Wahabi Alao & Anor V. Oladejo Ajani & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C.

The plaintiffs, Wahabi Alao & Anor., sued the defendants, Oladejo Ajani & Ors., in an Ibadan High Court. Since the Statement of Claim supercedes the writ of summons the plaintiffs’ claims against the defendants will be as contained in paragraph 24 of their amended Statement of Claim dated 22nd October. 1982. The claims read thus:-

“(a) Declaration that the alienation of Agbejobi family land at Oke-Ado market, upon which the building known as SW8/122, Annexe, Lagos Bye Pass, Ibadan situate, made as by the 1st and 2nd defendants to either or both of the 3rd and 4th defendants is void, or in the alternative voidable.

(b) Account by the 1st and 2nd defendants to the other members of Agbejobi family of Oke-Ado, Ibadan in respect of the monetary proceeds from the said alienation.”

It is common ground that the land referred to in the claim is Agbejobi family land. It is also common ground that Agbejobi family land of which the land in dispute forms a part has never been partitioned. It is equally common ground that the plaintiffs i.e. Wahabi Alao and Yesufu Ajadi and the 1st and 2nd defendants i.e. Oladejo Ajani and Sanusi Akande are all of the members of Agbejobi family.

It is undisputed too that the land in dispute was allotted to one Bello also a member of Agbejobi family and father of the 1st defendant. Bello, now dead, built a house on the land in his life time. After his death the 1st and 2nd defendants, most presumably his successors, demolished the house Bello built on the land and in its place erected or caused to be erected a building consisting of shops. The construction of the building was financed by the 3rd and 4th defendants i.e. Mrs. Obileye and Alhaji Raimi Odejobi.

The arrangement whereby the 3rd and 4th defendants were to finance the building of the shops on the land in dispute for the 1st and 2nd defendants was a subject of a written agreement dated 3rd May, 1972 entered into among them. In the agreement the 1st and 2nd defendants i.e. Oladejo Ajani and Sanusi Akande Bello were referred to as “OWNER” of the one part and the 3rd and 4th defendants i.e. Mrs. Arinola Olabisi Obileye and Raimi Odejobi as the builders of the other part. Relevant to the appeal in hand are the following provisions of the agreement which is Exh. E in these proceedings:-

“1. The said builder shall erect in a substantial manner the area marked shop both down and up stairs in Building Plan No. 37/15685 approved by the Ibadan Area Planning Authority on the 22nd day of February, 1971 as specified in the said plan.

3. The building shall be erected upon part of the owners building plot situate, lying and being at Odekodo, Agbejobi compound, Oke-Ado Ibadan, Western State of Nigeria and which is more particularly described and delineated on Plan No. L & L/A 3562 prepared by Laniyonu & Lawson Licensed Surveyors, of Ibadan Western State of Nigeria.
4. The builders shall solely finance the building up to a cost not exceeding (six Thousand Pounds (‘a36,000)). In consideration of the amount which the builders invest in the project, the owners hereby granted unto the said builders a leasehold in respect of the property aforementioned for 40 years at an annual rent of ‘a3150 (One hundred and fifty pounds) from the 1st day of January, 1972.
5. At the expiration of the period of the tenancy the Builders shall return to the Owners the said building and both their interest in the property, and this agreement shall come to an end forthwith.”

So the action instituted by the plaintiffs against the defendants is concerned with the transactions the subject-matter of the agreement Exh. E. In the trial court pleadings were ordered, filed and delivered.

As regards the plaintiffs amended Statement of Claim I need only make reference to paragraphs 15, 17, 18, 19 and 21 thereof:-

“15. Some years ago, the 1st and 2nd defendants leased a piece or parcel of the Agbejobi family land at Oke-Ado Market Area to either or both the 3rd and 4th defendants without the knowledge, consent, and approval of the other members of the Agbejobi family.

17. Either or both the 3rd and 4th defendants later erected a long storey-building let out as shops to tenants, and which is known as SW8/122 Annexe Agbejobi’s compound, Oke-Ado market area, Ibadan on the land so alienated to them by the 1st and 2nd defendants.
18. The said building SW8/122 Annexe is the one on Agbejobi family land nearest to the Lagos Bye-Pass main road at Oke-Ado market area, Ibadan.
19. When the building SW8/122 Annexe was being erected, the 1st and 2nd plaintiffs and some other members of the family thought that the building-was being put up by a member of the family i.e. the 1st defendant.
20. It was during the proceedings of the said Suit No. 1/43/77 Wabi Alao vs. Oladejo Ajani & 3 Others and particularly during the testimony of the 1st and 2nd defendants herein that the plaintiffs knew that the building known as SW8/122 Annexe, Oke-Ado Market, Ibadan being claimed by the 1st defendant as his personal building actually belong to strangers, i.e. either or both the 3rd and 4th defendants.”

There is an amended Statement of Defence dated and November, 1982 said to have been filed on behalf of the defendants, which gives the impression that all the defendants have filed a joint statement of defence. However, there is an amended statement of defence dated 24th November, 1982 said to have been filed on behalf of the 3rd defendant alone. This does not seem particularly described and delineated on Plan No. L & L/A 3562 prepared by Laniyonu & Lawson Licensed Surveyors, of Ibadan Western State of Nigeria.

4. The builders shall solely finance the building up to a cost not exceeding (six Thousand Pounds (‘a36,000)). In consideration of the amount which the builders invest in the project, the owners hereby granted unto the said builders a leasehold in respect of the property aforementioned for 40 years at an annual rent of ‘a3150 (One hundred and fifty pounds) from the 1st day of January, 1972.
5. At the expiration of the period of the tenancy the Builders shall return to the Owners the said building and both their interest in the property, and this agreement shall come to an end forthwith,”

So the action instituted by the plaintiffs against the defendants is concerned with the transactions the subject-matter of the agreement Exh. E.

In the trial court pleadings were ordered, filed and delivered.

As regards the plaintiffs amended Statement of Claim, I need only make reference to paragraphs 15, 17, 18, 19 and 21 thereof:-

“15. Some years ago, the 1st and 2nd defendants leased a piece or parcel of the Agbejobi family land at Oke-Ado Market Area to either or both the 3rd and 4th defendants without the knowledge, consent, and approval of the other members of the Agbejobi family.

17. Either or both the 3rd and 4th defendants later erected a long storey-building let out as shops to tenants, and which is known as SW8/122 Annexe Agbejobi’s compound, Oke-Ado market area, Ibadan on the land so alienated to them by the 1st and 2nd defendants.
18. The said building SW8/122 Annexe is the one on Agbejobi family land nearest to the Lagos Bye-Pass main road at Oke-Ado market area, Ibadan.
19. When the building SW8/122 Annexe was being erected, the 1st and 2nd plaintiffs and some other members of the family thought that the building was being put up by a member of the family i.e. the 1st defendant.
20. It was during the proceedings of the said Suit No. 1/43/77 Wabi Alao vs. Oladejo Ajani & 3 Other and particularly during the testimony of the 1st and 2nd defendants herein that the plaintiffs

knew that the building known as SW8/122 Annexe, Oke-Ado Market, Ibadan being claimed by the 1st defendant as his personal building actually belong to strangers, i.e. either or both the 3rd and 4th defendants.”

There is an amended Statement of Defence dated 22nd November, 1982 said to have been filed on behalf of the defendants, which gives the impression that all the defendants have filed a joint statement of defence. However, there is an amended statement of defence dated 24th November, 1982 said to have been filed on behalf of the 3rd defendant alone. This does not seem to have created any confusion in this case since there is apparently no conflict in both Statements of Defence. So if I stick to the joint statement of defence said to have been filed on behalf of all the defendants I would get a fair and correct picture of the defence of the defendants to the claim against them. In this regard I need only refer to paragraphs 7, 10, 11, 12, 13, 17, 18, 19, 20 and 21, thereof.

“7. There was no alienation of Agbejobi family land by the 1st and 2nd defendants to the 3rd and 4th defendants and that is why the plaintiffs found nothing registered in the Lands Registry, Ibadan.

10. The 3rd and 4th defendants made a written building contract dated 3rd May, 1972, with the 1st and 2nd defendants to build portion of the plan marked shop in building plan No. 37/15685 for a ‘a36,000 (N12,000) and to finance the project and in return to use the building so erected for 40 years at ‘a3150 (N300.00) a year to cover ‘a36,000 expended.
11. The building plan was in the name of the 1st and 2nd defendants and so the claim that the 1st and 2nd defendants alienated family land to the 3rd and 4th defendants is wrong and based on an imperfect knowledge of the whole transaction.
12. The 1st and 2nd defendants received no rent as will be seen from the fore-going paragraphs and from the building agreement dated 3rd May, 1972.
13. The 2nd plaintiff in this case has shops on the family land where he collects rent and no one has asked him to account.
14. Any member of Agbejobi who builds on the family land is entitled to let out his building and collect rent without consultation with any other member of the family.
15. Apart from their residential buildings on Agbejobi family land the 2nd plaintiff and his late brother, Salami Bello built shops on the family land at Agbejobi’s compound Oke-Ado, Ibadan and the 2nd plaintiff has let out the shops over 15 years ago and had been collecting rent of the shops without any consultation with any other member of the family or challenge from any member of Agbejobi family.
16. The 1st and 2nd defendants had let to the 3rd and 4th defendants since 1972 the building described by the plaintiffs as SW8/122 Annexe Lagos Bye Pass, Ibadan owned by the 1st and 2nd defendants and the plaintiffs knew this very well.
17. The plaintiffs did not complain of 1st and 2nd defendants’ rights to build and to let and are therefore (apart from all other defences) quality of delay, laches and acquiescence.
18. The 1st and 2nd defendants did not alienate to the 3rd and 4th defendants any open or vacant portion of Agbejobi family land at Oke-Ado, Ibadan and the 3rd and 4th defendants have no power of sale over the building of the 1st and 2nd defendants let to them.”

The case proceeded to trial in an Ibadan High Court before Sijuwade, J. Evidence was led on both sides. On the question whether the transaction between the 1st and 2nd defendants on the one hand and the 3rd and 4th defendants on the other hand, as evidenced by Exh. E. to which I have earlier on referred to in this judgment amounts to an alienation of family land, the learned trial Judge relying on the case of Lawani Buraimo & Ors. v. Taiwo Gbamgboye & Ors. (1940) 15 N.L.R. 139 held that the nature of the transaction in the present case was nothing short of an alienation of the family landed property. As regards the contention by the defence as contained in paragraph 17 of the amended Statement of Defence namely:-

“Any member of Agbejobi who builds on the family land is entitled to let out his building and collect rent without consultation with any other member of the family.”

the learned trial Judge held as follows:-

“From the foregoing facts and following the decided authorities, the 1st and 2nd defendants, being members of the Agbejobi family, cannot on their own, without consent of the family leased, (sic) the family property to the 3rd and 4th defendants as they purported to have done in Exhibit ‘E’ in 1972.”

The learned trial Judge permitted himself to be guided in coming to this conclusion by the following decisions:-

Olayinka Olayemi vs Latifu Ishola (1980) 1 OYSH Part 1 Vol. 1 152; Ohemeng vs. Darkwa (1940) 6 W.A.C.A. 52; Miller Bros. vs. Ayeni 5 N.L.R. 42; Buraimo vs. Gbamgbose 15 N.L.R. 139; and Shelle vs. Chief Asajon Oloja of Ereko (1957) 2 F.S.C. 65; (1957) S.C.N.L.R. 286

On the plea of Laches and acquiescence put up by the defendants the learned trial Judge having considered the authorities cited to him in this regard to wit:-

(1) Akpan Awo v. Cookey Gam (1913)2 N.L.R. 100;

(2) Adeleke Mogaji vs. Nuga (1960) 5 F.S.C. 107 at 109;

(3) Abbey vs. Ollenu (1954) 14 W.A.C.A. 567;

(4) Ibadan City Council & Anor. vs. K. Ajanaku (1969) N.M.L.R. Vol. 1 at 37;

(5) Owodunni v. Anthony Akinsola George (1967) Vol. 1 All N.L. R. 177 at 179.”

and the evidence before him in this regard rejected the defence holding in doing so as follows:-

I believe the 2nd plaintiff when he staled that it was in the course of the 1977 suit that the leasing of the property came to his knowledge……………….They (3rd & 4th defendants) have taken risks in the development of this family land only on the invitation of some members of that family who could not in law bind the others by that transaction.” (words in brackets mine).

On the submission to him by counsel for the defendants that the plaintiffs’ action must fail because the plaintiffs and other members of Agbejobi family were guilty of the same transgressions of which the plaintiffs are now accusing the 1st and 2nd defendants the learned trial Judge thought otherwise holding in this regard as follows:-

“The conduct of the 1st and 2nd defendants is reprehensible; it is a misbehaviour against the tenets of the customary laws on family properly and such infringement whenever brought to the notice of the court must be discouraged. The fact that others had committed or are committing similar act of misbehaviour would not exonerate any member of the family whose conduct is being challenged in court. To hold otherwise is to encourage unnecessary breach of the norms and customs of family land tenure which have been accepted, known and practiced over the years.”

In the end the learned trial Judge entered judgment for the plaintiffs against the defendants as follows:-

“For the foregoing reasons, the plaintiffs action succeeds, the alienation or leasehold agreement in respect of the property situate, lying and known as SW8/122 Annexe Lagos Bye Pass, Oke Ado Market, Ibadan entered into on or about May, 1972 between the 1st and 2nd defendants on one side and the 3rd and 4th defendants on the other is hereby declared null and void. The said property is declared the family property of Agbejobi and the proceeds thereon forthwith become the joint property of all the members of that family.”

The defendants being dissatisfied with the judgment of the trial court appealed against it to the Court of Appeal, Ibadan Division. That court allowed the appeal. The reasons for doing so are contained in the lead judgment of Ogundare, J.C.A. in which the other Justices of the Court of Appeal Omololu Thomas and Sulu Gambari, JJ.C.A. concurred. Pertinent to the issues arising for determination in this appeal are the following issues which were considered and determined by Ogundare, J.C.A. in his lead judgment. First, the learned Justice of the Court of Appeal posed to himself the following question:-

“The first issue that calls for determination is as to whether on the pleadings and evidence the plaintiffs could be said to have proved their case.”‘

Then having referred to the relevant passages of the pleadings in this case and the evidence in the case and particularly the following evidence of the 2nd plaintiff namely:-

“I know the family land upon which some shops wherein they sell motor vehicles are built at Oke-Ado, Ibadan; It is on family land. Oladejo Alani, the 1st defendant is the owner of the said shops built on the family land. The subject-matter of this action is in respect of the six shops built on the family land. The shops which I said Oladejo Ajani owns are part of these shops, some of which he had leased out. No member of the family can lease family land. I came to know that it was the 1st defendant who owned the shops during the trial of the other suit in which we were sued together.” ……………………. “I don’t know whether the 1st defendant leased the shops on

(or) the family land upon which the shops were built. The 1st defendant did not obtain the consent of the family when he wanted to submit (sublet) the shops on the family land hence we were in this court.”

the learned Justice of Appeal held as follows:-

“It cannot be said that this evidence supports the case put up by the plaintiffs in their pleadings. Their complaint is to the effect that family land was leased by the 1st and 2nd defendants without the consent of the family. But the evidence is to the effect that what was leased was the building (consisting shops) on the family land. The right of the 1st and 2nd defendants to build on the land in dispute cannot be disputed. Since their father had occupational right to the land they also inherited this right from their father, although ownership in the land remained with the family. The strong presumption is that the land had previously been allotted to Bello, the 1st and 2nd defendants’ father. Nor is the (sic) contended that in building the shops on the land in dispute, the defendants used materials belonging to the family. It was specifically found in Suit No. 1/43/77 (Exh.A) that the house previously on the land in dispute belonged to Bello, the father of the 1st and 2nd defendants. The plaintiffs being bound by that judgment are estopped from setting up in this appeal that the bounds was family house.”

The learned Justice of Appeal went on to say that it was not the plaintiffs’ case that the building as distinct from the land was family land. The learned Justice of Appeal then took the evidence of the 2nd plaintiff to which I have referred above in conjunction with Exh. E in this case evidencing the transaction between the 1stand 2nd defendants on the one hand and the 3rd and 4th defendants on the other hand wherein the former were referred to as the owners of the proposed building contemplated. He then reached this conclusion:-

“It is crystal clear that it was not family land that was alienated but the building on it if the transaction could be called an alienation at all.”

Having so held the learned Justice of Appeal found that the plaintiffs’ claim which was based on alienation of family land must fail. As regards the building which was erected by the 1st and 2nd defendants on the land in dispute the learned Justice of Appeal held as follows:-

“As the building was erected on the ruins of the house of the father of the 1st and 2nd defendants and without any assistance either by way of money or materials coming from the Agbejobi family, the building cannot by any stretch of imagination be held to be Agbejobi property. The building belongs to the 1st and 2nd defendants and the 2nd plaintiff admitted as much in his evidence. And as to whether the 1st and 2nd defendants could validly make the arrangements made by them in Exh. E with the 3rd and 4th defendants the learned trial Justice of Appeal held as follows:- “The learned trial Judge said:

“From the foregoing facts and following the decided authorities, the 1st and 2nd defendants, being members of the Agbejobi family, cannot on their own, without the consent of the family lease the family property to the 3rd and 4th defendants as they purported to have done in Exhibit ‘E’ in 1972.” (Italics is mine).

With the greatest respect to the learned trial Judge, this conclusion suffers from a misconception of the facts in this case. The decided cases reviewed by him dealt with cases where the buildings or houses concerned were held to be family property either because they were built on ruins of family houses or were built with family money or materials or were built by pulling down a family house to make room for the new house. The cases Miller Bros. v. Ayeni, 5 N.L.R. 42; Buraimoh v Bamgbose, 15 N.L.R. 139 and Shelle v. Chief Asajon (1957) 2 F.S.C. 65; (1957) S.C.N.L.R. 286 are not on all fours with the facts in the present case in that what was alienated was either family land (BURAIMOH) or family house (MILLER BROS & SHELLE).”

So as I have already said the defendants’ appeal in the Court of Appeal, Ibadan Division, succeeded. The judgment of the trial Court was set aside and in its place an order dismissing the plaintiffs’ claim was entered.

The plaintiffs being dissatisfied with the decision of the Court of Appeal have, in turn, appealed against it to this Court. Before us briefs of Arguments were filed on both sides. The plaintiffs in their briefs of arguments identified the issues arising for determination in this appeal as follows:-

(i) Whether under Yoruba Customary law a member of a family who built on a portion of family land can alienate the building without the consent of the family.

(ii) Whether the failure of family to challenge a wrongful act by a member of the family can translate the wrongful act into a custom.

(iii) Whether it is open to the Court of Appeal to make findings unsupported by evidence.”

According to the defendants the issues arising for determination in this appeal are as follows:-

“1. Whether the house which the 1st and 2nd defendants demolished and the shops subsequently built thereon were family properties.

2. Whether the 1st and 2nd defendants can lease the buildings to 3rd and 4th defendants without the consent of the family.
3. Whether from the pleadings and Evidence, it could be said that the plaintiffs have proved their ease.”

I would take Issue 1 identified by the defendants first, i.e. whether the house which the 1st and 2nd defendants demolished and the shops subsequently built on the site upon which the house stood were family properties. It is implicit in this issue that the defendants are treating the buildings on the family land as something separate and distinct from the land itself and it is apparent from the passages from the lead judgment of Ogundare, J.C.A. in the Court of Appeal that this also was the view of the Court of Appeal. So the defendants are in their submissions on this issue I am about to consider only echoing the views of the Court of Appeal. Both the trial court and the court below were at one that the land upon which the shops in question in this case stand belong to Agbejobi family and that the 1st and 2nd defendants cannot alienate the land without the consent and concurrence of the family. However the Court of Appeal was of the opinion that since it was said that the 1st and 2nd defendants were the owners of the shops, the shops as opposed to the land upon which they stood could be let out by the 1st and 2nd defendants without the knowledge and consent of Agbejobi family. And in the latter case, according to the lower court, it cannot be said that the defendants had alienated Agbejobi family land. In order to find out whether the views of the Court of Appeal are correct or not, one must remind oneself that the defendants initially acquired certain rights in Agbejobi family land upon which the shops stood. It was pursuant to these rights that the 1st and 2nd defendants could erect or caused to be erected on the land the shops whose owners the defendants are now called. It is common ground in this case that Agbejobi family land has not been partitioned. In the circumstance the 1st and 2nd defendants would have only an allotment of the land in question. In such a situation the defendants acquire a right to occupy the land which is transmissible to their successors. See Tongi v. Kali 14 W.A.C.A. 331. The ownership of the land however still resides in Agbejobi family. So in effect, the defendants have only the usufruct of the land.

It is on the strength of this interest or right that the 1st and 2nd defendants erected or caused to be erected for themselves the shops on the land in question.

The shops were not erected by them for the family but for themselves. In so far as they themselves would occupy the shops for any purpose of their own the erection of the shops on the land is consistent with their interest in the land which I have stated above. And in so far as the shops were erected by the defendants for themselves and not for the family on the land, as I have just shown, the reference in oral and documentary evidence to the defendants as owners of the shops is also consistent with the interest of the defendants in the land, bearing it in mind that the word “owner” is used in a loose, and not a strict, sense in relation to land held under customary tenure. What stands out in bold relief in this case is that the land upon which the shops stand remain Agbejobi family land or property throughout, in the abnscnce of partition of Agbejobi family land. It is the interest of the defendants in the land which makes them owners in a limited sense of the shops on it, to the exclusion of other members of Agbejobi family in so far as the right to occupy the shops is concerned. Whether the defendants can transfer their undoubted right to occupy the shops or the land even for a limited term to those who are not their successors but strangers to Agbejobi family boils down in the final analysis to the consideration of the incidents of the native law and custom as regards their interest in the land upon which the shops stand. Their interest in the land is the mainstay of the interest of the defendants in the shops. The ownership in a loose sense of the 1st and 2nd defendants in the shops in question derive from their interest in the land upon which the shops stand. So in my judgment, the said ownership of the shops by the defendants is inseparable or inextricable from their interest in the land upon which they stand. So in the consideration of the nature of the ownership of the 1st and 2nd defendants in the shops cognizance must in my view be necessarily taken of the nature of their interest in the land upon which the shops stand. All what have been saying above illustrates the point made in Kuma v. Kuma 5 W.A.C.A. 4 at 8 and Akana v. Ajuwan (1967) N.M.L.R. 7 at pages 9 – 10 about the loose use of the word “owner” in relation to the Chief or head of a family or community or village vis-a-vis land held by him under Customary tenure. In Ajuwon v. Akano (supra) this court refused to ascribe a strict meaning to the word “owner” used in the evidence and even in the pleading in the case in the con of land held under customary tenure. The decision in the case turned on an overall view of the whole evidence and the native law and custom applicable to it and not on the use of the word “owner” as regards the interest of the head of the family in the land in dispute.

Because of what I have just said above I am of the clear view that the Court of Appeal was in error to have treated the ownership of the shops on the land in question by the 1st and 2nd defendants in such a way as to give the erroneous impression that the defendants’ ownership of the shops was separate from and independent of their interest on the land on which they stand. Having said that much about the main reason given by the lower court for setting aside the decision of the trial court, I can now proceed with the consideration of the other cases upon which counsel for the plaintiffs placed reliance in his submissions to us that the judgment of the trial court should be restored and counsel for the defendant relied for his submission that the judgment of the Court of Appeal should be affirmed. Having expressed the view that in the case in hand it is not possible to treat the building on the land in dispute in isolation of the land itself, I can now take Issue (i) identified by the plaintiffs which is whether a member of a family who built on a portion of family land can alienate the building without the consent of the family. This issue appears to me to be the same thing as Issue 2 identified by the defendants which is whether the 1st and 2nd defendants can lease the buildings to the 3rd & 4th defendants without the consent of the family.

It is submitted for the plaintiffs that the 1st and 2nd defendants could not do this. On the other hand the contention for the defendants is that the 1st and 2nd defendants could do it. Both sides in respect of these competing contentions relied in part on the case of Santeng per Ohemeng v. Darkwa & Anor. (1940) 6 W.A.C.A. 52. In fact the decision in that case is in the forefront of the submission of counsel for the defendants that the 1st and 2nd defendants, seeing that the building in question was erected by their own unaided resources, could lease it to the 3rd and 4th defendants without the knowledge or consent of Agbejobi family. Counsel for the defendants was also quick to remind us that there was uncontradicted oral and documentary evidence in this case that the 1st and 2nd defendants were owners of the building. I need only to refer to the following passage from the judgment in Santeng per Ohemeng v. Darkwa & Anor’s case in order to show that in my view it supports the contention for the defendants and not that for the plaintiffs:-

“It was admitted by the plaintiff/respondent that four of the farms the subject of this action were self-acquired by the said Kwaku Adae. The learned acting Judge gave defendants/appellants judgment for such farms, and also for one of the two houses, namely, the one described as “an upstairs house.” He found with reference to the other fourteen farms that there was no sufficient evidence to show that they were self-acquired and to rebut the presumption that they were family property. I agree with him. It is amazing how little evidence was adduced to show how and when such farms were acquired by the said Kwaku Adae, if indeed, they were so acquired. I am therefore of opinion that the appeal fails in respect of these fourteen farms.

The question of the remaining house, namely the one described as “a store” is more difficult. The learned trial Judge gave plaintiff-respondent a declaration that he was entitled to this house, the ratio decidendi being “the house described as a store seems to have been built on the site of the ruins of a family house, and is therefore family property.”

I cannot agree with this reasoning- No custom was proved that when a house is built on the site of the ruins of a family house it becomes family property, and I know of no such custom. The general rule is that which the learned trial Judge applied in the case of the other house, namely that if a house is built by the unaided efforts of the deceased and without using any family building materials, it is regarded as his self-acquired property and will pass under his will. In the case of the store, if it had been proved that a single brick from the ruins of the former family house had been used by the deceased in building the store, the store would be family property; but this was not proved. There was nothing before the court to show the material of which the original house was built; if it was only a mud house it is unlikely that there would be anything left of it. I can find no authority for the proposition that the mere using of the site brands the house with the stamp of family property; although, of course, the site on which the house is built remains family land.

I am of opinion therefore that the appeal should be allowed in respect of the house used as a store, and that the declaration given to the plaintiff/respondent in the court below should be cancelled on the ground that this house was the self-acquired property of the deceased and passed to the defendants/appellants under his Will.”

However I consider the decision in the case of doubtful validity at least. In Fixon Owoo etc. v. Robert William Owoo & Ors. Xl W.A.C.A. (81) the decisions was critised as it is evident from the following passage in the judgment in that case at page 85:-

“In Santeng v. Darkwa one issue considered by this court was the competence of a member of a family who had built on family land to dispose of the building by his will. Thefollowing is a quotation from the judgment of Strother Sewart, J., in which the other members of the court concurred:)-

The question of the remaining house, namely the one described as a store, is more difficult. The learned trial Judge gave plaintiff/respondent a declaration that he was entitled to the house, the ratio decidendi being the house described as a store seems to have been built on the site of the ruins of a family house, and is therefore family property. I cannot agree with this reasoning. No custom was proved that when a house is built on the site of ruins of a family house it becomes family property, and I know of no such custom. I can find no authority for the proposition that the mere using of the site brands the house with the stamp of family property; although, of course, the site on which the house is built remains family land.”

It may be pointed out with all due respect that no authority was cited by the court for this pronouncement as to Akan customary law (which is generally similar to Fanti customary law), whereas the decision of the court below in that case had the support of Sarbah’s considerable authority on such matters, which unfortunately does not appear to have been brought to the notice of the court below or of the Appeal Court.”

The learned trial Judge in Owoo v. Owoo said that the decision in Sanreng v. Darkwa was binding on him and ought to have applied it but he did not. And as was pointed out by the West African Court of Appeal in the appeal in the case he sought to distinguish the case before him from Santeng v. Darkwa on the ground that whereas in the latter the store was built on the ruins of the family house in the case before him family rooms actually occupied were given up for a building to be erected over the grave of the founder of the family. It appears to me that the distinction the learned trial Judge sought to draw was a distinction without a difference for in both cases the building in question was built with the unaided efforts of the persons concerned. The decision of the learned trial Judge in Owoo v. Owoo which was affirmed by the Court of Appeal was that the building in the case before him which was however erected with the testator’s own money to the knowledge of members of his family that he was erecting it for his own use would upon the testator’s death become family property, the land upon which the house tood being family property throughout. The decision in Santeng v. Darkwa was to the contrary as I have shown above. It is noteworthy that the decision in Owoo v. Owoo was one of the authorities this court in Santeng v. Asajon (1957) 2F.S.C. 65; [1957] SCNLR 288 relied upon in that case. I will permit myself to be guided by the decision in Shelle v. Asajon. So for the above reasons I do not think I will follow the decision in Santeng v. Darkwa in this case. I can now go on to consider the other cases upon which counsel placed reliance for their competing contentions before us. As regards the contentions for both sides on the issue r am considering I need only to refer to the decision in Shelle v. Asajon (1957) 2 F.S.C. 65; (1957) S.C.N.L.R. 286. As regards the contention for the defendants I will also have to consider the following decisions too namely, Salaka vs. Oshunlami (1961) W.N.L.R. 189 at p.192 and Jashua Fadare VS. Akinala Omale (1975) N.M.L.R. 210 at p.214.

The following passage from the decision of this court in Shelle v. Asajon (supra) leaves me in no doubt that under Yoruba Customary Law a member of a family who built on a portion of family land could not alienate the building thereon without the consent of the family:-

“It is a well settled principles of native law and custom that family property belongs to the family as a whole and that all individual members of the family are entitled to enjoy the property. It is also a settled rule of native law and custom that the Head of the family is the person entitled to look after and manage family properties. Although pieces of land may be allotted to members of the family, the allottees have only the right to occupy and use the lands which they cannot alienate or part with without the consent of the family. In this connection I would only refer to a few of the decided cases in the former Supreme Court of Nigeria which are still good law. See Miller Bros. (of Liverpool) Ltd. v. Abudu Ayeni (1), Lawani Buraimo v. Taiwo Bamgbose, (2), and Adamo Akeju. Chief Obanikoro v. Chief Suenu and 2 others, (3). See also Exhibit “E” in this case which relates to Supreme Court Suit No. 250/1936, in which Momodu Kosoko, a member of the Kosoko Chieftaincy family, got the court to declare the land and buildings at 9A and 11 Ereko Street. Lagos, the properties of the family and that the defendants, John Dungba (alias John Kosoko) and another, members of the family, could not lease or alienate the properties without the consent of the family. The occupation of family land does not pass ownership of the land to the occupier. When one is allowed to live in a family house, he has only personal occupational right which can never ripen into ownership In a Gold Coast case in which a man built a house on family land and devised the house in his Will. Fixon Owoo v. Robert Williams Owoo and others, (5), it was held that he had only a life interest in the house which upon his death became family property.”

With what I have just said my answer to issue (2) in the issues submitted for determination by the defendants is that the 1st and 2nd defendants cannot lease the buildings in dispute to the 3rd and 4th respondents without the consent of the family.

This takes me now to issue (ii) raised in the plaintiffs Brief of Argument i.e. whether the failure of the family to challenge a wrongful act by a member of the family can translate the wrongful act into a custom. The decision in Shelle v. Asajon gives me a ready answer to this issue and the answer is contained in the following passage from the judgment in the case at p.68:-

“There is no doubt that the appellant has for some years been letting out the house in dispute and putting the rents collected in her own pocket. It is also clear from the evidence that she is not alone in this as there are at least 15 others against whom the respondent has taken action similar to this which is regarded as a test case. It is not disputed that the last Chief before the present one had not helped to preserve the customary law regarding the properties of the Iga as he himself had also let portions of the Iga out. It cannot be disputed that this is a flagrant breach of native law and custom and a fraud on the other members of the family who are entitled to live in the houses let out.”

So in my judgment a clear answer to the point raised in that issue is that the failure of the family to challenge a wrongful act of the type we are now can side ring in this case will not turn that wrongful act into a valid custom. This however, is not to say that in every case where a member of the family alienated without the knowledge and consent of the family a building he erected on a family land allotted to him the family can recover possession of the property from the person to whom it was granted. The family would always be entitled to ask the member of the family who alienated the property to render accounts of all rents collected from the properly and pay over to it what is due. Whether the family would be entitled to recover possession of the property from the person to whom it was granted would depend on the consideration of the following point which was made in Manko & Ors. v. Bonso & Ors. 3 W.A.C.A. 62 at 63:-

“In the case of Quassie Bayaidie v. Kwamina Mensah (F.C.L. 150) the full Court had to consider what was the effect of a sale of family land by occupant of a stool. That court in the course of its judgment stated:-

“Now although it may be, and we believe it is, the law that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale of family land) the sale is not in itself void) but is capable of being opened up at the instance of the family, provided they avail themselves of their right timorously and under circumstances in which, upon the rescinding of the bargain, the purchaser can be fully restored to the position in which he stood before sale.” ”

The decision in Manko v. Bonso was followed by this court in Mogaji v. Nuga (1960) 5 F.S.C. 107 at 109.

The obvious answer to Issue (iii) raised in the plaintiffs’ Brief of Argument is that no court is permitted to make findings unsupported by the evidence before it. But the point I have just made going by what I have hitherto said has no application in the ease in hand.

It is evident from what I have been saying in this judgment that the evidence for the plaintiffs supported their pleading and there was no departure in the evidence from the pleading. It is also clear from what I have been saying that on their pleading and on the evidence in support of it, the plaintiffs have proved their case against the defendants and that the learned trial judge was right in entering judgment as he did for the plaintiffs.

I will now say a word or two on the cases of Salaka v. Oshunlami & Ors. (supra) and Fadare v. Omale upon which counsel for the defendants relied.

The latter case has to do with sale by public auction of a house built on family land. The sale was carried out following an order of court in execution of a judgment debt. The family sued the purchaser of the building for declaration of title to the land on which the house stood. The action failed because as was held in earlier cases, all that the purchaser bought was the right title and interest of the Judgment debtor and whatever rights the rest of the family had remained unaffected and that it would be different if the certificate of purchase purported to convey the interest of the whole family. It was pointed out that the question of what interest the purchaser actually obtained would no doubt have to be gone into if and when he attempted to obtain possession.

In the former case Salaka v. Oshunlami Quashie-Idun, C. J. held inter alia as follows in a case in which both parties were members of the same family, applying Tongi v. Kalil (supra):-

“The only ground argued on behalf of the appellants was that the trial Customary Court was wrong in holding that the principle that whoever owns land also owns every thing on the land is not of judicial application in Native Customary Law………

The view held by the Customary Court was the view properly expressed in the judgment of Hedges, J… to which I have referred in this judgment. The judgment relied upon by the defendants/appellants only conferred title on them in respect or the land as family property and could not have deprived the respondents of any rights vested in them in respect of the house.

Having been in possession for a long period with the consent of the Head of the family of which both plaintiffs and defendants are members, the plaintiffs are entitled to institute proceedings to maintain their right to occupy and possess the house.”

These two cases, in my view, hardly help the contention for the defendants in this appeal.

The conclusion I reach therefore is that the Court of Appeal was wrong in holding that the cases of Miller Bros. v. Ayeni 5 N.LR. 42; Buraimah v. Gbamgbose, 15 N.LR. 139 and Shelle v. Chief Asajon (1957) 2 F.S.C. 65; (1957) S.C.N.LR. 286, are not on all fours with the facts in the present case and that, in my view, the trial Court was right in relying on these cases in giving judgment for the plaintiffs against the defendants. In the result the plaintiffs/appellants’ appeal is allowed by me. The judgment of the Court of Appeal is hereby set aside by me. In its place I restore the judgment of the trial High Court entering judgment for the plaintiffs as follows:-

“the plaintiffs’ action succeeds, the alienation or leasehold agreement in respect of the property situate, lying and known as SW8/122 Annexe Lagos Bye Pass Oke Ado Market, Ibadan entered into on or about May, 1972 between the 1st and 2nd defendants on one side and the 3rd and 4th defendants on the other is hereby declared null and void. The said property is declared the family property of Agbejobi and the proceeds thereon forthwith become the joint property of all the members of that family.” with costs as assessed by the learned trial Judge.

The plaintiffs are entitled to their costs in the Court of Appeal and in this court which I hereby assess at N350.00 and N500.00 respectively against the defendants.

ESO, J.S.C. I have had the privilege of a preview in draft of the judgment of my learned brother, Agbaje, J.S.C. and I agree that the appeal must succeed and it is hereby allowed.

I also will set aside the judgment of the Court of Appeal and restore the judgment of the trial Court.

I abide by all the orders made in the judgment of my learned brother, Agbaje, J.S.C. including his order as to costs.

UWAIS, J.S.C. I have read in draft the judgment read by my learned brother, Agbaje, J.S.C. I agree with the reasoning and conclusion therein.

I am satisfied that the decision in Ashimowu Shelle v. Chief Asojon, Oloja of Ereko, 2F.S.C. 65; (1957) S.C.N.L.R. 286 is applicable to the present case. It is very clear from the facts of Ashimowu Shelle’s case that the occupation of a family land by a member of the family does not pass ownership of the land to the occupier. Although pieces of family land may be allotted to members of the family, as in the case of the deceased father of the respondents herein, the allottees have only the right to occupy and use the lands. Similarly the children of the allottees can, after the death of the allottees, continue to enjoy the occupation of the land and even improve on the developments on the land. But such improvements give no further right to the children of the allottees, because the pieces of land continue to be family land under Yoruba native law and custom. Consequently, the developments notwithstanding, the children of the allottees cannot lease or alienate the properties without the consent of the family.

Accordingly, the agreement reached by the respondents in exhibit E for the 3rd and 4th respondents to finance the building on the land in dispute of a storey building and after the construction to occupy the storey building as tenants for 40 years is voidable, since the consent of the head of Agbejobi family was not obtained. The fact that the Agbejobi family asks for a declaration that the agreement be void indicates that the family had no intention of ratifying the agreement at the time of instituting the suit. In the result, I agree that the High Court was right in granting the declaration sought and ordering an account to be rendered to the appellants in respect of proceeds realised from the wrongful lease of the land in dispute.

For the foregoing reasons and those contained in the judgment read by my learned brother Agbaje, J.S.C. I allow the appeal and set-aside the decision of the Court of Appeal. The decision of the High Court is hereby restored with costs in favour of the appellants as assessed in the said judgment.

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SC.25/1987