Mutairu Togun Ajamogun & Anor V Tunde Oshunrinde & Anor (1990)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A. 

This appeal centres on the settled Yoruba customary law that the head of the family is the manager of family property ,and that any disposition of family land without his consent is void ab initio.

Apart from the 1st defendant all the parties in this case belong to the same extended family of Ajamogun and Onikotun family, owners of a large tract of land at Mafoluku, in Lagos State. On 16th August, 1977 eight members of the family including one Chief Musa Aina Bale for themselves and as ‘principal members and accredited representatives of Ajamoguni/Onikotun family of Lagos State’ appointed eight members of the same family. including Mutairu Togun.

1st plaintiff and Abudu Seidu 2nd defendant and also Fasasi Oshoade 5th defendant as attorneys for Ajamogun/Onikotun family, amongst other things, to ‘mortgage, charge, sell, lease, let and otherwise dispose of the said family land.’ Pursuant to the power of attorney Exhibit ‘P.W.2/F,” the donees, all of them apparently, leased a parcel of land, the subject matter of this appeal to the 1st defendant, Tunde Oshunqnde, for a term of years for N14,000.00 This was by a lease agreement dated 19th July, 1979. By a writ of summons dated 24th February, 1984, five members of the family. including Murairu Togun Ajamogun as 1st plaintiff, instituted an action against the 1st defendant, the lessee, and the 2nd to the 8th defendants (seven of the donees of the power of attorney) seeking that the lease be set aside and claiming damages from the 1st defendant for trespass and perpetual injunction restraining him from further trespass on the land. Pleadings were ordered and filed and exchanged. In the amended statement of claim the full reliefs sought by the plaintiffs were set out at paragraph 25 as follows:-

(1) ‘An order declaring as null and void the power of attorney dated the 16th day of August, 1977and registered as No. 92 at Page 92 in Volume 1623 of the Lands Registry or in the alternative an order setting aside the said power of attorney. (2) An order setting aside the lease dated this 19th day of July, 1979 and registered as No.7 at page tin Volume 1984 of the Register of Deeds kept at the Lagos State Lands Registry Lagos Nigeria; (3) The sum of N50,000.00k being damages for trespass committed by the 1st Defendant. his servants agents and privies on all that piece or parcel of land situate lying and being at Mafoluku and more particularly delineated with its dimension and abuttals on Plan No. OGER 38A/78 attached to the Deed of Lease dated 19th day of July 1979 and registered as No.7 at Page 7 in Volume 1784 of the Lands Registry in the office at Lagos; (4) Perpetual injunction restraining the 1st Defendant his servants, agents and privies from further trespass on the said land.’ The 1st defendant filed a separate statement of defence. So also did the 2nd defendant. The 4th, 5th, 6th and 8th defendants filed one statement of defence, the 3rd and 7th defendants having died.

The 1st and 2nd plaintiffs testified as the 1st and 2nd plaintiff witnesses, while one Napoleon Omodiagbon of State C.I.D., a finger-print expert testified as 3rd P.W. His evidence was necessary because the 1st Plaintiff denied affixing his thumb impression on the lease agreement Exhibit ‘P. W.2/A’. The 2nd plaintiff tendered four previous judgments Exhibits ‘P.W.21 B,’ P.W.2IC’ ‘P.W.2D’ and ‘P.W.2/E’ to show that there had been previous litigations over the family land and that Musa Aina Bale one of the said f ‘principal members of the family’ who executed the power of attorney was not the head of the family at the material time.

Although it was the case for the plaintiffs that one Musa Gbadamosi Ajamogun, the, father of the 2nd plaintiff, who died in 1981 was the Head of the family when the power of attorney and the lease agreement were executed, the 1st plaintiff who was one of the donees of the power of attorney but denied affixing his thumb impression on the lease agreement, admitted under cross-examination that Aina Bale was the Head of the family. The 1st defendant, the lessee, did not testify. He however called as a witness, the 5th defendant, Fasasi Oshoade Onikotun who was one of the donees of the power of attorney and one of those who executed the lease agreement in favour of the 1st defendant. He testified to the effect that the power of attorney was given by the representatives and accredited members of the four branches of the Ajamogun Onikotun family. He however agreed that Musa Gbadamosi got judgment in suit No. 1D/418/76, Exhibit ‘P. W.2/ C’ but stressed that the judgment was not against those of them appointed as attorneys of the family. The 2nd defence witness for the 1st defendant was Johnson Adelaja Adewopo, a legal practitioner who claimed to be solicitor to the family.

He asserted that Aina Bale was the head of the family. He prepared the power of attorney which did not describe Aina Bale as the Head of the family. He testified that the 1st plaintiff affixed his thumb impression on Exhibit ‘P.W.2!A’ the lease agreement. The 2nd defendant admitted that Musa Gbadamosi was the Head of the family. His main grouse was that the 5th defendant and one Ayinde Akinyel1)i embezzled the money paid by the 1st defendant and that he got nothing out of it. The 4th, 5th, 6th and 8th defendants adduced no evidence on their own behalf. Learned counsel appearing for them relied on the evidence already given by the 5th defendant when he testified as a witness for the 1st defendant.

After a detailed review and appraisal of the evidence adduced before him, and after considering the submisions of counsel, the learned trial Judge, Ilori J., dismissed the claims of the plaintiffs. In coming to his decision, he held that the power of attorney was made validly by the Ajamogun Onikotun family with the consent of the Head and members of the family. According to him, it was apparent ‘from a review of the evidence that the least that can be said of the plaintiffs evidence on the issue of the headship of the family at the material time, is that it is conflicting and confused. The claim that the power of attorney was not executed by the Head of the family must in the circumstances fail.’ The learned trial Judge also held that since the donees of the power of attorney were agents of the family, the lease to the 1st defendant was valid. He was convinced that all the donees executed the conveyance. Obviously dissatisfied with the judgment the plaintiffs filed their notice of appeal based on five grounds. In this court amended grounds were substituted for the original grounds. In the main the appellants complaints are (1) that the learned trial Judge failed to consider the evidential value of the previous judgments admitted in evidence; (2) that there was nothing to show in the power of attorney that it was executed by the Head of the family and (3) that it was erroneous to hold that Musa Aina Bale was the head of the family. In the appellants brief nine issues are said to be questions for determination. The 7th-9th alleged issues are not formulated as issues but in form of assertion of facts or grounds of appeal. The first six issues which are correctly formulated read:

‘(1) Whether the learned trial Judge should have evaluated more I positively and relevantly the documentary evidence especially I when they relate to the parties and their privies and also in relation to the family land portion of which was the subject matter of this suit. (2) Whether the learned judge did not come to a wrong decision having not given the judgment tendered and admitted as Exhibits no consideration or very little consideration. (3) Whether the Power of Attorney showing on the face of it that those who executed it were only Principal members could be interpreted by oral evidence that the head of the family was also a donor and therefore a valid document. (4) Whether the learned judge misdirected himself as to the standard of proof.

(5) a. Whether the Power of Attorney is a valid document and can pass any interest to anyone. b. Whether the learned judge misdirected himself as to the standard and burden of proof particularly as regards the acceptability of the Power of Attorney. (6) Whether the learned trial Judge erred in law when he failed totally to consider the fundamental principles of practice and procedure that parties are bound by their pleadings and that evidence given and not pleaded goes to no issue.’ Four issues are formulated in the 1st respondents brief as follows: ‘1. Is the Power of Attorney (Exhibit P. W .2F) valid having regard to the evidence before the court with respect to the headship of the family at the relevant time and the judgments tendered for the plaintiffs?

2. Did the learned trial Judge rely on extrinsic evidence on matters not pleaded in making his findings in respect of the Power of Attorney, and if so is that enough for this court to reverse his conclusion as to the validity of the Power of Attorney having regard to all the evidence before him? 3. Whether the learned trial Judge did not properly evaluate the evidence of P.W.3, the finger-prints expert, and whether in any event, this Court can interfere with his findings thereon and as to other evidence with respect to the execution of the lease? (4.) Whether having regard to the onus of proof in civil cases and the evidence, the plaintiffs case was not bound to fail? Four issues were also framed in the brief filed on behalf of the 4th, 5th, 6th and 8th respondents.

They are: ‘(i) Whether the learned Judge misdirected himself in any way as to the Standard of Proof. (ii) Whether the learned Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence. (iii) Whether the series of judgments the basis of the appellants grounds 2 and 5 are relevant, admissible in evidence and properly admitted as Exhibits. (iv) Whether in view of the conflicts, inconsistences and contraditions in the evidence adduced by the plaintiffs and witnesses they proved their case as required by law.’

It seems to me that the central issue in this appeal is whether the head of the Ajamogun/Onikotun family was one of the donors of the power of attorney Exhibit P.W.2JF’. In effect the main issue is whether the learned trial Judge was right in coming to the conclusion from the totality of the evidence placed before him that the power of attorney was valid in the sense that it was made with the consent of the head of the family.