Raji Akano And Anor V Allah Yisau Ajuwon (1966)
LawGlobal-Hub Lead Judgment Report
BAIRAMIAN J.S.C.
In the Ibadan Suit No. 26/59 the plaintiff claimed a declaration of title to a piece of land at Mokola, lbadan, and an injunction. Taylor, J., (as he then was) gave him judgement on 28 September, 1959 for both; the defendants (who defended for the Oko family) appealed, and the appeal was heard on the 23rd September, 1966. Mr A. G. O. Agbaje argued for the defendants, and Mr Y. Ayoola for the plaintiff.
The Statement of Claim alleges that the piece of land in dispute is part of an area which belonged to Omiremi according to customary law, who in 1939 sold according to customary law some of that land to AlIi Adeleke Eleran, also called Ladunni, who divided what he bought into three pieces and sold one piece to Allah Ajuwon (the plaintiffs father) in 1941, and the other pieces to others later.
The Defence alleges that the entire area belonged to Oko, their grandfather, who had three children namely Odenike, Omiremi, and Babajide; that these children never partitioned the land and they all died leaving their own children, who own the land together; and the Defence denies the sale by Omiremi to Ladunni (Eleran) but, if there was one, it was without the knowledge and consent of other members of the family, and did not bind the family under customary law.
The trial judge remarks that ‘the plaintiffs case is based on title to the land in dispute originally being vested in Omiremi’. He goes on to find that the land originally belonged to Oko. and that Omiremi was the eldest of his three children but the other two died before him; that at the time of the alleged sale by Omiremi the other descendants of Oko were minors except the 1st defendant (Raji Akano, Omiremis son) who was not in town but away for about twenty-eight years; and that Omiremi was head of the family with complete control over its affairs and property.
The learned judge thought the family was contesting the case for the reason given by Ladipo Yesufu Ajadi, a grandson of Oko, defence witness 5, whom the judge regarded as truthful, namely that this witness did not believe that Omirerni sold the land. He accepted the evidence that about 1939 Omiremi sold the land to Ladunni he considered the argument for the defence that Omiremi could not have conyeyed an estate in the property which he had not insofar as he purported to convey the property as his own; but in the light of the evidence, mainly that of Ajadi, had no doubt that Omiremi sold as Oko family head to whom the family affairs were entrusted; and as the sale to Ladunni had not been impeached or set aside, the plaintiff was entitled to succeed. Hence this appeal.
Mr Agbaje concedes that if the family head sells family land as family land, the sale is only voidable; he argues that if the head sells family land as his own, the sale is void. For the latter argument he relies on Ajibade v. Makanjuola, 10 W.A.C.A. 33, and Oshodi v. Aremu, 14 W.A.C.A. 83, but neither case really decides this point.
Mr Agbaje made that point because of paragraph 4 of the Statement of Claim alleging that-
‘The land in dispute formed part of a large piece of land which belonged to .Omiremi according to customary law.-
to which he submits the plaintiff must be tied down.
On the other hand, Mr Ayoola argues that one must not be too strict in reading that paragraph 4. He points out that people are apt to say loosely that family land belongs to so-and-so and refers to what was said in Kuma v. Kuma in the Privy Council reported in 5 W.A.C.A. 4, at page 8, and to the evidence of the defendant limo Akanji that Raji Akano (the other defendant) was right when he said, in Ogunoshun v. Raji Akano-Suit No.41/56 in the Lands Court, Ibadan-that the land there in dispute ‘belonged to my father by name Omiremi’. In his evidence Ladipo Yesufu Ajadi (defence witness 5) the head of the family when the trial was on, said this-
“ I did not quarrel with the grant to Ogunoshun, as Omiremi was the head of the family. Omiremi gave land to Ogunoshun. Twenty years ago Omiremi was an elderly man. Family matters were in his hands. I was at the time at the village. I did not complain about what Omiremi did as he was older than my father. I contest this case because I do not believe Omiremi sold the land’.
Raji Akano, a son of Omiremi, said in chief that after Oko died ‘Omiremi because the owner of the property of my grandfather’, namely Oko; and in cross-examination that ‘in customary law if my father did something in respect of family property the children cannot query it’.
Plainly, in common parlance people speak of the land of X the head of the family; and if the members of the family themselves do so, they cannot complain if strangers do. From a lawyers point of view it may not be precise; but a lawyer, too, would find it hard to discover an English term by which to describe the position of the family head. In strictness he is not the owner; some think it is unwise to call him the trustee and import English ideas of trusts; perhaps manager is nearest but this term does not altogether fit either, for it is conceded that if the family head sells family land without having obtained the consent of the other members whom he ought to consult the sale is not void but voidable at the instance of the others.
As to the point made by Mr Agbaje that the plaintiff must be tied down to his allegation in paragraph 4, that the land belonged to Omiremi according to customary law, having regard to the evidence we do not think it is to be read as an allegation that it was Omiremis private property.
The argument under the first two grounds of appeal is that the judge erred in finding that Omiremi sold as head of the Oko family. There is nothing precise in the evidence directly on the point whether he professed to sell as private owner or as head of the family. It is a distinction which is perhaps not present to an unsophisticated mind. Omiremi sold to Ogunoshun, and no quarrel is made on that by Ajadi (defence witness 5). Ajadis quarrel is not based on any such distinction as Mr Agbaje seeks to draw: it is merely that he does not believe Omiremi sold the land to Ladunni. We think that there is no valid ground for upsetting the learned judges finding that Omiremi sold as head of the Oko family. That is the core of the appeal, and it fails.
The third ground complains that the judge erred in holding that Omiremi sold the land in dispute to Alii Adeleke Ladunni. In the court below Mr Agbaje in his address said this:
‘It appears that Omiremi granted the land to plaintiffs predecessor.
The land was not conveyed as family land. .’
After that; we do not think the learned counsel can complain of the judges finding. And this also disposes of the other grounds of appeal, for they turn on the same point.
The appeal is dismissed with twenty eight guineas costs.
Other Citation: (1966) LCN/1306(SC)
