KETIKU v. ONI & ORS (2020)

KETIKU v. ONI & ORS

(2020)LCN/14652(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, October 02, 2020

CA/AK/271/2013

RATIO

CLAIM: NATURE OF A COUNTER-CLAIM

A counter-claim is an independent action which is appendent to the main claim and the essence of it is for convenience and speed in the determination of a matter. A counter-claim like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court. See USMAN V. GARKE (2003) 14 NWLR (pt. 840) 261, MAOBISON INTER-LINK ASSO LTD V. U.T.C NIG. PLC (2013) LPELR 20335 (SC), KOLADE V. OGUNDOKUN (2017) 18 NWLR (PT 1596) 201, MUSA V. YUSUF (2006) NWLR (pt. 977) 454. PER ABDULLAHI, J.C.A.

CLAIM: EXPECTATION OF THE COURT WHERE COMMON QUESTIONS DETERMINATIVE OF A CLAIM AND COUNTER-CLAIM ARISE

LAND LAW: WHETHER A MEMBER OF A FAMILY CAN SUE TO SET ASIDE A SALE OF THE FAMILY LAND

A member of a family can sue to set aside a sale of the family land by the head of the family and some members of the family, if all the branches of the family have not been consulted. See ADEJUMO & ORS V AYANTEGBE (1989) LPELR 1000 (SC), SALAKO & ORS V DOSUNMU (1997) LPELR 2979 (SC).

A sale of family land must be with the consent of the larger family including the family head and ownership of the land must be established. See AIYEOLA V PEDRO (2014) LPELR 22915 (SC). PER ABDULLAHI, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE

Evaluation of evidence and ascription of probative value to the pieces of evidence lies primarily with the trial Court. The paramount duty in evaluation of evidence is that the totality of the evidence has to be taken into account. A review is an examination or narration of the material evidence adduced by the feuding parties, then the evidence will be evaluated. Once there is sufficient evidence on record from which the trial Court arrived at its findings of fact, the Appellate Court cannot interfere, where the trial Court fail in its primary duty, an Appellate Court can embark on the evaluation of the evidence. See NGIGE V INEC (2015) 1 NWLR (pt. 1440) 281, OTUKPO VS JOHN (2012) 7 NWLR (pt. 1299) 357, UKAEGBU VS NWOLOLO (2009) 3 NWLR (pt. 1127) 294.
Where a trial Court has made perverse findings that run counter to evidence and has also taken into account matters which are irrelevant in reaching a perverse conclusion, an appellate Court has a duty to review it. The findings of the lower Court has not shown to be perverse to my view, the trial Court had meticulously considered all the live issues that arise for determination before arriving at its decision rightly. PER ABDULLAHI, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

MADAM IRETI KETIKU (NEE. ALADE) APPELANT(S)

And

KAYOYE ONI 2. BOSEDE ADEYI (Suing For Themselves And On Behalf Of The Estate Of Michael Oni) 3. ADEOLU ONI RESPONDENT(S)

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of T. O. Osoba, J. of the Akure Judicial Division of the High Court of Ondo State delivered on 5th day of June, 2013. The 1st and 2nd Respondents as Plaintiffs took out a Writ of Summons against the Appellant and the 3rd Respondent as Defendants on the 2nd day of October, 2008. By paragraph 22 whereof, the Plaintiffs claimed against the Defendants jointly and severally the following reliefs:
a. A DECLARATION that the piece or parcel of land lying, situate and being at Block XXVI Plots 1, 2, 3, 14-16 Ijigba ‘I’ Family Residential Estate at Ijigba off Oda/Ijoka Road, Akure is the family property of Pa. Michael Oni.
b. A DECLARATION that the 1st Defendant has no right or power to sell or dispose off the Plaintiffs’ family property i.e. the piece or parcel of land lying, situate and being at Block XXVI, Plots 1, 2, 3, 14-16, Ijigba ‘I’ Family Residential Estate, Ijigba, off Oda/Ijoka Road, Akure.
c. AN ORDER nullifying and/or setting aside all sales, alienation or dispositions of the Plaintiffs’ family land lying,

situate and being at Block XXVI, Plots 1, 2, 3, 14-16, Ijigba ‘I’ Family Residential Estate, Ijigba, off Oda/Ijoka Road, Akure by the 1st Defendant, his servants, agents, or privies to the 2nd Defendant, her servants, agents or privies.
d. N10,000,000 damages for trespass committed by the Defendants on Plaintiffs said family land.
e. N2,000,000 being value of cocoa trees damaged.
f. AN ORDER of perpetual injunction restraining the Defendants by themselves, servants, agents, privies or whomsoever, however from trespassing, selling or in whatever manner from going unto or remaining on Plaintiffs’ family land whether by themselves, servants, agents or privies or any person or group of persons purporting to derive title from the Defendants.

The facts of the case as could be discerned from the pleadings are that Plaintiffs and the 1st Defendant are children of late Pa-Michael Oni, the owner of the vast parcel of land at Ijigbo. Pa-Michael Oni is one of the children of Oni Elijofo, the original owner of the land in dispute. Pa-Michael Oni inherited the undisputed land from his late father Oni Elijofo and was in quiet and undisturbed possession

of the land until his death on 24th February, 1974. That after the death of Pa-Michael Oni, the Plaintiffs and 1st Defendant and other children inherited the land according to the native Law and Custom of Akure. That Pa-Micheal Oni had three wives and 12 (twelve) Children. That since the death of Pa-Micheal Oni, the 1st Defendant has been overseeing the land in dispute but Pa Peter Falodun was the head of the family of Pa-Micheal who died after the sale of the family land by the 1st Defendant. That sometime in 2004, the 1st Defendant without the consent or authority of the family head and principal members of Pa-Micheal Oni family, sold the parcel of land at Block XXVI, Plots 1, 2, 3, 14-16, Ijigba ‘I’ Family to the 2nd Defendant which they protested to Mr. Joseph Adebayo but did nothing. That the head of the family including the 1st Plaintiff who is a principal member of the family did not authorise, consent, or concur to the sale of the land by 1st Defendant to the 2nd Defendant. That the 1st Defendant has no right or power to sell the family property. Therefore, the sale is null and void. The Plaintiffs affirmed that the land in dispute was originally owned

by his grandfather, Oni Elejofi who had six children including his father namely: Pa-Paul Oni (deceased), Pa-Adeiya Oni, Michael Oni, Adebayo Oni, Adesuyan Oni and Ojo Oni. That Pa-Elejofi died intestate and the land was not partitioned. That the children of Oni Elejifo had children except one and all of them are entitled to a portion of the family land. That they are challenging the sale of the family land by the 1st Defendant without the consent of the head of the family and the principal members.

As expected, the Defendants joined issues with the Plaintiffs and denied liability on the suit. The Appellant as 2nd Defendant claimed that she bought the disputed land from the 1st Defendant and the head of Elejifo family and the transaction was consented by the principal members of the Elejifo family. As a result, she counter claimed against the 1st Plaintiff and tabled before the lower Court the following reliefs:
1. AN ORDER of the honourable Court declaring that the second Defendant is the person entitled to the Statutory Right of Occupancy in respect of a piece or parcel of land lying, being and situate at Block XXV1, Plots 1, 2, 3, 14, 15 and 16 at Ijigba ‘I’ Family Residential Estate, Ijigba, off Oda/Ijoka Road, Akure, Ondo State.

AN ORDER of the honourable Court restraining perpetually, the Plaintiffs, his servants, agents, privies or any person claiming through him from further committing act of trespass on the land.
3. N10,000,000.00 (Ten million naira only) damages for act of trespass which the Plaintiffs have been committing on the Land since May, 2008.

Sequel to this, the lower Court proceeded to a full-scale trial of the action. In proof of the case, the Plaintiffs fielded two (2) witnesses. To disproof the case, and in proof of the 2nd Defendant’s counter-claim, the Defendants called six (6) witnesses and tendered same documents. In a considered judgment, delivered on the 5th day of December, 2013, the learned trial Judge dismissed the Plaintiffs’ case and the 2nd Defendant’s counter-claim. Dissatisfied with the decision, the Appellant on 16th July, 2013, lodged a 3 ground Notice of Appeal, seen at pages 87 – 89 of the Record. The Appellant further filed an Amended Notice of Appeal on 30th July, 2013 but deemed properly filed on 9th May, 2017, containing

five (5) grounds of appeal prayed this Court for:
AN ORDER setting aside the judgment of the (Ondo State High Court sitting in Akure in Suit No: AK/207/2008 dismissing the Appellant’s Counter Claim.
AN ORDER giving judgment to the 2nd Defendant/Appellant in respect of the Counter Claim.

The 1st and 2nd Respondents were aggrieved by the decision of the lower Court, hence on 5th September, 2013, hosting two grounds of appeal seen at pages 90 – 92 of the Record. They prayed this Court for:
AN ORDER allowing the cross-appeal, and giving judgment in favour of the Plaintiffs/Cross-Appellants in term of their writ of summons and statement of claim.
AN ORDER dismissing the main appeal.

Thereafter, the parties qua counsel, filed and exchanged their briefs of argument in line with the Rules governing the hearing of civil appeals in this Court. The appeal and the cross-appeal heard on 8th July, 2020.

During the hearing of the appeals, learned counsel for the Appellant/Cross-Respondent, A. A. Ojopagogo, Esq., adopted the Appellant’s brief of argument filed on 30th July, 2015 but deemed properly filed on 9th May, 2017 and the

Appellant reply brief and cross Respondent’s brief of argument filed on 26th May, 2017 but deemed properly filed on 8th July, 2020 as his argument for the appeals. He urged the Court to allow the appeal and dismiss the cross appeal.

Learned counsel for the 1st and 2nd Respondents/Cross Appellants, Niran Disu, Esq., adopted the 1st and 2nd Respondents/Cross Appellants’ amended brief of argument filed on 9th February, 2018 but deemed properly filed on 14th February, 2018 as representing his reaction against the appeal and forming his argument for the cross appeal. He urged the Court to allow the cross appeal and set aside the judgment of the lower Court and to dismiss the main appeal. The 3rd Respondent, despite being dully served with the processes, filed no brief of argument for or against the appeal.

CONSIDERATION OF THE MAIN APPEAL
In the Appellant’s brief of argument, distilled two issues for determination to wit:
1. Whether the trial Court was right to have dismissed the counterclaim of the appellant having regard to the avalanche of evidence in support of the counter claim.
2. Whether the case of the appellant was properly reviewed by the trial judge before dismissing the counter-claim of the appellant.

The learned counsel for the 1st and 2nd Respondents/Cross Appellants in his brief of argument crafted two issues for determination to wit:
(1) Whether the lower Court is right in dismissing the counter claim of the Appellant.
(2) Whether the lower Court properly reviewed the evidence led by the Appellant before dismissing the counter claim.

The Appeal will be decided on the issues formulated by the Appellant.

ARGUMENT ON THE ISSUES
ISSUE ONE
Learned counsel for the Appellant submitted that the learned trial Judge did not review at all the evidence of the parties as far as the Appellant’s counter claim was concerned. Counsel quoted the findings of the lower Court at page 85 of the Record and submitted that, the findings fall short of the evidence before the trial Court in respect of the counter claim.

Learned counsel submitted that a counter claim is an independent action and must equally be properly reviewed. He cited the cases of IKEM V. VIDAH PACKAGING LTD (2011) AFWLR (pt. 601) 1476, FRIDAY V. GOV. ONDO STATE (2013) A FWLR (pt. 706) 507.

That by the evidence of DW1, DW2 and DW3, it was established that the land in dispute was sold to her by the head and principal members of Oni Elejifo family. He argued that contrary to the evidence of the Plaintiffs that the land belongs to Pa-Michael Oni, the disputed land belongs to Elejifo family and Michael Oni is just a unit of Elejifo family. That both parties to this suit agreed that the land in dispute is within the land of the original owner (Elejifo) which was never partitioned and therefore, said counsel, remained Elejifo family land. That PW1, PW2 and the 1st Defendant confirmed that the other children of Oni Elejifo are co-inheritors along with Michael Oni and that any improvement made by a member of the family on the family land will not make the land to be his personal land or property. He cited the case of NDUKWE V ACHA (1998) 6 NWLR (pt. 552) 25.

Learned counsel submitted that it is well settled principle of Customary Law that the land granted by the head of the family with the concurrence of the principal members of the family is valid and unimpeachable. He cited TERIBA V. ADEYEMO (2010) 4 SCNJ 59 for the view.

He submitted that there is evidence that the first Plaintiff Mr. Kayode Oni destroyed the fence of the second Defendant on the land and was arrested. He urged the Court to resolve this issue in favour of the Appellant and grant all the reliefs of the Appellant in the counter-claim.

Learned counsel for the 1st and 2nd Respondents submitted that the Appellant did not plead or aver that the land in dispute belong to Elejifo Oni family. Therefore, said counsel, evidence given in the absence of pleading goes to no issue. That the evidence of the Appellant that the land in dispute belong to Oni Elejifo ought to be discountenanced as it emanates from an unpleaded fact. He cited OKOKO V. DAKOLO (2006) 14 NWLR (pt. 1000) 401, SPASCO VEHICLE PLANT HIRE & CO V. ALRAINE (NIG) LTD(1995) 8 NWLR (pt. 416) at 669.

Learned counsel submitted that there was no credible and reliable evidence before the lower Court in proof of the counter-claim and urged the Court to uphold the findings of the lower Court dismissing the counter-claim and resolve this issue in their favour.

RESOLUTION
A counter-claim is an independent action which is appendent to the main claim

and the essence of it is for convenience and speed in the determination of a matter. A counter-claim like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court. See USMAN V. GARKE (2003) 14 NWLR (pt. 840) 261, MAOBISON INTER-LINK ASSO LTD V. U.T.C NIG. PLC (2013) LPELR 20335 (SC), KOLADE V. OGUNDOKUN (2017) 18 NWLR (PT 1596) 201, MUSA V. YUSUF (2006) NWLR (pt. 977) 454.

It is settled that where common questions determinative of a claim and counter-claim arise in a case, the Court is not expected to consider the same question separately in relation to the counter-claim. In the instant case, from the evidence before the Court below, both claim and counter-claim are predicated upon the same sets of facts. The parties are ad-item that Elejifo Oni was the original owner of the land in dispute and that Pa-Micheal Oni was one of the branches of the children of Elejifo. The 1st and 2nd Respondents claimed the exclusive ownership of the land. The Appellant claimed that she bought the disputed land from the head and principal members of Elejifo family. A member of a family can sue to set aside a sale of the family land by

the head of the family and some members of the family, if all the branches of the family have not been consulted. See ADEJUMO & ORS V AYANTEGBE (1989) LPELR 1000 (SC), SALAKO & ORS V DOSUNMU (1997) LPELR 2979 (SC).

A sale of family land must be with the consent of the larger family including the family head and ownership of the land must be established. See AIYEOLA V PEDRO (2014) LPELR 22915 (SC).

The Appellant in defence of the main claim and in proof of the counter-claim called six witnesses. DW1 in his testimony testified that, Pa-Elejifo was the original owner of Ijigba land. DW2 at page 34 – 37 of the Record stated that the original owner of the land was Elejifo. That his father Elejifo had (11) eleven wives and many children, he listed 10 names of the children and said that they inherited the land. That the land has not been partitioned. He asserted that Micheal Oni had three wives and three branches, that is Ayo Oni, Olu Oni and Kayode Oni. He said that Kayode Oni was not consulted in respect of the sale and he was not at the meeting. DW3 at pages 38 of the Record testified that, the land in dispute does not belong to the father of

the Plaintiffs but to the whole Elejifo family. That the father of the Plaintiffs farmed as tenant on the land in dispute and that the entire land has not been partitioned. That he consented to the sale of the land to the 2nd Defendant. He further under cross examination at pages 39-40 that after Elejifo died, his children farmed on the land and no one inherited the land. He listed eleven (11) persons as the children of Oni Elejifo from the different branches of the family. That the 1st Plaintiff was not present at the meeting and he did not authorized the sale. DW4 testified that the land was not partitioned and no one can lay claim to where he farms. DW5 was the Appellant and the 2nd Defendant at the trial Court. She testified that she bought 6 plots of land from the Elejifo family at Ijigba, that before she bought the land, she was taken to four elders of the family who confirmed to her that the land was genuine. That she was taken to the head of the family, Pastor Adebayo and she paid N150,000 for the plots and the family surveyor showed her pillars on the land.
From the evidence on Record before the lower Court and all that has been said so far, is

that the land in dispute belongs to Elejifo Oni as the original owner, who had (11) eleven wives and eleven (11) children of different branches that inherited the disputed land which has not been partitioned. Of course, a member of a family can sue to set aside a sale of the family land by the head of the family and some members of the family if all the branches of the family have not been consulted.

The facts and indeed, the evidence before the lower Court revealed that Oni Elejifo had other children other than Michael Oni who also have equal right in the individual right over the land of Oni Elejifo. Besides, having not proved partition, the Plaintiffs have no right to claim exclusive ownership and the 1st Defendant/3rd Respondent has no right to sale the family land without the consent of the head of the family and the principal members of the other branch of Oni Elejifo family. The alleged vendors are destitute of any rights to bestow on the Appellant, as no one gives out what he does not have. See GBADAMOSI V AKINLOYE (2013) 15 NWLR (pt. 1378) 455, ORONTI V ONIGBANJO(2012) 12 NWLR (pt. 1313) 23.
Issue one is resolve against the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ISSUE TWO
Learned counsel for the Appellant submitted that the learned trial Judge only reviewed the evidence before the Court in respect of the main claim but failed to review that of the counter-claim. Therefore, according to counsel, the finding of facts as regard the counter-claim was perverse and urged this Court to review it. He cited the cases of ABUBAKAR VS JOSEPH (2008) WRN pg 1 of 30, OYEWOLE VS AKANDE (2009) AFWLR (pt. 491) 813 for the point.

Counsel contended that evidence led in support of the counter-claim must be reviewed just like the main claim is reviewed. That the lower Court did not review the other evidence, otherwise, it would have arrived at a different conclusion. That the Appellant gave evidence of how she purchased the property in dispute from the head of the family and principal members of Oni Elejifo family and tendered a purchase receipt. That DW2, DW3 and DW4 testified that the sale was executed by the head of the family, Pastor Joseph Adebayo and that the principal members of the family gave their consent to the sale. He submitted that the conclusion of the learned trial Judge that the counter-claim also fails is erroneous having

regard to the evidence in support of the counter-claim. He urged the Court to resolve this issue in favour of the Appellant and grant all the reliefs of the Appellant in the counter-claim as the decision of the lower Court in respect of counter claim is perverse.

On the side of the 1st and 2nd Respondents, learned counsel for the Respondents submitted that the lower Court properly reviewed the evidence led and rightly dismissed the counter-claim. That it properly assessed the evidence of DW1, DW2, DW3, and DW4 regarding the sale of the land in dispute to the Appellant and rightly dismissed the counter-claim.

Learned counsel submitted that there was no proper sale of the land in dispute to the Appellant. DW1 claimed to be head of the family, testified that DW2 is not the head of the family. That there was no evidence as when DW2 became the head of the family, therefore, said counsel evidence of who is the head of the family is unreliable. That there is no evidence to establish the destruction of the fence by the PW1. That the lower Court rightly reviewed and assessed the evidence of the Appellant before dismissing the counter-claim. He urged theCourt to so hold and resolve this issue in favour of the Respondents.

RESOLUTION
Evaluation of evidence and ascription of probative value to the pieces of evidence lies primarily with the trial Court. The paramount duty in evaluation of evidence is that the totality of the evidence has to be taken into account. A review is an examination or narration of the material evidence adduced by the feuding parties, then the evidence will be evaluated. Once there is sufficient evidence on record from which the trial Court arrived at its findings of fact, the Appellate Court cannot interfere, where the trial Court fail in its primary duty, an Appellate Court can embark on the evaluation of the evidence. See NGIGE V INEC (2015) 1 NWLR (pt. 1440) 281, OTUKPO VS JOHN (2012) 7 NWLR (pt. 1299) 357, UKAEGBU VS NWOLOLO (2009) 3 NWLR (pt. 1127) 294.
Where a trial Court has made perverse findings that run counter to evidence and has also taken into account matters which are irrelevant in reaching a perverse conclusion, an appellate Court has a duty to review it. The findings of the lower Court has not shown to be perverse to my view, the trial Court had

meticulously considered all the live issues that arise for determination before arriving at its decision rightly.

I have already provided an answer to the Appellant’s issue on proof of counter claim while resolving issue one which is the Keystone of the appeal. Gleaned from the evidence before the trial Court as borne by the Record, I do not agree with the submission of the learned counsel for the Appellant that the trial Court did not review the evidence professed by the Appellant.

The dismissal of the Appellant’s counter-claim by the trial Court could not be faulted. The trial Court was equally right in dismissing the 1st and 2nd Respondents claims.
Issue two is resolved against the Appellant.

On the whole, having resolved the two issues against the Appellant, the appeal is devoid of any merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court, delivered on 5/5/2013 wherein it dismissed the Appellant’s counter-claim. The parties shall bear the respective costs they incurred in this appeal.

THE CROSS APPEAL
The cross appeal was heard on 8th July, 2020. During the hearing of the cross appeal, learned counsel for the 1st and 2nd Respondents/Cross-Appellants, Niran Disu, Esq., adopted and relied on the arguments contained in the 1st and 2nd Respondents/Cross-Appellant amended brief of argument filed on 9th February, 2018 but deemed properly filed on 14th February, 2018 in urging the Court to allow the cross appeal.

Similarly, learned counsel for the Appellant/Cross-Respondent, A. A. Ojopagogo, Esq., adopted and relied on his submission contained in the Appellant’s reply brief and Cross-Respondent’s brief of argument filed on 26th May, 2017 but deemed properly filed on 8th July, 2020 in urging the Court to dismiss the cross appeal.

In the 1st and 2nd Respondent/Cross-Appellant’s Brief of Argument, they distilled a sole issue for determination viz:
“Whether the trial Court is right in dismissing the case of the Respondents/cross Appellants.”

The Cross-Respondent in her brief of argument, crafted lone issue for determination to wit:
“Whether the trial Court was right in dismissing the case of the cross Appellants for not being able to prove exclusive ownership of the land in dispute.”

A close look at the two set of issues reveal that they are identical in substance. For this reason, I will decide the cross appeal on the solitary issue submitted by the cross Appellants.

ARGUMENTS ON THE ISSUE
Learned counsel for the cross Appellant submitted that by the pleadings of the cross Appellants, evidence of PW1, PW2 and the defence coupled with admission of the Appellant and 3rd Respondent, the cross Appellant satisfactorily proved that the cross Appellants are in absolute and exclusive possession of the land in dispute. He quoted some portion of the testimonies of PW1, PW2, DW2 and DW3 and asserted that from the totality of the evidence there was sufficient evidence that the cross Appellants proved absolute and exclusive ownership of the land in dispute. He urged the Court to hold that the lower Court was in error when it holds that the Plaintiffs have not and cannot prove an absolute separate and exclusive entitlement to the Land in dispute. He posited that by the state of pleadings, the Appellant agreed that the land in dispute was passed on to Pa Michael Oni from his father Oni Elejifo and upon the

death of Pa Michael Oni, his children inherited the land in dispute. He stated that the cardinal Principle of Pleading is that facts admitted do not require any proof and that evidence which is at variance with the pleading goes to no issue. He cited AKIBU V ODUNTAN (1992) 2 NWLR (pt. 22) 21, BUNGE V GOV OF RIVERS STATE (2006) 12 NWLR (pt. 995) 573 for the point.

He posited that Oni Elejifo’s family had long ceased to be Oni Elejifo’s family land. He urged the Court to reject the findings of the lower Court that Pa Michael Oni did not inherit the whole or any part of Oni Elejifo’s family land to the exclusion of the other children of Elejifo for as long as Oni Elejifo’s land remained unpartitioned. He maintained that the cross Appellant have proved their case by credible, reliable and satisfactory evidence and urged the Court to resolve this issue and set aside the decision of the trial Court dismissing the claim of the cross Appellant.

Learned counsel for the cross Respondent submitted that by the evidence before the lower Court, the issue of ownership of the land was not satisfactorily proved to belong to Mr. Michael Oni,

the cross-Appellants’ father. Counsel refers to the testimonies of PW1 and PW2 and reasoned that the cross Appellants failed to prove an absolute, separate, and exclusive entitlement to the disputed land to be entitled to declaratory order of the lower Court.

Counsel submitted that, the cross-Appellants traced their root of title to the land to Oni Elejifo as grand-father. That the cross-Appellants’ father, Mr. Michael Oni was not the only child of Oni Elejifo. That the land was not partitioned, therefore, said counsel, the cross Appellants cannot claim exclusive ownership of the land. He asserted that the portion allotted to Michael Oni was for him to farm and the land still remains the property of Oni Elejifo family land. He urged the Court to so hold and resolve this issue in favour of the cross Respondent.

RESOLUTION
The cross-Appellants’ quarrel with the lower Court’s decision dismissing their claim. The cross Appellants claimed exclusive ownership of the land that the land is the family property of Michael Oni. He posited that by the pleadings and evidence before the lower Court, the cross-Appellants had proved exclusive ownership of the disputed land.

For a Plaintiff to prove the exclusive ownership of family land, he must establish that there was a partition of the land and his claim relates to that partitioned portion. Every member of a family has an individual right to be allotted a portion of family land for farming to support his family if the land has not been partitioned or divided; he does not became an absolute owner of the portion allotted to him no matter the length of the period used. Where the land is partitioned and or divided, a grantee of a partitioned portion of family property becomes the owner of the portion granted and he can therefore exercise right of ownership over the land. In the case of ETUWEWE & ANR V ETUWEWE & ANR (1966) LPELR 25289 (SC) the Court held thus:
“We are familiar with what happens when a person dies and his estate devolves as family property. Sometimes there is an allocation of a piece of land to X for him to farm and earn his livelihood, and of another piece to Y. Neither X nor Y becomes the owner of the piece allotted to him, but both pieces remain family property, and this is to be distinguished from a partition or division of the estate which gives a successor a piece as his own property.”

See also OKUKUJE V AKWIDO(2001) LPELR 2526 (SC). In the instant case, PW1 at pages 19-27 of the Record testified that Mr. Michael Oni was his father and that the land in question originally belongs to his grandfather, Pa Elejifo who had six children namely, Pa Paul Oni, Pa Adeiya Oni, Michael Oni, Adebeyo Oni, Adesanya Oni and Ojo Oni. That his father farmed on a portion of the land for 70 years but the land has not been partitioned. PW2, under cross examination confirmed that the Elejifo land in dispute has not been partitioned. At page 31 of the Record, DW1 testified that Elejifo family land was not partitioned. DW2 in his own case at pages 34-37 of the Record testified that the family land of Elejifo has not been partitioned. That his father Elejifo had eleven (11) wives and many children, he listed the names of the children as, Peter Folodun, Paul Oni, Lawrence Oni, Adeiya Oni, Adeuyan Oni, Michael Oni, Ojo Oni, Stephen Oni, Ogunleye Oni and Oloju Oni. DW3 and DW4 also testified that the and was owned by Pa Elejifo and it was not partitioned.

It is on record that Oni Elejifo had other children other than Michael Oni, therefore, Michael Oni in my view is no more than a co-inheritor of Oni Elejifo family land. Having not proved partition, the cross Appellants cannot claim exclusive ownership of an unpartitioned family land, the land remains the Oni Elejifo’s family land. Therefore, learned trial Judge was right in dismissing the cross Appellants claim. I so hold. This issue is resolved against the cross Appellants.

Having resolved the lone issue against the cross Appellants, the cross Appeal is bereft of any merit. Accordingly, I dismiss the cross Appeal. I affirm the lower Court’s decision wherein it dismissed the cross Appellants’ claim.

Consequent upon dismissal of the main Appeal and the cross Appeal, the Judgments of the lower Court delivered on the 5th June, 2013 by T. O. Osoba, J. in suit No. AK/207/2008 is hereby affirmed.
The parties shall bear their respective costs.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned brother, R. M. ABDULLAHI, JCA.

I agree that both the appeal and cross appeal are devoid of merits. I accordingly dismiss them both and abide by all the consequential orders made in the said leading judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA.

His Lordship has been comprehensive in his consideration and resolution of all the pertinent issues raised for determination in this appeal. I agree with my learned brother that both this appeal and the cross appeal are devoid of merit and should be dismissed. I too dismiss both the appeal and the cross appeal.

I affirm the judgment of the lower including the order dismissing the counter Claim.

Each party is to bear his own cost.

Appearances:

A. Ojopagogo with him O. M. Ajakaje, Esq. For Appellant(s)

Niran Disu, Esq. with him Ogundolie and O. O. Adejobe, Esq. for the 1st and 2nd Respondents/Cross Appellants For Respondent(s)