3PLR – CHRISTIANA UGU V. ANDREW EBINNI TABI
MADAM CHRISTIANA UGU V. ANDREW EBINNI TABI IN THE
HIGH COURT
10TH SEPTEMBER, 1969
SUIT NO. 1/98/67
3PLR/1969/64 (HC)
AYOOLA, J.
REPRESENTATION
Solanke (Mrs) – for the Plaintiffs
Oloko – for the Defendants
Native Law and Custom-Family Land-Partition-Mere use and occupation of family land by a section of the family-Whether conclusive evidence of partition-Onus of proving partition on party alleging it-Whether onus discharged.
AYOOLA, J.:
By their writ, the plaintiffs claim as follows:
“(a) An order of the Court setting aside an unauthorised deed of Conveyance dated the 27th day of October, 1963 registered as No. 29 at page 29 in Volume 705 of the Lands Registry kept at Ibadan made between the 1st to the 8th defendants of the one part and the 9th and 10th defendants of the other part, which conveyance was made without the knowledge, consent, or authority of the Mogaji of the Tubosun family and the other principal members of the plaintiffs’ family.
(b) An injunction restraining the defendants, their servants and/or agents from entering the land described in the said conveyance or in any way dealing with or interfering with the same without the permission of the plaintiffs.
(c) The sum of six hundred pounds (£600) from the 9th and 10th defendants jointly and severally as damages for trespass committed by them upon the land, which acts of trespass are continuing.”
Pleadings were ordered and duly filed. The Conveyance which is the subject-matter of the action was admitted in evidence and marked Exhibit ‘A’. The land in dispute is verged red on the survey plan which is attached to Exhibit ‘A’.
From a perusal of the pleadings and the evidence before me, certain facts are not in dispute between the parties. The facts which are not in dispute are the following:
(i) That the land in dispute originally belonged to Chief Tubosun, (now deceased).
(ii) That the plaintiffs as well as the 1st to the 8th defendants are all descendants of Chief Tubosun.
(iii) That Chief Tubosun died leaving ten children, who inherited the land in dispute.
(iv) That the plaintiffs and defendants numbers I to 8 are descendants of the children of Chief Tubosun.
(v) That some other land which the children of Chief Tubosun inherited on his death are at Anlugua, Elere and Ojo.
(vi) That the land now in dispute is the one at Onigege.
(vii) That the 1st plaintiff is the present Mogaji of the Tubosun family and was so at the time Exhibit ‘A’ was made.
(viii) That the 1st to 8th defendants belonged to Lajoyetan and Oyeku sections of the Tubosun family.
(ix) That the 1st to 8th defendants sold the land in dispute to the 9th and 10th defendants and made Exhibit ‘A’ conveying the land in dispute with 9th and 10th defendants.
(x) That Exhibit ‘A’ was made without the consent of the Mogaji of
Tubosun family (1st Plaintiff).
(xi) That the 1st to 8th defendants purported to sell the land as the exclusive property of the Lajoyetan and Oyeku section, and not as Tubosun Family land.
The main bone of contention in this case is whether the land in dispute was at the time the 1st to 8th defendants sold it to the 9th and 10th defendants TUBOSUN FAMILY LAND or not. if at the time of the sale, it was Tubosun family land, since Exhibit ‘A’ was made admittedly without the consent of the Mogaji of Tubosun Family (See the evidence of Ezekiel Oyelade the 1st defence Witness), then Exhibit ‘A’ would be VOID) (See Abgloe I/ & ors v. Sappor & anor 12 W A.C.A. 18, also, Ekpendu v. Erika 4 F.S.C. 79). If on the other hand, the land in dispute was at the time of the sale, not Tubosun family land, but land exclusively belonging to the Lajoyetan and Oyeku section of the Tubosun Family, then Exhibit ‘A’ would, so far as the plaintiffs’ claims are formulated, be quite valid; for in such circumstance, Exhibit ‘A’ would not be invalidated by the failure of the 1st to 8th defendants to have obtained the consent of the Mogaji of Tubosun Family and other members of the other sections of Tubosum Family.
If Exhibit ‘A’ is valid, no other point would fall for decision. If on the other hand Exhibit ‘A’ is void, the question of the relief to be granted would arise.
The plaintiffs contend that the land in dispute became Tubosun Family land on the death of Chief Tubosun and that so it remains until today and that consequently Exhibit ‘A’ is invalid. Per contra, the defendant’s numbers 1 to 8, whilst admitting that the land in dispute was originally Tubosun family land on the death of the original owner, Chief Tubosun, contend that there was a partition of Chief Tubosun’s landed properties in the following manner:
(i) The farmland at Ojo to seven sections of the family. (ii) The farmland at Oke-Elere to Ajayi (another section).
(iii) The land in dispute to Lajoyetan and Oyeku sections (i.e. the section of the 1st to 8th defendants).
(iv) The farmland at Anlugua, reserved for the enjoyment of every successive Nogaji of Tubosun Family.
In that state of the issues, since it is common ground that the land in dispute was originally Tubosun Family land, the onus is on the 1st to 8th defendants to show that it had since become the exclusive property of their own Section, to the exclusion of the other sections of Tubosun Family. (See Eze v. lgiliegbe & 5 others 14 W.A.C.A. 61 and also Samuel Adenle v. Oyegbade (1967) N.M.L.R. 136.
The central question in this case is therefore whether the 1 st to 8th defendants have discharged that onus, i.e. whether I am satisfied on the evidence that a partition, which the 1st to 8th defendants set out to prove, has been proved.
In approaching the evidence for the purpose of answering this central question, some guiding principles must be put in mind. Briefly put they are
(1) The occupation of family land by a member of the family does not pass ownership of the land to the occupier.
(2) It is a well settled principle of native law and custom that family property belongs to the family as a whole and all individual members of the family are entitled to enjoy the property.
(3) Family property does not cease to be so because a member of the family has improved it.” (Shelle v. Asajon 2 F.S.C. 65). See also Samuel Adenle v. Oyegbade (1967) N.M.L.R. 136.
For the plaintiffs, six witnesses testified. A number of documentary exhibits were put in also. For the Defence, seven witnesses testified.
Chief Tubosun, the 1st Plaintiff, testifying for the Plaintiffs gave an account of the manner the land in dispute became Tubosun family land. He denied that there was any partition of Tubosun family lands. He said that the conveyance Exhibit ‘A’, which was registered as No. 29 at page 29 in Volume 705 of the lands Registry at Ibadan, was made without his knowledge and consent. When he visited the land in dispute some two years to the date he gave his evidence, he said, he noticed some pillars, a piggery and some cages. He then instructed a Solicitor to write to the 9th and 10th defendants on his behalf. The Solicitor was Mr. Sarumi. He said that the original Tubosun died over 100 years ago. He, the witness, became the Mogadi of the Tubosun family in April, 1953. He mentioned the name of Akinrin Oke as one of the persons having crops on the land in dispute. He said he received palm oil and yams and firewood from some people who farmed on the land in dispute. He was however unable to mention particular names of such people. He said that he did not know of the existence of the piggery until 1964. The 2nd P.W. Bashorun Ogunmola who claimed to own land adjoining the land in dispute testified that the land in dispute belonged to Tubosun family and that when he saw some pillars wrongly buried on a portion of Atanda Kongi’s (his junior brother’s) land which is part of his own family land, he lodged a complaint to the Mogaji of ’17Jbosun family, i.e., the 1st P .W. to warn his people to remove the pillars, and that the pillars were accordingly removed. The 3rd R W. Emanuel Oke (4th Plaintiff) also gave evidence. He claimed that he had a cocoa and kola farm on the land in dispute and denied that there was ever any partition of Tubosun’s family land. He claimed that he visited the farm and worked there for the past six years except this year. He said he saw the piggery only last year on the land in dispute.
The 4th PW, Salami Agunbiade testified that he collected palm nuts for the Mogadi Oke (the predecessor of the 1st PW.) and also for the 1st P.W. himself. He made the collections from the land in dispute. The 5th P.W. Joseph Akobo, who claims to own land adjoining the land in dispute testified that he saw cocoa, palm trees and kola. The 6th P.W. Samuel Iyanbule another boundaryman testified that the land in dispute belonged to the Tubosun family. A Conveyance Exhibit ‘B’ made in favour of Mrs. Bolarinwa, and another Conveyance Exhibit ‘E’ made in favour of Mr. Latinwo were put in. They related to land other than the one in dispute. They were in respect of land situate, the parties admit, at Anlugua. A letter from Mr. Sarumi dated April 1, 1967 and written to the 9th Defendant was put in evidence as Exhibit ‘C’. The reply to Exhibit ‘C’ was put in evidence as Exhibit ‘D’. The plaintiff’s case then closed.
The 1st D.W. was Ezekiel Oyelade the 4th defendant. He also gave details of the children of Chief Tubosun. He gave evidence of partition, which he said took place many years ago he said that he planted cocoa, kola, coffee and oranges on the land in dispute. He said that no other Section besides that of Lajoyetan/Oyeku had any farms within the land in dispute. About six years ago, he received a message from the 1st Plaintiff, Mogaji of Tubosun family. He and others went to him. There the 1st Plaintiff told them of the complaint of Kongi Atanda. 1st Plaintiff advised them to remove the pillars about which Kongi complained. Sometime later 1st Plaintiff requested him for a loan, asking whether the witness’s section of the family had not recently sold land. Eventually he lent the 1st plaintiff £20. He said he took the £20 from the proceeds of the sale of the land in dispute. He denied that Samuel Agunbiade collected any palm fruits from the land in dispute. With respect to the partition issues, he testified that the partition was carried out by the children of Tubosun themselves. Tubosun died about 101 years ago. The story of the partition was handed down as traditional story to the father of the witness, who handed it down in turn to the witness. He admitted that the 1st Plaintiff was not informed when the land in dispute was sold to the 9th and 10th Defendants. This he said was not necessary as the land in dispute was not Tubosun family land after the partition, but rather Lajoyetan/Oyeku’s land.
The 2nd D.W. was Babajide Oni, the 9th defendant. He testified that he bought the land in dispute in 1962 and got conveyed to himself and his wife (the 10th Defendant) in October, 1963 as shown in Exhibit ‘A’. In 1963 he planted trees on the boundaries and planted tomatoes and vegetables on about two acres of it. In 1964 he planted pineapple on four acres of it. He also planted sugar cane and built huts, which he said were visible from the road which passed by the land. He said he maintained a piggery on the land and had ten to fourteen tenants on it. Under cross-examination he said that he never heard of Tubosun. He did not instruct his Solicitor, but expected him to check on the vendor’s title before the purchase. He himself made enquiries from the inhabitants of a but nearby who satisfied him about the goodness of the title.
The 3rd D.W. Eman Oyelade also gave evidence of the alleged partition. He referred to the occasion when he, with others went to the 1st Plaintiff when Kongi complained, about pillars which were buried on Kongi’s land. He said that on that occasion, he told the 1st Plaintiff (the Mogaji) that they the descendants of Lajoyetan/Oyeku had sold their land at Onigege. He denied that Akinrin Oke and Laupo Abniawe had any farms on the land in dispute.
The 4th D.W. Tolase Latinwo of Laoye Section also gave evidence of alleged partition. He said that no other person from another section had ever farmed on their own Section.
The 5th D.W. Emanuel Adigun testified that his father farmed on the land in dispute, having obtained permission from Lajoyetan. Yams were given to Lajoyetan as tribute. After his father’s death, he succeeded him. He paid 2s.6d. to 5s. As tribute to Lajoyetan/Oyeku Section. The 6th D.W. Moses Laditi testified that Tolase Latinwo (the 4th D.W) placed him in charge of his farm and that he paid him one tin of palm oil as tribute. He paid 2s.6d. Also this year as tribute. The farm is at Ojo not at Onigege. Under cross-examination, he said that he knew other members of Tubosun family who had farms at Ojo other than the 4th D.W. He also admitted that he was the husband of the 8th Defendant. He mentioned Wale, Abioye, Agboola and Ladeji as other members of Tubosun family who farmed at Ojo. The 7th D.W. Samuel Ibikunle testified that he farmed at Onigege. He had been there for the past thirty years. He was given permission to be there by Lajoyetan and he paid tribute to Lajoyetan. The Defence then closed.
Having considered all the evidence in this case, I accept the evidence proffered by the defence as to the use and enjoyment of the land in dispute by the Lajoyetan/Oyeku section of the family but I do not accept that they did so exclusively. Whilst it may be true the Lajoyetan/Oyeku section farmed the land in dispute within the last 30 years more actively than any other section of the Tubosun family and whilst it may be true that they had at times per-mitted other person to farm the land in dispute in turn for gifts of farm products or money, none of these activities is inconsistent with the land remaining Tubosun family land. (See Kuma v. Kuma 5 W.A.C.A. 4 at 8). It would appear that the Lajoyetan/Oyeku section occupied the land in dispute: they could farm it themselves or place other persons thereon to farm it for them: but the land remained Tubosun family land, and the Lajoyetan/Oyeku section could not validly alienate it without the consent of the Tubosun family including its head. The evidence led in this case did not go further than to show that various members had pieces of land for their use and occupation. There is nothing convincing me to show that at anytime there was any intention to ripen the various uses, and occupation of land by the various sections of the family into separate and alienable interests or to confer exclusive ownership on respective sections. The fact that when Kongi complained of trespass, a report was made to the Mogaji of Tubosun family, the 1st P .W., as Head of the family showed that the hold of the Tubosun family acting through its head, the 1st PW., was still as firm in 1962 as before, notwithstanding the fact that the Lajoyetan/Oyeku section farmed it and occupied it more than any other section. I reject the story that there was any partition of Tubosun’s landed properties. I find as a fact that there was no partition. The defendants failed to satisfy me that there was any partition (See Adekunle Majekodunmi v. Amodu Tijani 11 N.L.R. 74). The fact that the Lajoyetan/Oyeku section might have placed persons on the land in dispute to farm it for them at one time or other in return for payment of farm products or money is not conclusive proof of a partition. It is consistent with mere use and occupation. It is pertinent to note that when land was to be sold at Anlugua, all sections of the Tubosun family joined in the sale (See Exhibits ‘B’ and ‘E’). The contention of the defence that all the members joined because the land at Anlugua was set aside for any successive Mogaji is not convincing. Exhibits ‘B’ and ‘E’ were executed in 1965. Exhibit ‘A’ was made in 1963. I hold that the land in dispute was at the time of the Execution of Exhibit ‘A’ Tubosun family land.
It follows in my judgment that since the 1st Plaintiff, the Mogaji did not join in the sale of the land in dispute to the 9th and 10th defendants, the sale is void. Exhibit ‘A’ the Conveyance is void, and I so declare it. Rather than set it aside, since it is a nullity, I would merely declare it void; since “Ex nihilo, nihil fit’.
Learned Counsel for the Defence in his address applied that I should permit an amendment of the Defence to enable him plead the equitable defences of laches, and acquiescence. I would have been disposed to grant the application if I had before me evidence sufficient to serve as the basis for those defences. There is no evidence before me from which I can find that the plaintiffs deliberately stood by and allowed the 9th and 10th defendants to act to their detriment or to alter their position. There is no satisfactory evidence that the purported sale was brought to the notice of the plaintiffs before the 9th and 10th defendants made any improvements on the land. I reject 3rd Defence witness’s testimony that he told the 1st plaintiff in 1962 about the sale. He is not a witness of truth. I accept the testimony of the 1st plaintiff that he was not aware of the developments on the land until shortly before he caused his Solicitor to write a letter to the 9th defendant. It was held in Finn v. Ayeni (1964) N.M.L.R. 130 at page 131 that a man’s legal rights should not be lightly set aside and it would be dangerous and wrong to allow persons who unlawfully build on another person’s land to be able to deprive the lawful owner of his land except on clear and cogent evidence of laches and/or acquiescence, sufficient to justify the Court so acting.” There is no evidence before me to show that the plaintiffs at any time encouraged the 9th and 10th defendants in their expenditure of money or in the other acts they performed on the land in dispute either directly or indirectly. Within a reasonable time after the plaintiffs knew of the purported sale, they objected.
Adopting the same approach as in Ekpendu v. Erika 4 F.S.C. 79, since Exhibit ‘A’ is void, it cannot afford any justification for the entry of the 9th & 10th defendants into the land in dispute. They are therefore liable in trespass. Since the 1st to the 8th defendants are members of the Tubosun family I cannot hold them liable in trespass since they have a right to go on the land in dispute, nor can I order an injunction in the term of the relief sought against them.
I also award against the 9th & 10th defendants the sum of £25 as damages for trespass.
Counsel for the plaintiffs said in his address that the plaintiffs might be prepared to permit the 9th & 10th defendants to remain on the land in dispute if they came to terms with the plaintiffs.
I would grant an injunction against the 9th and 10th defendants in terms of claim (b) on the plaintiffs’ writ, but the injunction is to be suspended for a period of six months from today to enable the 9th and 10th defendants to explore the possibility of coming to terms with the plaintiffs if they wish to retain the land in dispute.
The plaintiffs are entitled to their costs which I shall now proceed to assess.
Mrs. Solanke for the plaintiffs says that the out-of-pocket expenses amounted to £43.6s. Hearing took five days. Asks for 250 guineas costs.
Mr. Oloko leaves the issue of the costs to the Court.
Court: I award to the plaintiffs the sum of one hundred and twenty guineas as costs.
Judgment for the plaintiffs.
MADAM CHRISTIANA UGU V. ANDREW EBINNI TABI IN THE