Adenuga Odu Sewoniku V. Mojidi Orotiosakin & Ors (1986)

LawGlobal-Hub Lead Judgment Report

OMOLOLU-THOMAS, O.F.R., J.C.A.

In this case on appeal the plaintiff was claiming in the High Court of Ijebu-Ode, in Ogun State declaration of title in fee simple to a piece of land, N1,000 general damages for trespass and injunction.

Pleadings were duly exchanged between the parties and the case proceeded to trial. The Plaintiff calling 6 witnesses whilst the 1st defendant testified and the 3rd defendant also testified calling one witness. The 2nd defendant also testified for himself and the 4th defendant.

The plaintiff’s case in brief is that he bought the land in dispute from Sinepo Family between 1955 and 1956 and that the head of that family consented to the sale. He is relying on Conveyance Exhibit B1 and the evidence adduced in support of the claim. The original conveyance of the sale was not tendered because; the document and the purchase receipts of sale were stolen. A certified true copy of the Deed of Conveyance tendered is Exhibit B1. It was not executed by the Head of the family. After the sale the plaintiff caused the land to be surveyed in 1957. He took possession. One Karimu Bogun who planted cassava, maize, plantain and other cash crops on the land was the plaintiff’s care-taker on the land. In 1956 the plaintiff met all the 4 defendants on the land cultivating it and digging it, as a result of which the defendants were reported to the police and this action was instituted.

The case of the defendants was that the land in dispute was given to the father of the 3rd defendant about 35 years ago, and he admitted going to the land and clearing it as a labourer of the 3rd defendant on his instructions. The 4th defendant who also testified in the lower court on behalf of himself and the 2nd defendant also confirmed that the land indispute was given to the 3rd defendant about 50 to 60 years ago, and he admitted that he and the 2nd defendant were among members of the family who sold 2 plots of land to the plaintiff, and that one Muniratu Iyalode Kuforiji was at the time the Head of their family. Their case is that when the first plot of land was sold to the plaintiff they did not inform the Head of the family, and that when the second was about to be sold the said Head of the Family informed them that the land had long been given to the father of the 3rd defendant. The case of the 3rd defendant was that the entire members of Sinepo family granted the land to his father about 50 years ago and that he had started to erect a building on the land in dispute.

The learned trial Judge carefully reviewed the evidence and after giving due consideration to the issues raised on the pleadings found that the Head of the family gave her consent to the execution of Exhibit B, and that the 2nd and 4th defendants executed the document. Further, he found that the conveyance was executed by the principal members of Sinepo family.

The trial Judge also considered the issue whether there were 2 stocks of Sinepo family as contended by the plaintiff on the basis of the Idi-Igi system of inheritance, and as contended by the defendants that there were 6 branches. He resolved the issue in favour of the plaintiff.

He also resolved the issue as to the execution of Exhibit B1, and the issue on the authorization of the sale of land by the Head of the family to the plaintiff. He found that the plaintiff was in possession and awarded judgment in his favour on the claims.

The 1st and 3rd defendants being dissatisfied with the judgment appealed to this Court on one original and 6 additional grounds of appeal, which apart from the omnibus ground, revolved round the issues whether the Head of the family consented to the execution of Exhibit B1 or authorised the same, and the consequences of the failure to give such authorization or consent-in other words: whether Exhibit B is void ab initio.

The question for determination as formulated by the appellants read –

i) Whether on a proper construction of exhibit B1 it can be inferred that the head of family joined or even consented to the execution of exhibit B1.

(ii) Whether the plaintiff can give evidence of authorisation by the head of family to add to the contents of exhibit B1.

(iii) Whether the non-execution of exhibit B1 by the head of the family is fatal to the validity of exhibit B1 notwithstanding the evidence of authorisation.”

In the brief of argument of the appellants’ Counsel it was contended that the respondent did not rely on customary sale but on the conveyance exhibit B. Counsel stated that the respondent is enjoined to prove the due execution of that document and prove its validity by establishing that the Head of the family joined in its execution. He said that what the respondent tried to do was to validate Exhibit B1 by adding to the recitals thereof and importing thereto the authorization of the Head of the family to the execution of the said document. He argued that the respondent cannot adduce evidence to vary or add to the contents of Exhibit B1 in order to show that the Head of the family authorized or consented to the sale.