MRS. CLEANSHEET J. ABIKE ADEROGBA v. MR. OLUDAYO OGUNYAWO
(2019)LCN/13633(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of July, 2019
CA/IB/5/2012
RATIO
JUDGMENT: PERVERSE JUDGMENT: DEFINITION
A decision of a Court may be perverse when it ignores the fact or evidence before it and when considered as a whole, it amounts to a miscarriage of justice in which case an appellate Court is bound to interfere with such a decision and set it aside. NEPA v. Omosanya (2004) 1 SCNJ 226 at 242; Egba v. Appah (2005) 10 NWLR (pt. 934) 464 at 480.481; Udengwu v. Uzuegbu (2003) 7 SCNJ 145 at 153; NMS ltd. v. J.P. Ent. Ltd. (2006) 5 NWLR (pt.972) 127 at 144. PER NONYEREM OKORONKWO, J.C.A.
LAND LAW: THE POSITION OF FAMILY HEADS CHIEFS AND TRADITIONAL RULERS AS WITNESSES IN LAND MATTERS
Concerning the evidence of family heads, Chief and traditional rulers on occasions such as this, it was said in Nwawuba & 3 Ors v. Enemuo & 2 Ors (1988) 5 SC 237 that it is a matter of common knowledge that old men and traditional rulers are by their position not only in a position to know the true facts in land disputes but also often find it difficult to twist the truth.” PER NONYEREM OKORONKWO, J.C.A.
LAND LAW: BURDEN OF PROOF THAT A LAND DOES NOT BELONG TO A FAMILY
In this case there is evidence that the land belonged to Oliyide Ogunyanwo the grandfather or great-grandfather of the parties and that there had been no previous partition, in such case the law is that once it is admitted that particular piece of land belongs to a family the law places a heavy burden of proof on any person or group which asserts exclusivity of ownership or possession against the family. See Moriyamo Adesanya v. A.O. Otuewu & Ors (1993) 1 SCNJ 77. PER NONYEREM OKORONKWO, J.C.A.
CUSTOMARY COURTS: IMPORTANCE OF THE DECISIONS TAKEN AT CUSTOMARY COURTS
In the same manner, opinion and decisions of Customary Court are to be considered as those of experienced men/women of the community who know and understand the customs, ethos and history of their communities See Oladapo v. M. Akinsowon (1957) WRNLR 215 where it was counseled that an appellate Court must examine the records of a Customary Court as men of common sense and not as English lawyers applying the English rules of evidence, procedure and substantive law. PER NONYEREM OKORONKWO, J.C.A.
LAND LAW: FAMILY LAND: WHETHER IT CAN BE ALLOTTED TO INDIVIDUAL FAMILY MEMBERS BUT STILL REMAIN FAMILY LAND
This point was made in the case of Wulemotu Olagunro v. Olusanya & Ors (1970) NSCC 176 that it is common practice for family land to be allotted to individual member of the family for their use but it remains family land. So the fact that Solomon Ogunyanwo the deceased father of the defendant/appellant was in occupation of the land does not exclude the family ownership thereof. PER NONYEREM OKORONKWO, J.C.A.
JUSTICES:
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
MRS. CLEANSHEET J. ABIKE ADEROGBA – Appellant(s)
AND
MR. OLUDAYO OGUNYAWO – Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): As the respondents counsel introduced the subject:
This appeal is against the judgment of the High Court of Justice, Ogun State sitting at Sagamu delivered by his Lordship, Honorable Justice M.A. Dipeolu on the 30th day of June, 2010, sitting as appellate Court on the judgment of the Grade II Customary Court, Sagamu delivered in Suit No. SH2/326/2007 on the 30th day of October, 2007.
The appellant herein was the plaintiff at the Customary Court aforesaid wherein she claimed in the fashion of customary Court claims as follows:
The Plaintiffs claim against the defendant is to stop the defendant from trespassing on the portion of Rooms i.03 rooms shared to me by the Head of the Family of Ogunyanwo Family at No. 62 Ewusi Street, Makun Sagamu.
The defendant had been trespassing and failed to stop, hence this action.
Just as the appellate High Court Judge did, I will reproduce the evidence of the parties at the Customary Court and the only document tendered and received in that Court Exhibit A, being the report
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of the partition/arbitration by the family elders in the case at that Customary Court.
The evidence of the plaintiff and his witness PW1 at that Customary Court and appellant hereon is as follows:
Plaintiff Evidence: – The plaintiff Mrs. Cleansheet J. Abike Aderogba, Christian, sworn on holy Bible and stated thus: I live at No. 16 Kayode Alayo Off Sky Lark Hospital Sabo Sagamu. I am a trader by profession. The defendant is my junior brother a half-brother. He is the son of my mother’s senior brother. He is the son of my mother’s senior brother. My mother’s maiden name is Miss Victoria Obatayo Ogunyanwo jointly built a house at 62 Ewusi Street, Makua Sagamu. The house contained four 4 rooms and two 2 shops. It has 3 rooms boys quarter at the backyard. When Chief Oluyide Ogunyanwo died, the defendants father Mr. Solomon Ogunyanwo started to use the whole house. When the plaintiff mother died that was Mrs. Victoria Ricket died who is nee Ogunyanwo. I went to the defendant father Mr. Solomon Ogunyanwo I acted to him as a daughter not a sister’s daughter.
I asked Mr. Solomon Ogunyanwo
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how the house was built. He promised to call meeting of all grandchildren and related to us how the building was built. Mr. Solomon Ogunyanwo promised to share the whole building among the grand children in 1992. We all attended the meeting that day when Mr. Solomon Ogunyanwo wanted to narrated the whole matters pertaining to the house, his son halted him not to narrate the matters relating to the house. I implored the defendant Mr. Oludayo Ogunyanwo to say what he had in mind in the presence of his father Mr. Solomon Ogunyanwo. Mr. Oludayo Ogunyanwo the defendant said I should not worry he promised that he would come and meet me in Lagos to iron the matter within ourselves. The defendant father appealed to me he craved for my indulgence that I should give him the chance. The defendant came to me in Lagos in my house at No. 115 Miyaki Street, Oworonsoki Bariga Lagos. Instead of narrating the matters relating to the house, the defendant started to fight me in my house.
The defendant went away in annoyance without saying any matters relating to the house. I come back to his father to narrate the matter and the actions of him to his father Mr. Solomon
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Ogunyanwo.
The father of the defendant appealed to me not to fight over the issue of the house. Sometime after this the father of the defendant died without sharing the house. The father of the defendant died on July 9, 1995.
I come for the burial of his father in 1995. All items I brought for the ceremony that I parked in one room in the house. the defendant started to fight me and throw all my belongings outside. Mr. Ogunyanwo who is a grandchild of Ogunyanwo took me to another family house at Station Sagamu to avoid trouble. After the burial ceremony in 1999/2000 I reported the defendant actions to the entire members of the family. After attending family meetings so many times, the family of Ogunyanwo shared the house to us as follows: By the left hand side of the house I was shared 2 two rooms and 1 one shop.
The 2 heads of the Ogunyanwo family are Chief Folarin and Chief M.A. Ogunyanwo, shared the house to us in 2 – 2. The 2 two rooms and one shop shared to me was shown to me by the entire members of the family. After sharing the house the defendant started fighting me and the entire members
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of the family.
When I, plaintiff wanted to take my own possession of the building, the defendant chased me out of the building with cutlass and dangerous weapons.
I reported the issues to the heads of the family and the entire member of the family.
The family advised me to take legal right to recover my own shares of the house hence this Court actions.
Cross Examination by defendant: What I am I sharing with you.
Plaintiff:- I am asking for the rooms and the Shop shared to me in our father’s house which is 2 rooms and 1 shop at 62 Ewusi Makun Sagamu.
Plaintiff Answer: My mother could not ask for her shares in the father’s properties because properties are shared after once death according to custom’s ethics of Yoruba.
My mother was blessed and rich and your father who is a junior brother to my mother was poor. The building was given to your father to earn his living till the end of his life.
My great grandmother Mrs. Molake Ogunyanwo who was a wife to Ogunyanwo lived in this house as a wife of Ogunyanwo and died there as a wife of Ogunyanwo.
Cross Examination by defendant:
The house belonged
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to my mother’s father who was Ogunyanwo Oliyide.
Cross Examination by defendant: Ogunyanwo father Solomon Ogunyanwo always brought farm products to my mother palm oil, kolanuts as her shares of farm products. African bush mangoes (apon) and all other palm products.
Cross Examination by Court:- Ogunyanwo father owns the land the building was erected upon. The building was erected on my Mothers share of the land.
P.W.1 Evidence: I Chief Mathew Abiodun Ogunyanwo, Christian, sworn on Holy Bible and staed thus: I live at No. 13 Chief Abiodun Ogunyanwo Street, Makun Sagamu. I am a Chairman of my Company Tope Allied Foods industries Ltd. Sagam. I am nephew and niece to the plaintiff and the defendant. I came to the Court on subpoena by the Court to come and give evidence relating to what I know about this matter.
My own evidence is contained in a document that I would present to the Court.
The document tendered by the witness which is admitted and marked as Exhibit A.
The Exhibit stated title is Bi Ebi Ogunyanwo ti se pin Ile No. 62 Ewusi Street, Makun Sagamu larin awon omo at omo omo Ologbe
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Oliyide Ogunyanwo.
The date of the document is 7-12-2001.
These documents was shared to each party as evidence documented for the sharing.
Cross Examination by the Defendant: Ologbe oliyide Ogunyanwo built his own house at aiyetoro village via Sagamu. The house at 62 Ewusi Street, Makun Sagamu was built by Mr. Solomon Ogunyanwo, the Father of the defendant. There was no fighting during the sharing of the house.
I could not say whether the mother of the plaintiff contributed towards the building or not. The land the house was built belong to late Oliyide Ogunyanwo (the great grand-father of the parties) who was the grand-father of the defendant and the plaintiff.
Cross Examination by Plaintiff: I do not know whether the house was built by your mother and the defendant father.
The only document in the case Exhibit A was tendered through plaintiffs witness Chief Matthew ogunyanwo.
The evidence of the defendant who is respondent in this appeal is also herewith reproduced:
Evidence of Defendant: I Gabriel Oludayo Obasanya Ogunyanwo, male, sworn on Holy Bible and stated thus: I live at No. 61 Ewusi Street,
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Makun Sagamu, I am a building contractor.
I am in the Court on the case between me and Abike Aderogba the Plaintiff on 13th day of August year 2007.
Claiming that I occupied the 3 three rooms shared to her at No. 62 Ewusi Street, Makun Sagamu.
The house of 62 Ewusi Street, Makun Sagamu is not my father’s house and I am not living there. I do not know the family who owns this house.
I would not like Mrs Aderogba to make mistake in claiming another family’s property.
The house at No. 62 Ewusi Street does not belong to my father or his family. My father late pa Solomon Ogunyanwo did not inform me that he built any house at No. 62 Ewusi Street, Makun Sagamu.
My grandfather late pa Oliyide Ogunyanwo did not erect any house until his death. Late Pa Oliyide Ogunyanwo died at family house at Akoka Ogunyanwo’s compound Makun Sagamu.
Cross Examination by Plaintiff: I did not change the number of my building at 61 Ewusi Street, Makun Sagamu to No. 62 Ewusi Street, Makun Sagamu.
The defendant stated that the entire members of the Ogunyanwo family allocated the land to his father which he erected his
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building at No. 61 Ewusi Street, Makun Sagamu.
Cross Examination by Plaintiff: The land and the house was owned by my father late Pa Solomon Ogunyanwo in entirety. This is my case. I have no witness.”
The Customary Court considered the evidence of the plaintiff (appellant) and his witness PW1 and the case of the defendant who called no witness and found for the plaintiff upholding the partition/arbitration.
Upon an appeal to the High Court the High Court in its appellate jurisdiction over Customary Court in Ogun State received further evidence being a letter from the defendants solicitor which was alleged to have been rejected by the customary Court but which record at the Customary Court did not show as having been tendered and rejected by that Customary Court.
The High Court of Ogun State per Dipeolu J., upon its own evaluation set aside the judgment of the lower Customary Court.
The plaintiff at the Customary court, being dissatisfied with the judgment of the High Court (Per M.A. Dipeolu Judge) given on 20/11/2009 filed this appeal upon the following grounds of appeal:
Ground One
The learned trial Judge of
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the High Court erred in law by holding that the plaintiff having failed to prove her title to the property in question cannot succeed in her claim for trespass.
Particulars of Error
i. The claim of the appellant as contained in the record of appeal before the High Court (in its appellate jurisdiction) was for injunction to protect her possessory right of the 3 rooms customarily shared to her by the head of Ogunyanwo family.
ii. The appellant need not prove title to the 3 rooms shared to her by the Ogunyanwo family before her seeking injunctive order to protect her possession of the property.
Ground Two
The judgment of the High Court, Sagamu in its appellate jurisdiction did not reflect a dispassionate consideration of the issue submitted before the Court.
Particulars of Error
i. The rationale for the Ogunyanwo family partitioning or sharing of the house in dispute between the appellant and respondent was not submitted for the High Court for adjudication.
ii. The Court cannot on its own raise a query on how the family partitioned or shared the house in dispute amongst the parties.
Ground Three
The judgment
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of the High Court (in its appellate jurisdiction) was hinged on an incompetent notice and grounds of appeal and therefore robs the High Court of its inherent jurisdiction.
Particulars of Error
The foundation of an appeal is the existence of a proper notice of appeal, the absence of which robs the High Court of its jurisdiction.
The Notice of appeal and memorandum containing the grounds of appeal before the High Court was directed/addressed to the customary Court where the appealed is emanating instead of the High Court where the appeal lies.
Ground Four
The judgment of the High Court in its appellate jurisdiction erred in law when he held that the lower Courts decision is perverse.
Particulars of Error
i. The judgment of the High Court did not take cognizance of the Customary Court that the land upon which the partitioned building was erected was the Ogunyanwo family property.
ii. The judgment of the High Court did not avert his attention to the fact that there was no appeal before it on the finding of the lower Court regarding the family ownership of the land.
iii. The judgment of the High Court
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is against the weight of evidence.
From the four grounds of appeal, appellant formulated two issues for determination namely:
Issues for Determination
(1) Whether the Notice of Appeal filed before the lower (High) Court was competent and valid in Law.
(2) Whether the judgment of the High Court Sagamu in its appellate jurisdiction is perverse in the circumstance of this case.
For the respondent, the same issues were formulated as follows:
i) Whether the Notice of Appeal filed before the lower (High) Court was competent and valid in Law.
ii) Whether the judgment of the High Court Sagamu in its appellate jurisdiction is perverse in the circumstance of this case.
In this appeal, I will first consider issue No. 2 which is common in both brief which is whether the judgment of the appellate High Court is perverse in the circumstances of this case.
Firstly, to understand the import of the issue, it is appropriate to understand the import of the word perverse. A decision of a Court may be perverse when it ignores the fact or evidence before it and when considered as a whole, it amounts to a miscarriage of
12
justice in which case an appellate Court is bound to interfere with such a decision and set it aside. NEPA v. Omosanya (2004) 1 SCNJ 226 at 242; Egba v. Appah (2005) 10 NWLR (pt. 934) 464 at 480.481; Udengwu v. Uzuegbu (2003) 7 SCNJ 145 at 153; NMS ltd. v. J.P. Ent. Ltd. (2006) 5 NWLR (pt.972) 127 at 144.
Can the judgment of the appellate High Court in the circumstance of this case be described as perverse?
There was evidence before the customary Court that the land on which the house was built belonged to Pa Oliyide Ogunyanwo who begat two children namely Solomon Ogunyanwo who was the father of defendant Oludayo Ogunyanwo and Mrs Obatayo Ricket nee Ogunyanwo who was the mother of the plaintiff.
There was evidence that the house in issue was built on land that belonged to Pa Oliyide Ogunyanwo the grandfather of the parties. There was no evidence of partition of the land between the parents of the parties and although the plaintiff had said the building was on her mothers share of the land. At page 10 of the record PW1 who also tendered Exhibit A said thus in cross examination:
The house at 62 Ewusi Street, Makun Sagamu was
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built by Mr. Solomon Ogunyanwo, the Father of the defendant. There was no fighting during the sharing of the house.
I could not say whether the mother of the plaintiff contributed towards the building or not. The land the house was built belong to late Oliyide Ogunyanwo (the great grandfather of the parties) who was the grandfather of the defendant and the plaintiff.
Cross Examination by Plaintiff: I do not know whether the house was built by your mother and the defendant father.
There is evidence of sharing or partition by the Ogunyanwo family who know how the land is owned. The two heads of the family namely Chief Folarin and Chief M.A Ogunyanwo shared the land between the parties which exercise was reduced in a memorandum which PW1 M.A. Ogunyanwo tendered an Exhibit A. Exhibit A was also given to each party as documented evidence for the sharing. The heading of Exhibit A and more reads thus:
HOW OGUNYANWO FAMILY PARTITIONED HOUSE NO. 62 EWUSI STREET, MAKUN, SAGAMU BETWEEN THE CHILDREN AND GRAND-CHILDREN OF LATE OLIYIDE OGUNYANWO
Mrs. Abike Aderogba (Nee Ricketts) wrote a letter to Ogunyanwo’s family on 8th April, 1999,
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and she brought the letter to the familys meeting held on 10th Dec., 2000. She was requesting for her rightful share of the house situated at No. 62, Ewusi Street, Makun, Sagamu and also at Ayetoro Village and the land which her maternal grandfather left behind for his two children before he died.
Late Oliyide Ogunyanwo gave birth to two children. The elder one is Solomon Obasanya Ogunyanwo while Mrs. Omotayo Ricketts (Nee Ogunyanwo) who is the mother of Abike Aderogba in consideration and advise, there was no discussion on the partitioning of the house and the land at Aiyetoro but there was discussion on the house at Sagamu.
The family established that Late Solomon Obasanya who is the elder was the one who built the house at Sagamu with his own sweat without any help from anybody. The house at Aiyetoro belong to their father which he built by himself. The house at Sagamu has four (4) rooms in front (main building) and 3 other small rooms at the backyard. Two of the rooms in front have been converted to shops.
This was how the family partitioned it.
(i) Late Solomon Obasanya and his child Oludayo Ogunyanwo, Two (2) rooms at
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the right side of the entrance and three (3) rooms at the back one of these two rooms had been converted to a shop.
(ii) Late Omotayo Ricketts (Nee Ogunyanwo) and her daughter Abike Aderogba:
Two (2) rooms at the left side of the entrance out of which one (1) had been converted to a shop and the space between the walls of the main building and the wall of the fence of our late fathers S. Ayo Ogunyanwo (immediate past Olisa) that had been converted to a shop.
This partitioning becomes effective from 1st January, 2002.
(Sgd)
Head of Family Witness:
(i) Abiodun Ogunyanwo (Sgd)
Chief M. Folarin Ogunyanwo
9/12/2001
Date: 7-12-2001
(ii) Opeyemi Ogunyanwo
9/12/2002
Sgd
I. A. Ogunyanwo
(Family Secretary)
9/12/2001
At page 18 of the record, the defendant stated that the entire members of Ogunyanwo family allocated the land to his father on which he erected his building. This however cannot stand against the evidence of the head of the Ogunyanwo family Chief Matthew Abiodun Ogunyanwo who, besides tendering Exhibit A in cross-examination by the Court said:
The land
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the house was built belong to late Olunyide Ogunyanwo (the grandfather of the parties.
(See page 10 of the record) while plaintiff contended that the house was built on her mother’s share of the land probably to explain why she said defendants father was regularly bringing her mother palm produce from the land.
The Customary Court who had the evidence of the parties and witnesses received Exhibit A and inspected the house on a visit to the site found that both the plaintiff and the defendant are entitled to share the house and further upheld the family decision in sharing the house as in Exhibit A.
In the partition effected by the family, PW1 the head of the Ogunyanwo family said there was no fighting implying that there was no dissent as they (Family heads) gave the parties copies of Exhibit A. Concerning the evidence of family heads, Chief and traditional rulers on occasions such as this, it was said in Nwawuba & 3 Ors v. Enemuo & 2 Ors (1988) 5 SC 237 that it is a matter of common knowledge that old men and traditional rulers are by their position not only in a position to know the true facts
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in land disputes but also often find it difficult to twist the truth.”
In this case there is evidence that the land belonged to Oliyide Ogunyanwo the grandfather or great-grandfather of the parties and that there had been no previous partition, in such case the law is that once it is admitted that particular piece of land belongs to a family the law places a heavy burden of proof on any person or group which asserts exclusivity of ownership or possession against the family. See Moriyamo Adesanya v. A.O. Otuewu & Ors (1993) 1 SCNJ 77.
In the same manner, opinion and decisions of Customary Court are to be considered as those of experienced men/women of the community who know and understand the customs, ethos and history of their communities See Oladapo v. M. Akinsowon (1957) WRNLR 215 where it was counseled that an appellate Court must examine the records of a Customary Court as men of common sense and not as English lawyers applying the English rules of evidence, procedure and substantive law.
Exhibit A shows how the partition of the house in dispute was done by the family and the meetings held for that purpose. It shows
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voluntariness and submission to family resolution and partition. Such situation creates binding decision because of the voluntariness of the submission which is consent. Olorunfemi v. Asho (2000) 1 SCNJ 122. Partition by Exhibit shows that it was the act of the family.
Plaintiff herein appellant showed in her evidence that the father of the defendant was allowed to use the house in order to feed himself from its proceed. It must be noted that such apparently exclusive use does not derogate from family ownership as it remains family land. This point was made in the case of Wulemotu Olagunro v. Olusanya & Ors (1970) NSCC 176 that it is common practice for family land to be allotted to individual member of the family for their use but it remains family land. So the fact that Solomon Ogunyanwo the deceased father of the defendant/appellant was in occupation of the land does not exclude the family ownership thereof.
The learned appellate Court misconstrued that evidence of user and holding onto, it came to perverted decision.
The simple thing for the appellate High Court to do was to closely examine the evidence as found and accepted by the
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Customary Court who examined the parties and their witness and to come to a decision affirming the judgment of the Customary Court based on such evidence and Exhibit A.
Another serious error was to have received additional evidence which was not called for. It was alleged that a letter from the defendants/respondent solicitor to the family in respect of Exhibit A was rejected at the Customary Court. This must be an obvious lie as no such letter was ever produced, tendered and rejected by the Customary Court. Yet the High Court, by some contrivance of counsel, received the spurious letter of Sulaiman & Co of 13/12/2001. It is a matter of conjecture what effect the spurious letter had on the appellate High Court.
I agree that this issue has merit and that the judgment of the Ogun State High Court per M.A. Dipeolu misconstrued and misconceived the judgment of the Customary Court which the court reviewed on appeal. This issue is resolved in favour of the appellant.
Issue number one related to the notice of appeal. The important thing is to ensure that there is a notice to the Court to which the appeal lies as well as the Court from which
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the appeal originates that the party dissatisfied is appealing. It enables the lower Court to begin to compile records upon fulfillment of conditions. It also enables parties and Court to compute time when appeal was filed. In the absence of any specified form, the form used in this appeal constitutes, in my view such a notice and is sufficient. This issue fails.
In all, the appeal succeeds on issue Number 2 considered earlier. The judgment of the High Court of Ogun State in Suit No. HCS/1A/2009 is set aside. The judgment of the Customary Court Grade II No. 11 Sagamu Ogun State is restored. Appeal succeeds.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother Nonyerem Okoronkwo, JCA.
The learned Judge of the Ogun State High Court sitting in his appellate jurisdiction erred in law when he set aside the decision of the Grade Il Customary Court Sagamu delivered on the 30/10/2007 in Suit No: 5H2/326/2007. The decision of the trial Customary Court was amply supported by the evidence on record.
I therefore agree with my learned brother that this appeal has merit.
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It is accordingly allowed. I abide by the consequential order(s) made in lead judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA. I agree with the reasons given therein as to why this appeal should be allowed.
I wish to say that under Yoruba Customary Law, family Property remains family Property unless certain conditions are shown to exist. See AGBOMEJI VS. BAKARE & ORS. (1998) LPELR – 244 AT 37 PARAS A -F where the Supreme Court per OGUNDARE JSC held thus:
“Generally speaking family property under Yoruba Customary Law remains family property. The effect of partitioning of family property would be to split the family property into several individual properties, each portion resting absolutely in a branch or member to whom it has been apportioned.
See BALOGUN VS. BALOGUN (1943) 9 WACA 78. The Court usually is slow in interfering in the management of property by those entitled under Yoruba Customary Law, because it causes a break up of that family unit. The individual can build a separate house of his own but the
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family compound remains sacred and intact. But where the family invokes the jurisdiction of the High Court, the family must show
1) That some members of the family want the property to be broken up and
2) That it has become impossible to continue to use the property in dispute as family property.”
Upon a careful perusal of the judgment of the lower Court, it is apparent that the Respondent did not satisfy the foregoing condition prior to invoking the jurisdiction of the lower Court. This being so the lower Court should not have allowed the appeal.
It is for the above and the other reasons contained in the lead judgment that I also allow this appeal and order that the judgment of the Customary Court of Ogun State Grade Il in SUIT NO: SH2/326/2017 delivered on 30th of October 2007 be restored.
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Appearances:
F.O. Akinsanya For Appellant(s)
Ibrahim A. Kareem-Ojo For Respondent(s)
Appearances
F.O. Akinsanya For Appellant
AND
Ibrahim A. Kareem-Ojo For Respondent
