Lasupo Akanni & Ors V. Adedeji Makanju & Ors (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal is against the decision of the Court of Appeal of the former Western State contained in the judgment delivered on the 17th day of July, 1975 in an appeal No. CAW/147/1974 brought to it by the appellants against the judgment of the High Court, Ibadan (Coker, J.,) (as he then was) delivered on the 28th day of May, 1973) in suit No.1/118/1970.

The claim endorsed on the writ of summons by which the proceedings in the High Court, Ibadan were commenced is for:

“i. Declaration of title to all that piece or parcel of land situate at and being at Odo-Okun, Ibadan and or in the alternative declaration that the 1st defendant is entitled to sell the land or any part thereof.

ii. Possession of the said land.”

Pleadings were ordered and duly delivered. The issues joined came up for trial before Coker, J., and at the conclusion of the evidence and addresses, he delivered a considered judgment in favour of the plaintiffs/respondents, the concluding portion of which read as follows:

“I find as a fact that Salami Adegbite is the present head and not Lasisi Fagbenro the 4th defendant. It is clear and I find that the 1st defendant was never appointed an agent of the entire family, and that he had no authority to alienate the family land to any of the other defendants, such sale is therefore void – See Ekpendu & Ors. v. Erika (1959) IV FSC 79. I am of the view that it was only in recent years, that the adverse claim by Oke Agugu’s section became manifested, and the family as a whole never acquiesced in such claim.

On the whole, I find on the preponderance of evidence that the land in dispute was originally granted to Makanju, alias Oganla, by Bale Orowusi.

In the circumstances, the descendants of Oke Agugu and his brothers and sisters are not the exclusive owners of the land and have no right to alienate same without the concurrence of the other sections. The sales by the 1st defendant or 4th defendant to the other defendants are in my view not valid and are void.

I therefore declare that the plaintiffs as well as the descendants of Oke Agugu, Adegbite, Adeniyi, Fasina, Fakorede, Onifade and Ogunbambi, are the owners of the land in dispute (verged yellow including the area verged “RED”) on the plan LL. 5836…..Exhibit ‘A’ in these proceedings according to Yoruba native law and custom. I hold that they constitute the various sections compendiously and popularly known as Makanju or Oganla family.

As against the 2nd, 3rd, 5th, 6th, 7th and 8th defendants, I order they give up possession of the land respectively held by them. The 1st and 4th defendants being members of Makanju or Oganla family, I would make no order against them.”

The appeal against this decision by the defendants was dismissed by the Western State Court of Appeal in its judgment delivered by Kayode Eso, JCA., (as he then was) for lack of merit. Before the Western State Court of Appeal, the grounds of appeal argued were:

“I. That the learned trial Judge erred in law and on facts when he regarded the non-production of receipts for the purchase of plots by defendants as damaging without considering the length of each defendant’s residence to determine the equities raised in the defence.

IV. That the learned Judge misdirected himself on the facts when he gave recognition to a Mogaji purposely put up for this case and placed emphasis on his evidence in coming to a decision.