S.O. Bamgbose V. B.A. Oshoko & Anor (1988)

LawGlobal-Hub Lead Judgment Report

B. CRAIG, J.S.C. 

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.
5. 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.
6. 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.”