Simbiatu Agboke & Anor. V. Jimoh Igbira & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Ogun State High Court holden at Abeokuta presided over by Oduntan J. dated 16/2/89 ‘whereby the plaintiffs’ claims were dismissed in all its entirety.

The facts of this case briefly put were as follows:-

The appellants herein as plaintiffs took out a Writ of Summons against the respondents herein as defendants seeking the following interlocutory and injunctive reliefs viz:

(a) For a declaration that the purported sale of the land in dispute shown on Plan No. ALS/OG214C/84 dated 28/5/84 by the second defendant to the first defendant is void.

(b) For a declaration that the plaintiffs and the second defendant are jointly entitled to a right of occupancy in respect of the said piece of land (4.686 hectares) situate at Ntabe Village in Ijoko Town, Ogun State shown on plan NO. LAY/315/88/0G.

(c) Trespass against the first defendant for illegal occupation of the said land.

(d) Damages of N500.00 against the first defendant.

(e) Perpetual injunction restraining the first defendant, his servants, agents or privies from committing further acts of trespass on the said land.

Parties filed and exchanged pleadings. At the trial the plaintiff/appellants called 3 witnesses which included the 2nd defendant. The 1st respondent gave evidence on his own behalf. Both parties agreed that both the plaintiffs and the defendants agreed that the land in dispute originally belonged to their late father Pa. Agboke. The said land in dispute is the tract of land inherited by the plaintiffs and the 2nd defendant through their mother Ashia who was one of the four wives of Pa. Agboke. However, the plaintiffs’ case was that the 2nd defendant sold a portion of their said family land to the father of the 1st defendant without their consent and without any ‘proper partitioning of the said land. On the other hand, the case of 1st defendant/respondents was that 2nd respondent sold the land in dispute to his late father Abu Igbira otherwise known as Abu Abipa in 1975. According to him, the land in dispute was the portion allocated to the 2nd respondent after a partition exercise of his father’s land. On the death of his father in 1983, the 1st respondent inherited the land purchased. 1st respondent denied the fact that his father was paying rent on the land in dispute and testified that the 2nd respondent admitted selling the said land to his father at a meeting held on 18/6/83.

After taking evidence and listening to arguments of counsel on both sides, the learned trial Judge in his judgment at pages 7 – 8 of the records found thus:

“From the contents of Exhibit B, i.e., paragraph 1 and the schedule above, two farmlands with different boundary men were sold by the 2nd defendant to 1st defendant’s father. The plaintiffs cannot therefore claim that the land inherited by them along with the 2 defendant was one undivided tract of land. It is clear beyond doubt that the farmland inherited by them had been partitioned. If this is not so, the 2nd defendant would not have sold two farmlands to the 1st defendant’s father.”

The Court then held that the land disposed by 2nd respondent to the 1st respondent’s father was no more a family property and that the 2nd respondent had the legal right to dispose of the land since same had been partitioned. The Court, in consequence dismissed the plaintiffs/appellants’ claim in its entirety.

Dissatisfied with this judgment, the plaintiffs (hereinafter referred to as the appellants) have appealed to this Court on 5 grounds. From these five grounds of appeal, the appellants have formulated two issues for determination in this appeal, viz:

1. Could the contents of Exh.B properly be related to the land in dispute?
2. Did the defendants successfully prove that the land had been partitioned amongst the plaintiffs and the second defendant.

The defendants (hereinafter referred to as the respondents) also formulated 3 issues which are similar to but couched in a different language from the appellants’ two issues supra. These are:

(a) Whether the land in dispute was validly sold to Abu Igbira (the father of the 1st respondent) by the 2nd respondent.

(b) Whether the appellants were guilty of laches and acquiescence.

(c) Whether the 1st respondent trespassed on the land in dispute.

Both counsels to the parties have filed their briefs of arguments on behalf of their respective clients. Learned Counsel to the parties adopted and relied on these briefs and addressed us viva voce. Learned counsel to the appellants Mr. T.E. Williams after relying on his appellants’ brief filed on 9/12/91 stressed that there is no way partition was done in the instant case and cited in support of the consequences flowing therefrom the cases of Ogunro v. Ogunsanya (1970) NSCC Vol. 6, 177 p. 179 and Fasoro & Anor. v. Beyioku, (1988) 2 NWLR (Pt. 76) 263 P. 277.

Learned counsel to the appellants thereafter urged the Court to allow the appeal.

The 2nd respondent did not file a brief and neither did he attend the Court at the hearing of the appeal even though he was duly served. The 1st respondent who filed the 1st respondent’s brief was duly served but he too was absent at the hearing of the appeal. The Court invoked the provision of Order 6 Rule 9E to deem the 1st respondent’s brief filed herein on 11/3/92 as having been adopted by the 1st respondent.

I have considered the submissions of learned counsel to the appellants both in the appellants’ brief and in his argument viva voce. I have also considered the submissions of the learned counsel to the 1st respondent as contained in the 1st respondent’s brief filed herein. I have also examined from the records the case of the 2nd respondent as presented in the Court below. All these I did vis-a-vis the records and the prevailing law. In my view, the main or principal issue for determination in this appeal is:

Whether the defendants successfully prove that the disputed land had been partitioned amongst the plaintiffs and second defendant put in another way, whether the land in dispute was validly sold to the father of the 1st respondent by the 2nd respondent. Both learned counsel to the parties addressed the court on this principal issue. Learned counsel to the appellants Mr. T.E. Williams submitted on this principal issue by way of summary at page 5 of the appellant’s brief that the land in dispute, not having been partitioned amongst the beneficiaries remains family land. Consequently the purported sale by the second defendant to the first defendant without consent of the plaintiffs who are co-owners of the property renders the transaction null and void, learned counsel added. By way of reply, learned counsel to the respondent on page 6 paragraph 3.5 of the respondents’ brief submitted that from Exh. B two farmlands were sold to the father of the 1st respondent hence the learned trial Judge was right to have come to the conclusion that the appellants could not claim that the land was one undivided tract. Learned counsel further submitted that the sale of the land was witnessed by Raudu Agboke, the land having been partitioned among the children of Pa. Agboke as opposed to children of Ashia. Counsel further contended that the 2nd respondent only sold the portion partitioned to him.

I have considered the submissions of both learned counsel to the parties as contained in their briefs of argument vis-a-vis the records and the prevailing law on this principal issue. Both sides have given different and opposing view on this issue as to whether or not the disputed land was partitioned among the beneficiaries (i.e. the plaintiffs and the 2nd respondent). To resolve this issue, it is necessary to have a brief recourse to the record of proceedings particularly the evidence adduced in respect of partitioning. In this regard, the statement of claim particularly paragraph 6 contained on page 3 of the records describes the land in dispute thus:

“Tracts inherited by the plaintiffs and the 2nd defendant who are children of Pa. Agboke by the same branch/mother (shown on Plan LA/315/88/0G dated 18/4/88 …..a copy of which is attached herewith is the land in dispute.”

On this issue of partitioning witness under cross-examination at page 4 line 11 of the records testified thus:

“We did not partition the land in dispute among my mother’s children namely, Wabi, Lamulatu and Simbiatu. We are only three of us.”

It is also significant to observe from Exh. A tendered by the plaintiffs showing the land inherited from their father a large tract of land that the area occupied by the 1st defendant/respondent was clearly shown. The evidence of the 3rd plaintiff witness, the surveyor, also showed that the area occupied by the 1st defendant is 2,525 hectares which came to over half of the land (total area of 4.686 hectares) inherited by the plaintiffs and second defendant. The argument of the appellants had been that if there was a partition the second defendant’s share would be a third of the inherited land. The respondent’s counsel at paragraph 3.5 of the respondent’s brief contended that it is not compulsory that the 2nd respondent’s share of Pa. Agboke’s limb should be a third of total area in Exh.A, since Exh. A was only apart of total land holding of Pa. Agboke.

In the light of the foregoing, particularly Exh. A tendered by the plaintiffs, can the finding of fact made by the learned trial Judge at the top of page 8 of the records be supported by evidence highlighted supra. The finding of fact is that the plaintiffs cannot claim that the land inherited by them and the 2nd defendant was one undivided tract of land. In my view since there is no evidence on the records before the court to reach such conclusion the learned trial Judge was wrong to have made such a finding of fact and I so hold.

Having come to the inevitable conclusion that there was no evidence of partitioning amongst the plaintiffs and the 2nd defendant, the land in dispute remains a family property. It needs to be emphasized here that in a claim to ownership by a branch of the family there is the need for the branch to plead and prove partition. See: Alhaji Moriyamo Adesanya v. Adetayo Olaitan Otuewu and Ors. (1993) 1 SCNJ 77; (1993) 1 NWLR (Pt.270) 414.  It needs also be stressed here that the only valid sale of unpartitioned family property is that by principal members of the family and not otherwise since the consent of majority of principal members of the family is required. See: Adesanya v. Otuewu (supra). See also Ishau Olorunfunmi & Ors. v. Bashiru Saka & Ors. (1994) 2 SCNJ 39;(1994) 2 NWLR (Pt.324) 23. The rationale behind this legal principle is that family land ceases to be family land only after partition and where it is not partitioned members who have an allotment acquire only a usufruct. See: Alhaji Amuda Adebanjo & Ors. v. Alhaji Daodu Olowosoga & Ors. (1988) SCNJ 78; (1988) 4 NWLR (Pt.88) 275; Wahabi Alao & Anor v. Oladejo Ajani & Ors. (1989) 6 SCNJ 243; (1989) 4 NWLR (Pt.113) 1. In the instant case, since there was no evidence of partitioning, the 2nd respondent could not have effected a valid sale of the disputed land to the father of the 1st respondent and I so hold. In the circumstance, Exhibit B which the lower court purported as transferring title to 1st defendant had no relationship to the land in dispute moreso as it is not registered.

In sum, this appeal is meritorious; and it is allowed. The judgment of the lower court is set aside. In its place judgment is hereby entered for the plaintiffs as per their statement of claim. Costs of N1,000.00 is awarded in favour of the plaintiffs/appellants.

Other Citations: (1997)LCN/0347(CA)