OLADEJO OYEDIRAN & ORS v. ABIDEEN ADEGBITE & ORS (2013)

OLADEJO OYEDIRAN & ORS v. ABIDEEN ADEGBITE & ORS

(2013)LCN/6483(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of November, 2013

CA/I/286/2008

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

1. OLADEJO OYEDIRAN
2. OLUJIDE OYEDIRAN
3. OLUKUNLE OYEDIRAN (For themselves and on behalf of Jolaade Oyediran Family) Appellant(s)

AND

1. ABIDEEN ADEGBITE
2. WAHAB OLADEJO AKANGBE
3. UNKNOWN PERSONS Respondent(s)

RATIO

WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGHT OF HIS OWN EVIDENCE IN A CLAIM FOR DECLARATION OF TITLE TO LAND

The law therefore is that, in a claim for declaration of title to land, the plaintiff or claimant must succeed on the strength of his own evidence adduced at the trial, and not on the weakness of the defendant’s case, except where such weakness supports the case of the plaintiff. It means therefore that for a claimant to succeed in a claim for declaration of title to land, he must adduce sufficient, cogent and credible evidence which must satisfy the court that he is entitled to the declaration sought. Being a declaratory relief, it is not granted merely because the defendant’s claim is weak or that the defendant has made admissions in his pleading or evidence, but on the strength of the case presented by the plaintiff. However, circumstances may exist where the admissions of the defendant or weakness of his case may support or tend to support the plaintiff’s case; and in that case the plaintiff may take advantage of it and urge the court to resolve such weakness in his favour. Generally however, in an action for declaration of title to land, the burden lies throughout on the plaintiff to proof his case on the strength of the evidence, adduced by him. That burden in a declaratory action is static and fixed on the plaintiff and never shifts, same in certain cases during or in the course of trial, where the law imposes on the defendant the onus of proving certain facts as fixed by the pleadings; or where the defendant has made a counter-claim. See Ebenogwu v. Onyemaobim (2008) 3 NWLR (Pt.1074) P.396; Ezeigwe v. Awudu (2008) 11 NWLR (Pt.1097) p.158; Onisaodu v. Elewuju (2006) 13 NWLR (998) P.517 and Mani v. Shanono (2006) 4 NWLR (Pt.969) P.132. This burden is usually discharged on a balance of probabilities or preponderance of evidence. PER TSAMMANI, J.C.A.

WAYS OF ESTABLISHING OWNERSHIP OF TITLE TO LAND

WHETHER OR NOT FINDINGS OF FACT ON AN ISSUE NOT CHALLENGED ARE DEEMED ESTABLISHED

It is the law that, where a trial court has made findings of fact on an issue before it, and such findings are not challenged or appealed against in an appeal, such findings are deemed established as valid and subsisting. In other words, it is the law that any finding of facts made by a trial court for which there is no appeal remain valid and subsisting. In such a situation, such findings of fact made by the trial court and in which there is no appeal, are deemed admitted or conceded to by the Appellant or the party against whom such findings were made. See Ebenigbe v. Achi (2011) 2 NWLR (Pt.1230) P.65; Amoshima v. State (2011) 14 NWLR (P.1268) P.530; L.H.A.B.U.M.B. v. Anyip (2011) 12 NWLR (Pt.1260) P.1; S.P.D.C.N. Ltd. v. Ejebie (2011) 17 NWLR (Pt.1276) p.324 and C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt.1279) P.493. PER TSAMMANI, J.C.A.

PRINCIPLES OF ALIENATION OF FAMILY LAND

Now, it is the law as stated by the Supreme Court in the case of O. Solomon & Ors. v. A.R. Magaji & Ors. (19982) 11 SC P.1, that the correct principles of alienation of family land can be classified into three categories; firstly, the sale of Family land by a member of the family, who is not head of the family, without the consent of the head of family is void. Secondly that, sale of family land by head of the family without the consent of the principal members of the family is voidable. Thirdly, where the head of the family sold family land as his own and without the knowledge and consent of the other members of the family, the sale is void. PER TSAMMANI, J.C.A.

THE LAW OF PLEADINGS WHERE A PARTY INTENDS TO RAISE THE LEGALITY OF ANY ACT OR DOCUMENT

Indeed it is the law of pleadings that where a party intends to raise the legality of any act or document, such illegality must be pleaded and the particulars thereof must be pleaded. This is to avoid springing any surprise at the opponent. See Ishola v. U.B.N. Ltd. (2005) 6 NWLR (Pt.922) P.422; Jiwul v. Dimlong (2003) 9 NWLR (Pt.824) P.154. This is moreso where the issue of illegality is not apparent on the face of the document, but depends upon a number of facts, probabilities, or possibilities, or contingencies to be ventilated by evidence. See Ekwunife Wayne (W/A) Ltd. (1989) 5 NWLR (Pt.122) P.422 and Fasel Services Ltd. & Anor v. N.P.A. & Anor. (2009) 9 NWLR (Pt.1146) P.400. PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Oyo State High Court, Ibadan Judicial Division, delivered by F.I. Oyelaran, J on 21st day of July, 2008.
The Appellants were Plaintiffs at the court below, while the Respondents were the Defendants. The Appellants as Plaintiffs initiated the action by a Writ of Summons dated the 25th day of March, 2004. A Statement of Claim was duly filed together with the Writ of Summons on the same date. However in the course of the proceedings, the original 2nd Defendant, Chief Oladejo Akangbe died and the Appellants were granted leave to substitute him with his son, Wahab Oladejo Akangbe, who is now the 2nd Appe|lant in this appeal. Consequently, an Amended Statement of Claim was filed on the 25/2/2005, to which the Respondents filed a Statement of Defence on the 13/6/2005. The Appellants therefore filed a Reply to the Statement of Defence on the 18/10/2005. However, the Appellants filed a Further Amended Statement of Claim and Plan on the 06/11/2006 to which the Respondents filed a Consequential Amended Statement of Defence dated the 08/12/2006 and filed on the 11/12/2006. This case was therefore brought on the Further Amended Statement of Claim and the Consequential Amended Statement of Defence of the 1st and 2nd Respondents. By the said Further Amended Statement of Claim, the Plaintiffs/Appellants claimed the following reliefs:
(a) A Declaration that the plaintiffs as representatives of the Jolaade Oyediran family are the people entitled to a statutory right of occupancy on all that piece and parcel of land situate, lying and being at Oyadare Village, off New Ife Road, Ibadan, measuring approximately 22,766.153 m2 and more particularly shown in plan No. OY/1228/2004/277 dated 15th November, 2004 prepared by Surveyor S.O.O. Opaiinde.
(b) N50,000:00 General damages against the Defendants jointly and severally.
(c) Perpetual injunction restraining the Defendants, their agents, servants, privies or anybody claiming through them from further trespassing on the Plaintiffs’ land.
The Appellants ‘claim before the trial court is that, the land in dispute was founded by their ancestor, one Adeseye a warrior and hunter, who first settled on the land. That Adeseye had three children named: Ajao, Erinle and Adewale. That Ajao had only one child, a female called Jolaade and Jolaade had four children called Oyediran, Salami Amao, Egbedara and Belewumi. Oyediran then begat Oladiti, Oyebisi (a female), Kunle, Ebunlomo (a female), Dejo, Jide Kolawole, Sunday, Adeola and Nihinlola. The Appellants claimed to be the children of Oyediran. According to the Appellants, when their ancestor, the original founder of the land died, his land was partitioned amongst his three children and that the land they now claim forms part of the land partitioned to Ajao. They reiterated that upon the death of Ajao, his only daughter and child,, Jolaade, inherited the land partitioned to Ajao, and that upon the death of Jolaade, the land was further partitioned to her four children. According to the Appellants, it is the land partitioned to their father Oyediran that is now in dispute.
The Appellants further stated that, they went to the land in dispute but met the 1st Defendant/Respondent putting up a structure on the land, and that upon being challenged, the 1st Respondent informed them that he bought the land from the 2nd Respondent’s father; Chief Oladejo Akangbe. They further stated that when accosted on the issue, Chief Akangbe became hostile and threatened to kill them, whereof they reported the matter at Egbeda Divisional Police Station, New Gbagi. That the police were however, unable to conclude the investigation because two policemen involved in the investigation were killed. As the 1st and 2nd Respondents continued with the acts of trespass on the land, they instituted this action, claiming the reliefs as set out in paragraph 25 of the Further Amended Statement of Claim.
The 1st and 2nd Respondents did, not materially deny the Appellants, root of title to the land. The point of diversion about the traditional history of the Appellants’ title to the land is that, contrary to the Appellants, claim, the Respondents claimed that the land was founded by one Adebintan, a great warrior who fought both the Kiriji and Ogbagi wars, during the Yoruba wars- That Adebintan then brought his aged brother Adeseye to live with him on the land, and that the vast land was consequently shared (partitioned) between Adebintan and his elder brother Adeseye.
It is also the Respondents’ case that, the father of the 2nd Respondent bought the land in dispute from the Jolaade family as represented by Samuel Oladiti Oyediran, the eldest child of Oyediran and head of the Oyediran family, and Alhaji Amusa Salami, son of Salami Amao and head of Salami branch of Jolaade family. They contended that the transaction was witnessed by Alhaji Bello Adigun and other members of the Appellants’ extended family including their cousin from the Adebintan family. That the proceeds of the sale was shared in the hall of Chief Oladejo Awotunde, amongst all members of Jolaade family including the Appellants. That after the sale, the 2nd Respondent’s father took possession of the land and exercised acts of ownership on the land by selling different portions to other persons without being challenged or disturbed by anybody and that the persons who bought the land had built and are living on the land. It was also contended by the Respondents that the land bought by the father of the 2nd Respondent from the Jolaade family was never partitioned amongst Jolaade’s children. That the Appellants only started laying claim to the land after the death of Samuel Oladiti, the eldest son of Oyediran who spear headed the sale of the land.
At the hearing the Appellants as plaintiffs called three (3) witnesses including the 1st Appellant who testified as the PW3. The Respondents called four (4) witnesses. Three exhibits were tendered by the Appellants, to wit: exhibits P1 which is the dispute Survey Plan and exhibits P2 and P3 which are sale agreements executed between Samuel Oladiti and Amusa Salami as the vendors and Chief Oladejo Awotunde as the buyer. Upon the close of evidence, written Addresses were filed by order of the court, and in a considered judgment delivered on the 21st July, 2008, the learned trial judge dismissed the Appellants’ claim entirely. The Appellants are aggrieved by the decision of the trial court and hereby filed this appeal.
The Notice of Appeal which is at pages 81 – 83 of the record of appeal, was dated the 15/9/2008 and filed the 16/9/2008. It consists of four (4) Grounds of Appeal, which are hereunder reproduced, but without their particulars:-
1. The learned trial Judge erred in Law when she (sic) held that Mr. Samuel Laditi and Amusa Salami brother and cousin of the plaintiffs respectively properly sold the land in dispute without the consent of the 3 other sections of the family.
2. The learned trial Judge erred in law when she (sic) held that EXHIBITS P2 and P3 properly transferred the family land to the 2nd defendant.
3. The judgment is unwarranted and against the weight of evidence.
4. More Grounds of Appeal will be supplied on receipt of the judgment of the trial court.
It would be seen that, effectively there are three (3) Grounds of Appeal, as the fourth ground cannot be classified as a ground of appeal. It merely stated that more grounds of appeal would be filed upon receipt of the judgment of the trial court, but no such additional grounds of appeal were filed. Thus, in obedience to the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellants’ Brief of Arguments was dated the 15/12/2008 but filed the 17/12/2008. Therein, the Appellants nominated only one issue for determination as follows:
Whether Exhibits P2 and P3 (Land Agreement signed by Samuel Laditi and Amusa Salami properly sold the land in dispute in this case.”
The Respondents’ Brief of Arguments was dated the 10/10/2009 and filed the 03/12/2009 but deemed filed the 01/4/2010 vide order of this Court made the 01/4/2010 upon a Motion on Notice dated and filed 08/3/2010. Like the Appellants, the Respondents posited one issue for determination .as follows:
“Whether the learned trial Judge was not right in holding that the Jolaade family land was pr6perly sold to the Defendants.”
It would be seen that the issues so formulated are similar in scope and substance. In that respect, I adopt the issue formulated by the Appellants in the determination of this appeal.
Now, learned counsel for the Appellants referred to the sole issue identified by the learned trial judge in the determination of the case, to contend that, in resolving the issue so identified, the learned trial judge relied on the evidence of DW1 (Muraina Aremu) who testified that all members of Jolaade family sold the land in dispute to chief Awotunde. That the said witness also named those present at the Hall where the sale proceed was paid to and including the Appellants; and that the money realized from the sale was shared by the entire family. Learned counsel however contended that the said DW1 whose evidence the trial court relied on was confused and therefore does not deserve credibility.
It was further submitted by learned counsel for the Appellants that Exhibits P2 and P3 did not in anyway indicate that the vendors were acting on behalf of any family. That in actual fact, the recitals therein show clearly that the vendors sold the land as theirs contrary to the evidence before the learned trial judge to the effect that the land in dispute belonged to the Oyediran section of Jolaade family. That DW1 confirmed that Alhaji Amusa (2nd vendor) has no claim on the land in dispute; and therefore could not sell or transfer the land that does not belong to him, since the legal principle is “nemo dat quod non habet”. It was also contended that aside the fact that Alhaji Amusa Salami had no claim in the land in dispute which he purportedly sold, he (Alhaji Salami) and Samuel Oladiti Oyediran, sold the land as their personal land. He then relied on the case of Dr. Abiola Akerele v. A.J. Atunrase & Ors. (1969) 6 NSCC P.180 at 186 per Fatai-Williams, Ag. JSC, to submit that Exhibits P2 and P3 fit properly into the description of the conveyance described in that case; because:
(a) The two Agreements describe Samuel Oladiti Oyediran and Alhaji Amusa Salami as both being seised of the land in fee simple.
(b) Both exhibits P2 and P3 were executed without the consent of the family who owns the land before they were executed.
(c) The two agreements did not sell the family land neither did the 2 vendors execute the Agreements on behalf of the family.
The case of O. Solomon & Ors. v. A.R. Mogaji & Ors. (1982) 13 W.S.C.C. P.400 at 410 paragraphs 5 – 18 was cited in support.
Learned Counsel for the Appellant went on to submit that, the learned trial judge also fell into serious error of confusing sale of land under the native law and custom with sale under Exhibits P2 and P3. He referred to the concluding paragraph of the judgment of the trial court, to also submit that, it is trite law that Agreement or receipts are unknown to customary law and that once the trial court had found that the agreements properly transferred the land in dispute to the 2nd Respondent, there is no more room for customary transfer of the same land’ That under customary law, a valid sale of land could be concluded by mere handing over of the purchase money and delivery of possession by the vendor in the presence of witnesses, without the necessity for a conveyance. The cases of Cole v. Folami (1956) 1 NSCC pp.59-61; A. Nwosu v. Chukwu Manjo Udeaja (1990) 1 SCNJ Pp. 152 – 166 and Adesanya v. Otuewu (1993) 1 SCNJ p.78 at 103 – 121 were cited in support.
It also submitted by learned counsel for the Appellants that, the learned trial judge correctly held that, the land in dispute has not been partitioned and it is therefore family land. That it was also held by the learned trial judge that proof of title of the 2nd Respondent to the land in dispute is based on Exhibits P2 and P3, which showed that Laditi Oyediran and Amusa Salami sold the land to the 2nd Respondent. It was therefore submitted that, those findings alone should have warned the learned trial judge not to give judgment in favour of Appellants because, it is trite law that family land can only be sold by the Mogaji (Head of family) w1h the concurrence of Principal members of the family. He cited the cases of Alhaja Saratu Adeleke & Ors. v. Sanusi Iyanda & Ors. (2001) 6 SCNJ P.101 at 117 – 118 and Sunday Temile & Ors. v. Jemiate Ebigbeyi Awani (2001) 6 SCNJ p.190 at 207, to contend that, there is no evidence that any of the signatories to Exhibits P2 and P3 is the Mogaji or Head of the Jolaade Oyediran family nor that any other person or persons who are members of the family partook in the sale of the land nor the execution of exhibits P2 and P3. That, to make matters worse, the documents relied upon by the trial court (Exhibits P2 and P3) were executed in the personal capacity of the vendors and not on behalf of the family. He again relied on Akerele v. Atunrase & Ors. (supra) and Universal Vulcanizaing (Nig.) Ltd. v. Ijesha United Trading & Transport Co. Ltd. (1992) 11 – 12 SCNJ P.243 AT 256, to submit that such a sale of family land by a member of the family not on behalf of the family is void ab initio. Accordingly, learned counsel urged us to allow the appeal, as it is clear that the land in dispute was not sold with the consent of Oyediran family.
Learned counsel for the Respondents cited the cases of Ikotun v. Oyekanmi (2008) FWLR (Pt.433) p.1271 at 1284 paragraph C and Nsiege v. Mgbemena (2007) All FWLR (Pt.372) 1769 at 1795 paragraph F to submit that parties are bound by their pleadings and that facts not covered by pleadings go to no issue. That the Appellants’ case before the trial court as covered by their pleadings and evidence of witnesses was that, the land in dispute is part of the land partitioned to the Oyediran branch of Jolaade family, and for emphasis, reproduced paragraph 13 of the Further Amended Statement of claim where the Appellants’ claim was set out. He also reproduced the relevant portions of the testimonies of PW2 and PW3 thereon, to submit that it was clear from those portions of the evidence of PW2 and PW3 and the relevant pleadings thereon that the Appellants’ claim was for a Declaration of title, damages and injunction in respect of the land purportedly partitioned solely to the Oyediran branch of the Jolaade family, and not a land belonging to Jolaade family consisting of four branches, namely: Oyediran, Salami Amao, Egbedara and Bilewumi.
It is therefore contended by learned counsel for the Respondents that, for a plaintiff to succeed in a claim for declaration of title, he must do soon the strength of his own case and not on the weakness of the defendant’s case. He cited the cases of Kodilinye v. Odu (1935) 2 WACA p.336 and Olukoya v. Ashiru (2006) All FWLR (Pt. 322) p.1479 at 1496 – 1497 paragraphs H-E to submit that, the cogent, reliable and unassailable evidence before the lower court is that, the land in dispute was never at anytime partitioned to the Oyediran section of Jolaade family as claimed by the Appellants, so their case collapsed and was rightly dismissed by the trial court. That learned counsel for the Appellants conceded to that fact at paragraph 4.10 of the Appellants’ Brief of Arguments when he submitted that the learned trial judge held “correctly that the land in dispute has not been partitioned and it is still therefore a family land.”
Learned Counsel for the Respondents further contended that, in view of the fact that there is no evidence to sustain the claims of the Appellants that the land belongs solely to Oyediran section, the Appellants cannot deviate from their case before the trial court and turn around on appeal to fight on the ground that the land belongs to the entire Jolaade family. The cases of O.C.F.C. Ltd. v. Ogunleye (2008) All FWLR (Pt.427) 48 at 58-59 paragraphs H-A was cited in support. That indeed, the claim that the land belongs to the Jolaade family only came up in the address of counsel for the Appellants, when counsel realized belatedly that the land belongs to the Jolaade family and had not been partitioned to the Oyediran section. We were accordingly urged to hold that the Appellants’ claim as contained in the statement of claim could not stand and was rightly dismissed by the court below.
Learned Counsel for the Respondents submitted that, in the event this court holds that the Appellants can claim in respect of the entire Jolaade family land and that the Respondents were able to prove that the land was sold by the Jolaade family to the 2nd Respondent, it stands also proved that the Respondents established through DW1 that, both Samuel Oladiti and Alhaji Amusa Salami (DW4) signed exhibit P2. That Egbedara, one of the sons of Jolaade had no issue during his life time, hence he could not be represented in Exhibit P2. That in any case, DW1, a blood relation of the Appellants stated at pages 46-47 of the record of appeal, how the land in dispute was sold, those who executed the purchase receipt (Exhibit P2), those present at the sale and how the money was shared among the Jolaade family. That this witness was not cross-examined on his testimony that the Appellants were present when Exhibit P2 was signed and the purchase price received and shared amongst the Jolaade family members. The case of Fatilewa v. State (2007) All FWLR (Pt. 437) p.695 at 721 – 722 paragraphs F – B was cited to submit that, it is the law that where a witness is not cross-examined on material facts, the court should believe such evidence and make use of it. It is accordingly submitted by learned counsel for the Respondents that, the Appellants were unable to prove that they were not part and parcel of the sale of their family land to the 2nd Respondent. That by their presence, they had induced the father of the 2nd Respondent, who believed that the sale was perfect, and did not disturb the possession of the 2nd Respondent and subsequently the 1st Respondent until after the demise of their eldest brother who represented the Oyediran branch during the sale of the land. That no other section of the Jolaade family other than the Respondents, is contending that the land in dispute was sold without the consent and authority of the family. It was therefore submitted that the case of Akerele v. Atunrase & Ors (supra) relied on by the Appellants is not apposite in this case because, in Akerele’s case, the land was sold through a conveyance while in this case, the land was sold under native law and custom in the presence of all members of the Jolaade family including the Appellants who consented to the sale and a purchase receipt was issued; and thus satisfying the condition of a valid sale under customary law as stated in Akingbade v. Elemosho f1994) 1 All NLR p.154. That it does not lie in the mouth of the Appellants who participated in the sale as stated by the DW1, to now resile from same by saying that the sale is void ab initio.
Learned Counsel for the Respondents further submitted that, throughout the trial, the Appellants never raised the issue of the Mogaji or principal members of the family that were expected to participate in the sale of Jolaade family land. That the Appellants having participated in the sale of their family land just want to use the issue of Exhibits P2 and P3 as instruments of fraud against the Respondents. We were accordingly urged not to disturb the findings of the court below but to resolve the sole issue in this appeal in favour of the Respondents. .
It is not in doubt that the main or principal claim of the Appellants at the trial court, is for a declaration of title to land in dispute. The other claims for trespass and perpetual injunction, appear from the pleadings, to be dependent upon or flow from the success of the claim for declaration sought.
The law therefore is that, in a claim for declaration of title to land, the plaintiff or claimant must succeed on the strength of his own evidence adduced at the trial, and not on the weakness of the defendant’s case, except where such weakness supports the case of the plaintiff. It means therefore that for a claimant to succeed in a claim for declaration of title to land, he must adduce sufficient, cogent and credible evidence which must satisfy the court that he is entitled to the declaration sought. Being a declaratory relief, it is not granted merely because the defendant’s claim is weak or that the defendant has made admissions in his pleading or evidence, but on the strength of the case presented by the plaintiff. However, circumstances may exist where the admissions of the defendant or weakness of his case may support or tend to support the plaintiff’s case; and in that case the plaintiff may take advantage of it and urge the court to resolve such weakness in his favour. Generally however, in an action for declaration of title to land, the burden lies throughout on the plaintiff to proof his case on the strength of the evidence, adduced by him. That burden in a declaratory action is static and fixed on the plaintiff and never shifts, same in certain cases during or in the course of trial, where the law imposes on the defendant the onus of proving certain facts as fixed by the pleadings; or where the defendant has made a counter-claim. See Ebenogwu v. Onyemaobim (2008) 3 NWLR (Pt.1074) P.396; Ezeigwe v. Awudu (2008) 11 NWLR (Pt.1097) p.158; Onisaodu v. Elewuju (2006) 13 NWLR (998) P.517 and Mani v. Shanono (2006) 4 NWLR (Pt.969) P.132. This burden is usually discharged on a balance of probabilities or preponderance of evidence.

In order to succeed in a claim for declaration of title to land, a plaintiff or claimant must plead and prove any one of the five ways of obtaining ownership of land as propounded by the Supreme Court in Idundun v. Okumagba (1976) 9 – 10 S.C. p.227. Those five ways of proving title to land as set out under our laws are:
(a) By traditional history;
(b) Proof by production of documents of title duly authenticated, unless they are documents twenty or more years old produced from proper custody;
(c) Proof of acts of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion thereof extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person exercising such proprietary acts is the true owner of the land;
(d) Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done, but also of other land so situate and connected there with by locality or similarity that the presumption under sections 46 and 146 (now 143 of Evidence Act, 2011) applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land;
(e) 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 or the land in dispute.
See also Nwakidu v. Okanu (2010) 3 NWLR (Pt.1181) P.362; S.P.D.C.N. Ltd. v. Amadi (2010) 13 NWLR (Pt.1210) P.82; Ehoheoket v. Inyang (2010) 7 NWLR (Pt.1192) P.25 and Obineche v. Akusobi (2010) 12 NWLR (Pt.1208) p.383.
After the party has pleaded such mode of ownership he relies on, he must then proceed to adduce cogent and sufficient evidence to prove that he has good title to the land in dispute. He must succeed on the strength of his own case and not on the weakness of the case presented by his opponent.
In the instant case, the Appellants hinged their claim on traditional history. They traced their title to the land in dispute through inheritance from their ancestor Adeseye a warrior and hunter who first settled on the land in dispute after the Kiriji wars. As pleaded in paragraphs 10, 11 and 12 of the Further Amended Statement of Claim, their ancestor Adeseye had three children, namely; Ajao, Erinle and Adewale. The Appellants traced their own root to Ajao, the first son of Adeseye. That Ajao gave birth to only one female child called Jolaade, and that Jolaade had four children namely; Oyediran, Salami Amao, Egbedara and Bilewu. According to the Appellants they are the children of Oyediran, the first son of Jolaade. See also paragraph 13(f) of the Further Amended Statement of Claim. The Respondents’ account of the ownership of the land is not too different from that of the Appellants. The only difference there is the Respondents claim that it was one Adebintan, a younger brother to Adeseye who founded the land but conceded that the land founded by Adebintan was partitioned between Adebintan and Adeseye. They also conceded at paragraphs, 12, 13, 14, 15, 16 and 17 that the Appellants descended from Adeseye through Ajao, Jolaade and Oyediran. The Respondents also agreed that the Appellants are the children of Oyediran. It is therefore clear that the ownership of the land in dispute by the Appellants has not been disputed.
Now, the dispute between parties is as pleaded in paragraph 13 of the Further Amended Statement of Claim. Therein the Appellants claimed as follows:
“13(a) The Plaintiffs state that after the death of Adeseye his land was partitioned amongst his 3 children.
(b) The portion now in dispute forms part of Adeseye’s land partitioned to Ajao.
(c) When Ajao died his land was inherited by his daughter Jolaade.
(d) After the death of Jolaade her land was partitioned amongst her children.
(e) The portion now in dispute was partitioned to Oyediran section of Jolaade family.
(f) The Plaintiffs herein are children of Oyediran.”
It would however appear that, the Appellants contradicted themselves in their pleading at paragraph 13(d) that the land inherited by Jolaade was partitioned amongst her children, when they pleaded at paragraph 14 as follows:-
“14. The Plaintiffs state that the land has not been partitioned by the family and Jolaade Oyediran family have (sic) 4 branches who must jointly decide the issue of partition or sale in case it is desirous of selling the land or alienating same.”
It would appear therefore that, while the Appellants pleaded that the land inherited by Jolaade was partitioned amongst her four (4) children, paragraph 14 would appear to mean that the land of Jolaade had not been partitioned nor alienated, and that if there was need to either partition or sell the land, the consent of the four branches of the Jolaade family must be obtained or given. In any case, from the evidence adduced before the trial court, it was established that the land Jolaade inherited from her father Ajao had not been partitioned amongst her four children. The learned trial judge had found at page 79 lines 19 – 24 of the record of appeal that:
“The question as submitted by the defence counsel is whether the land was partitioned or not. The defence counsel submitted that this issue must be resolved in order to know who has the authority or right to sell the land in dispute to the defendant. It is settled that partition of family property can only be effected by the general consent of the family. The effect of partitioning is that property which had hitherto belonged to the family is spilt into ownership of the constituent members of the family.”
The learned trial judge went on to hold at lines 29-34 of page 79 of the record that:-
“It is however not enough for a party claiming that family land had been partitioned to merely make an assertion. He needs to plead and lead credible evidence in proof of certain very salient facts which would go to establish that there was in fact a partition, who actually did the partitioning, among whom the land was partitioned and why the partition took place. Where therefore the plaintiff failed to lead sufficient evidence, his case would be dismissed. ”
After stating the general legal principle with respect to partitioning of family or communal land, the learned trial judge concluded as follows:-
“In the present case, the sole issue for determination is whether the sale of the land as exhibited in Exhibit P2 and P3 is valid. The only evidence which the plaintiffs relied upon is that of PW3 who said the land in dispute was partitioned amongst Jolaade children after her death. This was refused by DW1.”
The learned trial judge therefore found and held at page 80 lines 10- 13 of the records that, from the totality of evidence adduced at the trial, there had been no partitioning of the land in dispute. There has been no appeal against this finding of the trial court. In other words, the findings of the learned trial judge that the land inherited by Jolaade the progenitor of Oyediran the father of the Appellants had not been partitioned amongst her children, namely; Oyediran, Salami Amao, Egbedara and Bitewumi has not been appealed against.
It is the law that, where a trial court has made findings of fact on an issue before it, and such findings are not challenged or appealed against in an appeal, such findings are deemed established as valid and subsisting. In other words, it is the law that any finding of facts made by a trial court for which there is no appeal remain valid and subsisting. In such a situation, such findings of fact made by the trial court and in which there is no appeal, are deemed admitted or conceded to by the Appellant or the party against whom such findings were made. See Ebenigbe v. Achi (2011) 2 NWLR (Pt.1230) P.65; Amoshima v. State (2011) 14 NWLR (P.1268) P.530; L.H.A.B.U.M.B. v. Anyip (2011) 12 NWLR (Pt.1260) P.1; S.P.D.C.N. Ltd. v. Ejebie (2011) 17 NWLR (Pt.1276) p.324 and C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt.1279) P.493.

In the instant case, the trial court found that the land in dispute which was inherited by Jolaade had not been partitioned. This is a finding of fact which went to the root of the Appellants’ claim before the court. This is because, it is the claim of the Appellants that, Jolaade’s land had been partitioned to their father Oyediran that is the subject of this dispute now on appeal before this court. If, as it has been found, that the land inherited by Jolaade from her father Ajao had not been partitioned, it would certainly have an effect on the person or persons who have the power to sell, partition or otherwise alienate the land of Jolaade. This is especially so, since the evidence on record show that apart from the Oyediran branch of the Appellants, there are three other branches of the Jolaade family, namely: Salami Amao, Egbedara and Bilewumi. As things in this case now stand, it has been established that the land in dispute had not been partitioned. Indeed, this fact was conceded to by learned counsel for the Appellants when he submitted at page 12 paragraph 4.10 lines 1-3 of the Appellants Brief of Arguments that:-
“My Lords, the learned trial judge in her considered judgment held correctly that the land in dispute has not been partitioned and it is still therefore a family land.”
From the findings above, it remains without dispute that it has been established that the land in dispute, which is the land inherited by Jolaade had not been partitioned amongst her children.
Now, having been established that the land in dispute had not been partitioned, but remained the Jolaade family land consisting of Oyediran, Salami Amao, Egbedara and Bilewumi branches, the issue to be resolved now is whether- Samuel Oladiti Oyediran from Oyediran branch and Alhaji Amusa Salami from the salami Amao branch had the power to sell or alienate the land in dispute.The decision of the learned trial judge on this issue is at page 80 lines 3 – 14 of the record of appeal. Therein the learned trial judge held as follows:
“Since proof of title in this suit is based on Exhibits P2 and P3, which showed that Samuel Laditi Oyediran and Alhaji Amusa Salami sold the land to the 2nd Defendant Oladejo Akangbe, the question then is, did the vendors sell the land with the consent of other members of the Jolaade Oyediran family.
DW1, in his testimony said that the sale was witnessed by five people and he listed members of the plaintiffs’ family that shares (sic) in the proceeds of sale.

From the totality of evidence adduced so far, it is my view, which I so hold that there has not been a partitioning of the plaintiffs’ land and also hold that the sale of the portion of the land as exhibited in Exhibits P2 and P3 constitute valid sale which in effect transferred interest on (sic) the land to the defendants under native law and custom.”
With that conclusion, the learned trial judge dismissed the Appellants’ claim before him.
Now, it is the law as stated by the Supreme Court in the case of O. Solomon & Ors. v. A.R. Magaji & Ors. (19982) 11 SC P.1, that the correct principles of alienation of family land can be classified into three categories; firstly, the sale of Family land by a member of the family, who is not head of the family, without the consent of the head of family is void. Secondly that, sale of family land by head of the family without the consent of the principal members of the family is voidable. Thirdly, where the head of the family sold family land as his own and without the knowledge and consent of the other members of the family, the sale is void.

A distinction was however made between sale of family land by head of family, as head of the family sale by head of family as his private or personal property. In the first leg, the sale is merely voidable but void ab initio in the other instances. There are plethora of other authorities which followed this decision of the Supreme Court, based on the principles set out in the case referred to above. Some of these decisions are Kalio v. Woluchem (1985) NWLR (Pt.4) P.610; Atunrase v. Sunmola & Ors. (1985) 1 (Pt.1) P.105; Jiaza v. Bamgbose (1999) 7 NWLR (Pt.610) P.182; Folami v. Cole (1990) 2 NWLR (Pt.133) P.445; Ojoh v. Kamalu (2005) 18 NWLR (Pt. 958) P.523; Alhaji Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) P.1 and Temile v. Jemide Ebigbeyi Awani (2001) 12 NWLR (Pt.728) p.726.

In the instant case, it has been found that the land in dispute is the property of the Jolaade family, which consists of four branches, namely; Oyediran, Salami Alao, Egbedara and Bilewumi. It has also been established that the land has not been partitioned amongst the four branches of the family. The Plaintiffs/Appellants never pleaded nor led evidence to show that they are principal members of the family. There was also no averment by the Appellants that there was a living or existing Head or Mogaji of the Jolaade family at the time of sale, neither did they lead any evidence to that effect. They did not also aver that any of them was the head of Jolaade family at the time the land was sold. They merely described themselves in paragraph 1 of the Amended Statement of claim as members of Jolaade Oyediran family. The Respondents however pleaded at paragraph 22 of the Consequential Amended Statement of Defence as follows:
“22. The 1st and 2nd Defendants state that the father of the 2nd Defendant, Chief Oladejo Akangbe Awotunde bought the land in dispute from the Jolaade family as represented by Samuel Oladiti Oyediran children and head of their family and Alhaji Amusa Salami, son of Salami Amao and head of Salami family, a section of Jolaade family….”
The import of the above pleading is that Samuel Oladiti Oyediran and Alhaji Amusa Salami were heads of their sections or branches of the Jolaade family. This specific pleading of the Respondents was never contradicted or denied by the Appellants by way of a Reply. It therefore stands proved that Samuel Oladiti and Alhaji Amusa Salami were heads of their respective branches of their Jolaade family. In other words it was established that while Samuel Oladiti was head of the Oyediran branch, Alhaji Amusa Salami was (is) head of the Salami Amao branch of the Jolaade family. I hold the view that, by their status, they therefore qualified as principal members of the Jolaade family. Incidentally, there was no mention of Egbedara and Bilewumi branches of the Jolaade family. However, the DW1 (Muraina Aremu, a blood relation of the Appellants) stated that Egbedara had one child but the child had died. The implication is that the said ‘Egbedara section or branch of the Jolaade family had become extinct. DW1 further stated that Bilewumi had two children, but he did not say whether they are dead or alive. If they are alive, and as they are not party to this case, it is reasonable to presume that they do not contest or dispute the sale of the land in dispute.
Having held as above, I am of the view that the learned trial judge was right when he held that the sale of the land in dispute by Samuel Oladiti Oyediran and Alhaji Amusa Salami was valid. Incidentally, nowhere in the Amended Statement of Claim was it pleaded by the Appellants that they are principal members of the Jolaade family and that they did not consent to the sale of the land. The closest they came to that pleading is in paragraph 14 of the Amended Statement of Claim. Even then, that pleading merely states that there must be concurrence of the four branches of the Jolaade family before the land in dispute could be sold or alienated. However, as revealed by the pleadings of the Respondents and the evidence led thereon, there was no objection to the sale of the land in dispute to the 2nd Respondent’s father by Samuel Oladiti and Alhaji Amusa Salami. To bring the point clearer, the Respondents had pleaded at paragraphs 22, 23, 24, 25 and 26 that:
“22. …..Alhaji Bello Adigun witnessed the transaction and other extended members of family including Adebintan section and they all shared the proceed of sale which was received in the hall of Chief Oladejo Awotunde.
23. The 1st and 2nd Defendants state that the proceed of sale of the land was shared amongst all the members of Jolaade family including the Plaintiffs, and the extended family of Adebintan and Adeseye Ajao.
24. The 1st and 2nd Defendants further state that after the sale, the 2nd defendant’s father exercised acts of ownership on the land by selling different portions to different people without being disturbed or challenged by anybody.
25. It was only after the death of the eldest child of Oyediian who spare headed (sic) the sale, Samuel Oladiti that the Plaintiffs started laying claim to the land again.
26. Different people to whom the land had been sold had built on the land and are still living there.”
Despite these pungent pleadings, the Appellants did not respond to them. The DW1 confirmed in his evidence in chief that all members of Jolaade family sold the land in dispute and the proceeds of sale was shared amongst them in a big hall. He also stated that the three Appellants, Oladejo, Olujide and Olakunle were present and also benefited from the sale. Not a single question was asked the DW1 in cross-examination on those issues. The DW4, Alhaji Amusa Salami, one of the vendors of the land in dispute also stated that the proceeds of sale was shared between the Oyediran and Salami branches of Jolaade family. The 1st Appellant (Oladejo Oyediran) who testified as PW3 did not say a word on whether or not they objected to the sale of the land in dispute by their eldest brother Samuel Oladiti Oyediran and Alhaji Amusa Salami.
I have also noted in this case that the land in dispute was sold in 1976. There is no evidence on record to show that the Appellants took any action on the issue before 2004 when they instituted the action. That is a period of twenty-eight years and about fourteen (14) years before and after the death of Samuel Oladiti, the Appellants’ head of family at the time of sale and a party to the sale agreement. Within that period, the purchaser had exercised acts of ownership on the land by selling portions of the land to certain persons who had built thereon, including the 1st Respondent. Those structures erected thereon are clearly depicted in the dispute plan tendered by the Appellants and admitted as Exhibit P1. I am therefore satisfied from the evidence on the records that the Appellants were aware of the sale of the land in dispute and actually participated in the sale by the two principal members of Jolaade family
Now, the Appellants have contended that, Exhibits P2 and P3 do not indicate that the vendors were acting on behalf of any family when they sold the land in dispute. They relied on the recitals to the documents to contend that, from the two documents, it would be seen that the vendors sold the land in dispute as their personal property and not as representatives of the Jolaade family. He relied on this contention on the cases of Akerele v. Atunrase (supra) and Solomon & Ors v. Mogaji & Ors (supra). The Respondents on the other hand contend that, the Appellants’ case at the trial court as covered by their pleadings and evidence was that the land in dispute is part of the land partitioned to the Oyediran section of the Jolaade larger family. That as the facts adduced at the trial court could not sustain the Appellants’ claims, they have now deviated to make a case different from what was canvassed at the trial court. That, in any case, the case of Akerele v. Atunrase & Ors (supra) is not apposite to the facts of this case, as in Akerele v. Atunrase & Ors, the land was sold through a conveyance, while in the instance case, the land was sold under native law and custom; and that the sale under customary law was valid since the purchase price was paid in full in the presence of witnesses and the land delivered to the purchaser.
I have carefully perused the case of the Appellants as pleaded in their Further Amended Statement of Claim and evidence adduced by them at the trial as revealed by the record of appeal. I am not able to see where the Appellants pleaded or made a case before the trial court that Exhibit P2 and P3 are invalid because the vendors purported to have sold and transferred title to the land as their personal property and not as representatives of the Jolaade family. In other words, the validity of Exhibits P2 and P3 was never raised and canvassed at the trial.
Indeed it is the law of pleadings that where a party intends to raise the legality of any act or document, such illegality must be pleaded and the particulars thereof must be pleaded. This is to avoid springing any surprise at the opponent. See Ishola v. U.B.N. Ltd. (2005) 6 NWLR (Pt.922) P.422; Jiwul v. Dimlong (2003) 9 NWLR (Pt.824) P.154. This is moreso where the issue of illegality is not apparent on the face of the document, but depends upon a number of facts, probabilities, or possibilities, or contingencies to be ventilated by evidence. See Ekwunife Wayne (W/A) Ltd. (1989) 5 NWLR (Pt.122) P.422 and Fasel Services Ltd. & Anor v. N.P.A. & Anor. (2009) 9 NWLR (Pt.1146) P.400.
As would be seen anon, the legality or validity of Exhibits P2 and P3 depend on a number of factors which ought to have been determined at the trial, it having been established that the sale transaction in this case was conducted under customary law. It suffices here to state that, in the general law of pleadings facts not pleaded cannot be raised or canvassed at the trial. However, this court being a penultimate court, I shall endeavor to consider the issue.
As I stated earlier, there is no dispute to the fact that the sale of the land in dispute was conducted under customary law. Indeed, both parties are agreed on that fact.
It is the law that, in a transaction of sale of land under customary law, once there is payment of the purchase price of the land by the vendor by the purchaser in the presence of witnesses, the sale is valid and title to the land passes to the purchaser. In other words, what the purchaser need plead and prove is that, there was in fact a safe of the land to him, the purchase price paid and the land handed over to him in the presence of witnesses. See Olujinke v. Adeagbo (1988) NWLR (Pt.75) P.235; Adedeji v. Oloso (2007) 5 NWLR (Pt.1026) p.133; Ogundaju v. Macjob (2006) 7 NWLR (Pt.978) P.148 and Adike v. Obiaren (2002) 4 NWLR (Pt.758) P.537.
In the instant case, as earlier discussed in this judgment, the evidence adduced in this case, show clearly that the conditions for a valid sale of land under customary law had been proved or established.
Now, the issue in this case goes beyond that. The Appellants have contended that the Sale Agreement between the vendors and the purchaser, which are in evidence as Exhibits P2 and P3 are invalid so long as they purport to have alienated the land in dispute as personal property of the vendors. I pause here to observe that though headed “Land Agreement”, the two documents are not or do not qualify as deeds of conveyance under the Common or English Law. Indeed that fact is acknowledged when it is specifically stated in paragraph 3 of both documents that, “a formal deed of conveyance of the said land” would be executed at a later date upon demand by the purchaser. In that respect, it is my view which I hold ,that Exhibits P2 and P3 are mere receipts evidencing the sale transaction between the vendors and the purchaser.
I also wish to point out that, it has been established by evidence that the land in dispute is the family land of the Jolaade family. I have also resolved that since there was no evidence that there was an existing head or Mogaji of the Jolaade larger family at the time of sale, Samuel Oladiti Oyediran and Alhaji Amusa Salami who were shown by evidence to be principal members in the larger Jolaade family being heads of their respective branches of the Jolaade family, they had the power to sale the land in dispute as representatives of the Jolaade family. However, they had no power to sell the land as their personal property. They could only sell as representatives or on behalf of the Jolaade family. If it is found that they sold the land as their personal property, such a sale would be void ab initio. See Solomon v. Mogaji (1982) 11 S.C. P.1. Thus, in the case of City Property Development Ltd. v. A.G. Lagos State (1976) N.S.C.C. p.43 at 55, a head of family conveyed family property as beneficial owner and there was no evidence that other members of the family supported the conveyance. In declaring the conveyance void, the Supreme Court per Fatayi – Williams, JSC (as he then was) stated that:
“It must be pointed out that (the head of family) did not convey the three pieces of land to the plaintiff company as part of the Oniru Chieftaincy land. He sold each of them to the plaintiff company as, his own land. Unless there is evidence that the land had been transferred or given to him by the family, and there is no such evidence in the case in hand, the sale by him to the plaintiff company is void ab initio… (A head of family) cannot alone transfer family property. If he alone executes a conveyance of family property as a grantor, the sale is prima facie voidable and the family can set aside such sale if the other members act timeously.
This is the case only where the head of the family signs the conveyance for and on behalf of the family. It does not apply where, as in the instant case, he purports to set the property as the beneficial owner; in that case, the general rule that nemo dat quod non habet will apply.”
In the case of Solomon & Ors v. Mogaji (supra), the claim was not that the head of family’ one Kadiri Oniga, sold the land qua his position as head of family. The claim was that it was his own land and not family land that he sold to the appellants. Indeed the Appellants who were defendants in that case, pleaded that the vendor was the absolute owner of the property and that the plaintiffs/respondents’ land was somewhere else. The Appellants were therefore not ignorant of the title of the vendor, who had never put himself out as selling on behalf of the family and the Appellants never believed that they were purchasing family land either. It was therefore a case of a person deliberately choosing to purchase from a person who has no title. Here the principle of nemo dat quod non habet applied to void the sale.
In Akerele v. Atunrase & Ors (supra), the land in dispute was found to be the family property of the Asalu – Alago family through whom the Appellant traced his title to. The Respondents on their part maintained that the land belonged to one Aboki – Bada before it was sold to them. In resolving the dispute, the Supreme Court referred to the recital of the Respondents vendor’s title in the conveyance to one Disu Labulo or Disu Orisan, whom the Respondents claimed to be their vendor. It was found that the vendor had presented himself as being “seised in fee simple in possession free from in cumbrances..” By that stipulation therefore, it was clear that the vendor purported to have conveyed his own land or rather, his own private property of which he was “seised in fee simple in possession.” As it turned out, the land he sold as his personal property was found to in fact belong to the Alugo – Asalu family. The principle of nemo dat quod non habet was applied to void the sale and conveyance.
The case that has thrown light on the issue is the case of Alli v. Akusebiala (1985) 1 NWLR (pt.4) p.630. In that case, the family head conveyed family land to the plaintiff and the conveyance described him as “beneficial owner.” Some years later, the same family head along with two principal members sold the same land to the defendant’s predecessor in title. In a dispute between the plaintiff and defendant, the said family head testified that the land was family property and that he had no authority to sell it without the consent of the family. There however evidence that, even though the conveyance had described the family head as “beneficial owner”, the consent of other family members had been given or obtained. The Supreme Court held that the sale was only voidable as oral evidence of the true capacity in which the family head acted complemented the contract. Thus Karibi-Whyte, JSC page 671 of the report stated that:
“Oral evidence is admissible to establish the capacity in which a person contracted if the written contract does not disclose that capacity… There was… uncontradicted evidence that (the purchaser) as the (family head). There was also uncontradicted evidence that the land in dispute is….family (property). This is undoubtedly) a conveyance of family land by the (family head) without the consent of the family. To show the real capacity in which a party to a contract acted by oral evidence is not in my opinion evidence contradictory to the terms of the contract and such evidence is admissible…”
The real reason and policy that informed the conclusion of the Supreme Court was explained by Coker, JSC at page 679 of the report as follows:-
“I am in no doubt, that the family wanted to take advantage of the mistake which was caused by the negligence of the person who prepared the deed of conveyance in not exercising due care in stating the capacity that Adeleke executed the deed as head and representative of the family and further that the sale was with the knowledge and consent of the principal members of the family. This court will not allow the family to defraud the plaintiff by shutting him from leading oral evidence to the real or true nature of the transaction between the head of the family and himself.”
It is clear to me from the authorities cited above; the law is settled that where a vendor of family land sells family land as personal property, the principle of nemo dat quod non habet will apply to void the sale. However, in a situation where the vendor sold the land as family property in a representative capacity, oral evidence may be adduced to show the real or true capacity under which he sold the land, even where the sale agreement had indicated’ that he was selling as “beneficial owner” or that he was “seised in fee simple” of the land in dispute. Once the evidence adduced show that the ve apply to void the sale. However, in a situation where the vendor sold the land as family property in a representative capacity, oral evidendor actually sold as representative of the family, where the land is shown to be family property, the sale would be valid, but only voidable at the instance of the family members, if they had not given their consent before the sale.

In the instant case, the evidence on record and indeed the pleading of the parties, show clearly that the parties to the transaction were aware that the land was family land and the vendors were selling to the purchaser as representatives of Jolaade family. The purchaser was also not in doubt that he was buying family land and that he was dealing with the vendors, not in their personal capacity, but representatives of Jolaade family. In that respect, the fact that the recital in the Land Agreement, Exhibits P2 and P3 indicate that the vendors were “seised in fee simple” of the land in dispute would not detract from the fact that they were actually selling family land and not in their personal capacity but as principal members and representatives of Jolaade family. Having found in this judgment that the family members in fact consented to the sale, the sale cannot be voided. I accordingly hold that the resolution of the sole issue in this appeal does not favour the Appellants. It is accordingly resolved against them.
The sole issue for determination in this appeal having been resolved against the Appellants, it is obvious that the appeal has no merit. It is accordingly dismissed. Consequently, I hereby affirm the judgment of the Oyo State High Court delivered on the 21st day of July, 2008 in Suit No. 1/260/2004.
Since costs follow events, I award thirty thousand naira (N30,000=00) as cost against the Appellants in favour of the Respondents.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment delivered by my learned brother HARUNA SIMON TSAMMANI, JCA. I agree with his reasoning and conclusion arrived at in holding that the appeal lacks merit. I also dismiss same and abide by the order made as to costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Haruna Simon Tsammani J.C.A. My lord has done a detailed examination of the sole issue for determination in this appeal.
I agree with the reasoning and conclusion reached and also abide by the order as to costs.

Appearances

Prince Bioye Oloyede-Asanike Esq with C.Y. Oluseye (Mrs.) and Vivian Anyi (Mrs.)For Appellant

AND

Adegboye Sobanjo Esq.For Respondent