DINUOLA AKINBILEJE & ORS v. CHIEF SERIKI OGUNTOBADE & ORS
(2013)LCN/6566(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of December, 2013
CA/B/186/2003
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. DINUOLA AKINBILEJE
2. FLORENCE OLOFINSAMABO
3. MARGARET ADEDUYITE
(For themselves and on behalf of Adebosotu Akinrinsola family)
(PLAINTIFFS/RESPONDENTS/APPELLANTS) Appellant(s)
AND
1. CHIEF SERIKI OGUNTOBADE
2. OLONIMOYO AKINBOBOSE
3. BENSON IJIDAKINRO
4. JOEL AKINTADE
5. OLABANJI AJAYI(DEFENDANTS/APPELLANTS/RESPONDENTS) Respondent(s)
RATIO
WHETHER OR NOT THE HEAD OF THE FAMILY MUST CONCUR TO THE SALE AND DISPOSITION OF FAMILY PROPERTY
It is indeed a truism that the principles of law governing the sales or disposition of family property are that the head of the family and majority of the principal members of the family are present to concur to such sale or disposition as the case maybe. Recourse is placed on CHIEF OMONIYI FAYEHUN & ORS vs. CHIEF R. A. FADOJU & 74 ORS. (supra). PER JOMBO-OFO, J.C.A.
SECTION 128 (1) OF THE EVIDENCE ACT 2011
Pursuant to section 128(1) of the Evidence Act, 2011:
“When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.” [Emphasis mine]. PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): The plaintiffs/appellants claimed against the defendants/respondents at the Customary Court Idanre seeking:
i. A declaration that the plaintiffs are entitled to the grant of Customary Right of Occupancy over the six cocoa farmlands situate, lying and being at Igbotokun Camp, Idanre which cocoa farm and their boundaries are known to the defendants as described in suit nos. 154-158/98.
ii. N5,000 damages.
iii Cancellation of the purported agreement of sale of the said cocoa farm between the defendants.
iv An order of Accounts.
v. An order of perpetual injunction restraining the defendants whether by themselves, servants, agents or privies from trespassing unto or remaining on the cocoa farmland. The defendants/respondents also counter-claimed against the plaintiffs/appellants the following:
a. A declaration that the defendants are entitled to the grant of Customary Right of Occupancy over the five cocoa farmland situate, lying and being at Igbolokun, Idanre which cocoa farm are bounded as follows:
b. N5,000 damages for trespass.
c. An order of perpetual injunction restraining the plaintiffs whether by themselves, servants, agents or privies from trespassing unto or remaining on the cocoa farmland.
With the leave of the trial court granted 15th February, 2000 both the plaintiffs, claim and the defendants’ counter-claim were consolidated.
Following the decisions at the Customary Court, Idanre, the defendants took the case on appeal to the High Court of Justice, Akure. The appeal was argued and on 25th July, 2003, Hon. Justice O. Fagbe in a considered judgment held inter alia:
“In the result this appeal succeeds.
The judgment of the trial Customary Court dated 20th September, 2001 is hereby set aside in its place I enter judgment for the (?) in the following terms:
i. A declaration that the 5th appellant is entitled to the grant of Customary Right of Occupancy over the five cocoa farmlands situate, lying and being at Igbolokun Camp, Idanre, same having been duly sold for a consideration of N100,000:00.
ii. The respondents whether by themselves, servants, agents and or privies are perpetually restrained from trespassing into the five cocoa farmland situate, lying and being at Igbolokun camp, Idanre.”
Dissatisfied with the judgment the plaintiffs/respondents who are appellants herein, filed a Notice of Appeal dated and filed 28th July, 2003 and which contains two grounds of appeal.
In compliance with the rules of this court the parties filed and exchanged briefs of argument. The appellants’ brief which was settled by NIRAN DISU, Esq. dated 27th June, 2005, filed 5th July, 2005 and was deemed proper before the court on the same date. The defendants/appellants who are respondents herein filed their brief of argument settled by ALEX AKINSULIRE, ESQ. The brief was dated 23rd October, 2012, filed 29th October, 2012 but deemed proper before the court on 27th November, 2012.
At the hearing of the appeal on 23rd October, 2013, J. O. DISU for the appellants adopted and relied on their said brief as their argument in this appeal. He urged the court to allow the appeal and set aside the judgment of the Lower Court. On the other part ALEX AKINSULIRE for the respondents adopted and relied on their respondents’ brief as their argument in the appeal. By way of adumbration he submitted that the owner of the property in question died without a surviving issue and so the head and principal members of her family leased and later sold the land to the 5th respondent. He urged on us to affirm the judgment of the Lower Court so long as the sale was performed by the head of the family; and that it was a matter of semantics if he was referred to as the chairman or so.
In quick response to this, the learned counsel for the respondents submitted that the issue of survivor is being raised for the first time by the appellant in this appeal and that it was not an issue at the Lower Court.
The learned counsel for the appellants distilled two issues for determination of the appeal and they are:
i. Whether the learned trial (sic) is right to hold that the defendant/appellant/respondent Chief Seriki Oguntobade who signed agreement evidencing the sale of the cocoa farmland to the 5th.
ii. defendant/appellant/respondent (Exhibit B) as Chairman was family head of Adebosotu family and that reference to him as Chairman was a misnomer.
iii. Whether oral evidence can be used to vary the contents of a document (Exhibit B).
On the part of the respondents, learned counsel on their behalf formulated two issues also for determination of the appeal and the issues read:
a. Whether by reason of mere reference to the 1st defendant/appellant/respondent, Chief Seriki Oguntobade as Chairman of the Adebosotu family instead of the head of Adebosotu family in the agreement evidencing the sale of the cocoa farmland to the 5th defendant/appellant/respondent the sale mentioned in Exhibit B is invalidated.
b. Whether equating family Chairman with Family head amounts to using oral ‘ evidence to vary or contradict the contents of the documents referred to as Exhibit B.
It seems to me that the issues as formulated by both sides are similar. I shall therefore determine the appeal with the two issues formulated by the appellants. In support of issue one (i) thereof the learned counsel for the appellants submits that Customary law does not admit or recognize a person who is a Chairman as head of the family or family head. Thus, the 1st respondent signed Exhibit B as Chairman of the family a position distinct from family head or head of the family. The respondent who signed in his capacity as Chairman cannot be properly described in law as head of the family or family head of Adebosotu family. Therefore, Exhibit B which purports to transfer the five cocoa farmland to the 5th respondent is void since the 1st respondent Chief Seriki Oguntobade is not the head of the family.
The learned counsel contended that the sale of family land without the consent of the family head is void. He said that the position of family head in Yoruba Customary Law is separate and distinct from the position of Chairman who may be appointed from time to time for specific purposes. Further in his contention the learned counsel for the appellants argued that the 1st respondent Chief Seriki Oguntobade was appointed Chairman for the sole purpose of raising funds for the burial of late Madam Adebosotu and that that was why the 1st appellant signed Exhibit A pledging the cocoa/farmlands to raise funds for the burial. Learned counsel submitted that there is evidence before the Lower Court that the 1st respondent is not the head of the family but Chief Lijoka Akinde.
Appellants’ counsel opined that in view of the evidence before the Lower Court that the Lower Court was in error to hold that reference to the 1st respondent as Chairman was a misnomer. He urged the court to hold that the 1st respondent having signed Exhibit B as Chairman, lack legal capacity to transfer/convey the cocoa farmland and that the said Exhibit B is null and void and of no effect.
In reaction to the issue, the learned counsel for the respondents submitted that the learned Judge of the Lower Court was right by holding that reference to the List respondent as Chairman instead of head of Adebosotu Family was a mere misnomer. He opined that the Lower Court looked beyond form for substance and since no other person performed the role of the head of family it therefore does not matter what the head of family is called. He said that he could be referred to as Governor, President, Chairman or head as long as he in fact performs the roles or duties of the head of the family.
Learned counsel for the respondents further said that Chief Lijoka Akinde referred to in paragraph 4 of the appellants’ brief never performed any role at all talkless of acting as the head of Adebosotu Family. He said that there is no record of any other person performing the role of head of Adebosotu Family other than the 1st respondent. He submitted that the head of a Family must join in a disposition of Family land and the principal members of the Family must concur in such a sale and disposition. He said that it is not a requirement that all the principal members will have to give their congent; that it is enough if a majority of the accredited representatives or principal members of the Family authorize the sale. He referred to the case of CHIEF OMONIYI FAYEHUN & ORS. Vs. CHIEF R. A. FADOJU & 74 ORS. (2002) 2 SCNQR (PT.1) 42, 44-45 ratio 3 and 5.
RESOLUTION OF ISSUE (1) ONE
It is indeed a truism that the principles of law governing the sales or disposition of family property are that the head of the family and majority of the principal members of the family are present to concur to such sale or disposition as the case maybe. Recourse is placed on CHIEF OMONIYI FAYEHUN & ORS vs. CHIEF R. A. FADOJU & 74 ORS. (supra).Regarding the instant appeal, it is in evidence by way of cross examination of the PW1 (Dinuola Akinbileje) at page 73, lines 24-25 of the record that Chief Lijioka Akinde was the family head as opposed to the 1st respondent (Chief Seriki Oguntobade) who was Chairman at all times material to the funeral of late Madam Adebosotu. PW1 testified that she signed the rentage agreement (Exhibit A) along with the 1st respondent (Chief Seriki Oguntobade) as the director of affairs because Chief Lijoka Akinde was not around. Now, the fact that the said Chief Lijoka Akinde was not present in the course of the burial and or funeral of the late Madam Adebosotu still does not remove the family headship from him.
Exhibit A was reached in order to enable the family raise fund for the funeral of late Madam Adebosotu. Being the Chairman of the funeral event it was proper that the 1st respondent signed in his capacity as the Chairman of the event but not as the head of the family. It is clear that aside from the PW1 (Dinuola Akinbileje) that the PW2 (Bolametirin Ukomuyilo Nghawe) was also a party/signatory to the rentage agreement (Exhibit A) thus bringing those two within the purview of principal members of the family who for all intents and purposes must consent to any disposition or sale of the cocoa farmlands covered in Exhibit A. Curiously, PW1 and PW2, despite their position and interest therein, were conspicuously excluded in the purported sale or disposition of the cocoa farmlands as evidenced in Exhibit B. See also page 84, lines 4-13 of the record.
It is pertinent to point out that the appellation “Chairman and or Secretary of the family” is novel for purposes of the sales and or disposition of a family land or property. The key players in the event of any such sale or disposition are the head of family and majority of the principal members of the concerned family. Chief Lijoka Akinde the recognized family head as well as the PW1 and PW2 being principal members of the family were neither present nor did they otherwise consent to the disposal of the five cocoa farmlands as contained in Exhibit B (Sale Agreement). Undoubtedly, the 1st respondent (Chief Seriki Oguntobade) by signing the said Exhibit B as Chairman of the family and in the absence of the acknowledged family head (Chief Lijoka Akinde) was acting ultra vires his power and in usurpation of the powers of the family head of the Adebosotu family. The sale/transfer as evidenced in Exhibit B is therefore null, void and of no legal effect.
With all due respect to the learned trial Judge of the Lower Court it was just not correct of him to hold that the 1st respondent as Chairman was the family head of Adebosotu family and that reference to him as Chairman was a misnomer. Accordingly issue (1) one is resolved in favour of the appellants and against the respondents.
On issue (2) two which is whether oral evidence can be used to vary the contents of a document such as Exhibit B; I am only going to go into it as an academic exercise.
Learned counsel for the appellants in his submission thereon while referring to section 32(1) of the Evidence Act stated that oral evidence cannot be used to vary the contents of a document. He further cited the authorities of AWOLOWO vs. SHAGARI (2001) FWLR (Pt.173) 126; and FORTUNE INT’L BANK PLC. Vs. PEGASUS TRADING OFFICE (2004) ALL FWLR (PT.199) 1314 upon which he urged the court to hold that the 1st respondent signed Exhibit B as chairman and not family head and that the Lower Court was in error when it held that the 1st respondent signed as family head and that references to 1st respondent as Chairman is a misnomer.
As for the learned counsel for the respondents he submitted that interpreting Chairman of Adebosotu Family to also mean Head of Adebosotu Family is a question of semantics within the con of Exhibit B and does not amount to varying the contents of Exhibit B.
RESOLUTION OF ISSUE (2) TWO
Pursuant to section 128(1) of the Evidence Act, 2011:
“When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.” [Emphasis mine].
It is clear from the foregoing, coupled with the authorities of AWOLOWO vs. SHAGARI (supra); and FORTUNE INT’L BANK PLC. Vs. PEGASUS (supra) that oral evidence cannot be used to vary or alter the contents of documents such as Exhibit B which is the agreement of sale/transfer of the cocoa farmlands to the 5th respondent. Therefore interpreting the Chairman of Adebosotu Family to also connote Head of Adebosotu Family as it appears in Exhibit B is a serious error and as such amounts to varying the contents of the said Exhibit B. As I noted earlier in this judgment the appellation Chairman and or Secretary is unknown to the Customary family setting whilst dealing with family property or land. Issue (2) two therefore, is resolved in favour of the appellants and against the respondents.
In all, having found that the 1st respondent (Chief Seriki Oguntobade) acted ultra vires as chairman, when he purportedly sold and or transferred the cocoa farmlands as shown in Exhibit B to the 5th respondent (Olabanji Ajayi); the said sale and or transfer is in itself a nullity and carries no legal effect. Consequently the appeal is allowed and the decision and judgment of the High Court of Justice sitting in Akure in suit nos. AK/9A/2002 delivered 25th July, 2003 is hereby set aside.
SOTONYE DENTON WEST, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother Cordelia Ifeoma Jombo-Ofo, JCA. I agree with his reasonings and conclusions.
Indeed it is trite law that principles of law governing the sales or disposition of family property are that the head of the family and majority of the principal members of the family are present to concur to such sale or disposition as the case may be.
In the instant case, Chief Seriki Oguntobade cannot hold himself out as the Head of the Adebosutu family by the mere signing of the said Exhibit B as ‘Chairman’ of the family. This readily brings to mind the holding made in BADIRU V. BISIRIYU (1997) 5 NWLR (PT.504) 290 @ 295 where it was held that in determining whom the head of a family is “….it cannot be a proper statement of the law that because a document or a witness mentioned the name of one of the members of a family who allegedly sold a family property first or that in the deed of conveyance giving legal teeth to the sale the person mentioned first is necessarily the head of the family. There must be direct evidence by some members of the family who are giving evidence as to who really is the head of the family. It is not in all cases, that it would be a matter of inference or deduction. Such inference might be based on speculation or conjecture on the part of the Judge and this is not a stance that would enable the beautiful work of proper finding on the facts of the case to be made. One can of course understand a situation where a member of the family sold the land without the consent of the members of the family including the family head or where he disposed of his own land. The question of who is the head of the family at anytime is neither a matter of inference nor is it a matter of presumption, particularly where the issue is the basis of a conflict and is raising dust. Where people are disposed to telling the truth everyone in a family should know who is the head of a family. ”
In my humble opinion, this old time rule has not changed, that in alienation of a family property, the capacity of the family head in consonance with the consent of principal members of the family is prime. The satisfaction of this means that a major implied covenant of the vendor as having a good right to convey has been proved. However, in this instant case, a stranger acting in the capacity as a ‘master of ceremony’ or ‘chairman’ initiated for the sole purpose of a funeral cannot extend his powers to the functions of a family head, as this will be a clear usurpation of the important position of a family Head in the conveyance of the interest of title in property and it would be tantamount to a coup d’etat and though the handmaiden of the law may be sculpted in a blind veil, it sees and clearly so.
With the foregoing and taking cognizance of the in-depth reasoning of the lead judgment, I too allow this appeal and set aside the judgment of the High Court.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Ifeoma Jombo-Ofo JCA. I agree with the reasoning and conclusion. I also abide with the consequential orders.
Appearances
J. O. Disu Esq.For Appellant
AND
Alex Akinsulere Esq., appears with A. B. Ogunsakin Esq.For Respondent
