of Oniga but that of the Iposu family.
Yet they proceeded with their eyes widely opened by Exhibit C to purchase from a man whom the court had adjudged not to own the land in dispute. Surely, to my mind, this is not a case of a purchaser being deceived or even ignorant of the title. Oniga never put himself out as selling on behalf of the family. The appellants never believed they were purchasing family land either. It is therefore a case of one who had deliberately chosen to purchase from a person who has no title. The maxim “nemo dat quod non habet” should not only apply but indeed this is a case of purchase from one who has been shown to the whole world in Exhibit C not to own what he sells. In Dr. F. Abiola Akerele v. A. Atunrase & Ors. (1969) 1 All NLR 201 this court as per Fatayi-Williams, Ag. J.S.C., (as he then was) held that where a vendor purports to convey his own land which he was seised in fee simple in possession whereas the land naturally belongs to a family, such conveyance is void. I think the principle in that case is as good for a sale by conveyance as under native law and custom. It only means you do not give what you do not possess. If anything, it accords with commonsense. It is true that the conveyance sought to be tendered by the appellants in this case was rejected but the evidence led by them should leave no one in any doubt about their contention that Oniga owned that land and not Iposu family. The first defendant in his evidence said –
“The plaintiffs although descendants of Iposu have their (sic) replace land from that of Kadiri Oniga who was also a descendant of Iposu. They have their land at Ehin-Osa in the other side of the lagoon.”
And so it is not a case of ignorance as to the status of Oniga. The claim of the appellants was that the plaintiffs/respondents’ land was somewhere close. The witness tendered Exhibit C and continued –
“The land in dispute in Exhibit C is not the same land as the land in dispute in this case.”
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“The land on which I built my house was owned by Kadiri Oniga and not by the Iposu family.”
No proof was adduced in furtherance of this bald statement and I think the learned trial Judge as well as the Federal Court of Appeal was right in finding that it is the land in Exhibit C that is being litigated upon in this case. In any event this point has not been challenged in this court.
I have therefore come to the conclusion that the appellants having failed to discharge the onus subsequently placed on them that their vendor had property to sell, were bound to fail as they did before the High Court and the Federal Court of Appeal.
The other important part in this case is whether the respondents were not caught by the plea of laches and acquiescence. On this issues the trial court found –
“Exhibit C shows that the plaintiff had been challenging the rights of Kadiri Oniga to the land and brought the action in Exhibit C which judgment was given in 1965. (Actually the judgment was delivered on 26th January 1961). They also caused a warning Notice Exhibit A to be published in the Daily times a newspaper circulating all over Nigeria on the 18th day of April 1961. All the building plans tendered by the defendants in this action Exhibit E (1962) and litigation of 1959 began and after the publication of the 18th of April 1961.”
The Federal Court of Appeal, on the issue, made reference to this findings of the trial court before dismissing the appeal.
In 1959 the members of the family went to court against Oniga (Exhibit C). In January 1961, the court found against Oniga. Three months later the family came out with a warning notice in the Daily Times (Exhibit A). Yet, notwithstanding all these, the defendants decided to build on the land (see Exhibit E dated 1962 and Exhibit F dated 1963). Evidence from the plaintiffs/ respondents was that they warned the defendants as soon as they saw the defendants clearing the land. That was before the defendants started to build on the land. The learned trial Judge accepted this evidence. With this evidence accepted, as it was by the court, what else could the plaintiffs/respondents have done They went to court, they went to the press, they challenged the appellants. Surely they cannot be held to be asleep on their rights. On the third issue, it is regretted, counsel were of no help to us in their addresses when recalled on 13th October 1982. But I think the issue is clear. Having found that the sale by Oniga is void then I am of the clear opinion that the presence of the defendants on the land could be nothing else other than the act of trespassers in so far as the Iposu family the rightful owners are concerned.
The possession was in the plaintiffs/respondents. As in the case of Francis D. Banigo v. Johnson O. Banigo 8 WACA 148 at 160, there could be no suggestion here that is, no evidence of possession in the plaintiffs. The defendants got to the land by virtue of a null transaction.
They had no right whatsoever. They were no owners, lessees or licencees. They were no invitees either. Qua the rightful owners, they were trespassers. This was the view of the West African Court of Appeal as per strong court consisting of Kingdom, CJN., Nigeria; Petridges, CJ., Gold Coast (as Ghana was then known) and Graham Paul, CJ., Sierra Leone in Banigo v. Banigo supra. I fully endorse this view.
It is for all these reasons therefore, that the appeal failed and was dismissed with costs assessed at N300.00
Other Citation: (1982) LCN/2159(SC)
