LAWRENCE OLADEPO AKINYOADE & ANOR v. MADAM IYABO AJAGUNNA
(2019)LCN/12521(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of January, 2019
CA/AK/209/2017
RATIO
LAND LAW: FAMILY POSSESSION OF LAND
“This then means, that what each member of the family has is a right of occupation which is transmissible to his successors in the branch of the family. This also means that the use of this land is still subject to the overall management and control of the family head or elders. In the case of BAMGBOSE V OSHOKO & ANOR (1988) 2 NWLR PT. 78, 509 PER Belgore, JSC, the Court held that:
‘Family land is always held in trust by the head of the family. He decides on allotment to each member of the family according to his need. This he does in consultation with other leading members of the family. This allotment to a member of the family does not in any way confer on the allottee absolute right. He cannot claim declaration of title neither can he transfer absolute right, for no one can transfer what he has not got. The duty of a plaintiff is to prove his case and in a cause as this now in hand, a plaintiff claiming absolute right on a family land allegedly transferred to him by a member of that family who has more allotment, has an uphill task indeed. Nemo dat quo non habet.'” PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. LAWRENCE OLADEPO AKINYOADE
2. SAMUEL OKE AKINYOADE Appellant(s)
AND
MADAM IYABO AJAGUNNA Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment):
By a specially endorsed writ of summons dated and filed on the 4th day of June, 2014, the appellant herein, as claimant in the Court below sought for an order of the Osun State High Court, presided over by HON. JUSTICE A. A. G. ONIBOKUN claiming against the defendant as follows:
1. A declaration that the claimants are entitled to a customary right of occupancy in respect of that piece of farmland lying, being and situate at Segi-Elefon, Elefon Village in Ife Central Local Government Area of Osun State of Nigeria with boundaries as follows:
a) On the front side by the Ilesa/Ibadan Express Road, Ile-Ife.
b) At the back by Osu stream
c) On the right side by late Ademoyegun?s farm
d) On the left side by Segi stream.
2. Perpetual injunction restraining the defendants, her agents, privies, servants or any person or persons claiming through her from further entering, alienating, or in any way dealing with the farmland lying, being and situate at the said Segi-Elefon, Elefon Village in Ife Central local Government Area of Osun state of Nigeria dealing in any manner detrimental to the interest of the claimants.
3. One Million (N1, 000,000) Naira general damages.
The appellants/claimants in the Court below, (3 full brothers) had sued the respondent claiming a declaration of title, an order of injunction and damages over a piece of farmland at Elefon village in Ile-Ife of Osun State. Prior to this action the elders of the family through a customary arbitration ratified by the Palace Authority had adjudged the respondent as the bonafide occupier of the property the right of occupation having been transmitted to her from her paternal grandfather Mosaaku through her mother Tawa. The appellants on the other hand claimed that the disputed land was their own inheritance from their father (Akinyoade), a member of the Adejokun Compound of which the respondent?s grandfather was also a member. That it was after the death of their father that they shared the 5 acre land among themselves, the five sons before the incursion of the respondent.
The respondent maintained that the farmland transmitted to her is an 8 acre parcel of land. That it was after the death of her mother that the late 1st claimant smuggled his two younger brothers into the farm and made a false claim to 5 acres of the farmland leaving only 3 acres of land for her. The 1st claimant/appellant the arrow head and the most senior of the appellants died before trial commenced in these proceedings, leaving only the current appellants to conclude the case.
In proof of their case, the 1st appellant testified on their behalf and called one other witness. They tendered no exhibits.
The respondent on the other hand testified on her own behalf and called two other witnesses. She tendered four documents in evidence which were admitted and marked as Exhibits TM1, TM2 & TM3, TM4 and TM5.
At the conclusion of hearing, the learned trial judge in a judgment delivered on the 2nd day of May, 2017, dismissed the case of the claimants.
Dissatisfied with this judgement, the appellants appealed to this Court by a notice of appeal dated and filed on the 3rd day of July, 2017.
It contained three grounds of appeal as follows:
1) The Judgment is against the weight of evidence.
2) The learned trial Judge misdirected himself on the facts and came to a wrong conclusion in law when he held in effect that except the lip service that the plaintiffs (appellants) used to lay claim to the land (in dispute), there is no evidence before the Court probable enough to prove their claim, in spite of the avalanche of probable evidence led by plaintiffs
PARTICULARS
a. The learned trial Court did not review or sufficiently review the case of the plaintiffs.
b. A dispassionate study of the evidence led by plaintiffs’ witnesses PW1 and PW2 are credible and more probable than that of the defendant.
c. Exhibits Tm2, Tm3 and TM4 do not help defendant’s case.
d. The direct admissions of the defence further corroborate the case of the plaintiffs.
e. On an imaginary scale, the case of the plaintiffs preponderates in favour of the plaintiffs and against the defendant.
3) The learned trial judge erred in law and came to the wrong decision occasioning a serious miscarriage of justice when he held that Exhibit Tm1 (the so called Customary Arbitration Report) confirmed the defence case and made defence case preferable to the appellants’ case.
PARTICULARS
a) Exhibit Tm1 was tendered upon a sobpeona duces by one Baale Sooko Akintade who in law could not be cross examined and was not a party to the case, nor was he called to testify in the case.
b) In the circumstances Exhibit Tm1 has no probative value that would confirm the defendant/respondent?s case against the plaintiffs.
c) Sections 218 and 219 of the Evidence Act 2011 do not confer probative value on a document tendered simply through subpoena duces without more.
Whereof the appellants urged the Court to allow this appeal and set aside the judgment of the lower Court.
At the hearing of the appeal, Mr. C.A.O AYINDE of counsel adopted the appellants’ brief dated and filed on the 23rd day of October, 2017 as his legal arguments in support of this appeal.
In it, counsel raised (2) issues for determination by the Court as follows:
a) Having regards to the quality of evidence led by the Plaintiffs/Appellants in the lower Court, whether a prima facie case has been made by them in accordance with Sections 131-134 of the Evidence Act, 2011
b) If issue (1) is answered in the affirmative, whether the evidence proffered by the respondent, including Exhibits TM1, TM2, TM3, TM4 and TM5 can withstand or demolish the case of the plaintiffs on the imaginary scale .
On issue (1), the appellants’ counsel contended that the boundaries of the FIVE ACRES being claimed was properly identified by the PW1 and same was confirmed by one Layi Ademakinwa (PW2). He further placed reliance on Sections 131-134 of the Evidence Act 2011. He further submitted that the findings of the trial Court is not borne out of the plaintiffs’ evidence, rather it is perverse. Learned counsel further submitted that the trial judge failed to realize that the onus of proof shifted to the respondent when they raised a new allegation of facts. He placed reliance on Section 133(2) of the Evidence Act and the case of NWOKE V OKERE (1994) 5 SCNJ 102 AT 118 LINE 21 to also submit that the findings were made without regards to the evidence adduced and urged the Court to resolve this issue in favor of the appellants.
On issue two, counsel submitted that the claimants’ pleading was that the original land was undivided and everybody became the owner of the amount cultivated by him and not that the original land had been partitioned, noting that the trial judge mixed up the case of the claimants/appellants. Learned counsel further contended that the perverse findings against the appellants have occasioned a serious miscarriage of justice. He referred the Court to the case of OLUBODUN V LAWAL (2008) 6 SCNJ, 269 AT 287 LINE 1-5. He further adopted his submissions on issue (1) above.
On a document tendered upon subpoena duces tecum, counsel referred the Court to the case of AREWA ILES PLC V FINETEX LTD (2003) 7 NWLR, PT 819, 332 AT 350 CA to submit that although such is allowed by Sections 218 and 219 of the Evidence Act 2011, it does not enhance the quality of the evidence of the witness and attracts no probative value.
Learned counsel further relied on the case of EGESIMBA V ONUZURUIKE (2002) 9 SCNJ 46 AT 63, LINES 20-27 to submit that Exhibit TM1 does not in law qualify as a customary arbitration. He argued that Exhibits TM2 and TM3 were also tendered by subpoena duces tecum and no evidence was called on them, so no probative value should be attached to them. Counsel further contended that Exhibit TM4 was not an agreement between the Adejokun family and the appellants or any of them as the boundaries of the land is not related to the farm in issue. He urged the Court to resolve issue two in favour of the appellants.
Mr. D.F.O OLANIYAN of counsel for the respondent adopted their brief as their legal arguments in opposition to this appeal. It is dated the 15th day of November, 2017 but was filed on the 21st day of November, 2017. In it, counsel formulated a sole issue for the determination of the Court as follows:
1. Whether the claimants/appellants from the totality of their weird evidence can claim title to the customary right of occupancy in respect of the disputed farmland at Segi Elefon village in Ife central local Government of Osun state.
In arguing this sole issue, counsel submitted that from the totality of the evidence proffered by the claimants at the lower Court, no legally admissible evidence has been led by them to warrant the grant of title to the (8) acre disputed farmland. He further submitted that Exhibit TM1, tendered by the family head, was fully acted upon by the trial Court as better and probable evidence led by the defendant/respondent. Learned counsel for the respondent further submitted that the first claimant who died before the commencement of the suit was for about 7 years (1986-1993) a tenant of Tawa, the late mother of the defendant under the ?sengbe? system of tenancy, and paid rent on the 8 acre farmland. Learned counsel contended that the appellants cannot turn around and make any honest claim of ownership on the 5 acre farmland. He placed reliance on the case of ESANGBEDO V THE STATE (1989) 7 SCNJ 1. Counsel also relied on the case of ALHAJI ABBA SATOMI SALEH & ANOR V BANK OF THE NORTH (2006) 2 SCNJ, 407 to submit that the appellate Court cannot interfere in general or ordinarily save in special circumstances as the evaluation and appraising of evidence is the primary duty of the trial Court.
Mr. OLANIYAN submitted that from the totality of the evidence proffered by the parties at the trial, both oral and documentary, Exhibits TM1, TM2, TM3 and TM4 as tendered and admitted by the trial Court have probative value. Counsel further submitted that the fact that the appellants’ counsel did not cross examine the defence witness on subpoena will not render the exhibit worthless. Learned counsel argued that Exhibits TM1 and TM2 are letters of protest written by the respondents in 2001 and 2011 to the elders of Adejokun Family for them to intervene in the farmland dispute. He submitted further that the documents were written in Yoruba language, but was translated into English language by one Mr. Niyi Mustapha (principal registrar of the High Court, Ile-Ife) as DW2 on subpoena duces tecum and was tendered and admitted in Court as it served a useful purpose for the justice of the suit at the trial Court. Learned counsel contended that Exhibit TM4 is the copy of a tenancy agreement between Adejokun family as landlords and an individual tenant and the respondent is not the maker nor was she the landlord. He further contended that the 1st and 2nd claimants and two others were among the family delegates that located the respondent?s 8 acre farmland in 1986 as was confirmed in TM1. He placed reliance on the case of INSURANCE BROKERS OF NIG V ATLANTIC ILES MANUFACTURING COMPANY LTD (1996) 10 SCNJ 171 AT 184 LINES 39-42 to submit that from the totality of the evidence adduced by the respondents, the trial Court was right in giving judgment in her favour.
Learned counsel relied on the case of CHINWENDU V MBAMALI (1980) 3-4 SC, 31 AT 80 EZULUMERI OHIAERI & ANOR V ADINNU AKABEZE & ORS (1992) 2 SCNJ 76, AT 91 to submit that care should be taken by the Court always not to sacrifice justice on the altar of technicalities. He finally submitted that the trial Court had considered all the oral and documentary evidence adduced before it came to the conclusion that the appellants have no credible and probable evidence to prove their claim and that they failed woefully on a balance of probability. That the respondent’s case was more probable and weighed more on that imaginary scale of justice. He placed reliance on the case of CHIEF FALADE ONISAODU & ANOR V CHIEF ASUNMO ELEWUJU & ANOR (2006) 7 SCNJ, 270 and OLONADE & ANOR V SOWEMIMO (2014) 5 SC PT. 2, 97.
Mr. OLANIYAN also submitted that PW2 has been described as a liar who knew nothing about Exhibit TM1 and claimed not to have appeared before the panel until he was confronted with the panel report. See page 177 of the printed records (Exhibit TM1).
Learned counsel prayed the Court to dismiss this appeal as being unmeritorious and to uphold the judgment of the lower Court.
The appellants prosecuted this appeal on the two issues raised for determination. The respondent on her part raised a sole issue for determination. From the issues of both parties, all they are trying to say in different ways is whether the plaintiffs proved their case on a balance of evidence vis-a-vis the respondents. The contentions of the appellants is that firstly, they had made out a case on the balance of evidence and the lower Court ought to have given them judgement. The 1st plaintiff in the court below, Titus Adetola Akinyoade died before actual hearing commenced in this matter. In proof of their case, the appellants had in the Court below called two witnesses.
The 2nd plaintiff then, now 1st appellant, Lawrence Oladepo Akinyoade testified as PW1. He adopted his witness statement (see pages 11-14 of the printed records) as his evidence in chief. Essentially the evidence of this witness is that they, the appellants are entitled to judgement. That they inherited a customary right of occupancy from their father over the farmland in dispute. This land situate at Segi Elefon village in Ife Central Local Government Area of Osun State is bound:
a) On the front side by the Ilesa/Ibadan Express Way
b) At the back by Osu stream
c) On the right side by late Ademoyegun’s farm and
d) On the left side by Segi stream.
In his evidence, PW1 explained that the land was a vast parcel of virgin forest given or granted to the Adejokun Compound of Ilaye by Oba Adelekan Olubuse 1, the Ooni of Ife who reigned between 1894 and 1910. That every member of Adejokun compound started to cultivate the land, each to the extent of the land he could cultivate. That Adekoyejo, the appellants’ grandfather was a member of the Adejokun Compound.
That the said Adekoyejo cultivated the said entire farmland now in dispute which is about five acres in size. That every member became the undisputed owner of the extent of land that he could cultivate. It was also the evidence of PW1 that their father, Akinyoade inherited the said farmland from their grandfather. That his father, Akinyoade had five other brothers who inherited other farmlands from their grandfather when he died in 1954. That the portion in dispute was shared among them by Johnson Ogunlana, Gabriel Oni, Michael Ademoye and Clement Adesumoye who he alleged are all deceased. The appellants through PW1 also testified that one Mosaaku was also a member of the Adejokun compound. That he too cultivated a portion of this land. That upon his demise, the farmland was inherited by his daughter, Tawa. That upon Tawa’s demise, her daughter, the respondent inherited the said farmland. That this was the smaller farmland that she took one Olayiwola Ademakinwa to work for her on her inherited portion. This was PW2 who in his testimony confirmed the fact that the respondent owned only the smaller farmland about three acres which he worked on.
The appellants have therefore set out the boundaries of the land in dispute but have they been able to prove title to it? It is clear from their testimony that this is a customary right of occupancy. One of the five established ways of proving title to land is by traditional history. The appellants were the claimants seeking a declaration to a customary right of occupancy over the piece of land in dispute. They have traced the history of this land which was given to their ancestors, the Adejokun Compound of Ilare. The respondent too shares the same ancestors with the appellant. This much they admitted. They also admitted that this land was given as family land to the Adejokun compound. A significant feature of family land is that it remains family land irrespective of allotment. As Ogundare JSC puts in the case of AGBOMEJI V BAKARE & ORS (1998) LPELR-244; the right of occupation acquired in a family land is transmissible to his successors. This is confirmed in Exhibit TM1, pages 6-7, recommendation (iv):
‘Members of the compound should be informed and educated that the compound is actually the Owner of the farmland that they manage. The compound reserved the right to withdraw individual or group ownership. In the case of abandonment, the land revert to the compound for communal purposes.’
This principle as confirmed by Exhibit TM1 is apposite to the testimony and contention of the appellant through PW1 that:
‘Every member became the undisputed owner of the extent of the land he could cultivate.’
This then means, that what each member of the family has is a right of occupation which is transmissible to his successors in the branch of the family. This also means that the use of this land is still subject to the overall management and control of the family head or elders. In the case of BAMGBOSE V OSHOKO & ANOR (1988) 2 NWLR PT. 78, 509 PER Belgore, JSC, the Court held that:
‘Family land is always held in trust by the head of the family. He decides on allotment to each member of the family according to his need. This he does in consultation with other leading members of the family. This allotment to a member of the family does not in any way confer on the allottee absolute right. He cannot claim declaration of title neither can he transfer absolute right, for no one can transfer what he has not got. The duty of a plaintiff is to prove his case and in a cause as this now in hand, a plaintiff claiming absolute right on a family land allegedly transferred to him by a member of that family who has more allotment, has an uphill task indeed. Nemo dat quo non habet.’
This case to my mind reflects in practical terms the instant case. The plaintiffs cannot claim inheritance from their grandfather without proving one of two things: That at some point in the history of this land there was a partition of the land. That his claim relates to such partitioned portion. In the case of ETUWEWE & ANOR V ETUWEWE & ANOR (1966) 1 ANLR, 176, Lewis JSC held as follows:
‘We are familiar with what happens when a person dies and his estate devolves on family property. Sometimes there is an allocation of a piece of land to X for him to farm and earn his livelihood and of another piece to Y. Neither X nor Y becomes the owner of the piece allotted to him but both pieces remain family property; and this is TO BE DISTINGUISHED FROM A PARTITION OR DIVISION OF THE ESTATE WHICH GIVES A SUCCESSOR A PIECE OF HIS OWN PROPERTY.’ (Emphasis mine)
Having not proved partition, I hold that the appellants have no right to inherit from their grandfather as claimed. See also the decision of this Court in the case of BASORUN & ORS V. MORONKEJI (2017) LPELR – 43247, where the Court affirmed this point when it held that:
‘A grantee of a partitioned portion of family property becomes the owner of the specific portion of land granted. He can therefore exercise exclusive right of ownership over such land including right to alienate.’
Conversely, the appellants could have led evidence (which if the trial Court found credible) to prove that in the custom of the Ilare people of Ile-Ife in respect to usage of land that once a family member cultivates a portion of the family land he becomes the undisputed owner of the extent of the land that he could cultivate. In the absence of any proof by the appellants of a partition or proof of this allegation as being the custom of the people, I hold that the learned trial judge was absolutely right to find that the appellants have not proved their case on a balance of evidence. This means the land in dispute remains family land.
In that connection, Exhibit TM1 becomes a relevant document. This is the report of the committee set up at the general meeting of the ‘Compound’ in June 2011. The report was submitted in April, 2012. The committee interviewed a number of family members including the deceased 1st appellant, Titus Adetola Akinyoade and the current 1st appellant Lawrence Oladepo Akinyoade. (see pp 6-8 of Exhibit TM1). The appellants in their address tried to impeach the admissibility of Exhibit TM1. I do not see much substance in his contentions. Firstly the appellants do not contest that DW1 was the head of the family at the time Exhibit TM1 was tendered through him. Secondly it is not in dispute that the land in issue is family land. Being family land, it is only the family head or leaders who can deal with issues pertaining to it and settle disputes arising from it. I hold therefore that not only is Exhibit TM1 admissible, but it has the probative value ascribed to it by the trial Court. As family members, if the appellants feel aggrieved by the decision of the family in respect of Exhibit TM1, they are at liberty to challenge that decision in any forum of their choice. Until such a successful challenge, Exhibit TM1 subsists and remains binding on the appellants. The trial Court was therefore right to have acted on the document to find that the appellant did not prove their claim before it.
In the alternative, I find that at worst, Exhibit TM1 is a customary arbitration. By participating in it, the appellant had submitted to it. The award was declared in April 2012. By not challenging it, the appellants are deemed to have accepted the award. In the case of UME V OKORONKWO & ANOR (1996) 10 NWLR PT 477, 133, Ogwuegbu JSC deciding on the binding effect of a customary arbitration held that:
‘there is, as a rule an agreement that the decision of the arbitrators would be accepted as final and binding. In this case, the plaintiff and the 1st defendant voluntarily submitted the dispute as to whether or not the land in dispute was on pledge to the 1st defendant. Both parties stated their cases and on each occasion, a decision was reached. The agreement to accept the decision as final and binding was implied.’
From this authority, I cannot restate the well settled principle of law any more forcefully; that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication to accept the decision as final and binding, it would no longer be open to either of them to back out or resile from the decision so pronounced. See also the cases of ONYENGE & ORS V EBERE & ORS (2004) 13 NWLR PT 889, 20 and IHEANACHO V IHEANACHO (2018) LPELR-44124.
The principle is even more applicable in a situation like the instant case where the power to settle disputes between family members in respect of family land rests with the family head or leadership. Having taken the dispute to the family who set up a committee (arbitral panel) to which the appellants submitted fully, they cannot now be heard to complain. This is because the failure of the appellants to challenge Exhibit TM1 even to the general meeting of the Compound which set up the committee leaves me with no other option but to hold that there is an implied acceptance of the decision of the committee in Exhibit TM1. I so hold.
On the whole and from all the findings in this judgement, I hold that this appeal lacks merit, it fails and I hereby dismiss it.
I award N100, 000 costs against the appellants and in favour of the respondent.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the leading Judgment of my learned brother, Patricia Ajuma Mahmoud, JCA. in this appeal. I agree that the appeal be dismissed as the title in a family land cannot be inherited without first being partitioned and appropriated as a personal title outside the family title. In instant case, this fact of the title of the family was re-enforced by Exhibit TMI, (The report of a committee) set up by the family and which recommended and restated the fact of the land being family property and which ownership was in it.
That the family reserved the right to withdraw individual or group ownership. That in the event of abandonment, the land reverts to the compound for communal purposes. That is Recommendation (No. iv) of Exhibit TMI at pages 6 – 7. It is clear, upon the above and the settled position of the law eloquently brought out per the decisions of the apex Court referred to in the lead Judgment, that the Plaintiffs, now Appellants cannot convert the right of use and occupation of family land in them to personal right of inheritance from their grandparents.
If there is no partition or proof that allocation for use is, per the customary law applicable, an outright grant, which is inheritable, then the Plaintiffs now Appellants had not proved their claim to the declaration of title sought.
The land, therefore, remains family land. The position of customary arbitration is re-enforced in Exhibit TMI wherein the family leaders deliberated upon the complaint and a resolution binding and enforceable was arrived at. The law will not allow a recoil from the binding agreement of the family in the circumstance by the Appellants.
Appeal dismissed.
I adopt the consequential order relating to costs as entered against the Appellants in favour of the Respondents.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: PATRICIA. A. MAHMOUD, JCA. I am in full agreement with the reasoning and conclusion in it. I, too, visit a deserved dismissal on the appeal. I abide by the consequential orders therein.
Appearances:
Mr. C.A.O AyindeFor Appellant(s)
Mr. D.F.O. OlaniyanFor Respondent(s)
