TAJUDEEN AMUSAN & ORS v. ALHAJI SADIKU SHOLATE OREBAJO & ORS
(2012)LCN/5181(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of February, 2012
CA/I/47/2007
RATIO
LAW OF CONTRACT: THE POSITION OF THE LAW ON SETTING ASIDE A VOID SALE
The argument that the void sale of the disputed land must be set aside before the 2nd – 3rd appellants would be adjudged trespassers in the disputed land does not impress me: first, as rightly held by the court below, an act that is void ab initio could not have been set aside in the proceedings in question on the plank that one cannot place something on nothing; nor were the respondents parties to the document disposing of part of their family land as to vest them with the right to have the document set aside – See Animashawun v. Osuma (1972) 7 NSCC 253 at 260 thus: “The learned trial Judge was also in error in holding that instead of claiming possession of the land, the plaintiff’s family should have sought a declaration that the sale is null and void and that the deed of conveyance (Ex. “G”) be set aside. In the first place, when a party believes or has reasons to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that that transaction is null and void. Moreover, we observe, with respect that a void transaction cannot be set aside because being void ab initio there could be nothing to set aside. PER. JOSEPH SHAGBAOR IKYEGH, J.C.A.
THE POSITION OF THE LAW ON SETTING A DEED ASIDE
Finally, in an action to set aside a deed (also known as a claim for rescission), the possible parties to the proceedings are ordinarily the persons who were or who are deemed to have been, parties to the deed. In this case, the plaintiff’s family are not a party to the deed (Ex. “G’). They are therefore, not competent to bring an action to set aside the said deed.” See also Abiodun & Ors v. Adehin (1962) 1 ALL NLR 550 at 554. PER. JOSEPH SHAGBAOR IKYEGH, J.C.A.
LAND LAW: THE POSITION OF THE LAW ON THE EEVIDENCE OF COMMON USER OVER A LAND
Furthermore, the declaration of title in form of the entitlement of the respondents to a statutory right of occupancy over the disputed family land granted by the court below would not cut off the interest of the 1st appellant who has been held by the court below to be co-owner with the respondents of the yet to be partitioned Odofin family land. See by analogy Ume & Ors v. Ezechi & Ors Privy Council Judgments by Olisa Chukura 968 at 972 thus: “But the Federal Justices draw attention to another point which their Lordships have regarded as highly significant, namely, to the undoubted fact that there was clear evidence of a considerable degree of common user on the part of members of both families over the disputed area and also to the fact that both families, Achina and Akpo, appear to have been descended from a common ancestor – a fact which, as Taylor F.J pointed out, might well explain the common user illustrated as it was particularly by the facts relating to the Oye market and the Ezeokolo Juju and by the circumstance that the C.M.S. station is now called the “Achina-Akpo” station. In the circumstances, as Taylor F. J. pointed out, it might well be that the whole area was, or was in large measure, communal to both families and that the claim of the plaintiffs to the land as exclusive Achina family property had been misconceived”. PER. JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA OFR Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. TAJUDEEN AMUSAN
2. SEN. EVANG. P. O. OWEOYE
3. MR. ANIEKE Appellant(s)
AND
1. ALHAJI SADIKU SHOLATE OREBAJO
2. CHIEF OBAFEMI ODUGUWA OREBAJO
3. MR. YEKINI KEHINDE AINA
4. MR. LAMIDI OGUNTIMEHIN OGUNNUSI Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal pertains to the decision of the High Court of Justice of Ogun State sitting at Sagamu in the Sagamu Judicial Division (the court below) adjudging the respondents owners of a parcel of land located at Orile Ijagba (Sotubo) Sagamu and awarding general damages of N10,000 in trespass to the respondents against the appellants together with an order of permanent injunction restraining the appellants from committing further acts of trespass in the disputed land.
The case in the court below centred on traditional evidence of ownership of the disputed parcel of land postulated by the respondents and the appellants respectively. The court below accepted the traditional history of the respondents. It found as a fact that the respondents as members of Odofin family own the disputed piece of land by devolution from their fore-fathers and entered judgment for them as persons entitled to a statutory right of occupancy over the disputed area of the land “bounded on its sides by Oje Farmland, Imogun farmland, Mabedeje farmland and Oya farmland”.
A notice of appeal with six (6) grounds of appeal dated 24.7.2006, but filed on 31.7.2006, expressed the grouse of the appellants against the said decision of the court below. In a brief of argument dated 22.6.09 and filed on 26.6.09, but deemed duly filed on 25.11.09, the appellants through their learned counsel, Chief Oye Esan, formulated the following issues for determination in pages 4-5 of the appellants’ brief of argument-
“(1) Whether or not the learned trial judge sufficiently appraised the live issues raised in the pleadings of both parties.
(2) Whether the Defendants/Respondents are entitled to the Reliefs claimed by them having regard to their pleadings and in particular – whether the Root of title pleaded by them is proved according to law.
Whether or not the 1st Defendant can be damnified in damages in respect of family land which he says belongs to his family.
Whether the Defendants can be restrained by an order of injunction perpetual or otherwise.”
The issues above were argued in sequence.
The amended statement of defence of the 1st appellant in pages 82-88 of the record of appeal (the record) in which he pleaded his family entitlement to the disputed piece of land was referred to by the appellants vis-a-vis paragraphs 5-18 of the respondents’ amended statement of claim in pages 69-73 of the record to contend that the respondents’ pleadings which started their root of title to the disputed land from one Igara were insufficient as the pleadings and the evidence of the PW1, which rehashed the respondents’ pleadings on family history of the disputed piece of land, did not establish the acquisition of the land by settlement by one Igara; nor did the pleadings and the evidence of the respondents establish the particulars of the intervening owners through whom the respondents claim ownership of the disputed land vide Lawal & Ors v. Olufowobi & Ors (1996) 12 SCNJ 376 at 384, Akinloye & Anor v. Eyiyiola (1968) NMLR 92, Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 328, Adejuwon & Ors. v. Ayantegbe (1989) 6 SC (Pt.110) 47, Kaiyeola v. Egunla (1974) 1 All NLR (Pt.2) 426 at 431, Jules v. Ajani (1980) 5 – 7 SC 96 at 108, Alade v. Awo (1975) 4 SC 215 at 228, Adole v. Gwar (2008) 3 – 4 SC 78 at 99, Ojo v. Adeojobi (1978) SC 65 at 69 – 70, Nwokafor v. Udegbe (1963) 1 All NLR 104 at 107, Odofin v. Ayoola (1984) NSCC 711 at 720.
The appellants also submitted on the first issue that the evidence of the PW1, Oba Samson Adekoya, the Onijagba of Ijagba, in page 113 of the record to the effect that “I have never heard any name IGARA in the history of Ijagba” discredited the root of title of the respondents to the disputed land vide Oluyole & Anor v. Olofa (1958) NMLR 462 at 464-465; that the PW2 admitted under cross-examination that the Odofin Odufona family exists contrary to the pleaded case of the respondents that such family does not exist; and that the PW1 as the 1st plaintiff, now 1st respondent, admitted under cross-examination in page 106 of the record that Igara had uncountable children showing the witness did not establish the genealogy of the disputed piece of land, therefore the court below did not appreciate that the respondents did not prove their title to the disputed land as shown in the two sentences it had for the evaluation of the evidence in page 193 of the record.
The appellants submitted further on the first issue that the respondents cannot rely on acts of possession based on unproved root of title to the land vide Ayoola v. Odofin (supra), Ndukwe v. Achau (1985) 5 SC 28 at 38-39 and Dabo v. Abdullahi (2005) 2 SC (Pt.1); and with the admission of the PW1 in page 104 lines 18-23 of the record that the land in dispute is family land not stool land, the documentary evidence in Exhibits A, B, C, D and E on the Odofin Chieftaincy dispute were inconsistent with the pleaded case of the respondents and the court below should not have relied on same in its judgment.
The appellants’ submissions on the second issue was that the court below misconceived the vital issue in dispute when it relied on the Odofin Chieftaincy dispute to hold that the 1st appellant is a member of the Odofin family in disregard of paragraphs 3, 5, 9, 13, 14 – 44 of the appellants’ amended statement of defence where the 1st appellant pleaded how the respondents became entitled to the Odofin Chieftaincy without any blood affinity with the appellants which was also supported by the admission of 1st respondent under cross-examination in page 104 lines 23-32 to page 105 lines 1-5 of the record.
It was also submitted that the respondents did not prove their root of title to the disputed land and were not entitled to the award of damages for trespass and permanent injunction especially in light of the evidence of the 1st respondent, Alhaji Sadiku Solate Orebanjo, under cross-examination in page 105 lines 21-22, 28 of the record together with the evidence in page 83 lines 29-33 of the record that the 2nd – 3rd appellants bought the disputed land from the grand children of one Kehinde known to the 1st respondent as one of Aina’s children and member of Odofin Odufona family, only for the 1st respondent to deny Kehinde’s children sold portions of the land in dispute; and that Kehinde and Adebisi are not of the same family as the 1st appellant which should not have entitled the court below to declare the appellants trespassers and asked them to pay damages to the respondents in consequence.
The respondents’ brief of argument dated and filed on 2.3.2010 was settled by Mr. Obanewa of learned counsel. It incorporated arguments on the preliminary objection against grounds 4, 5 and 6 of the notice of appeal, contending that they do not state the particulars of the error in law complained of and should be struck out along with part of issue (1) and issues (2) and (3) (supra) married to them vide the cases of Abdullahi & Ors v. Tasha (2001) FWRL (pt.81) 1807 at 1821, NDIC v. Oranu (2001) FWLR (Pt.82) 1974 at 1981, Ukachukwu and Sons Ltd. v. Okeke (2001) FWLR (Pt.71) 1706 at 1791 at 1802, Intro Shipping Ltd. v. Logos Trading N. V. (2001) FWLR (Pt.71) 1706 at 1711, Nwankwo v. Ecumenical Development Co-operative Society (2007) 4 FWLR (Pt.389) 5847 at 5874, Agbamu v. Ofili (2004) 3 FWLR (Pt.198) 204, Martins v. Commissioner of Police (2005) 3 FWLR (Pt.271) 375 at 382.
The respondents’ brief identified one issue for determination –
“Whether the Respondents established their title to the land in dispute by traditional evidence.”
Paragraphs 7-15 of the respondents’ amended statement of claim in pages 69-70 of the record and the evidence of the PW1 in page 101 of the record, as well as that of the PW3 in page 114 thereof, and that of the PW4 in pages 116-120 of the record were referred to by the respondents for the submission that the traditional evidence of the founder of the land together with the mode or manner of founding the land and the unbroken chain of intervening or successive persons that owned the land up to the respondents were proved in line with the cases of Ewo v. Ani (2004) 4 FWLR (pt.207) 513 at 534, Elegushi v. Oseni (2005) 5 FWLR (Pt.288) 1581 at 1601 – 1802; and that the evidence of the PW2 that he never heard the name “Igara” in the history of Ijagba did not discredit the respondents’ case as the PW2 is not a member of Odofin family and did not, as a traditional ruler, possess the knowledge of the names of all the families in his domain, all the more so the PW2 was subpoenaed to produce a document and was not a witness expected to be cross-examined vide section 193 of the Evidence Act and the case of Oguntayo v. Adelaja (2009) 3 FWLR (Pt.485) 6877 at 6932, consequently the appeal should be dismissed.
The appellants’ reply brief dated and filed on 22.6.2010, but deemed properly filed on 1.12.2010, contended that the particulars of the errors in law complained of in grounds 4, 5 and 6 of the notice of appeal are embedded in the respective grounds of appeal, therefore the said grounds of appeal cannot be described as vague or couched in general terms and the respondents cannot be said to have been taken by surprise vide Aderonmu & Anr v. Olowu (2000) 4 NWLR (Pt.652) 253 at 265, 266 and 271; that the respondents did not establish how Igara, the founder of the land; metamorphosed into Odofin family to own the land and that the burden was on the respondents to prove their case irrespective of the weakness of the appellants’ case vide Bello v. Eweke (1981) SC 101 at 102 – 105, 121-122, Elias v. Omo-Bare (1982) 5 SC 25 at 47 and Onibudu v. Akibu (1982) 7 SC 60 at 84-85, therefore the appeal should be allowed and the judgment of the court below set aside with consequential order dismissing the respondents’ claim in the court below.
Concerning the preliminary objection, it is appropriate to start by copying below the grounds of appeal objected to – grounds 4, 5 and 6 of the notice of appeal:
“(4) The learned trial judge erred in law and thereby came to a wrong decision in the matter when while evaluating the evidence of the defendants as to entitlements of the parties to Odofin Chieftaincy used the fact of entitlement of the Plaintiffs/Respondents to Odofin Chieftaincy to award them title to the land in dispute.
(5) The learned trial judge erred in law in awarding Damages against the defendants when she held the land in dispute to be “family land” which had not been partitioned and held also that the 1st defendant is member of Odofin family and hereby came to a wrong decision in the matter.
(6) The learned trial judge erred in law when she held the defendants liable in trespass AND the claim against them in respect of the sales of plots on the land in dispute were not set aside and thereby came to a wrong decision in the matter.”
In my respectful opinion, grounds 4, 5 and 6 of the notice of appeal (supra) have the particulars of error in law complained of embedded in the grounds of appeal: In respect of ground 4 of the notice of appeal, the sting of the complaint was the use made by the court below of the entitlement of the respondents to the Odofin Chieftaincy to resolve the award of title to the disputed land to the respondents; respecting ground 5 of the notice of appeal the sting of the complaint was that having held that the 1st appellant is a member of Odofin family owning undivided family land, the court below should not have awarded damages against them for trespass to the disputed land; regarding ground 6 of the notice of appeal, the sting was that the court below without first setting aside the sale of the plots of land found the appellants liable in trespass. There is, therefore, no merit in the preliminary objection that the errors complained of are not discernable from grounds 4, 5 and 6 of the notice of appeal (supra). The preliminary objection is accordingly dismissed. The findings of fact made by the court below spanned pages 193-201 of the record which condensed to the fact that the respondents and the 1st appellant are members of Odofin family with the 1st respondent serving as head of the family, while the 2nd – 4th respondents are principal members of the family.
And, for ease of reference, part of the findings read –
“From the evidence available as can be seen from documents and the nature of the testimony, I find as a fact that the plaintiffs and the 1st defendant are members of the same family, albeit from different branches, and had been so dealing notwithstanding that the family has been variously referred to as the Odofin family. The Authentic Odofin family or The Odofin Odufona family by the Defendants… The plaintiffs’ witnesses have testified in a convincing manner as to how the land in dispute was founded (by settlement) by their progenitor – Igara and how the land has continued to devolve upon his children and grand children for farming purposes. The evidence of the plaintiffs’ witnesses is consistent with the fact of three existing branches to the Odofin family, that is, the Orebajoi, Dadas and Aina-Alukos, which three branches have held joint meetings as evidenced by Exhibits M and N. The plaintiffs have consistently maintained D/12 Odi-Olowo Street as address of the Odofin family (page 196 of the record)……..
DW2 made a spirited attempt at twisting history but the documentary evidence is overwhelming against him…The admission by the DW2 that he wrote “Odofin family” on exhibits L and P are admissions against interest and can be relied upon by the plaintiffs in proof of their case … I therefore believe the evidence of PW1, PW3, PW4 and PW5 as opposed to that of DW1, DW2 and DW3 and find the traditional history of the plaintiffs to be cogent, plausible and conclusive… Evidence abounds that PW1 is the Head of the Odofin family. It was he that signed the caveat exhibit B and the letters of withdrawal of nomination exhibits D and E as Head of the Family. The Onijagbo-in-Council so recognized him in their verdict – exhibit C. (Pages 197 – 198 of the record).
The plaintiffs averred in paragraph 15 of the amended statement of claim that the land in dispute has not been partitioned. The 1st defendant also averred in paragraph 26 of his pleadings that the land has not been partitioned and had remained family land. This fact is undisputed….I therefore find that none of the members of Odofin family, including the 1st defendant have any alienable interest in the land in dispute until the land is partitioned. (Page 199 of the record)”
It is, accordingly, wrong for the appellants to contend that the court below did not properly evaluate the evidence on the live issues before it. Where a trial court unquestionably evaluated the evidence before it, as happened here, the appeal court cannot interfere with the said evaluation of evidence see the yet unreported Supreme Court case of Congress for Progressive Change (CPC) v. Independent National Electoral Commission (INEC) & Ors in Appeal No.SC.426/201 decided on 28.12.2011 per the lead judgment of Adekeye, JSC inter-alia thus:
“It is the trial court which alone has the primary function of fully considering the totality of evidence placed before it, ascribes probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the finding and come to a logical conclusion. The evaluation of evidence remains the exclusive preserve of the trial court because of its singular opportunity of hearing watching the demeanour of witnesses as they testify and thus it is the court best suited to assess their credibility.”
See also the cases of Olaniyan & Ors v. Oyewole & Ors (2011) All FWLR (Pt.589) 1076 at 1111 – 1112, Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 710, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) 373, Nteogwuile v. Otuo (2001) 16 NWLR (Pt.738) 58 & Ebba v. Ogodo (1984) 1 SCNLR 372.
The PW1, now 1st respondent, testified in respect of the traditional history of the land that –
“…the first settler on the land is Igara. He migrated from Dokunle to settle at Imogun some 200 (two hundred) years ago, Igara was a farmer…Igara married 3 wives, the 1st wife is Dada. The 2nd wife is Talabi while the 3rd is Adeosun. Adeosun begat Orebajo, Orebajo begat Sholate and Sholate begat myself. Orebajo begat Obafemi Oduguwa, the 2nd plaintiff… The Adeosun line of descendants of Igara were farming on the land in dispute, After the death of Igara, our fathers and ourselves continued to farm on the land. Till today, members of Odofin family are farming on the land. The land has not been partitioned… I admit that the land in dispute is a family land. I admit that under Yoruba Native Law and (sic) custom, family land is different from stool land, I admit that it is the family of a first settler that (sic) on a land owns the land. I maintain that the 1st defendant is a member of the settler family.” (See pages 101-102 and 104 of the record).
Similarly, the PW3, PW4 and PW5 gave traditional evidence of the disputed land in agreement with the PW1, PW3 on his part testified in page 114 of the unedited record –
“I know the 3rd and 4th plaintiffs. We are all members of the same Odofin family. I know the 1st defendant. He is also a member of Odofin family. He used to be the secretary of the family. I am in court because the 1st defendant who we appointed as the Odofin had not been performing. He had been misbehaviour and selling the family farm lands at Orile-Ijagba. The founder of the land is Igara some 200 years ago. Igara came from Dokunle to settle at Orile Ijagba. Himself and his children were family on the land. Igara begat Orebajo. Igara’s wife was Adeosun. She gave birth to Orebajo. Orebajo begat Solate, Efunyebo and Sholate. Sholate begat Alhaji Sediku Efunyebo begat Adebayo. Adebayo begat – Chief Obafemi Orebajo (myself) (2nd plaintiff).
All the above-named children of Igara were built a house on the land. Dada was the 1st wife of Igara. Amusa (1st defendant) and from the Dada’s branch of Igara. The 1st defendant, being a descendant of Igara also has entitlement of the farmlands. After the death of Igara, the descendants of Igara continued to farm on the land. The land has not been partitioned. The descendants of Igara are called the Odofin family.”(My emphasis)
In respect of the PW4, he testified in page 117 of the unedited record –
“The land was founded by Igara, some 200 years ago, Igara came from Dokule to settle on the land in dispute. He was farming on the land with his wives and children. The boundarymen of the land in dispute are Mabadeja, Oye Farmland, Oje Farmland and Mogun farmland. Igara had 3 wives namely, Dada, Adeosun and One I cannot remember. When Igara died, his family continued to use the land in dispute till date. The land has never been partitioned. Igara’s descendants are known as The Odofin Family of Ijagba and they use the land in dispute for farming purposes.”
While the PW5 testified in page 120 of the unedited record –
“I know the 3rd plaintiff, also a member of the Odofin family and a former secretary of the family. He used to attend meetings with us and served as secretary. The land at Imogun is owned by the Odofin family. The 1st defendant is from the Dada branch of Odofin family. I am from the Talaba branch. The entire Odofin family including the 1st defendants branch owns the land in dispute.”
A harmonious consideration of the collective evidence of the PW1, PW3, PW4 and PW5 disclosed that one Igara, the progenitor of the 1st appellant and the respondents, migrated from Dokule or Dokunle to found the disputed land as its first settler, showing the mode of acquisition of the land by Igara was by settlement which is one of the five recognised ways of establishing ownership of land vide the lead case of Idundun & Ors v. Okumagba (1976) 1 NMLR 200 or (1976) 9 – 10 SC 227; that Igara had three wives named Dada, Talabi and Adeosun; Adeosun mothered one Orebajo through whom the 1st respondent’s father, one Sholate, was born, and the 2nd respondent’s father; while Talabi mothered 3rd – 4th respondents’ respective fathers and the other wife called Dada who was Igara’s first wife mothered the 1st appellant’s father. And that all of them built on the land, which in effect established the family tree of the land from Igara Orebajo Sholate (the 1st respondent’s father), together with 2nd respondent’s father as well as the 3rd – 4th respondents’ father and Amusan (the 1st appellant’s father), the 1st appellant and the respondents as the present co-owners of the Odofin family land.
In my view, the important issue was not whether the respondents knew the census of the children of the founder of the land, but, whether the land devolved to the present three branches of the family as co-owners which was answered in the affirmative by the PW1, PW3 – PW5 who gave evidence of the identity of the intervening owners of the land.
Consequently, the failure of the PW1 to name all the children of the founder of the land was of no moment in light of the said pieces of evidence showing the intervening owners of the land. Therefore the contention of the appellants that the genealogy of the disputed land was not proved is untenable and is hereby discountenanced.
The evidence of the PW3 and PW4 that the descendants of Igara came to be known as the Odofin family was not disputed under cross-examination. It is now trite that relevant evidence not cross-examined upon or unshaken under cross-examination should be accorded some weight – see Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325, Okosi v. The State (1989) 1 NWLR (Pt.100) 642, Oforiete v. The State (2000) FWLR (Pt.12) 2081.
The nexus between the odofin chieftaincy of Ijagba and the disputed ownership of Odofin family land hinged on the qualification for the chieftaincy to reside in the contender being a member of Odofin family, which brought into focus and relevance Exhibit A, the letter from the Onijagba-in-council requesting a nominee for the chieftaincy from the household of Odofin, which attracted the significant finding from the court below that –
“EXHIBIT A – The Onijagba-in-council had by this letter requested the Odofin Family to present a candidate to fill the vacant Odofin Chieftaincy position, which position was eventually filed by the 1st Defendant when he was installed as the Odofin of Ijagba. Exhibit A was addressed to the Head of Odofin Family and was tendered through PW1, who claims to be the Head of the Family. Paragraph 2 of exhibit A also indicated that the Onijagba-in-Council had earlier sent a verbal message to the family. It will be inconsistent for the Onijagba-in-Council to direct its request to a particular family, in this case, the plaintiff’s family and then accept a candidate from another family, that is, the 1st defendant’s family.”
There were also Exhibits M and N, minutes of the Odofin family meeting, at which the 1st appellant and the respondents were in attendance and discussed the Odofin Chieftaincy issue as it affected their family – the Odofin family. The Odofin chieftaincy matter that featured in Exhibits A, M and N, for example, was, accordingly, indicia that the 1st appellant is a member of Odofin family linking him with the disputed land as co-owner with the respondents.
Therefore, the appellants’ contention that the court below misconceived their case as pleaded in the amended statement of defence that the Odofin Chieftaincy title had no bearing on the 1st appellant belonging to the Odofin family is, with respect, futile in light of the credible evidence believed and accepted by the court below with emphasis on Exhibits A, M and N that a contender for the Odofin Chieftaincy title must be a blood member of Odofin family.
The PW2, one Chief Samson Adekoya Abass Adesanya, the Onijagba of Ijagba, testified essentially on how the Odofin family nominated the 1st appellant to the Odofin Chieftaincy title and turned round to retract the nomination after the 1st appellant was given the Odofin Chieftaincy title, which retraction the traditional council of Ijagba rejected, consequently the PW2’s evidence was not on the traditional history of the disputed land, as he was not a member of Odofin family to be imbued with the knowledge or competence to give evidence of traditional history of the disputed land – See Ebba v. Ogodo & Anr (1984) NSCC 255 at 267 thus:
“PW6 not being a member of Ogodo family or Ebba family was incompetent to give traditional evidence to establish the original acquisition of land either by Ogodo family or Ebba family.”
Therefore, the PW2’s answer under cross-examination that – “I have never heard the name Igarra in the history of Ijagba” went to no issue and did not destroy the tradition history of the disputed land rendered by the PW1, PW3, PW4, and PW5.
Also, the court below was careful in its judgment when it relied on only the evidence of the PW1, PW3, PW4 and PW5 to hold that the respondents proved title to the disputed land by traditional evidence in these words in page 198 of the record –
“I therefore believe the evidence of PW1, PW3, PW4 and PW5 as opposed to that of DW1, DW2 and DW3 and find the traditional history of the plaintiffs to be cogent, plausible and conclusive.”
The court below found as a fact based in part on Exhibit R, the document of grant of some portions of the disputed land to the 2nd and 3rd appellants, that the 1st appellant was vendor of portions of their family land which he disposed of without the consent or authority of the 1st respondent as head of the Odofin family, nor with the concurrence of the 2nd – 4th respondents as principal members of the family. Indeed the 1st appellant signed Exhibit R dated 31.12.03 disposing of “100 ft x 50 ft,, of the land to the 2nd appellant. The court below proceeded to hold in page 200 of the record that such sale of family land was void ab initio and adjudged the 2nd – 3rd appellants trespassers in the disputed land. I endorse the said findings as they are supported by the evidence before the court below.
The argument that the void sale of the disputed land must be set aside before the 2nd – 3rd appellants would be adjudged trespassers in the disputed land does not impress me: first, as rightly held by the court below, an act that is void ab initio could not have been set aside in the proceedings in question on the plank that one cannot place something on nothing; nor were the respondents parties to the document disposing of part of their family land as to vest them with the right to have the document set aside – See Animashawun v. Osuma (1972) 7 NSCC 253 at 260 thus:
“The learned trial Judge was also in error in holding that instead of claiming possession of the land, the plaintiff’s family should have sought a declaration that the sale is null and void and that the deed of conveyance (Ex. “G”) be set aside. In the first place, when a party believes or has reasons to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that that transaction is null and void. Moreover, we observe, with respect that a void transaction cannot be set aside because being void ab initio there could be nothing to set aside. Finally, in an action to set aside a deed (also known as a claim for rescission), the possible parties to the proceedings are ordinarily the persons who were or who are deemed to have been, parties to the deed. In this case, the plaintiff’s family are not a party to the deed (Ex. “G’). They are therefore, not competent to bring an action to set aside the said deed.”
See also Abiodun & Ors v. Adehin (1962) 1 ALL NLR 550 at 554.
Second, by holding that the 2nd – 3rd appellants’ entry and user of the disputed land was illegal, the logical follow-up was to find them liable in trespass. Consequently, the findings on trespass and damages cannot be faulted as the 2nd – 3rd appellants also admitted in paragraph 5 of their joint statement of defence in page 73 of the record that 2nd appellant started work on the land, which the respondents proved by traditional history to be their yet to be partitioned family land upon which they have been farming as evidence of their possession thereof vide England v. Palmer (1955) 14 WACA 559 at 560 thus:
“In a trespass action an averment of ownership is consistent with and in my view amounts to an averment of possession, for ownership may be proved by proof of Possession”‘
See also Badejo & Ors v. Sawe (1984) 6 S.C. 350.
In my considered opinion, the court below came to the right decision on the facts before it that the 1st appellant as a member of Odofin family had no right to dispose of portions of the yet to be partitioned Odofin family land without the consent or approval of the head of the family, the 1st respondent, in concurrence with the 2nd – 4th respondents as principal members of Odofin family and; having unilaterally sold some portions of the family land to the 2nd – 3rd appellants, the sale was void or bad ab initio and made the 2nd – 3rd appellants trespassers in the disputed land – See Mozie & Ors v. Mbamalu & Ors (2006) 7 SCNJ 411 at 421 and Animashawun v. Osuma (supra) at page 261 (lines 5 – 9).
Considering the holding by the court below that the 1st appellant and the respondents representing the three branches of Odofin family are co-owners of the undivided Odofin family land, the 1st appellant could not have been guilty of trespassing on the land as rightly urged by Chief Esan for the appellants. Only the 2nd – 3rd appellants that bought portions of the family land from the 1st appellant without the authorization of the family head and the other principal members of the family were liable in trespass as their initial entry in the family land through the unauthorized sale constituted an act of trespass – See by analogy Animashawun (supra) at 261.
Furthermore, the declaration of title in form of the entitlement of the respondents to a statutory right of occupancy over the disputed family land granted by the court below would not cut off the interest of the 1st appellant who has been held by the court below to be co-owner with the respondents of the yet to be partitioned Odofin family land. See by analogy Ume & Ors v. Ezechi & Ors Privy Council Judgments by Olisa Chukura 968 at 972 thus:
“But the Federal Justices draw attention to another point which their Lordships have regarded as highly significant, namely, to the undoubted fact that there was clear evidence of a considerable degree of common user on the part of members of both families over the disputed area and also to the fact that both families, Achina and Akpo, appear to have been descended from a common ancestor – a fact which, as Taylor F.J pointed out, might well explain the common user illustrated as it was particularly by the facts relating to the Oye market and the Ezeokolo Juju and by the circumstance that the C.M.S. station is now called the “Achina-Akpo” station. In the circumstances, as Taylor F. J. pointed out, it might well be that the whole area was, or was in large measure, communal to both families and that the claim of the plaintiffs to the land as exclusive Achina family property had been misconceived”.
In other words, by the tenor of the judgment of the court below, it is clear that 1st appellant has lost his interests in the undivided Odofin family land as co-owner from the Dada or Amusan branch of the family with the respondents from the Orebajo and Aina Aluko branches of the family under the headship of the 1st respondent. Therefore part of the judgment of the court below that only the respondents are entitled to statutory right of occupancy over the disputed Odofin family land to the exclusion of the 1st appellant’s branch of the family cannot stand.
The appeal is allowed in part. The decision of the court below declaring the respondents as the only persons entitled to statutory right of occupancy over the Odofin family land is hereby set aside. The appeal on trespass is allowed only in respect of the 1st appellant, while the appeal in respect of trespass to the disputed land by the 2nd-3rd appellants is dismissed. The order of permanent injunction issued by the court below against the appellants in favour of the respondents restraining the appellants from unlawful interference with the disputed land stands. Parties to bear their costs.
STANLEY SHENKO ALAGOA, J.C.A.: I read in draft the judgment just delivered by my learned brother Ikyegh (J.C.A.) and I agree with the reasoning and conclusion reached. I also allow the appeal in part and abide by the consequential orders made in the lead judgment including the order on costs.
MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother J. S. Ikyegh J.C.A just delivered.
I cannot but agree with the reasoning and conclusion reached therein that the appeal is allowed in part. All the issues involved have been adequately addressed.
I too allow the appeal in part and abide by the consequential orders made.
Appearances
Chief O. EsanFor Appellant
AND
Mr. O. ObanewaFor Respondent
