Emmanuel Babayeju & Anor Vs Elijah Ayo Ashamu & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The plaintiffs who are the appellants in this court instituted an action for themselves and as representing Babayeju family of Ilasamaja Ishagaledo in the Ikeja District of Lagos State against the respondents in respect of a parcel of land which was agreed by both parties as the property of Babayeju family. It was common ground that the founder of the family was one Konibaba otherwise known as Babayeju. It was also common ground that the parcel of land in dispute was sold absolutely by lyewo family to the said Konibaba Babayeju.

The plaintiffs/appellants’ case was that on the death of Konibaba Babayeju, the Iyewo family by a deed of conveyance dated 23rd August. 1950 conveyed the legal interest in the said land to Thomas, David and Sadiku who were the only children of Konibaba Babayeju. That the plaintiffs and the 2nd defendant are the children of Thomas, David and Sadiku and only the sub-families of Thomas, David and Sadiku constitute Babayeju family. It was the plaintiffs’ case that at no time did Babayeju family validly divest itself of their interest or title in the parcel of land and that the 2nd defendant in conjunction with other people who are not members of Babayeju family sold and conveyed the said family land to the 1st defendant without the approval of the 1st plaintiff who is the head of Babayeju family and without the consent of the 2nd plaintiff who is like the 2nd defendant a principal member of Babayeju family.

The 2nd defendant on his part contended that Konibaba had seven children and not three as claimed by the plaintiffs, that the seven children comprised three males namely. Thomas, David and Sadiku and four females namely, Titilola, Folaranni. Omiyale and Ibilola and that the other vendors of the conveyance to the 1st defendant are the descendants of the female children of Babayeju.

The 1st defendant claimed that he duly purchased the said land from the family in 1975 and that he obtained the deed of conveyance from the family in 1976.

Pleadings were ordered, filed and exchanged and at the close of hearing, the learned trial Judge found for the plaintiffs and ordered as follows:

(a) A declaration of statutory right of occupancy in favour of the plaintiffs (Babayeju family) to that piece or parcel of land situate, lying and being at Ilasamaja, Mushin in the Lagos State of Nigeria and more particularly described and edged “Red” and “Green” on plan No. OGEK66/73 dated 12th June, 1973……..

(b) The sum of N500 against the 1st defendant in favour of the plaintiffs as general damages for trespass committed by 1st defendant on the land.

(c) An injunction restraining 1st defendant, his servants and/or agents from further trespassing or continuing to trespass on the said land.

(d) An order selling aside the deed of conveyance for the sale of the land in dispute dated 5th May, 1976 executed by 2nd defendant and seven others in favour of 1st defendant and registered as No. 58 at page 58 in volume 1560 of the lands registry in the office at Lagos.”

The defendants were dissatisfied with the judgment of the trial court and appealed to the Court of Appeal. Lagos Division. Their appeal was successful. The decision or the trial court was set aside and in its place, an order striking out the suit was made. The plaintiffs who were aggrieved by the decision of the court below appealed to this court.

The plaintiffs as appellants in this court filed a brief of argument on 23: 11:90. The respondents filed no brief. At the hearing or the appeal, the parties were absent and not represented by counsel. Pursuant to Order 6, rule 8(7) or the Supreme Court Rules, the appeal was argued on the appellants’ brief.

In the appellants’ brief the only important question for determination in the appeal is:

“Whether the Court of Appeal was right in holding that all the other seven signatories to the conveyance must be parties to this action before the plaintiffs can rightly take up the action inspite of the strong, unassailable and valid finding of the trial court that the sale of the family land was made without the consent of the 1st plaintiff, who is the head of the family.”‘