S.O. BAMGBOSE v. B.A. OSHOKO & ANOR
In The Supreme Court of Nigeria
On Friday, the 20th day of May, 1988
SC.77/1986
JUSTICES
KAYODE ESO Justice of The Supreme Court of Nigeria
SAIDU KAWU Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
S.O. BAMGBOSE
(For himself and on behalf of Samuel Olaogun family of Adiyan) Appellant(s)
AND
- B.A. OSHOKO
2. J.A. OGUNSANYA Respondent(s)
RATIO
THE DIFFERENCE BETWEEN LAND WHICH IS INHERITED AND ONE WHICH IS ALLOTTED
In my view, there is a world of difference between land which is inherited and one which is allotted. When family land is inherited, the beneficiary takes absolutely and the land ceases to be family property. The act of inheritance under customary law vests the property in the beneficiary without further assurances, and puts an end to the joint interest of other members of the Family in the land.
This is not so in the case of an allotment. In the case of Sule Lengbe v. Rufai Imale (1959) WRNLR 235 this Court held that an allotment of family property does not in any way vest ownership of the land in the allottee as would entitle him under native law and custom to a declaration of title to the land allotted.
In my opinion, an allotment is no more than mere permission or licence from the Family to make use of family land. Therefore, all that an allottee gets is the right to occupy and use the land allotted to him. The title to the land remains with the Family.
In this respect, it must be stressed that no matter how long the allottee may have stayed on the land, or what improvement he has carried out on it, the occupational right granted to him can never ripen into full ownership.
Shelle v. Asajon (1957) 2 F.S.C. 65 at 67.
Adagun v. Fagbola (1932) 11 NLR. 110.
Indeed, so strong are the bonds of family ties under customary laws, that in one extreme case, it was held that the fact that an allottee had reclaimed a swampy portion of family land does not entitle him to claim title to the land. See Bassey James Bassey vs. Archibong Cobham (1924) 5 NLR. 92. See also Samuel Adenle vs. M. Oyegbade (1967) NMLR. 136 at 139. PER CRAIG, J.S.C.
B. CRAIG, J.S.C. (Delivering the Leading Judgment): This appeal is concerned with a rather small parcel of land measuring only 30 feet by 40 feet and situated at Ayikondu Compound, Igbein, Abeokuta. Coincidentally, the legal point involved in the case is just as small and it is to determine:
Whether an allottee of Family property can pass an absolute title in the land to third parties
This legal point has been canvassed in the three lower Courts (i.e. the High Court, Western State Court of Appeal and the Court of Appeal, Ibadan Division), and it is just as well to state the relevant facts as they apply to this appeal. In this respect, the parties will hereafter be referred to simply as plaintiff and defendants.
The principal claim before the Abeokuta High Court was for:-
“a declaration of title to all that piece or parcel of land situate at Ayikondu Compound, Igbein Abeokuta………….”
There was also a claim for trespass and injunction but this appeal is not concerned with these two items. After an exchange of pleadings, it became apparent that both parties we, agreed that the land in dispute was part of the land originally belonging to the Ayikondu Family.
In those circumstances, the law is that the onus is on the party who is claiming absolute title to land accepted as Family land to prove such exclusive entitlement. see Adenle v. Oyegbade (1967) N.M.L.R. 136. In this case therefore, the onus lies on the plaintiff to show by credible evidence how he became entitled to this parcel of land.
Earlier, he had pleaded in his Statement of Claim that:
“2. The first defendant claims that he is a member of the Ayikondu family of Igbein, Abeokuta the original owners of land including the land in dispute and the second defendant claims through the first defendant.
4. The land in dispute is a portion of a larger piece of land owned by one Oloyede as his patrimony in the estate of Ayikondu, but was in September, 1937 transferred by the said Oloyede to one Rev. J. S. Shopeju absolutely and free from all encumbrances; the Rev. J. S. Shopeju went into possession, exercising all rights of ownership thereon to the exclusion of the first defendant and all others without let or hinderance.
6. In 1950 the said Rev. J. S. Shopeju sold and transferred the land in dispute to Samuel Olaogun Bamgbose, the plaintiff’s father, and on completion of the sale issued a receipt for the consideration rendered and the said Samuel Olaogun Bamgbose immediately took possession of the land and exercised all rights of ownership thereon until his death in 1959.
7. Samuel Olaogun Bamgbose died intestate, and his estate, including the land in dispute, devolved upon his children of whom the plaintiff is the oldest, as family property under customary law.”
In reply to those averments, the Defendants filed a Statement of Defence of 31 paragraphs. It is sufficient to state that they denied the plaintiff’s claim. They asserted that the land in dispute belonged to their ancestor, Ayikondu, who had settled on the land since 1830. In several paragraphs of their pleadings, they gave a comprehensive genealogy of their Family and traced their own relationship with other members of the Family. In particular, they claimed that Rev. J. S. Shopeju (plaintiff’s vendor), Isaac Oloyede and 1st Defendant were all members of Ayikondu Family. They further averred that:
“7. After the death of Ayikondu, his children brothers, sisters and their children remained in possession of the whole of the land settled upon originally (by Ayikondu) as owners in common.”
They then pleaded that many years ago, their Family allotted a portion of the Family land to Isaac Oloyede, but later on, he was directed to give part of the land to Rev. Shopeju who wanted to build a house thereon. Sometime later Rev. Shopeju abandoned the idea of building a house at Abeokuta, and he thereafter gave up the land. The Family accordingly allotted the land (which is the one now in dispute) to the 1st Defendant. The 1st Defendant took possession of the land and he has remained on it since 1936, performing various acts of ownership on it. In particular, he states that he has:
“28…..built a 4 roomed house on a portion of the area edged GREEN aforesaid, and let out a portion to the 2nd Defendant on which he erected a temporary shed in 1966 in order to reduce expenses on weeding and maintenance of the land.”
At that stage of the pleadings, the onus which lay on the Plaintiff was to prove by credible evidence his root of title, i.e. that:
(a) Isaac Oloyede had inherited the land in dispute from his grandfather Ayikondu.
(b) That Isaac Oloyede in fact sold the land to Rev. J.S. Shopeju, who in turn sold the land to the plaintiff’s father, Mr. S.O. Bamgbose.
When these facts have been fully established, it would then be left for the trial Court, to determine whether on the Law, the various parties had legal capacity to enter into the transactions which resulted in the transfer of the property to the plaintiff. At the hearing, the plaintiff testified and called two witnesses in proof of his title. His evidence on the point was short; he said as follows:-
“The land in dispute “as sold by Rev. J. S. Shopeju to my father Samuel Olaogun Bamgbose in 1950. Rev. Shopeju bought the land in dispute from Isaac Oloyede in 1937. Mr. Oloyede is a member of Ayikondu Family…….”
The plaintiff then tendered three Purchase Receipts – the first, Exhibit C was a receipt from Isaac Oloyede to Rev. Shopeju whilst Exhibits A and B were receipts from Rev. Shopeju to S.O. Bamgbose (plaintiffs father).
The 1st witness called by the Plaintiff was one Emmanuel Oloyede – a son of Isaac Oloyede. This witness stated that his father was a member of Ayikondu Family and once owned the land in dispute which he later sold to Rev. J. S. Shopeju. He said that the disputed land formed part of a piece of land which originally belonged to Ayikondu. The witness then continued: “After the death of Ayikondu, my father inherited the land in dispute…”
He did not state how many children Ayikondu had and how Oloyede came to inherit this particular piece of land.
However, when the witness was cross-examined on the point by the Defence Counsel, he stated as follows:-
“Oloyede, my father was allotted a piece of land which included the land in dispute, by his family, in 1938. I am about 50 years old. I am a Head teacher under the Anglican Mission…..”
I pause here for a moment to say that this bit of evidence seems contradictory to his earlier statement that his father had inherited the land from Ayikondu, yet the witness was not re-examined on the point, and the issue remained unresolved.
When the 2nd witness testified, he claimed to be the present Head of the family, but his evidence did not throw any light on the issue. This is what he said:
“I know the land in dispute. I know the plaintiff and the first defendant. Neither of them is a member of Ayikondu family. I now that the land in dispute belonged to Isaac Oloyede. He sold the land to Shopeju. The land originally belonged to Ayikondu family. Isaac Oloyede was a son of Ayikondu.”
The witness did not state how Isaac Oloyede came to own the land. He did not say whether the Family had allotted the land to Oloyede or whether he inherited it from Ayikondu; and so, at the end of the Plaintiffs case, the question of how Oloyede came to own the land still remained in doubt, and of course, so also was the plaintiffs root of title.
The defendants testified and gave evidence along the lines of their statement of defence. They maintained that the land in dispute was first allotted to Isaac Oloyede, who on the instruction of the Family gave part of it to Rev. Shopeju. When Rev. Shopeju gave up the land, it was in turn allotted to the 1st Defendant who has been on the land since then.
In his judgment, the learned trial Judge, Agbaje J., as he then was, made a careful review of the evidence and rejected the plaintiffs case; he expressed a preference for the Defence in these words:
“On the whole of the evidence before me I unhesitatingly come to the conclusion that Ayikondu family allotted a piece of land which included the land in dispute to Oloyede sometime in 1935.”
The learned Judge then held that on the authority of Sule Lengbe v. Rufai Imale (1959) W.R.N.L.R. 325 an allotment of a portion of family land to a member of the family does not in any way vest ownership in the allottee as would entitle him under native law and custom to a declaration of title to the land so allotted.
The trial Judge also held that since Oloyede had no title in the land, he had none to pass to anyone claiming through him. He therefore dismissed the plaintiff’s claims.
The plaintiff was dissatisfied with that judgment, and he appealed to the Western State Court of Appeal which allowed the appeal and entered judgment for the plaintiff on his claim for title. That Court reversed the findings of fact of the trial Court only because it felt that since the parties had given evidence in Yoruba, it was likely that the witnesses had used the words “allotted”, “granted”, and “gave” in a loose sense to describe the transaction relating to the land in dispute. In their view, the likely thing was that the Ayikondu Family had made an absolute “grant” of the land to Oloyede who in turn had passed that title to the plaintiff through Rev. Shopeju. The Defendants were dissatisfied with that decision and they appealed to the Supreme Court, – but by operation of law, the appeal was transferred to the Court of Appeal (Ibadan Division) for adjudication.
In that Court, the principal question which came up for decision was whether the Western State Court of Appeal was right in upsetting the findings of fact, that Isaac Oloyede was a mere allottee of family land and not an absolute grantee. After hearing Counsel, the lower Court came to the conclusion that the Western State Court of Appeal was wrong to have reversed the findings of facts made by the trial Court when it was not shown that those findings were wrong or perverse. It therefore allowed the appeal and restored the judgment of the trial Court. The plaintiff was dissatisfied with that decision and has appealed to this Court on two grounds of appeal which are as follows:-
“1. The Federal Court of Appeal erred in law when it held as follows:-
“In my view therefore it would appear that the Western State Court of Appeal did not have enough evidence to justify setting aside the findings of fact by the trial Court on this main issue…………………………..and the finding of the Court of trial that what Oloyede had from Ayikondu family was an allotment and not an outright grant by which he could entirely dispose of the land in dispute by sale to Rev. Shopeju is restore vide Sule Lengbe v. Rufai Imale and Anor. supra”
PARTICULARS
(1) On a consideration of the oral and documentary evidence on record the finding of the Western State Court of Appeal was amply justified and should not have been set aside.
(2) The dealing by Oloyede with the land in dispute which was to the knowledge of the family was inconsistent with an allotment.
2. The Federal Court of Appeal erred in law when it held in effect that the evidence that Ayikondu family permitted Oloyede to enter into the transaction evidenced by Exhibit ‘C’ was not pleaded and therefore refused to countenance it when the issue was raised by the defendant in paragraphs 13 and 14 of the statement of defence.”
In his brief, Mr. Chukura (jnr.) has formulated two issues which he wants this Court to determine and they are as follows:-
(a) Was Oloyede’s interest in the land in dispute absolute or otherwise
(b) Was it necessary for the Plaintiff/Appellant to have pleaded the knowledge by the Ayikondu family of the sale by Oloyede to Rev. Shopeju having regard to the averment in paragraphs 13 and 14 of the Statement of Defence
The Defendant’s Counsel also set out in his Brief issues which are quite similar to the above two and I think that these issues are enough to determine this appeal.
Before proceeding on a consideration of the two issues, I think it is only fair to say that if the appeal fails on the first issue, it will be unnecessary to proceed on a consideration of the second one.
For, Isaac Oloyede must have absolute title in the land if he is to pass that title to either Rev. Shopeju or the appellant’s father. Now the question is did Isaac Otoyede have an absolute title in the land in dispute That issue is concluded on the pleadings.
The plaintiff pleaded in his statement of claim that Oloyede inherited the land in dispute from his grandfather, Ayikondu, and one would expect him to call evidence to show clearly how the land descended under customary laws from grandfather to grandson.
In this respect, one would want to know whether Isaac Oloyede inherited the land directly from his grandfather or through his father. If through his father, then there should be evidence as to how many children Isaac’s father had, and how this particular land came to be inherited by him (Isaac). The plaintiff did not furnish these important facts; his witnesses (who were members of the Family) did not even make reference to the genealogical details which had been pleaded by the Defendants. The plaintiff’s star witness (Isaac’s son) merely made a bare statement that his father had inherited the land from Ayikondu. This is hardly enough in a claim for declaration of title, especially when the plaintiff’s root of title had been attacked by the other party.
But the plaintiff’s case was put in total disarray when his star witness readily admitted that the land in dispute was allotted to his father, (Isaac) thus implying that Isaac did not inherit the land as he had earlier testified.
As I stated earlier, this is a marked departure from what was pleaded, and the plaintiffs Counsel did not make any attempt to repair the damage caused to the plaintiffs case. Inevitably the trial Court had no alternative but to reject the entire story. The learned Judge found that the evidence of the plaintiff’s star witness gave ample support to the case for the Defendants.
From all these it became apparent that the plaintiff had presented a confused story to the Court and no reasonable Tribunal would have given judgment for declaration of title on such evidence. The plaintiff had set out to prove that he inherited the land but had ended up admitting that it was allotted to him.
In my view, there is a world of difference between land which is inherited and one which is allotted. When family land is inherited, the beneficiary takes absolutely and the land ceases to be family property. The act of inheritance under customary law vests the property in the beneficiary without further assurances, and puts an end to the joint interest of other members of the Family in the land.
This is not so in the case of an allotment. In the case of Sule Lengbe v. Rufai Imale (1959) WRNLR 235 this Court held that an allotment of family property does not in any way vest ownership of the land in the allottee as would entitle him under native law and custom to a declaration of title to the land allotted.
In my opinion, an allotment is no more than mere permission or licence from the Family to make use of family land. Therefore, all that an allottee gets is the right to occupy and use the land allotted to him. The title to the land remains with the Family.
In this respect, it must be stressed that no matter how long the allottee may have stayed on the land, or what improvement he has carried out on it, the occupational right granted to him can never ripen into full ownership.
Shelle v. Asajon (1957) 2 F.S.C. 65 at 67.
Adagun v. Fagbola (1932) 11 NLR. 110.
Indeed, so strong are the bonds of family ties under customary laws, that in one extreme case, it was held that the fact that an allottee had reclaimed a swampy portion of family land does not entitle him to claim title to the land. See Bassey James Bassey vs. Archibong Cobham (1924) 5 NLR. 92. See also Samuel Adenle vs. M. Oyegbade (1967) NMLR. 136 at 139. In the light of the above, it is not surprising that the learned trial Judge came to the conclusion that the plaintiffs vendor was an allottee of Family land and therefore had no right to pass absolute title to anyone. The Court of Appeal was also of that view, and I hold that they came to a right decision. For some unexplained reason, the Western State Court of Appeal seemed to have seen the case in a totally different light. Ogunkeye J.A. who read the lead judgment. (Akinkugbe and Fakayode concurring) was of the opinion that since the words “allotment” and “grant” have the same meaning in Yoruba language, those words must have been used interchangeably; so that when some witnesses (particularly the plaintiff’s star witness Emmanuel Oloyede (2 P.W.) spoke about the land being allotted to “Oloyede, my father, by his family in 1935”, he must have meant that the land was granted absolutely to his father. In dealing with the point, the Court of Appeal held that the Western State Court of Appeal did not have enough evidence before it to justify setting aside the findings of fact and was therefore wrong to have embarked on a fresh appraisal of the evidence. I agree with the views of the Court of Appeal. I would go further to say that what the Western State Court of Appeal failed to appreciate was that at that stage of the proceedings i.e. under cross-examination, the Defence Counsel was putting his client’s case across to the witness. The Defendant’s case was that the land in dispute was allotted to Oloyede, and when Counsel put this point to the witness; he admitted it, and in my view that is an end of the matter. The question whether the witness had mistakenly used the word “allot” for “grant” did not arise, Furthermore, the witness (2 P.W.) said that he was the head teacher of a School, and it is mere conjecture to suppose that he did not understand the point that was put to him.
But suppose, as the Western State Court of Appeal inferred, Emmanuel Oloyede had actually meant to say that the land was “granted absolutely to his father” and that he had mistakenly used the word “allotted,” Again, this would not be of any assistance to the plaintiffs case as he had pleaded “inheritance from Ayikondu” as his root of title, and not “granted from Ayikondu Family,”
From whichever angle one looks at the case, it is obvious that the plaintiff had failed to prove his claims, and those claims were rightly dismissed by the trial Court, The decision of the Court of Appeal confirming that dismissal was also right.
In the result, the appeal fails it) its entirety and it is dismissed. The judgment of the lower Court is hereby affirmed and there will be costs in favour of the respondents assessed at N500.00.
K. ESO, J.S.C.: I have a preview of the judgment just read by my learned brother Craig, J,S,C and I agree entirely.
S. KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment of my learned brother, Craig, J.S.C which has just been delivered. I agree with him entirely that this appeal lacks merit and should he dismissed, It is plain from the record of proceedings that the appellant as plaintiff simply failed to substantiate his claim at the trial and the trial court was right in dismissing his claim and so was the Court of Appeal in affirming the decision of the trial court. I will also dismiss the appeal with N500,00 costs awarded to the respondent.
C. A. OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Craig, J,S,C and I am in complete and total agreement with his reasoning and conclusion.
The case involves a rather small piece of land measuring 30 feet by 40 feet but the issues involved are by no means as small as that. These issues include:-
1. The communal nature of land holding under customary law, where individual ownership is an exception rather than the rule.
2. Where a Plaintiff pleads absolute ownership by sale and purchase of land hitherto communally owned, the onus is on him to trace the devolution of title from the radical title which formerly resided in the family or community to the individual title of his vendor.
3. Whether an appellate court is allowed to upset the findings of fact of a trial Court, which saw the witnesses, heard their conflicting testimonies, and believed one version of the evidence rather than the other on assumption that in Yoruba language the same word can be used for allotment or grant and that what the Plaintiff meant when he said Allotment was Grant.
Communal nature of Land Holding
Rayner, C.J. in 1898 investigated the nature of the ownership of land along the West African Coast. In his Report on Land Tenure in West Africa the learned Chief Justice identified one peculiar characteristic of indigenous land holding as Communal Ownership of Land:-
“The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership, is quite foreign to native ideas. Land belongs to the community, the village or family, never to the individual. All the members of the community, village, or family have an equal right to the land but in every case the Chief or Headman of the community or village Of head of the family has charge of the land and in loose modes of speech is sometimes called the owner. He is to some extent in the position of a trustee and as such holds the land for the use of the community, village or family. He has control of it and any member who wants a piece of it to cultivate or to build a house upon, goes to him for it. But the land so given still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must, in all cases be given, before a grant can be made to a stranger…”
(italics mine).
The above portion of Rayner’s Report was cited with approval by the Privy Council in the leading case of Amodu Tijani v. Secretary Southern Provinces (1921) A.C. 399 at p 404: 3 N.L.R 21 p.53.
In the case on appeal the Defendants’ Statement of Defence and evidence reflected the communal ownership of the land in dispute which was part of a larger area belonging to the parties in common as descendants of their great ancestor Ayikondu. The Defendants admitted that in accordance with the customary tenure, portions of the family land were allotted to Isaac Oloyede, who was later on, directed to give part of his holding to Rev. Shopeju. When Rev. Shopeju gave up possession of the portion allotted to him by the family, that same portion – the area now in dispute – was then allotted to the 1st Defendant. The Defendants’ case was quite consistent and in tune with communal ownership which is an incident of customary tenure. In contradistinction the Plaintiff pleaded that the land in dispute was “owned by one Oloyede who in 1937 transferred same to Rev .J .S. Shopeju absolutely and free of all encumbrances”. In 1950 the said Rev. J. S. Shopeju sold and transferred the land in dispute to Samuel Olaogun Bamgbose, the Plaintiff’s father. The Plaintiff thus claimed through his father, who from Rev. Shopeju, who in turn bought from Oloyede. To establish an unbroken link in the chain of devolution of title, the onus was on the Plaintiff to prove that Oloyede held an absolute title, that he was the owner of the area he sold to Rev. Shopeju otherwise the maxim Nemo dat quod non habet will apply and nullify the sale to Rev. Shopeju, the Plaintiffs father vendor.
Finding of the Trial Court
The learned trial judge, A.O.O. Agbaje found as follows:-
(i) I am satisfied on the evidence led for 1st Defendant, that he is a member of Ayikondu family.
(ii) The land in dispute forms part of a piece of land allotted to Oloyede a grandson of Ayikondu.
(iii) The land in dispute forms part of a piece of land allotted to Oloyede hy Ayikondu family.
After making the above findings of fact, the learned trial Judge stated the law, correctly in my view, as follows:-
“In other words upon an allotment of part of family land to a member of the family, the absolute interest of the family in the land so allotted does not pass to the member in question. So, in the instant case, Oloyede would not have been entitled to a declaration of title to the land in dispute if he had claimed it because upon the allotment of the land in dispute by Ayikondu family to him, the absolute interests of the family in the land did not pass to him. Because of the maxim nemo dat quod non habet, no one laying claim through Oloyede to the land in dispute could get a declaration of title to it. And as this is the position of the plaintiff in the case in hand his claim to a declaration of title to the land in dispute must in my view fail and it is therefore hereby dismissed.”
The trial Court based its judgment on the evidence of the P.W.2 and the 1st Defendant that the land in dispute was allotted to Oloyede the Plaintiffs predecessor in-title.
Court of Appeal Western State of Nigeria
On the most significant issue whether the land in dispute was allotted or granted to the Plaintiffs predecessor-in-title the Court of Appeal observed:
“We wish to observe that much fuss has been made about the use of the words “allotment” and grant. In ordinary parlance they more or less have the same meaning and when either of them is recorded as having been used in relation to dealings in land, it may well be that the word is used only to convey the idea that the particular piece of land has been parted with by the original owner to the allottee or grantee without attaching any significance to the legal consequences of the particular word used. It is our view that whenever such question arises before the Court, the judge should make sure that the witness understands the significance of the word used before recording it. This must be more especially so when evidence is given in a language other than English e.g. Yoruba.”
The point is that since the expression allotment has a legal signification in customary law. it is the duty of counsel examining or cross-examining a witness to plead and prove facts from which the trial Court can safely draw the inference that the particular transaction was an allotment rather than a grant. But this will arise if the issue as settled on the pleadings of the parties was whether or not what took place was an Allotment or a Grant. In this case that was not the issue. The Plaintiff in paragraph 4 of his Amended Statement of Claim pleaded that:-
“4. The land in dispute is a portion of a larger piece of land owned by one Oloyede as his patrimony in the estate of Ayikondu…”
There is a difference between “patrimony” and “grant”. The defendants in paragraphs 8, 9, 13, 16 pleaded facts which definitely show that members of the family were given the use and occupation of the land in dispute but not as absolute owners. These paragraphs spell out clearly Allotment under customary law. The evidence of the 1st Defendant and P.W.2 used the word Allotment, and the trial Judge found for the Defendants that what Oloyede had was an Allotment. The result was that Oloyede failed to prove his root of title (patrimony) as pleaded whereas the Defendants aided by the evidence of P.W.2 proved that Oloyede had no title to the land which was merely allotted to him by the family. The Court of Appeal Western State of Nigeria was wrong in reversing the findings of the trial Court on a mere speculation that what was meant was a grant and not an allotment. Grant was never an issue before the trial Court. It was, with the greatest respect, wrong of the Court of Appeal to make it one. Also the finding of the trial Court was by no means perverse. Rather it accorded with the pleadings of the Defendants and all credible evidence. An appellate Court would have no right to set aside such a finding. It was therefore wrong for the Western State of Nigeria Court of Appeal to have reversed the findings and judgment of Agbaje, J.
The Court of Appeal Ibadan Division heard the appeal from the Western State Court of Appeal allowed same. rightly in my view, and restored the judgment of the trial Judge Agbaje, J.
For all the reasons given above and for the fuller reasons in the lead judgment of my learned brother Craig, J.S.C. which I now adopt as mine, I, too, will dismiss this appeal and affirm the judgment of the Court below which confirmed the judgment of the trial Court. I will award N500.00 costs to the Defendants/Respondents.
S. M. A. BELGORE, J.S.C.: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 docs 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 mere allotment, has an uphill task indeed. Nemo dat quo non habet.
I agree with the lead judgment of my learned brother, Craig, J.S.C., for reasons ably advanced therein that the appeal has no merit whatsoever and ought to be dismissed. I also hereby dismiss the appeal with N500.00 costs.
Appeal Dismissed
Appearances
J. Chukura (Miss T. Oshuntokun with him)For Appellant
AND
Chief Toye Coker, S.A.N. (Messrs M.A. Fashanu and A.O. Akande with him)For Respondent
