IDEHEN & ORS v. ADESANYA (2020)

IDEHEN & ORS v. ADESANYA

(2020)LCN/14191(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/IB/233/2014

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

(1) CHIEF MRS TITLAYO IDEHEN (2) FELIX AKUSU (3) MADELEINE ADEDIMEJI (MRS) APPELANT(S)

And

MRS CHRISTANA ADESANYA RESPONDENT(S)

RATIO

COMPETENCE OF AN ISSUE FOR DETERMINATION OF AN APPEAL

It is settled law that an issue for the determination of an appeal would be competent if it relates to or arise from any of the grounds of appeal.
The failure to relate such issue/issues to any of the grounds of appeal is to render the issue incompetent and liable to be struck out.
See the following cases:-
– ACHIAKPA v. NDUKA (2001) 7 SC PART III PAGE 125.
– KOKORO-OWO v. LAGOS STATE GOVERNMENT (2001) 5 SC PART II PAGE 50.
Furthermore, an appeal must be based on the decision or ratio decidendi of the lower Court and from which issues must directly flow and be formulated.
See the following cases:-
– BIOCON AGROCHEMICALS NIGERIA LIMITED v. KUDU HOLDING (PTY) LIMITED (2000) 12 SC PART 1 PAGE 139.
– BURAIMOH v. BAMGBOSE (1989)3 NWLR PART 109 PAGE 352.
– A. G. BENDEL STATE v. AIDEYAN (1989) 4 NWLR PART 118 PAGE 646. PER BADA, J.C.A.

PROOF OF OWNERSHIP OR TITLE TO LAND IN AN ACTION FOR DECLARATION OF TITLE

It is settled law that ownership or title to land may be proved by any of the following methods:-
(a) By traditional evidence
(b) By production of documents of title which are duly authenticated.
(c) By acts of selling, leasing, renting part of the land, or farming on it, or a portion of it,
(d) By acts of long possession and enjoyment of the land,
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
See the following cases:-
– IDUNDUN v. OKUMAGBA (1976) 9 -10 SC PAGE 227.
– NKADO v. OBIANO (1997) 5 NWLR PART 503 PAGE 31.
– AJIBOYE v. ISHOLA (2006) 13 NWLR PART 998 PAGE 628.
It is noteworthy that the five methods mentioned above deal with the means by which title to land can be proved in the Court of law. The said methods have nothing to do with mode of acquisition of title to land which may be by:-
(i) First settlement on the land and deforestation of the virgin land.
(ii) Conquest during tribal wars.
(iii) Gift.
(iv) Grant
(v) Customary sale
(vi) Inheritance. Nevertheless, it is the duty of the Plaintiff in an action for declaration of title to land, to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the Plaintiff may take advantage of the defendant’s evidence where it supports his case. See – ONWUGBUFOR v. OKOYE (1996) 1 NWLR PART 424 PAGE 252. PER BADA, J.C.A.

THE BASIC RULE OF SUCCESSION UPON INTESTACY WHERE THE DECEASED IS SUBJECT TO CUSTOMARY LAW

It is trite law that the basic rule of succession upon intestacy where the deceased is subject to customary law, is that his self-acquired property devolves upon his/her children as family property.
In the case of SUBERU v. SUNMONU (1957) 2 FSC PAGE 33, (1957) SCNLR PAGE 45 it was held among others that:-
“On the death of a property owner under Yoruba native law his property devolved on his children as family property.”
The above decision in my view is apt in the instant case under consideration and it settles the issue in controversy.
Looking at this issue from another angle, where a person dies intestate, only a person to whom the High Court grants letters of Administration may administer his/her estate subject to whether the Native Law of inheritance applies.
In FAKOYA v. ILORI (1983) 2 FNLR PAGE 402, the defendant stated that he bought the disputed land from the brother and widows of the original land owner. This Court held that:
“His title stood on a broken reed as devolution of property under Yoruba custom follows the blood …
On intestacy devolution follows the blood and a widow not being of the blood has no claim to any share of the inheritance …”
Where a person who is neither an executor of a will nor named in letters of administration administers the estate of an intestate or intrudes upon the estate of the deceased, he is seen as an intermeddler, technically referred to as executor de son tort.
The Yoruba Native Law and Custom, which the Appellants’ mother was subject to, provides hierarchy as to devolution of the property of an intestate and where such deceased is a woman and predeceased by her husband, the children she left behind are to be first considered before any other person. It is only when the deceased is not survived by an issue as in the case of –ADEDOYIN v. SIMON (1928) NLR PAGE 76 that the mother can “take to the exclusion of the half-blood”.
In OLOWU v. OLOWU (1985) 3 NWLR PART 13 PAGE 372. The Supreme Court held that:-
“….under Yoruba Customary Law, the children of a deceased person and not his relation succeed to his properties upon intestacy see- LEWIS v. BANKOLE 1 NLR PAGE 82 AT 102.
And it is the eldest son, the Dowodu, who becomes the head of the family and who takes over the management of the estate of the deceased for himself and other children.” PER BADA, J.C.A.

WHETHER OR NOT WHERE A PERSON WHO HAS NO TITLE TO PROPERTY SELLS IT TO ANOTHER PERSON, THE SALE IS VALID

It is trite that where a person who has no title to a property sells it to another person, the sale is void ab initio. This is based on the principle of NEMO DAT QUOD NON HABET meaning, he who has not cannot give out.
A purchaser, whose vendor had no title to the property he/she sold, gets nothing as the vendor has nothing to transfer to him/her.
See the following cases:-
– TAFAMA v. JALOMI (2003) FWLR PART 181 PAGE 1682 AT 1706.
-AGEH v. TORTYA (2003) 6 NWLR PART 816 PAGE 385 AT 396.
– POLO v. OJOR (2003) FWLR PART 137 PAGE 1085 AT 1096.
– DADI v. GARBA (1995) 8 NWLR PART 411 PAGE 12. PER BADA, J.C.A.

WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WTH THE FINDINGS OF THE TRIAL COURT

And where the finding of the Court does not derive from the evidence before the Court, this Court can interfere with the findings.
See the following cases:-
– LENGBE v. IMALE (1959) SCNLR PAGE 640.
– FATUADE v. ONWOAMANAM (1990) 2 NWLR PART 132 PAGE 322.
– MAYA v. OSHUNTOKUN (2001) FWLR PART 81 PAGE 1777. PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court of Justice Ota Judicial Division in Suit NO. HCT/56/10 BETWEEN: (1) CHIEF MRS TITILAYO IDEHEN (2) FELIX AKUSU (3) MADELEINE ADEDIMEJI (MRS) VS MRS CHRISTANA ADESANYA delivered on the 18th day of December 2013 wherein the claim of the Plaintiffs now Appellants was dismissed in its entirety.

Briefly the facts of this case are that the Appellants (as Plaintiffs) by their Amended Statement of claim filed at the lower Court on 22/8/2013 claimed the following reliefs against the Respondent (as Defendant).
“(i) A declaration that the Claimants upon the demise of their mother are the persons entitled to ownership of the land in dispute and as such the only person who can legitimately alienate the land.
(ii) An order of this Honourable Court setting aside the purported sale of the said land to the defendant herein or any person howsoever called claiming title through one Madam Sinatu Raji Tapa.
(iii) The sum of (N1,000,000.00) One Million Naira as special and general damages for trespass on the Claimant’s

land.
(iv) An order of perpetual injunction restraining the defendant, privies or any person howsoever called from trespassing or further trespassing on the land in dispute.”

Pleadings were duly exchanged by the parties in this case before the lower Court proceeded to hearing.

At the conclusion of hearing, Judgment was delivered in favour of the Respondent while the Plaintiffs’ claim now Appellants was dismissed in its entirety.
The Appellants who are dissatisfied with the Judgment of the lower Court appealed to this Court.

The learned Counsel for the Appellants formulated three issues for the determination of the appeal. The said issues are reproduced as follows:-
“(1) Whether the land in dispute, being the acknowledged property of Late Madam Adunni Okanlawon, the Appellants’ mother was properly and legally transferred to the Respondent herein.
(2) Whether Exhibit CE2 relied on by the learned trial Judge in finding for the Respondent is valid in law and if it is whether it is sufficient evidence that the land in dispute was sold to the Respondent by the Appellants’ or their family.

(3) Whether the learned trial Judge ought not to set aside the purported sale and validate the Appellants’ right to ownership of the property.”

On the other hand, the learned Counsel for the Respondent formulated a sole issue for the determination of this appeal. The said issue is reproduced as follows:-
“Whether the Respondent acquired a valid title to the land in dispute.”

At the hearing of this appeal on 25/2/2020, the learned Counsel for the Appellants stated that the appeal is against the judgment of Ogun State High Court of Justice delivered on 18/12/2013. The notice of appeal was filed on 12/2/2014 while the Appellants’ brief of argument was filed on 14/7/2014 and deemed as properly filed on 19/4/2018. The said Appellants’ brief was refiled on 21/10/2019 and deemed as properly filed on 25/2/2020.

The learned Counsel for the Appellants adopted and relied on the said brief as his argument in urging that the appeal be allowed.

The learned Counsel for the Respondent in his response referred to the Respondent’s brief of argument filed on 8/10/2018 which was consequentially refiled on 12/3/2019 and

deemed as properly filed on 25/2/2020.

He adopted and relied on the said brief as his argument in urging that the appeal be dismissed.

I have carefully gone through the issues formulated for the determination of the appeal on behalf of Counsel for the parties.
The learned Counsel for the Respondent observed that the Appellants formulated three issues for the determination of this appeal but that none of the issues is tied to any of the grounds of appeal.
The Respondent’s Counsel formulated a sole issue for the determination of the appeal but he too did not tie the issue to any of the grounds of appeal.
It is settled law that an issue for the determination of an appeal would be competent if it relates to or arise from any of the grounds of appeal.
The failure to relate such issue/issues to any of the grounds of appeal is to render the issue incompetent and liable to be struck out.
See the following cases:-
– ACHIAKPA v. NDUKA (2001) 7 SC PART III PAGE 125.
– KOKORO-OWO v. LAGOS STATE GOVERNMENT (2001) 5 SC PART II PAGE 50.
Furthermore, an appeal must be based on the decision or ratio decidendi of the lower

Court and from which issues must directly flow and be formulated.
See the following cases:-
– BIOCON AGROCHEMICALS NIGERIA LIMITED v. KUDU HOLDING (PTY) LIMITED (2000) 12 SC PART 1 PAGE 139.
– BURAIMOH v. BAMGBOSE (1989)3 NWLR PART 109 PAGE 352.
– A. G. BENDEL STATE v. AIDEYAN (1989) 4 NWLR PART 118 PAGE 646.
In this appeal neither the Appellants nor the Respondent tied their issues to any ground of appeal. But it is clear that the issues formulated by both parties were based upon the decision of the lower Court and because this is a 2010 case and in the interest of Justice to both parties, the appeal would be considered on its merit.

In the circumstance, I will therefore rely on the issues formulated for the determination of the appeal on behalf of the Appellants.

ISSUES FOR THE DETERMINATION OF THE APPEAL (TAKEN TOGETHER)
“(1) Whether the land in dispute, being the acknowledged property of Late Madam Adunni Okanlawon, the Appellants’ mother was properly and legally transferred to the Respondent herein.
(2) Whether Exhibit CE2 relied on by the learned trial Judge in finding for the Respondent is valid in law

and if it is, whether it is sufficient evidence that the land in dispute was sold to the Respondent by the Appellants’ or their family.
(4) Whether the learned trial Judge ought not to set aside the purported sale and validate the Appellants’ right to ownership of the property.”

The learned Counsel for the Appellants submitted that the learned trial Judge was wrong when he held that the land in dispute was properly and legally transferred to the defendant in this case. He relied on the case of AJIBOYE v. ISHOLA (2006) ALL FWLR PART 331 PAGE 1209 AT 1230 PARAGRAPHS C-F.
It was submitted further on behalf of the Appellants that the lower Court failed to resolve under which of the various ways of acquiring property does the Respondent claim of ownership fall.

The learned Counsel for the Appellants stated that the Respondent testified that she acquired title to the land in dispute vide purchase from Madam Sinatu Raji Tapa, who was the mother of the then deceased Adunni Okanlawon and grandmother of the Appellants.

He contended that the grandmother of the Appellants is not competent to sell the land. He relied on the

case of:-
– POLO v. OJOR (2003) FWLR PART 137 PAGE 1085 AT 1096.
It was argued further on behalf of the Appellants that the legal and equitable title in the land in dispute originally vested in the Appellants’ deceased mother who acquired the title by valid sale. But she died intestate leaving behind her mother and children who were minors including the 1st Appellant, who was the eldest at that time.

The learned Counsel for the Appellants submitted that where a person dies intestate, only a person to whom the High Court grants letter of Administration may administer his/her estate subject to whether the native law of inheritance applies. He went further in his submission that the Appellants’ grandmother who purportedly sold the property had no title, right or interest in the property and so subsequent to the sale to the predecessor-in-title, no title, right or interest was passed.
He relied on the case of – UNOKA VS AGILI (2008) ALL FWLR PART 423 AT PAGE 1373 PARAGRAPHS D-E
– POLO v OJOR (SUPRA).

On the issue whether Exhibit CE2 relied on by the learned trial Judge in finding for the Respondent is valid in law and

whether it is sufficient evidence that the land in dispute was sold to the Respondent by the Appellants’ or their family. The learned Counsel for the Appellants submitted that the learned trial Judge erred in law when he placed reliance on Exhibit CE2, which reliance occasioned miscarriage of justice. He submitted further that there was no evidence that the Appellants were part of the sale to the Respondent’s predecessor as asserted by the lower Court. He relied on the case of:-
– MOHAMMED v. KLARGESTER NIG LTD (2002) FWLR PART 127 PAGE 1078 AT 1097.
It was also submitted that Exhibit CE2 is afflicted by incurable and fundamental vices. He relied on the case of :-
AKINDURO v. ALAYA (2007) ALL FWLR PART 381 PAGE 1653.

On whether the Court ought not to set aside the purported sale and validate the Appellants’ right to ownership of the property. The learned Counsel for the Appellants contended that the Appellants were able to establish the fact that their deceased mother owned the land in dispute and had a Registered Conveyance in respect of same, a fact which was not contradicted. It was contended further that since there is

no dispute that the land originally belonged to the Appellants’ deceased mother who died intestate, in which case the property devolved jointly on the Appellants who were not the ones who sold to the Respondent, it was therefore submitted that the Appellants have better title to the land in dispute thereby necessitating that the purported sale to the Respondent be set aside. He relied on the following cases:-
– BIARIKO v. EDEH-OGWUILE (2001) FWLR PART 51 PAGE 1849 AT 1869-1870.
– ENANG v. EFFERE (2007) ALL FWLR PART 345 PAGE 346 AT 358.
– ONIMOLE v. ADEFOLABI (2008) ALL FWLR PAGE 324 AT 337 PARAGRAPHS D-G.
– TUKUR v. UBA (2012) ALL FWLR PART 652 PAGE 1624 AT 1652-1653 PARAGRAPHS A-A.
– MOGAJI v. ODOFIN (1978) 4 SC PAGE 91.
– AGBI v. OGBEH (2006) ALL FWLR PART 392 PAGE 941.
Learned Counsel for the Appellants finally urged this Court to set aside the Judgment of lower Court.

In his response to the submission of the learned Counsel for the Appellants, the learned Counsel for the Respondent referred to paragraphs 21, 22 and 23 of the Amended Statement of Defence reproduced as follows:
“21. The defendant avers that her

predecessor-in-title is one MRS FLORENCE IDOWU AKINTOKUN who acquired vested interest in the subject-matter of this suit in February 10, 1979. The defendant hereby pleads and shall at the trial rely on the purchase receipt dated February 10, 1979.
22. The defendant further to paragraph 20 above avers that she acquired vest interest from the said MRS FLORENCE IDOWU AKINTOKUN on 26th April 2010. The defendant hereby pleads and shall at the trial rely on the receipt dated 26th April, 2000.
23. The defendant further to paragraphs 20 and 21 above avers that when the 1st Claimant approached her on the validity of her acquisition, she identified her predecessor-in-title and also showed her (1st) Claimant documents of the title handed over to her in the transaction. See pages 99-100 of the records.”

He also referred to the reaction of the Appellants in paragraph 12 of the reply to statement of defence which is reproduced as follows:
“12. In reply to paragraphs 21 and 22, the Claimants say that MRS FLORENCE IDOWU AKINTOKUN did not obtain any vested interest in the land in dispute in February, 1979 as alleged as the purported receipt was

forged. Thus, the defendant acquired no title.”

The learned Counsel for the respondent also referred to the Additional Written Deposition of the 1st Appellant i.e. CW1 in paragraphs 6, 7, 11 and 15 reproduced as follows:-
“6. That MRS FLORENCE IDOWU AKINTOKUN is unknown to me as I have never met her before.
7. That in reply to paragraph 9, I aver that the said purchase receipt handed over to the defendant was not within our knowledge and I am sure that the documents were forged.
11. I aver that I am not aware of the sale of the land in dispute of MRS FLORENCE IDOWU AKINTOKUN as claimed.
15. In reply to paragraphs 21 and 22, I say that MRS FLORENCE IDOWU AKINTOKUN did not obtain any vested interest in the land in dispute in February, 1979 as alleged as the purported receipt was forged.”

He also referred to the written deposition of the Respondent i.e DW1 in paragraphs 4, 5, 8 and 16 reproduced as follows:-
“4. That its true that the family of one MADAM ADUNNI OLANLAWON sold the subject-matter of this suit to my predecessor-in-title.
5. That one Madam Sinatu Raji Tapa was one of the vendors who sold

a plot to my predecessor-in-title.
8. That my predecessor-in-title acquired valid title in the subject-matter of this suit from the family of MADAM ADUNNI OLANLAWON (deceased).
16. That when the 1st Claimant approached me on the validity of my acquisition, I identified my predecessor-in-title and also showed her (1st Claimant) documents of the handed over to me in the transaction.”

Under cross examination she stated as follows:-
“The land was sold by Ibiyemi’s mother whose name and that of Claimant is on Exhibit “DE2”. I cannot say if 1st Claimant was part of the sale at the time conditional Exhibit “DE2” was made ….. I agree that all those were involved in the sale between myself and MRS AKINTOKUN signed conditional Exhibit “DE2”. The land was sold to me by Ibiyemi’s mother, her junior ones and 1st Claimant.”

The learned Counsel for the Respondent stated that at the conclusion of hearing that the Appellants’ claim was dismissed.
He submitted that there is no ground of appeal against the finding and conclusion of the lower Court that the Administration

of Estate Law of Ogun State is inapplicable to this case and as such the arguments of the Appellants on the issue ought to be discountenanced. He relied on the following cases:-
– OKPALA & ANOR v. IBEME & OTHERS (1989) 2 NWLR PART 102 PAGE 208.
– DIN v. AFRICAN NEWSPAPERS OF NIG LTD (1990) 3 NWLR PART 139 PAGE 392 AT 403.
– ADELUSOLA & ORS v. AKINDE & ORS (2004) 12 NWLR PART 887 PAGE 295 AT 311.

On the issue whether Exhibit “CE2” was properly executed and whether it is a forgery. Learned Counsel for the Respondent relied on the case of – TEWOGBADE v. OBADINA (1994) 4 NWLR PART 338 AT 361 and submitted that the learned trial Judge was right to have relied on Exhibit “CE2” before dismissing the Appellants’ claim.

The case of OTITOJU v. GOVERNOR OF ONDO STATE & OTHERS (1994) 4 NWLR PART 340 PAGE 518 AT 529 was also relied upon by Respondent’s Counsel.
It was also submitted on behalf of the Respondent that the fact that Exhibit “CE2” which was admitted as Exhibit “DE2” does not show any illiterate jurat does not vitiate the document since the party who

thumb-printed the document is not the party complaining that she did not understand content of the document.

It was also submitted that the lower Court properly evaluated the contents of Exhibit “DE2” before coming to the conclusion that the Appellants were part of the sale by their grandmother and therefore should not be allowed to turn around and deprive the Respondent of the land she bought.

He urged that this Court should affirm the Judgment of the lower Court and dismiss this appeal.

RESOLUTION
It is settled law that ownership or title to land may be proved by any of the following methods:-
(a) By traditional evidence
(b) By production of documents of title which are duly authenticated.
(c) By acts of selling, leasing, renting part of the land, or farming on it, or a portion of it,
(d) By acts of long possession and enjoyment of the land,
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
See the following cases:-
– IDUNDUN v. OKUMAGBA (1976)

9 -10 SC PAGE 227.
– NKADO v. OBIANO (1997) 5 NWLR PART 503 PAGE 31.
– AJIBOYE v. ISHOLA (2006) 13 NWLR PART 998 PAGE 628.
It is noteworthy that the five methods mentioned above deal with the means by which title to land can be proved in the Court of law. The said methods have nothing to do with mode of acquisition of title to land which may be by:-
(i) First settlement on the land and deforestation of the virgin land.
(ii) Conquest during tribal wars.
(iii) Gift.
(iv) Grant
(v) Customary sale
(vi) Inheritance

Nevertheless, it is the duty of the Plaintiff in an action for declaration of title to land, to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the Plaintiff may take advantage of the defendant’s evidence where it supports his case.
See – ONWUGBUFOR v. OKOYE (1996) 1 NWLR PART 424 PAGE 252.

In this appeal under consideration both the 1st Appellant and the Respondent are ad idem on the fact that the land in dispute

belonged to the Appellants’ mother Madam Adunni Okanlawon. This is obvious from the pleadings of both parties and their statements on oath. The Appellants’ written deposition gave a detailed account of how the Appellants’ mother came to own the said land in dispute through a valid conveyance with the deed duly registered at the land registry.

The Registered Conveyance was tendered in evidence by both parties and admitted as Exhibit “CE1” on page 131 of the record of appeal and also as Exhibit “DE1” at page 167 of the record. The Respondent did not deny that the land in dispute originally belonged to the Appellants’ mother. This was acknowledged in the Respondent’s statement on oath at page 39 of the record of appeal.

The pertinent question at this juncture is under which of the various ways of acquiring property stated earlier in this judgment does the Respondent’s claim of ownership fall?

The Respondent testified that she acquired title to the land in dispute through purchase from Madam Sinatu Raji Tapa who was the mother of then the deceased Adunni Okanlawon and the grandmother of

the Appellants. This will now lead me to another question i.e. Was Madam Sinatu Raji Tapa the mother of the original owner of the land competent to sell the land? I do not think so. I am of the view that Madam Sinatu Raji Tapa lacked the capacity to alienate the land to the Respondent’s predecessor in title. According to the written deposition of the Respondent contained at page 39 of the record of appeal, her predecessor-in-title Mrs. Florence Akintokun acquired interest in the land in 1979 and Madam Sinatu Raji Tapa, the Appellants, grandmother was one of the vendors who sold the land in dispute to her. The names of the other persons who joined in the sale to her predecessor-in-title was not mentioned.

As shown earlier in this judgment the legal and equitable title in the land in dispute originally vested in the Appellants’ deceased mother who acquired title by valid sale. But she died intestate leaving behind her mother and children who were minors including the 1st Appellant, who was the eldest at that time.

It is trite law that the basic rule of succession upon intestacy where the deceased is subject to customary law, is that his

self-acquired property devolves upon his/her children as family property.
In the case of SUBERU v. SUNMONU (1957) 2 FSC PAGE 33, (1957) SCNLR PAGE 45 it was held among others that:-
“On the death of a property owner under Yoruba native law his property devolved on his children as family property.”
The above decision in my view is apt in the instant case under consideration and it settles the issue in controversy.
Looking at this issue from another angle, where a person dies intestate, only a person to whom the High Court grants letters of Administration may administer his/her estate subject to whether the Native Law of inheritance applies.
In FAKOYA v. ILORI (1983) 2 FNLR PAGE 402, the defendant stated that he bought the disputed land from the brother and widows of the original land owner. This Court held that:
“His title stood on a broken reed as devolution of property under Yoruba custom follows the blood …
On intestacy devolution follows the blood and a widow not being of the blood has no claim to any share of the inheritance …”
Where a person who is neither an executor of a will nor

named in letters of administration administers the estate of an intestate or intrudes upon the estate of the deceased, he is seen as an intermeddler, technically referred to as executor de son tort.
The Yoruba Native Law and Custom, which the Appellants’ mother was subject to, provides hierarchy as to devolution of the property of an intestate and where such deceased is a woman and predeceased by her husband, the children she left behind are to be first considered before any other person. It is only when the deceased is not survived by an issue as in the case of –ADEDOYIN v. SIMON (1928) NLR PAGE 76 that the mother can “take to the exclusion of the half-blood”.
In OLOWU v. OLOWU (1985) 3 NWLR PART 13 PAGE 372. The Supreme Court held that:-
“….under Yoruba Customary Law, the children of a deceased person and not his relation succeed to his properties upon intestacy see- LEWIS v. BANKOLE 1 NLR PAGE 82 AT 102.
And it is the eldest son, the Dowodu, who becomes the head of the family and who takes over the management of the estate of the deceased for himself and other children.”
It is also a fact

that under Yoruba Native Law and Custom it is a taboo for a parent to inherit his/her child. Also in the case of:- JOHNSON VS MACAULAY (1961) 1 ALL NLR PAGE 773 the deceased woman’s property devolved on all her children together since the deceased had no husband.

Therefore relating the foregoing to this case under consideration, the Appellants grandmother was in no circumstance entitled to any of the properties of her deceased daughter and so could not have exercised the power of sale for whatever reason as title to the property never resided in her.
The learned trial Judge in my view was wrong when he held that the property was properly conveyed by the said Madam Sinatu Raji Tapa.
The best she could do was to hold the property in trust for the children when they would be of age and be in a position to determine what they wanted to do with the property.
The inevitable conclusion here is that the Appellant’s grandmother had no title or interest in the land in dispute for her to have validly transferred same to the Respondent’s predecessor – in – title.
The Respondent’s predecessor in title could not

have given more than she had.
In UAC v. MACFOY (1962) A. C. PAGE 152, it was held among others that:-
“… you cannot put something on nothing and expect it to stand, it will collapse”
The position of the Respondent is consistent with the decision in – ADEKANYE v. GRAND SERVICES LTD (2007) ALL FWLR PART 387 PAGE 855 AT 869 – 870 PARAGRAPHS H – A. Where it was held among others as follows:-
“Once a party pleads and traces his root of title in an action for a declaration of title to land to a particular person or source and this averment is challenged, that party to succeed, as a plaintiff in the suit must not only establish his title to such land, he must also satisfy the Court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title where this was being challenged and concentrate on his own title to such land as he would not have acquired a valid title to such land if in fact, his grantor at all material times had no title thereto.
See – ALLI v. ALESINLOYE (2000) 4 SCNJ PAGE 264 AT 282 – 283.”
It is

trite that where a person who has no title to a property sells it to another person, the sale is void ab initio. This is based on the principle of NEMO DAT QUOD NON HABET meaning, he who has not cannot give out.
A purchaser, whose vendor had no title to the property he/she sold, gets nothing as the vendor has nothing to transfer to him/her.
See the following cases:-
– TAFAMA v. JALOMI (2003) FWLR PART 181 PAGE 1682 AT 1706.
-AGEH v. TORTYA (2003) 6 NWLR PART 816 PAGE 385 AT 396.
– POLO v. OJOR (2003) FWLR PART 137 PAGE 1085 AT 1096.
– DADI v. GARBA (1995) 8 NWLR PART 411 PAGE 12.
The learned trial Judge has described the Respondent as a bonafide purchaser for value without notice. But this is not correct because, the Respondent asserted at the trial that she acquired title from one Mrs. Florence Akintokun, the direct purchaser from Madam Sinatu Raji Tapa i.e. the Appellants’ grandmother. She acknowledged in her evidence and under cross examination that at the time of purchase, her predecessor in title knew that the land was Madam Okanlawon’s property i.e. the Appellants’ mother.
The Respondent also

acknowledged that at the time she purchased from Mrs. Florence Akintokun, she knew that the land in dispute belonged to Madam Okanlawon and that the sale to Mrs. Florence Akintokun was not by Madam Okanlawon the owner but by Madam Sinatu Raji Tapa.
In my humble view, the implication of this line of evidence is that the learned trial Judge was wrong to have described the Respondent as a bonafide purchaser for value without notice. This is because the evidence of the Respondent is consistent with that of a person who did not only have constructive notice but also has actual notice.
In ANIMASHAUN v. OLOJO (1990) 6 NWLR PART 154 PAGE 111 AT 122 – 123, it was held among others that;-
“What is the meaning of a bonafide purchaser of the legal estate for value without notice? Bona fide is defined as “in good faith, honesty, without fraud, collusion or participation in wrong doing …”
“A purchaser would be able to plead absence of notice only if he had made all usual and proper inquiries and had still found nothing to indicate the equitable interest”.
It is necessary at this juncture to consider the

Respondent’s claim that the land in dispute was sold under customary law.
The Respondent failed to lead evidence in line with customary sale of land.
In FOLARIN v. DUROJAIYE (1988) NSCC PAGE 255, the Supreme Court held among others that:-
“To transfer an absolute title under customary law, it ought to be pleaded and proved that the sale was concluded in the presence of witnesses. To that effect the names of those witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handling over of the land to the purchaser.”
See also – ERINOSHO v. OWOKONIRAN (1965) NMLR PAGE 479 AT 483.
In the case of – OLOWOAKE v. SALAWU (2000) NWLR PART 677 PAGE 127 – the Plaintiff bought the land in dispute, his purchase was evidenced in a receipt and he was put in possession. Defendant disturbed his possession and he was forced to sue him. Plaintiff failed because he was unable to call any member of the family that sold the land to him to testify that the handing over of the land was in the presence of witnesses.
In this appeal under consideration the Respondent did not call any

witness let alone a member of the Appellants’ family.
I am therefore of the view that the Respondent’s contention that the land was sold under native law and custom is not tenable. It is at best an afterthought.
The conclusion to be drawn from the foregoing is that no valid sale was made to the predecessor-in-title of the Respondent as the party who carried out the purported sale has no right or interest in the property. It was the same defect that was passed on to the Respondent through sale by the Predecessor in title.

As for Exhibit “CE2” also admitted as Exhibit “DE2” which learned trial Judge relied upon in finding for the Respondent, it must be noted that there was no evidence before the lower Court that the Appellants were part of the sale to the Respondents’ predecessor as asserted by the lower Court.
Nowhere in the statement of Defence and written statement on oath did the Respondent alleged that the 1st Appellant or any of the Appellants joined in the sale of the land in dispute.
Under cross examination (see page 168 of the record) the Respondent admitted thus:-
“I cannot

say the 1st Claimant was part of the sale at the time conditional. Exhibit “DE2” was made”
… I agree that all those who were involved in the sale between myself and Mrs. Akintokun signed conditional Exhibit “DE2.”
There is no evidence that the 1st Appellant was part of the sale in Exhibit “DE2” to the Respondent’s predecessor in title.
In MOHAMMED v. KLARGESTER NIG. LTD (2002) FWLR PART 127 PAGE 1078 AT 1097. The Supreme Court reiterated the age long principle that –
“A sale of family land property without the other members of the family being parties to the purported sale is void.”
At PAGE 1100 PARAGRAPHS F – H, the Supreme Court held among others as follows:-
“The Respondent knew that the property was not solely owned by the Appellant or that in any case, it did not originally belong to him. He knew and testified to the fact that the original certificate of occupancy was in the name of the Appellant’s late father. From the Respondent’s pleadings his real case is that the Appellant’s claim that the property was his personal

property or that it was the sole beneficial owner of it, and on that basis sold to the Respondent. The Appellant is the eldest son of his father, Alhaji Mamman Taylor. Even though he is the eldest son, having sold as the sole owner when he is not and without any evidence that his position as the eldest son confers right of sole ownership on him, the sale is void ab initio on the basis that he sold what he did not own – “nemo dat quod non habet.”
The Respondent in this case knew that the land was not solely owned by the 1st Appellant. She knew and testified to the fact that the original certificate of occupancy was in the name of the Appellants’ mother and not that of the 1st Appellant and their grandmother. Even though the 1st Appellant might be the eldest child, the property was not solely hers and to that extent the other members of the family were not parties to the purported sale. The purported sale is therefore void.
Where a person dies intestate as is the position in respect of the Appellants’ mother, her property on his death devolves and becomes family property of all members of the family i.e. all the

children.
It has been shown that none of the Appellants was involved in the sale to the Respondent’s predecessor in title. The 1st Appellant who was just 13 years old at the time of the purported sale therefore she could not have been a party to the sale.
The finding of the learned trial Judge that the Claimants were part of the sale by their grandmother and should not be allowed to turn around and deprive the defendants of the land she bought is perverse and not a proper exercise of judicial discretion.

In AKINDURO v. ALAYA (2007) ALL FWLR PART 381 PAGE 1653. It was held by the Supreme Court that to constitute good root of title depends on whether the document:
“(i) Is genuine and valid
(ii) Has been duly executed, stamped and registered
(iii)The grantor had the authority and capacity to make the

grant
(iv) In fact the grantor had what he purported to grant
(v) It has the effect claimed by the holder of the instrument.”
A careful reading of Exhibit “CE2” also admitted as “DE2” being the document relied upon by the Respondent as the pillar of her case would reveal that –
(a) It was not properly executed nor stamped nor registered.
It is trite that an unregistered document cannot be evidence of transfer of title but at best mere evidence of payment.
See the following cases:-
– DINA v. N.N.N. LTD (1986) 2 NWLR PART 22 PAGE 353.
– MONKOM v. ODILI (2010) ALL FWLR PART 536 PAGE 542.
(b) The condition for the admissibility of Exhibit “CE2” or “DE2” as the case may be, was not met.
The lower Court admitted Exhibit “CE2” or “DE2” on the condition that the respondent would take necessary step to attend to its stamping as required under Section 22(4) of the Stamp Duties Law Cap 411 Laws of the Federation of Nigeria.
In AKINDURO v. ALAYA (2007) 15 NWLR PART 1057 PAGE 312. It was held among others as follows:-
“Land

Instrument Registration Law has substantially universal contents in all states in Nigeria.
Under Section 2 of the law the word “INSTRUMENT” is defined to mean a document affecting land in the state whereby one party usually called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee any right or title to or interest in the state. Going by Section 15 aforesaid, an unregistered document affecting land must not be pleaded and neither is it admissible in evidence.
See – OGUNBAMBI VS. ABOWABA 13 WACA PAGE 222.
OLOWOAKE v. SALAWU (2000) 11 NWLR PART 677 PAGE 127.
ADESANYA v. ADERONMU (2000) 9 NWLR PART 672 PAGE 370.
And if such a document is pleaded on a trial Judge an application made to it, must strike out paragraphs of pleadings where such unregistered document is pleaded.
See – OSSAI v. NWAJIDE & ANOTHER (1975) 4 S.C PAGE 207. Even where the unregistered document was mistakenly admitted in evidence, part of the evidence relating to that unregistered document should be expunged for reason of lacking evidential value.”
In view of the

foregoing, since the condition of admissibility of Exhibit “CE2” or “DE2” (as the case may be) was not fulfilled, the said Exhibit is hereby discountenanced.

Furthermore, another reason why Exhibit “CE2” or “DE2” is unreliable is that the purported agreement is headed “Atinsola Commercial Agencies” and yet it says in the body thereof –
“We family of Mrs. Ibiyemi Adunni sold one plot of land to Mrs. “Florence Idowu Akintokun”
Was Atinsola Commercial Agencies part of the family?

Also one “Mrs. Titilayo” was referred to as one of the vendors, she never signed the document as evidence that she participated in the sale.
In this type of situation, where a document which ought to be signed is not signed, its authenticity is in doubt.
See the following cases:-
– KANO v. GILEON (2012) ALL FWLR PART 613 PAGE 1968 AT 1984 PARAGRAPHS A – C.
– BELLO v. SANDA (2012) ALL FWLR PART 636 PAGE 430 PARAGRAPHS B-E.
– OMEGA BANK (NIG) PLC v. O.B.C. LTD (2005) 8 NWLR PART 928 PAGE 547.

Also the learned trial Judge held that the 1st

Appellant as “Mrs. Titi” referred to in Exhibit “CE2” or “DE2” but it was contended that she lacked the capacity to make the grant as she was just 13 years old at the time the document was made.
The above assertion was not contradicted by the Respondent and the lower Court found so and held that – “Whether or not the 1st Claimant was old enough to execute document was not established by the defence.”
The above showed that the contention of 1st Appellant was not challenged by the Respondent.
It is trite law that the lower Court ought to have accepted the unchallenged evidence of the Appellant who was the 1st Claimant.
See: – LAU v. P.D.P (2018) 4 NWLR PART 1608 PAGE 60. -MTN NIG COMMUNICATION LIMITED v. CORPORATE COMMUNICATION INVESTMENT LIMITED (2019) LPELR – 47042 (SC).

In view of the foregoing my inevitable conclusion is that Exhibit “CE2” or “DE2” (as the case may be) relied upon by the lower Court is not a reliable document.

On the issue whether this Court ought not to set aside the purported sale and validate the Appellants’ right to

ownership of the property.
In this appeal under consideration, contrary to the submission of Counsel for the Respondent, the Appellants were able to establish the fact that their deceased mother owned the land in dispute and had a registered conveyance in respect of same, a fact not contradicted by the Respondent.
The Appellants also established that their mother died intestate and that the land in dispute was sold to the defendant’s predecessor-in-title by their grandmother.
The Respondent both in pleadings and evidence acknowledged that her title was challenged by the 1st Appellant.
The Respondent also admitted neglecting to respond to moves by 1st Appellant to clear the defect in her title.
In the circumstance, since there is no dispute that the land in dispute originally belonged to the mother of the Appellants who died intestate, in which case the property devolved jointly on the Appellants who were not the ones who sold the land to the Respondent as shown earlier in this Judgment, I am therefore of the firm view that the Appellants have better title to the land in dispute thereby necessitating that the purported sale to the

Respondent be set aside.
See – BIARIKO v. EDEH-OGWUILE (2001) FWLR PART 51 PAGE 1849 AT 1869 – 1870.
– ENANG v. EFERE (2007) ALL FWLR PART 345 PAGE 346 AT 358.
– SORONNADI & ANOR v. DURUGO & ANOR (2018) LPELR – 46319 (SC).
– OMOTAYO v. CO-OPERATIVE SUPPLY ASSOCIATION (2010) 16 NWLR PART 1218 PAGE 1.
– APENA & ANOR v. AILERU & ANOR (2014) 14 NWLR PART 1426 PAGE 111.
In view of the foregoing, since it has been established that the Appellants have better title to the land in dispute, the Respondent became a trespasser.

It has been established by plethora of authorities that this Court will interfere with the findings of fact by a trial Court where:-
(i) Such findings are shown to be unreasonable or perverse and not as a result of a proper exercise of judicial discretion.
(ii) There is ample evidence and the trial Court failed to evaluate it and make correct finding on the issue, in such a case, the Appellate Court is in as much a good position as the trial Court to make proper findings of the fact.
(iii) The findings do not flow from the evidence on which such findings are based.

The evaluation earlier done in this Judgment leaves no doubt in my mind that the conditions enumerated above have been established and as a result this Court can interfere with the perverse finding of the lower Court.

In the instant case under consideration, the lower Court failed to evaluate the evidence before it properly for example;
(1) The land in dispute was not alienated by the Appellants upon whom the land devolved on under Yoruba native law and custom, but it was alienated by their grandmother who held same in trust and who had no title or interest in the land at all under Yoruba native law and custom to carry out the said sale.
(2) The above fact was well known to the Respondent at the time of purchase of the land in dispute.
(3) The Respondent had notice of who the owner was and was warned severally and challenged by 1st Appellant as to the fundamental defect in her title but she chose to ignore the warning.
(4) The trial Judge applied the principle of bonafide purchaser for value without notice wrongly as a result of which she arrived at a wrong conclusion which is at variance with the evidence before the Court.

Consequent

upon the foregoing, these issue numbers (1), (2) and (3) are resolved in favour of the Appellants and against the Respondent.

It is my view that there is merit in this appeal and it is hereby allowed.

The Judgment of the lower Court in Suit NO: HCT/56/10 BETWEEN- (1) CHIEF MRS TITILAYO IDEHEN (2) FELIX AKUSU (3) MADELEINE ADEDIMEJI (MRS) VS MRS CHRISTANA ADESANYA delivered on the 18th day of December, 2013 is hereby set aside.

And in its place it is hereby Ordered as follows:-
(1) A declaration is hereby made that the claimants upon the demise of their mother are the persons entitled to ownership of the land in dispute and as such, the only persons who can legitimately alienate the land.
(2) It is hereby ordered that the purported sale of the land to the defendant i.e. Respondent herein or any person whosoever called, claiming title through one Madam Sinatu Raji Tapa is hereby set aside.
(3) There shall be (N500,000.00) FIVE hundred Naira general damages for trespass on the Claimants’ land.
(4) An order of perpetual injunction is hereby made restraining the defendant/Respondent privies, or any person whosoever called

from trespassing or further trespassing on the land in dispute.

The Appellants are entitled to costs which is fixed at (N250, 000.00) Two hundred and fifty thousand Naira against the Respondent.
Appeal Allowed.

NONYEREM OKORONKWO, J.C.A.: In this appeal, after reviewing the facts of this case, my brother Jimi Olukayode Bada JCA succinctly encouched the principle of law that would always rule this case. He expressed it thus:
It is trite law that the basic rule of succession upon intestacy where the deceased is subject to customary law, is that his self-acquired property devolves upon his/her children as family property.
In the case of SUBERU v. SUNMONU (1957) 2 FSC PAGE 33, (1957) SCNLR PAGE 45 it was held among others that:
“On the death of a property owner under Yoruba native law his property devolved on his children as family property.”

Following this principle and the cases espousing the precept, the case resolves itself that title in the disputed property resides in the appellants and not the respondent.

I agree with the judgment of Justice Bada J.C.A. I align myself with the reasoning and conclusions.

FOLASADE AYODEJI OJO J.C.A.: I have read is advance the Judgment just delivered by my Learned brother, JIMI OLUKAYODE BADA JCA. I agree with the reasoning and conclusion reached therein. I agree as held by his Lordship that under Yoruba Native Law and Custom, the property of a deceased person who dies intestate devolves on his/her children. In RABIU v. ABASI (1996) 7 NWLR (pt. 462 505 at 512 – 513 paras H – A, the Supreme Court per Adio JSC held thus:
“The legal position in the circumstances in this case is that, under Yoruba native law and custom, the real property of a deceased person who dies leaving children surviving him goes to the children to the exclusion of other blood relations. The real property does not go to the deceased’s uncles, aunts and cousins. See ADESEYE & ORS v. TAIWO &ORS (1956) SCNLR 265; (1956) IFSC 84; 1956 SCNLR 265 and YUSUFF v. DADA (1990) 4 NWLR (pt. 146) 657.”
Furthermore, in ADISA v. LADOKUN (1973) LPELR – 24953(SC) at 15- 16 paras C – B, the Supreme Court per Sowemimo J.S.C held thus:
“It is settled Yoruba customary law, as we pointed out earlier, that when a

deceased person dies leaving children surviving him, his or her children will inherit his property. Applying that customary law to this case, we held that Okiti’s children and grandchildren as his descendants will inherit the farmland left by Okiti. This being the case, the president of Grade ‘B’ Customary Court was right in granting the declaration of title to the Plaintiff In ADESEYE &ORS v. S.F. TAIWO & ORS IFSC 84 Jibowu Ag FCJ in delivering the Judgment of the Federal Supreme Court said as follows:
“It is quite clear… that real properties of a deceased person who had children surviving go to his children, not his uncles, aunts and cousins. There can therefore, be no doubt that neither the Plaintiff nor the persons through whom they claim blood relationships with Chief D. C. Taiwo could inherit or take a share of the real property which by native law and custom belongs to children and descendants of the deceased.”
In the instant appeal parties are on common ground that the disputed land belonged to the Appellant’s mother, madam Adunni Okanlawon who died intestate. Madam Adunni Okanlawon acquired her

title to the land vide a valid sale. There is undisputed evidence that at the time of death of Madam Okanlawon she was survived by the Appellants (her children). The Respondent traced her root of title to Mrs. Florence Akintokun and Madam Sinatu Raji Tapa. Madam Sinatu Raji Tapa was the grandmother of the Appellants. Parties are ad idem that the disputed land belonged to the mother of the Appellants. Under Yoruba Native Law and Custom the Appellants grandmother could not inherit the property of her daughter who was survived by children. She was not in line of succession to her daughter’s property. She therefore had no legal capacity to devolve the disputed property to Mrs. Florence Akintokun, the Respondents predecessor-in-title. The Learned trial Judge was clearly in error when he held that the respondents had valid title to the disputed land.

It is for the foregoing and the fuller reasons given in the lead Judgment that I also find merit In this appeal and allow same. I abide by the consequential orders in the lead Judgment including the order as to costs.

Appearances:

OLUWAFEMI AKINLOLU For Appellant(s)

CHIEF A. F. OKUNUGA with him, MRS. O. ALIMI-SODEINDE For Respondent(s)