A OLA YESUFU V. ROBINSON OLUSEYI ADAMA
On Wednesday, the 10th day of July, 2002
- OLA YESUFU – Appellant(s)
ROBINSON OLUSEYI ADAMA – Respondent(s)
- O. ADEREMI, J.C.A. (Delivering the Leading Judgment): The action leading to this appeal was commenced on 17th February, 1976 (before coming into force of the Land Use Act 1978).
Pleadings were ordered and filed by the parties. With the leave of court, both parties amended their respective pleadings.
The final pleadings filed and exchanged between the parties and upon which the case was fought and defended are the amended statement of claim and the amended statement of defence. The case proceeded to hearing before A.L.A.L. Balogun J. sitting at High Court of Lagos State, Ikeja Judicial Division upon the conclusion of the case and after taking the addresses of counsel, the learned trial judge, in a reserved judgment delivered on the 6th of January, 1987, found for the plaintiff/respondent and accordingly entered judgment in his favour.
Dissatisfied with the decision the defendant/appellant has appealed to this court upon a Notice of Appeal that carries four grounds. Distilled from the said grounds of appeal by the appellant for determination by this court are two issues which as set out in the body of his brief are as follows:-
(1) Whether the learned trial judge was correct in his application of Section 90 (1) of the Evidence Act and the principles enunciated in Etiko v. Aroyewun (1959)4 FSC 129. If not whether there was sufficient material before the court to justify the learned trial judge’s conclusion that there had been a partition of the land according to native law and custom.
(2) Whether in the light of the material flaws in the evidence adduced for the plaintiff as to damages the learned trial judge was right to have unquestioningly awarded special damages to the plaintiff.
(1) Whether having regard to the pleadings and the totality of the evidence, there are enough materials before the trial court to justify the finding that there has been a partition of the family land according to Yoruba Native Law and Custom.
When this appeal came before us on 24th April 2002 for argument Mr. Odunobi learned counsel for the appellant adopted the appellant’s brief of argument filed on the 19th of November 2000 and the reply brief filed on 26th April 2001 and urged that the appeal be allowed. Chief Adegunle learned counsel for the respondent, on the other hand, adopted his client’s brief filed on 15th March, 2001 the Respondent’s Notice filed on 2nd May 2001 and urged that the appeal be dismissed; contending that the main issue for determination in this appeal is whether there was any partition: he relied on the decision in Adeleke v. Aserifa (1990)3 NWLR (pt 136)94.
Before I go to treat the issues raised by the parties, I wish to identify the case of each party as thrown up from their Pleadings. The plaintiff/respondent’s case as gleaned from his pleadings is that he is the owner of the land in dispute by virtue of a deed of conveyance. The said land formed a part of the large parcel of land which originally belonged to one Lawani Balogun Alias Lawani Alagba or Lawani Giwa which interest was also confirmed by a deed of conveyance. The said Lawani Balogun died intestate on 3/9/59 and was survived by eight children among who was one Dade Balogun who was at the material time the head of Lawani Balogun family. The said large parcel of land was thereafter laid out and same together with the personal effects of the late Lawani Balogun were distributed among the children and grand-children. Four plots thereof, one of which is the land in dispute, were allotted to Mudasiku Ofege, Mudasiru Ofege and Tajudeen Ofege all of who executed the deed of conveyance transferring the ownership in the land in dispute to him. He claimed he took possession of the land by depositing building materials thereon. Sometimes in 1975, the defendant/appellant disturbed his possession.
The defendant/appellant in their pleadings, admitted the plaintiff/respondent’s averments that the land in dispute was part of the large portion of land which originally belonged to Lawani Alagba and that upon the death of Lawani Alagba, Dende Balogun was at all material time the head of the Lawani Balogun Family. He also admitted the identity of the land in dispute. He however averred that Lawani Balogun was survived by more than eight children. It was his further averment that the accredited representatives of the late Lawani Balogun which included Dende Balogun the head of the family sold the land in dispute to him and executed a deed of conveyance in his favour. He finally averred that Dende Balogun had denied by means of an affidavit any participation by him in the sale of the land in dispute to the plaintiff/respondent.
The fact not in dispute between the two parties is that they claim title to the land through the same source. Where, as in the instant case, the two parties are ad idem that the radical title in a disputed land belongs to an established owner who they hold out as their vendor, unless either side can trace his title to that of the common vendor he cannot succeed. See (1) THOMAS V. HOLDER (1946) 12 WACA 78, (2) AWOMUTI V. SALAMI (1978) 12 S.C. 135, (3) LION BUILDINGS LTD. V. SHADIPE (1976)12 S.C. 135 and (4) DR. ADEBO V. SAKI ESTATES LTD. & AN. (1999)7 NWLR (pt 612) 525. In this appeal, I shall consider issue No 1 on the appellant’s brief together with issue No 1 on the respondent’s brief. Both parties rely on deed of conveyance as the legal basis of their respective titles. While the plaintiff/respondent contended in his amended statement of claim that the large parcel of land was distributed along with other personal properties among the children and grand-children of late Lawani Balogun and that he purchased from Mudasiku Ofege, Mudasiru Ofege and Tajudeen Ofege one of the four plots distributed to them, the crucial part of the defendant/appellant’s case is that the accredited representatives of the family sold the land in dispute to him. For a proper understanding of their different stand-points I shall hereunder reproduce paragraphs 5, 6, 8, 10 and 11 of the respondent’s pleadings.
The said Lawani Balogun died intestate on the 3rd day of September, 1959 leaving him surviving eight children namely: – Deinde Balogun, Tiamiyu Balogun, Samota Asabi Balogun, Amusa Balogun Sawudatu Balogun, Dawuda Balogun, Tijani Balogun, Jelili Balogun and many grand-children, some of which are – Mudasiku Ofege, Mudasiru Ofege, Tajudeen Ofege (Children of Sabitu Ofege-deceased) nee Balogun, Ayuba and Awanatu (Children of Abudu Balogun – deceased).
The afore-mentioned Dende Balogun was at all material time the head of the Lawani Balogun Family.
On or about 1st day of August 1964, at a family meeting the said Lawani Balogun family made a general distribution of the landed and personal properties of the deceased Lawani Balogun between the children and the grand-children.
On the said general distribution four plots in the said layout one of such plots being the property now in dispute were allotted to Mudasiku Ofege, Mudasiru Ofege and Tajudeen Ofege three of the five grand-children referred to in paragraph five above.
Under and by virtue of a deed of conveyance dated 20th day of December 1968 and registered as No 3 at page 3 in Volume 1281 of the Lands Registry in the Office at Lagos the said Mudasiku Ofege, Mudasiru Ofege and Tajudeen Ofege conveyed the land now in dispute to the plaintiff, which conveyance was witnessed by the afore-mentioned Dende Balogun.
As I have indicated in my summary of the cases presented by the parties’ paragraph 6 of the amended statement of claim was admitted by paragraph 2 of the amended statement of defence. To the extent to which paragraph 5 of the respondent’s amended statement of claim did say that Lawani Balogun died survived by eight children it was denied but the defendant/appellant did not go further than averring that Lawani Balogun died survived by more than eight children amongst whom, according to him, are Dende Balogun – head of the family, Tiamiyu Balogun, Ganiyu Balogun, Wahabi Balogun etc. The standpoint of the defendant/appellant is clearly expressed in paragraph 9(a) of his pleadings which is in the following terms:
(a) that the land which is the subject matter of this action was sold to him by the accredited representatives of the family of the late Lawani Balogun including Dende Balogun who at all times material to this case is the accredited head of the Lawani Balogun Family.
The conveyance of the plaintiff/respondent dated 20th December 1968, registered as No 3 at page 3 in Volume 1281 which was tendered in evidence as Exhibit P1 has Mudasiku Ofege, Mudasiru Ofege and Tajudeen Ofege as the vendors. It has a vital recital which defines their interest in the land; I hereunder reproduce it;
“AND WHEREAS on the 1st day of August 1964, at a family meeting with the concurrence and approval of the accredited head and representatives of the family and the whole members of the said Lawani Balogun family Plots Nos 27, 39, 50 and 68 were allocated to the said vendors Mudasiku Ofege, Mudasiru Ofege and Tajudeen Ofege (their mother Sabitu Ofege nee Balogun having died) as their share, in their grand-father’s inheritance according to native law and custom to HAVE and HOLD free from any incumbrances.”
Exhibit P1 is shown to have been witnessed by Dende Balogun, the Head Lawani Balogun family. The conveyance of the defendant/appellant dated 18th February 1976 registered as No 2 at page 2 in Volume 1543, on the face of it, shows that Dende Balogun (Head of Lawani Balogun Family), Tiamiyu Balogun, Ganiyu Balogun and Wabi Balogun all for themselves and the Lawani Balogun Family as conveying the land in dispute to the defendant/appellant. Both deeds of conveyance – Exhibits P1 and D2 referred to the deed of Statutory Declaration dated 28/4/55 registered as No 27 at Page 27 in Volume 532 which is the foundation of the title of the late Lawani Balogun to the land. If the plaintiff/respondent is able to show that the land in dispute was part of the land partitioned to his vendors in accordance with the known principles of law certainly he would be adjudged to have a bitter title. I ask the question. What does partition connote? That term is applied to the division of land, tenement and hereditaments belonging to co-owners and the allotment among them of plots so as to terminate the community of ownership between some or all of them. See AYENI V. SOWEMIMO (1982)5 S.C. 60. Indeed, partition is one of the ways by which family property can be determined by splitting it up into ownership of the constituent members of the family. No doubt, the property may be, but is not invariably divided among individual/members of the family so as to vest absolute ownership in individual members. Most often, the division may be among constituent branches of the family. Where this occurs, a new concept of family ownership is created in as many places as the property is partitioned; each branch thus becoming absolute owners of the portion so partitioned to BALOGUN V. BALOGUN 9 WACA 78 and OLORUNFEMI & ORS V. ASHO (2000)2 NWLR (pt 643) 843. Partition can be effected orally under the native law and custom; and it could be by deed see TAIWO V. TAIWO (1958) SCNLR 244 – both modes of partition are however valid. What amounts to a valid partition of land is a matter of fact, which must be established by credible evidence; all joint owners of family land held under native law and custom must participate in the voluntary partition of the property. Any deed creating such partition, if not executed by all joint owners is not voidable, but void.
I shall now proceed to examine the evidence led in the court below to see whether the principles of law relating thereto have been satisfied, the defendant/respondent not being a member of Lawani Balogun family rightly said, in his testimony before the court below, that he was not present at the family meeting.
He was P/W1. The second witness called by the plaintiff was Miss Kuye, a legal practitioner who was also not present at the family meeting where the partitioning of the family land took place. She said she was however instructed by Dende Balogun, the head of the family to prepare a deed of conveyance in respect of the land in dispute in favour of the plaintiff/respondent. She agreed, under cross-examination, that one Buraimoh Balogun was also head of the family since the death of Lawani Balogun. The 4th P/W – Mudasiru Ofege claimed that he jointly with Mudasiku Ofege and Tajudeen Ofege sold the land in dispute to the plaintiff/respondent which sale was witnessed by a deed of conveyance tendered as Ex. P1 which they all signed. Continuing his evidence under examination-in-chief he said;
Again, under cross-examination he said:
“When my father died he had twelve children and his land was inherited by all the children. The land was later partitioned amongst all of us his children on 15th August 1964, at a meeting at which all the children assembled, and we all went to the farmland and the head of the family partitioned the land and showed what each child got. The head of the family then was Dande Balogun. Each child got four plots of land on his own. But of the twelve children eight were living at the time of the partitioning. Each of the eight children got four plots to himself, and the children of the dead got four for their side. Those who died amongst his (sic) children of my father, (die before his death) got there (sic) shares. In the case of the dead children, their grand-children took the share of their deceased parents. I know Mudashiru Ofege and Tajudeen Ofege. They are ground children of my father. Their mother was Sabitiu Ofege nee Balogun. They were some of the beneficiaries of the land so partitioned amongst us. After my father’s death, the land was laid into a layout.”
Under cross-examination he said although their family land was partitioned there was no Deed of Partition in that be behalf. No evidence was called by the defendant/appellant to controvert the oral evidence of 5th P/W on the issue of partition. The witness had said that there was no deed of partition made in respect of the exercise carried out. His evidence on partition took care of every segment of the family – a partition which provides for all members of the constituent branches of the family can never be described as one that is void see (1) MAJEKODUNMI V. TIJANI 11 NLR 74 and (2) ONISIWO V. GBAMGBOYE (1941)7 WACA 69. As I have said, the crucial issue in this case is whether partition, known to law, occurred. I have also said partition of family land is a matter of fact. The fundamental rule of evidence is that the burden of proof rests on the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. Once the plaintiff, as in the instant case, has discharged the burden on him, the onus of proof, which is never static, shifted to the defendant/appellant in this case. See NIGERIAN MARITIME SERVICES LTD V. AFOLABI (1978)2 S.C. 79.
Again, as I have said the defendant/appellant has failed to challenge or contradict the testimony of the 5th P/W on this all-important issue. The trial judge would under the law, be entitled to believe and act upon the uncontradicted evidence of the 5th P/W. The trial judge on his perception and evaluation of the evidence of 5th P/W said and I quote:
“In this case the 5th P/W Jelili Balogun who is one of the plaintiff’s vendors and who had personal knowledge of the land in dispute and the fact of partition of Lawani Balogun Family and gave evidence at the trial. He gave detailed evidence of the partition of the Family Land amongst all the children and ground-children of Lawani Balogun at a family meeting held on 1st August, 1964, at which Dande Balogun (the then Head of the Family) was present, and that they all went to the family land and showed what portion was partitioned to each person. He also gave cogent, satisfactory and detailed evidence of what each person got thereby. I have already set out his testimonies thereon in greater detail earlier on in this judgment. I accept those testimonies in toto as true. I also, accept all the ‘statements’ thereon contained in the recitals.”
I cannot fault the findings of the learned trial judge on the crucial issue as to whether partition, known to law, took place. I do agree that there are some minor errors in those findings such as where the learned trial judge held that the 5th P/w was one of the vendors of the plaintiff/respondent. The witness never said that he was one of the vendors indeed; he did not belong to that sold land to their own portion of partitioned land to the plaintiff/respondent. Again the witness said that the meeting took place on the 15th of August 1964 and not 1st of August 1964. As I have said I am in full agreement with the findings of the trial judge on the issue of partition. The result of all I have been saying is that issue No 1 on the appellant’s brief must be resolved in favour of the respondent but against the appellant and I so resolve it. There was that uncontradicted evidence of partition staring the court in the face. Similarly I answer issue No 1 on the respondent’s brief of argument in the affirmative. Issue No. 2 on each of the briefs of the appellant and the respondents relates to the claim of N3,490.00 by the plaintiff/respondent as special and general damages, for trespass committed by the defendant. In making his award the learned trial judge had reasoned, thus:
“It is trite law that when special damages are claimed, the nature and particulars of such special damages must be clearly stated in the pleadings and that at the trial it must be established by cogent and satisfactory evidence. In a proper case, the court will award general damages in addition to special damages, if both are claimed. In this case as the tort complained of is a continuing tort, I will award the plaintiff both the special and general damages claimed by him.”
He accordingly awarded him N3, 490 as special and general damages for trespass committed by the defendant. In paragraphs 15 and 16 of his amended statement of claim, the plaintiff/respondent had averred that sometimes in December, 1975, the defendant and his thugs had forcibly entered his land, removed blocks, sand and gravel he deposited on the land. In the last paragraph of his pleadings he gave the particulars of the special damages as:
(a) 200 blocks at N10 per block – N2, 600
(b) 8 loads of sand at N40 per load – 320
(c) 2 loads of gravel at N85 per load – 170
TOTAL N2, 490.00
“I later put building materials on the land 2000 (two thousand blocks), eight lorry loads of sand and two – 500 tons load of gravels. All these were put at the entrances to the land to be used in building a house on the land.”
The 3rd P/W Augustus Omokayode Ayodele a trader said he supplied the plaintiff 2000 cement blocks, at the rate of N8.70k, eight loads of sand at the rate of N40.00 per load and two loads of gravels at the rate of N80 per load. He said he gave the plaintiff/respondent only one receipt for everything. No receipt was tendered in evidence the law remains sacrosanct that special damages must be strictly proved and in the peculiar circumstances of this case where there is oral testimony that receipt was issued to cover the items of special damages production of the receipt is vital to the success of the claim. Failure to tender it, as was rightly submitted by the appellant, relying on the decision in S.G.E. V. OKPANUM (1989)4 NWLR (pt 115) is fatal to the case. With due respect to the learned trial judge, I would like to say that he was in error to have awarded N3,490.00 as special and general damages for trespass committed by the defendant/appellant, N2,490.00 thereof being special damages which is devoid of legal proof. I however, bear in mind that general damages was claimed for trespass. There is evidence of trespass committed by the defendant/appellant. Trespass to land is said to constitute, in law, the slightest disturbance to the possession of the land by a person who cannot show a better right to possession while I would for what I have said set aside the award of N2, 490.00 for special damages, I shall on the strength of the evidence before the court, award N1, 000.00 as general damages for trespass. I therefore answer issue No 2 on the appellant’s brief in the negative – I resolve it in favour of the appellant. As to issue No 2 on the respondent’s brief, to the extent to which it relates to the N2, 490.00 awarded as special damages, I answer it in the negative.
In the final analysis, having regard to what I have being saying, save for the award of N2, 490.00 as special damages in favour of the plaintiff/respondent, this appeal is substantially unmeritorious and I dismiss it in substance. In view of what I have said about the special damages awarded I make the following orders:
(1) A declaration that the plaintiff/respondent is entitled to a Statutory Right of Occupancy in respect of all that piece or parcel of land situate at Balogun Street, Ikeja and which is more particularly described and delineated on the Plan No PET 343/64 attached to the deed of conveyance dated 20th day of December 1968 and registered as No 3 at Page 3 in Volume 1281 of the Register of Deeds kept at the Lands Registry in the Office at Lagos (and which parcel of land is also known as PLOT 27 in Lawani Balogun Layout Plan No TPA B314;
The respondent is entitled to the cost of this appeal which I asses and fix to in his favour at N7, 500.00.
It is trite that special damage must be strictly proved.
The 3 P.W. had testified that he supplied the plaintiff with some blocks, sand and gravels for the total sum of N2, 490 and issue out the receipt. No such receipt was tendered in evidence. Production of receipt is vital to the successful claim of special damages where there has been an oral testimony that it was issued to cover the items of special damaged. Failure to tender it was fatal to the Respondent’s claim for special damages. However the award of N1, 000 as general damages in favour of the Respondent as ordered in the lead judgment including costs of N7, 500 in favour of the Respondent.
AMIRU SANUSI, J.C.A.: I agree.
Mr. Dotun OduwobiFor Appellant
Chief Bisi Adegunle with him Mrs. Kike Siji-FasoleFor Respondent