ALHAJI KARIMU OKE YESUFU & ORS v. OKE BAALE (OSOGBO) N. U. T. CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED & ANOR
(2014)LCN/6768(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of January, 2014
CA/AK/11/13
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI KARIMU OKE YESUFU
2. CHIEF T. A. ADEBAYO
3. MR. HAMMED SALAWU
4. MR. AKANDE OSHO
(For themselves and on behalf of the Alakimo family of Osogbo) – Appellant(s)
AND
1. OKE BAALE (OSOGBO) N. U. T Co-OPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED
2. BODE MAKINDE
(For himself and on behalf of Late Chief Nathaniel Makinde Family, Osogbo) – Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN RAISE ISSUES FOR PARTIES BEFORE IT
Regarding issue two, it is pertinent to state the position of the law which is that a court cannot make out a case for the parties, or a different case from that presented to it by the parties for adjudication. The clear pronouncement of this court in OBANYE v. MBAMALU (2012) 41 WRN 153 at 167 per Oseji, JCA referred and it reads: “Judges as umpires in the temple of justice cannot raise issues for the parties if the issues do not flow from the pleadings filed….. It will amount to a fundamental judicial vice for a trial court to take into account matter which it ought not to, or import evidence that are alien to the proceedings before it. This will certainly occasion a miscarriage of justice…..” See also IBANGA vs. DEFEK-SOLAR (1985) 4 SC. 141; LEMU vs. ALLI-BALOGUN (1975) 3 SC 169; and NDIC vs. ORANU (2001) FWLR (pt. 82) 1974. PER JOMBO-OFO, J.C.A.
WHETHER OR NOT A DONOR OF ABSOLUTE GIFT CAN REVOKE THE GIFT AFTER IT HAS BEEN ACCEPTED BY THE DONEE
It is trite in law that a donor of absolute gift cannot revoke the gift after it has been accepted by the donee. In Anyaegbunam v. Osaka (2000) 10, WRN 109 @ 125, the Supreme Court, per Muhammed, JSC held thus: “The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied, the donor has no right to revoke the gift.” However, the only exception to this general principle of law is where the gift was obtained by fraud, mistake, misrepresentation or there is total failure of the object of the gift. See: Imah vs. Ikogbe (1993) 9 NWLR (pt. 316) 159 @ 173: Ogilvie vs. Allen (1899) 15 T.C.R. 294. It is noteworthy that none of these vitiating elements was pleaded and proved by the appellants herein. PER WEST, J.C.A.
CORDELIA IFEOMA JOMBO-OFO J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice G. O. Ojo of the High Court of Osun State sitting at Osogbo and delivered 2nd November, 2012 dismissing in its entirety the claims of the claimants herein the appellants. The claimants claimed against the defendants herein the respondents in a representative capacity for title to Alakimo Family land as shown in the dispute survey plan admitted in evidence at the trial court as Exhibit A as well as damages for trespass and injunction. On 28th September, 2011 the claimants, pursuant to the order of the trial court granted them on 14th June, 2011, filed an amended statement of claim. See pages 93-99 of the record. The statement of defence of the 1st defendant is at pages 52-54 of the record. The 2nd defendant did not file a defence or enter appearance in this matter.
The gist of this case is that the appellants are claiming ownership of the land herein in dispute. The land forms part of a larger tract of land settled upon by one Tinuola, the founder of the appellants’ family at Oshogbo, Osun State. A survey of the entire land delineating the portion in dispute is as shown on a dispute Survey Plan and marked as Exhibit A is contained on page 108 of the record. The appellants are claiming that Tinuola invited one Laisi Oshun a farmer/labourer to come and live on the disputed portion for the duration of his stay in Oshogbo or for the duration of his life whichever is earlier.
The respondents on their side are claiming that the land in dispute belonged to one Aboderin who inherited same from Tinuola his father and that it was Aboderin who gave the disputed portion free of charge to Laisi Oshun his friend.
The appellants and the respondents are in agreement that Tinuola settled on the land in dispute. They are also in agreement that at a point in history Laisi Oshun came on the land. However, both sides do not seem to agree on who Laisi Oshun’s grantor was and the nature and terms of the grant.
Having lost their claims at the trial court, the claimants/appellants filed their notice of appeal dated and filed 23rd January, 2013 containing six grounds of appeal.
The appellants in compliance with the rules of this court on 20th March, 2013 filed their brief of argument dated March, 2013. They also filed a reply brief dated and filed 12th June, 2013. Both briefs were settled by ‘DAYO ADEBAYO ESQ. The respondents, brief which was settled by M. O. AGBOOLA, ESQ. was dated and filed 9th May, 2013.
At the hearing of the appeal on 12th November, 2013, IDOWU AKINLOYE ESQ. with the brief of ‘DAYO ADEBAYO ESQ. for the appellants adopted the two briefs as their argument in this appeal. He urged the court to allow the appeal and set aside the judgment of the trial court. M. O. AGBOOLA, ESQ. on their part adopted and relied on the respondents’ brief as their argument in the appeal. He urged the court to dismiss the appeal just as the lower court dismissed the case.
The appellants posited the following three issues for determination of the appeal and the issues read:
1. Whether the learned trial judge can fragment the traditional histories presented to him by the parties and accept or reject some of its component elements?
2. Whether from the pleadings and evidence adduced the learned trial judge evaluated the evidence and drew proper inferences and conclusion in dismissing all the claims of the appellants?
3. Is the maxim Nemodat quod non habet applicable to the facts of this case and if so could the trial judge have held that the respondent has validly acquired title to the disputed premises?
On the side of the respondents, learned counsel on their behalf formulated a lone issue which according to him encompasses the three issues as formulated by the appellants’ counsel. The lone issue reads:
Whether the lower court was right in holding that the appellants as plaintiffs have failed to prove their title to the land and dismissing their case?
The learned counsel for the respondents outlined the grounds of appeal in relation to the lone issue thus:
a) The nature of the grant by Tinuola to Lasisi Osun- Ground 1
b) Payment of tribute (vel non) by Lasisi Osun- Ground 2
c) Evidence of facts of possession by Lasisi Osun, whether as a grantee or as a customary tenant- Ground 3
d) Nature of interest held by Lasisi Osun’s daughter- Ground 4
e) Whether the lower court considered the respondents case at the detriment of the appellants- Ground 5
f) Evaluation of evidence- Ground 6.
Considering the two available options, I am decided to settle for the three issues as formulated by the counsel for the appellants in determining the appeal.
Marshalling his case on issue one, the learned counsel for the appellants pointed out that the appellants and the respondents both presented two cases of traditional histories before the trial court for its consideration. He said that the appellants in their pleading stated that Tinuola the appellants’ ancestor and original settler on the land invited Lasisi Osun to come on the land on condition that the land reverts to the appellants’ family upon the departure of the said Lasisi Osun or his demise which ever precedes the other. See page 95, paragraphs 11 and 12 of the record.
On the part of the respondents they pleaded that the land belonged to Aboderin who inherited same from his father Tinuola and that it was Aboderin who gave the land to Lasisi Osun his friend free of any charge. See page 52, paragraphs 2 and 3 of the record. Further to this the respondents pleaded that when Lasisi Osun wanted to convert the shed he built on the land to a mud house, that he sought and obtained the consent of Ogundiran, the then head of the appellants’ family and made a payment of a bottle of schnapps and one shilling, six pence as prayer to the family.
Learned counsel for the appellants went on to submit that the learned trial judge in making his findings hereon went on to hold:
“From the evidence before me, I found and believed that it was Tinuola, the ancestor of the claimants that invited Lasisi Oshun to the land in dispute and gave him the land to build upon…. I have not found any iota of evidence before me to make me hold that the original grant made to Lasisi Oshun was not a gift more so with the payment of a bottle of schnapps and payment of the sum of one shilling six pence.” [Underlining supplied].
It is the learned counsel’s contention that the learned trial Judge in this case fragmented the traditional histories presented by the parties. While he held in part the case for the appellants that Tinuola, their ancestor invited Lasisi Oshun to the disputed land; he further held contrary to the pleading of the appellants that the land was a gift for which consideration was paid. Relying on the authority of MORENIKEJI vs. ADEGBOSIN (2003) FWLR 45, 46 per Iguh, JSC, counsel urged on us to set aside the judgment of the trial court and grant the reliefs sought in this appeal by the appellants.
Moving on to issue two the learned counsel for the appellants has argued that the payment the learned trial Judge referred to in his judgment as consideration for the original grant, was not made to Tinuola, neither was it made at the time of the original grant but made several years later. He submitted that despite evidence to the contrary, the learned trial Judge still came to the conclusion that the payment was for an outright gift and transfer of land and that the payment was made to Tinuola at the time of the original grant. Against this background counsel, opined that the learned trial Judge apart from drawing wrong inferences thereby reaching wrong conclusion in this case, made a case different from that put forward by the parties. To buttress his argument he relied on the cases of TABANSI vs. EGWUATU (2012) 9 WRN 153, 175; AFRICAN CONTINENTAL SEAWAYS LTD. vs. NIGERIAN DREDGING & GEN. WORKS LTD. (1977) 5 SC. 235 at 250; and OBANYE vs. MBAMALU (2012) 41 WRN 143, 162 where this court per Oseji, JCA held as follows:
“Judges as umpires in the temple of justice cannot raise issues for the parties if the issues do not flow from the pleadings filed…. It will amount to a fundamental judicial vice for a trial court to take into account matter which it ought not to, or import evidence that are alien to proceedings before it. This will certainly occasion a miscarriage of justice.”
He urged on us to hold that the trial Judge having imported evidence and considered a case different from that presented by the parties to come to its decision, that such judicial vice is material enough to have the decision set aside.
Furthermore, the learned counsel contended that the trial Judge failed to evaluate and make findings on material evidence on record that the payment of tribute by Laisi Oshun to Ogundiran, Tinuola’s grandson, who was then the head of the appellants’ family before he could convert his shed to a mud house, is proof that Laisi Oshun recognizes the appellant as his overlord and thereby a customary tenant to them. The learned trial Judge rather than evaluate this evidence, went on to hold at page 193, lines 1-3, that there was no evidence of payment of tribute to the Alakimo family since over 80 to 100 years ago contrary to the evidence on record. Counsel added that the trial Judge failed to make finding that the customary tenancy of Laisi Oshun was forfeited with the sale of the disputed premises. See Rhodes-Vivour, JSC in the case of AYORINDE vs. SOGUNRO (2012) 11 NWLR 460 at 501 where he held thus:
“Where a customary tenant denies the title of his landlord, the resultant effect is forfeiture of his tenancy even when such relief is not claimed in a suit by or against the tenant. This is so because forfeiture of the tenancy comes into operation by law and the court has no discretion in the matter.”
With reliance upon the cases of MORENIKEJI vs. ADEGBOSIN (supra); and KARIBO vs. GREND (1992) 3 NWLR (pt. 230) 426, counsel urged on us to allow this appeal.
On the third issue as raised by him, the learned counsel for the appellants submitted that it is a fundamental principle of law that one cannot give what he does not have. He also recalled that a customary tenant does not possess ownership of the land, however long he may have occupied the land and as such cannot sell the land. Counsel recalled the case of ADEKAYAOJA vs. FAKEYE (2012) 43 WRN 111, where it was held that:
“It is the law that you cannot put something on nothing, it will surely collapse, simply put, you cannot give what you do not have.”
For the above reasons the learned counsel for the appellants urged the court to hold that the sale of the disputed land to the respondents is null and void; to set aside the judgment of the trial court, allow his appeal and grant the reliefs sought therein by the appellants.
On the lone issue proffered by the learned counsel for the respondents, he recalled that the onus is always on the plaintiff to prove his case in a suit for declaration of title, though he can rely on aspects of the defence which support his case.
While referring to paragraphs 10, 11, 12, 13, 14 and 15 of the plaintiffs’ statement of claim, learned counsel submitted that when Lasisi Oshun left the land in his old age for his home town Epe that the appellants’ family attempted to recover the land but the move was resisted by Nathaniel Makinde who claimed to have bought the land from Lasisi Oshun. The family never took any action against Nathaniel Makinde and that he later sold the land to the defendant. Counsel also referred to the testimony of PW1 as it appears on pages 174-176 of the record and opines that it speaks much about the property in dispute. He argued that if there was a conversion of the shed that once stood on the land to a bungalow that the only reasonable inference to be drawn therefrom is that the grant was absolute like the other ones on the land.
Regarding the holding of the learned trial Judge as contained at page 191 of the record; the learned counsel for the respondents submitted that the said trial Judge considered the case of the parties on the imaginary scale to see which was probable before jettisoning the appellants’ case which was riddled with improbabilities. He relied on the authority of FATUGA vs. AINA (2008) ALL FWLR (Pt. 398) 394, 400 where it was held that:
“Where a party in an action gives contradictory evidence, the court will not embark upon the speculation of which of the contradicting evidence to prefer, the court will simply ignore/reject both pieces of evidence.”
Counsel contended that the appellants’ case was self-contradictory and programmed to fail. He said that the concept of a gift “reverting” is, in law, inexistent. That anything that goes by the name of a gift in law is absolute and successors cannot derogate from it since by its very nature, a gift transfers property with the intention that the ownership shall pass from the donor to the donee. See ACHODO vs. AKAGHA (2003) FWLR (Pt. 186) 612 at 627 paras. G-H; and OGUNSINA vs. MATANMI (2001) FWLR (Pt. 48) 1329 at 1342.
He opined that as a matter of law the learned trial Judge was right in holding that the pleaded gift was absolute. According to him a trial Judge in a land case is justified to dismiss it either by simply rejecting the plaintiff’s case or accepting the defence as more probable. Further in his submission, counsel said that “CUSTOMARY TENANCY EVIDENCED BY PAYMENT OF TRIBUTE WAS NEVER THE APPELLANTS’ CASE ON THE PLEADINGS AT THE LOWER COURT”. Learned counsel saw it as a kite flown in for the first time in the final addresses of the appellants’ counsel at the lower court. He reiterated that the appellants’ case at the lower court was that it was a conditional gift and not a customary tenancy. Since they neither pleaded nor gave evidence of customary tenancy it is too late for them to change the colouration of their case.
In summary the learned counsel for the respondents submitted that the appellants at the lower court presented a self-defeating case when they pleaded and gave evidence that the founder of their family had transferred the land in dispute to the respondents’ predecessor by way of gift. Although they claimed that the gift was with a condition that the land will revert to the family evidence however, showed that the donee not only developed a permanent structure on the land but as a matter of fact his successors exercised full ownership rights on the land without any challenge from the family rendering the reversion claim not only contrary to law but unsupportable by evidence. It was against this backdrop that the counsel for the respondents concluded that the trial court was right in holding that the initial transfer was absolute and in rejecting the appellants’ case. This appeal, he quipped has not shown that the lower court’s finding was in any way perverse. He concluded that the appeal has no merit and should be dismissed.
The appellants’ counsel in their reply brief contended that the respondents’ counsel in paragraphs 3.07 and 3.08 of their brief postulated an issue which was not predicated on an existing ground of appeal. He referred to IDIKA & ORS. vs. ESIRI & ORS. (1988) 2 NWLR (Pt. 79) 563; EZE vs. FEDERAL REPUBLIC OF NIGERIA (1987) 1 NWLR (Pt. 51) 506; ATANDA & ORS. vs. AJAYI & ORS. (1989) 3 NWLR (pt. 111) 511 and ATERE vs. GOV., OYO STATE (2012) 12 NWLR (pt. 1314) 240 and urged on us to reject the submission of the respondents in their brief and “allow the appeal.”
It is indeed trite that a respondent cannot formulate an issue in his brief which is in nubibus, that is hanging in the sky. See also UTB (NIG) LTD vs. AJAGBULE (2006) 2 NWLR (965) 447. In EZE vs. FEDERAL REPUBLIC OF NIGERIA (supra) where it was enunciated thus:
“A respondent who did not cross-appeal can only adopt the issues as formulated in the appellant’s brief based on the grounds of appeal filed by the appellant or at best recast them by giving them a slant favourable to the respondent’s point of view but without departing from the complaint raised by the grounds of appeal. Any issue not in consonance with the grounds of appeal filed does not fall for determination.”
In their submissions, the learned counsel for the respondents contended that though the appellants filed a reply to the respondents’ statement of defence but that the said reply was not accompanied with a written statement so as to reduce the contents of the reply to evidence. The reply thus became a pleading unsupported by evidence. Counsel relied on Order 15 Rule 2 of the High Court of Osun State Amended Civil Procedure Rules which stipulates that pleadings shall only contain material facts and not evidence as well as Order 32 Rule 1(1) which provides that any fact required to be proved shall be proved by written deposition and oral evidence, which by sub-rule (3) shall only be limited to the witness confirming his written deposition. Learned counsel’s argument hereon is that in the absence of written deposition or oral evidence, the pleading becomes useless consequent upon which the said appellants’ reply to the statement of defence must be deemed abandoned. He opined that the direct implication of this was that the plaintiff/appellant did not controvert or deny the evidence of DW1. Court was referred to the authority of OBINECHE vs. AKUSOBI (2010) All FWLR (Pt. 533) 1839, 1865 where the Supreme Court made the following pronouncement:
“Where evidence by a party to any proceedings was not challenged or controverted by the opposite party who had the opportunity to do so, it is always open to the court seised of the case to act on such unchallenged or uncontroverted evidence before it.”
It does indeed appear to me that the issue as raised by the learned counsel for the respondents may be hanging in nubibus in that it does not seem to have its foundation on the grounds of appeal as filed by the appellants. All the same I think that it is an issue which if taken and determined will enhance the justice of this case more so as in this era of substantial justice as opposed to technicality. I shall therefore for this cause wade into it.
Obviously, pleadings by parties are to contain the bare facts that give rise to the plaintiff’s cause of action on the one part and the defendant’s defence thereto on the other hand. Pleadings do not consist of the evidence necessary to prove those facts. It seems to me and I so hold that all the processes which contain these bare facts as they relate to the cause of action constitute the pleading for the plaintiff. This is to say that pleading for the benefit of the plaintiff includes the statement of claim or an amended statement of claim and the reply to the defendant’s statement of defence. Thus, where the said plaintiff as in the instant case has filed a written deposition containing the evidence necessary to prove the averments in either of or both processes then, the requirement of the law shall have been met with. Any pleaded fact not covered by evidence without doubt is deemed abandoned. Clearly the plaintiffs/appellants filed their amended statement of claim and a reply to the defendants’ statement of defence which two processes make up the said plaintiffs/appellants’ pleading. They also filed their written deposition entitled “Statement on Oath of Claimants’ Witness”. Suffice it to say that contained in the said plaintiffs/appellants’ written deposition is the evidence they consider necessary and adequate for them to prove the facts averred in both their amended statement of claim and their reply to the statement of defence. What I am saying in effect is that the evidence of Chief Timothy Agboola Adebayo which is contained in the Written Statement on Oath of Claimants’ Witness dated and filed before the trial court on 17th May, 2010 and as shown at pages 12 to 16 of the record, is the evidence meant by the plaintiffs/appellants to support the facts averred in both their amended statement of claim and their reply to the statement of defence. It is therefore unfounded of the learned counsel for the respondents to suggest that another written deposition ought to be filed by the plaintiffs/appellants in support of their reply to the defendants/respondents’ statement of defence. It is my very strong view that the written deposition of the plaintiffs/appellants being their evidence in the case also covered their reply to the statement of defence and as envisaged particularly by Order 32 Rule 1(1) of the High Court of Osun State Amended Civil Procedure Rules (supra). The said Reply to the Statement of Defence which also forms part of the pleadings of the plaintiffs/appellants, is accordingly supported with the evidence as contained in the Written Deposition of the Claimant. It is in this vein that I hold that the learned trial court rightly acted upon the evidence of the DW1 as if the same was controverted and or denied by the plaintiffs/appellants. The objection as raised thereon by the learned counsel for the respondents is therefore of no moment and as such overruled.
I shall now proceed with the resolution of the issues raised by the appellants for determination.
RESOLUTION OF ISSUE (1) ONE
The findings of the trial court upon which issue one is hinged reads:
“From the evidence before me, I found and believed that it was Tinuola, the ancestor of the claimants that invited Lasisi Osun to the land in dispute and gave him the land to build upon. I also found that Lasisi Osun erected a shed thereon and which he later changed to a bungalow mud building which he did after the payment of a bottle of schnapp and the payment of the sum of 1 shilling 6 years (sic) for the land…… I have not found any iota of evidence before me to make me hold that the original grant made to Lasisi Osun was not a gift moreso with the payment of one shilling 6 years (sic to read six pence).” (Emphasis mine). [Underlining supplied]. See page 192, paragraphs 2 and 3.
Contrary to the submission of the learned counsel for the appellants, there seems to me to be no such fragmentation of the parties, traditional history given the foregoing findings of the trial court. The learned trial Judge rightly found that the land in dispute was a gift. Both parties acknowledged in their respective pleadings that the land in question was a donation save that while the appellants claim that it was from Tinuola the original founder of the land on condition that it is reversible upon the death of Lasisi Osun or upon his leaving the land for good which ever that happens first, the respondents claim that it was an absolute gift from Aboderin who inherited same from Tinuola his father. See particularly paragraph 12 of the appellants’ Amended Statement of Claim which is their relevant pleading herein, and the respondents’ Statement of Defence, paragraph 3 thereof. Whether the gift was from Tinuola or from his son Aboderin, it still does not remove from the fact that the original transfer of the said land was free of consideration. The finding of the trial Judge is that the land was a gift for Lasisi to build upon and that he did indeed erect a shed on the land. It was also the holding of the trial Judge that it was later on when Lasisi Oshun decided to change the shed to a bungalow mud building that he made the payment of a bottle of schnapp and the sum of one shilling six pence. This is to say that the payment of the sum of money and the bottle of schnapp was prompted by Lasisi Osun’s decision to convert his abode to a mud building as opposed to its being a payment for the land itself. I am satisfied that the pleadings and evidence led by the respective parties are in tandem with the finding of fact of the trial court as regards the grant being an outright or absolute gift. The finding is also in tune with the decision in MORENIKEJI vs. ADEGBOSIN (2003) FWLR (Pt. 45) 67 wherein it was held per Iguh, JSC as follows:
“The point cannot be overemphasized that neither the trial court nor the court below can without legal justification turn round to fragment the traditional histories presented by the parties and accept or reject some of its component elements. I entirely agree that each of the traditional histories called by the parties may be likened to a package and that the court, having complied with the provisions of the law, was entitled to accept one package or the other. It may not however broach the package it had accepted and then reject some of its contents.”
The gift of the land to the beneficiary Lasisi Osun was free of charge and as pleaded and evidence adduced by the appellants. That was the clear finding of the learned trial Judge. The conversion of the shed on the land to a more permanent or durable structure such as the mud bungalow all attest to the absoluteness of the gift to Lasisi Oshun by the family of the appellants. I fail to find anything on record to suggest a fragmentation of the traditional histories presented by the parties in this regard. It is in the light of this that I resolve issue (1) one in favour of the respondents and against the appellants.
RESOLUTION OF ISSUE (2) TWO
Regarding issue two, it is pertinent to state the position of the law which is that a court cannot make out a case for the parties, or a different case from that presented to it by the parties for adjudication. The clear pronouncement of this court in OBANYE v. MBAMALU (2012) 41 WRN 153 at 167 per Oseji, JCA referred and it reads:
“Judges as umpires in the temple of justice cannot raise issues for the parties if the issues do not flow from the pleadings filed….. It will amount to a fundamental judicial vice for a trial court to take into account matter which it ought not to, or import evidence that are alien to the proceedings before it. This will certainly occasion a miscarriage of justice…..” See also IBANGA vs. DEFEK-SOLAR (1985) 4 SC. 141; LEMU vs. ALLI-BALOGUN (1975) 3 SC 169; and NDIC vs. ORANU (2001) FWLR (pt. 82) 1974.
Contrary to the submission of the learned counsel for the appellants, the learned trial Judge in line with the evidence led before him and the facts duly pleaded by the parties came to the conclusion that the one shilling and six pence with the accompanying bottle of schnapp were not made as payment for the original grant of the land. It was also the finding of the trial Judge that that original gift of the land in dispute was made by Tinuola to Lasisi Osun consequent upon which the latter erected a shed thereon. The trial Judge noted and correctly too that the said payment was made much later in the grant when Lasisi Osun was minded to erect the more permanent mud bungalow in place of his earlier built shed. I am indeed at pains seeing the wrong inferences drawn and wrong conclusion reached by the learned trial Judge in this regard. Aside from the trial Judge holding that no payment was made at the time of the grant, he also saw wisdom in the subsequent acts of Lasisi Osun on the land which led him to reach the conclusion that the gift was absolute. One of such acts was the payment of the sum of one shilling and six pence and the bottle of schnapp as prayer for him to erect a more permanent structure on the land as well as the acceptance of the payment by Ogundiran of the appellants, family. In fact the trial Judge clearly stated at page 192, lines 16 -18 of the record that: “…..with the payment of a bottle of schnapp and payment of one shilling 6 years (sic) which by the Yoruba custom is a precondition for an outright gift and transfer of land.” This to my mind connotes that it was in recognition of the outright transfer or gift of the land to Lasisi Osun that led him to make that payment of one shilling and sixpence and the bottle of schnapp. This is to say that the payment was not made at the time of Tinuola the original grantor but was made several years later and at the time of Ogundiran the then head of the appellants’ Alakimo family.
The DW1 in his evidence at page 179, lines 4-7 of the record and in consonance with the finding of facts said under cross-examination as follows:
“….. when Lasisi Osun wanted to reconstruct the mud house to a new house Ogundiran was then the head of the family. I said in my statement that Lasisi Osun paid 1 shilling 6 pence to the family with a bottle of snap (sic) for prayer.”
It was in proper evaluation of the foregoing evidence and all the other material evidence on record that the trial Judge rightly arrived at the conclusion that the gift by Tinuola to Lasisi Osun was from origin, a gift without consideration and that the subsequent payment of the one shilling and six pence and the bottle of schnapp to the Alakimo family was in accord with Yoruba custom as it relates to outright gift and transfer of land. The effect is that Lasisi Osun is absolved from being a customary tenant of the Alakimo family. After all there is no evidence that any other subsequent payment apart from that one of one shilling and six pence and a bottle of schnapps was ever made thereafter, neither was there any pleading in that regard. Customary tenancy is known to attract periodic payment of tributes as against the instant case of outright gift or transfer.
I hold with due respect, that it is incorrect of the learned counsel for the appellants to suggest that the learned trial Judge made a case different from that put forward by the respective parties neither did the learned trial Judge draw wrong inferences which occasioned a wrong conclusion in this case. Issue (2) two is on this platform resolved against the appellants and in favour of the respondents.
RESOLUTION OF ISSUE (3) THREE
The issue at stake here is whether the maxim nemo dat quod non habet is applicable to the facts of this case and if so whether the trial Judge could have held that the respondent validly acquired title to the disputed premises.
It is indeed a fundamental principle of law and as such applicable in all circumstances that one cannot give what he does not possess. Having earlier resolved that the disputed land was an absolute gift from Tinuola the original founder of the said land to his friend Lasisi Osun, it therefore follows that the said Lasisi Osun had interest in the land which he rightly bequeathed to his daughter and that the said daughter was within her rights when she transferred same to Nathaniel Makinde who in turn sold same to the respondent. It is in this vein that I hold that the sale of the disputed land to the respondent is in no way null or void. Consequently the trial Judge rightly held that the respondents acquired valid title to the disputed land delineated and verged Blue on the Dispute survey Plan nos. OS/596/2009/DS.02 and dated 30th June 2009. Resulting from this is that issue (3) three is also resolved in favour of the respondents and against the appellants.
In sum this appeal is devoid of merit and as such cannot succeed. Accordingly the appeal is dismissed while the judgment of the learned trial Judge in suit nos. HOS/44/10 delivered 2nd November, 2012 is affirmed.
I make no order as to costs.
SOTONYE DENTON WEST, J.C.A.: I have read in advance the draft copy of the judgment of my learned brother Cordelia Ifeoma Jombo-Ofo, JCA, just delivered. I concur with all the reasonings and conclusions reached therein.
It is trite in law that a donor of absolute gift cannot revoke the gift after it has been accepted by the donee. In Anyaegbunam v. Osaka (2000) 10, WRN 109 @ 125, the Supreme Court, per Muhammed, JSC held thus:
“The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied, the donor has no right to revoke the gift.”
However, the only exception to this general principle of law is where the gift was obtained by fraud, mistake, misrepresentation or there is total failure of the object of the gift. See: Imah vs. Ikogbe (1993) 9 NWLR (pt. 316) 159 @ 173: Ogilvie vs. Allen (1899) 15 T.C.R. 294. It is noteworthy that none of these vitiating elements was pleaded and proved by the appellants herein.
Consequently upon these and more detailed reasons eruditely set out in the lead judgment, I find that the appeal lacks merit. I dismiss the appeal and affirm the judgment of learned trial Judge in Suit. No. HOS/44/2010 delivered on 2nd November, 2012.
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 find that the appeal lacks merit and it is accordingly dismissed.
Appearances
IDOWU AKINLOYE, ESQ. With the brief of DAYO ADEBAYO, ESQ.For Appellant
AND
M. O. AGBOOLA, ESQ.For Respondent
