Mr Alo Olatunbosun V. Chief (Mrs) Grace Odunjo & Ors (2016)

LawGlobal-Hub Lead Judgment Report

BOLOUKUROMO MOSES UGO, J.C.A. 

The action that culminated in this appeal was instituted by the respondents as claimants in the High Court of Ekiti State, via a writ of summons issued on 22/12/2010 pursuant to the Ondo State High Court (Civil Procedure) Rules of 1987 then applicable to Ekiti State. In that action the three respondents, all female children of late Chief David Aluko Fawekun, challenged the validity of the sale without their consent by their only male sibling, Mr Kayode Fawekun (now deceased), to the appellant of a piece of land situate at Ido-Ekiti which they claim devolved on them jointly from their said late father. It is common ground that the said Kayode, who later joined the suit as second defendant and contested it to conclusion in the Lower Court before his death, is next to the first respondent in terms of seniority among the four children of Chief David Aluko Fawekun. The respondents sought a nullification of the said sale. Their claims as endorsed in Paragraph 30 of their Further Amended Statement of Claim are as follows:

“1. A declaration that the entire land along Ushi Road

1

beside the Ido-Ekiti Police Station is Fawekun Family land belonging to the four children of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun as a distinct perpetual legal entity.
2. A declaration that a portion of the aforementioned Fawekun Family land measuring about two and half plot and bounded from the left by the Ido-Ekiti Police Station, from the right by Mama Jaf Block Industry, at the back by the road leading to Olojudo house and at the front by Ushi Road, belongs to the four children of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun as a distinct perpetual legal entity.
3. A declaration that the 1st claimant is the family head of the household of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun and any Yoruba custom which provides otherwise is unconstitutional and repugnant to natural justice, equity and good conscience.
4. A declaration that the purported sale of that portion of the aforementioned Fawekun family land, being a family property sold without the consent of the claimants and any justification in law is illegal null and void and of no effect whatsoever.
5. An order setting aside the purported sale of that

2

portion of the aforementioned Fawekun family land to the 1st defendant by 2nd defendant, Mr Kayode Fawekun.
6. An order of perpetual injunction restraining the 1st defendant, his agents, servants or privies from further acts of trespass on the aforementioned portion of the Fawekun family land.
7. An order granting exclusive possession of the aforementioned portion of the Fawekun family land to the four children of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun.
8. A sum of N5,000,000.00 (Five Million Naira) as punitive, exemplary and aggravated damages for the emotional trauma, excruciating psychological pain, humiliation and embarrassment suffered by the claimants as a result of the unjustified and unwarranted interference by the 1st defendant with their family land.”

The appellant (as 1st defendant) and his vendor, Kayode, filed separate statements of defence to the claim. Appellant?s final defence is his Consequential Amended Statement of Defence contained at pages 88-95 of the records. There, the appellant, while admitting that he ?purportedly bought the disputed Fawekun family land? from Kayode as asserted by the

3

respondents in Paragraph 6 of their amended statement of claim, maintained that Kayode, being the only surviving male child of Chief David Fawekun, was by the tradition, culture and custom of Yoruba the head of Chief David Fawekun family and so had the right to deal with the land as he did.

On his part, Kayode in Paragraph 1 of his statement of defence admitted expressly, among others, Paragraph 7 of his sisters? Further Amended Statement of Claim where they claimed the land in dispute ?belonged to their late father Chief David Aluko Fawekun?. He then went on to assert that their father (his father too) had before his death ?allocated? a cocoa farm, comprising the land in dispute and other adjoining lands to him as his only son ?who would always be around to manage the land? whereas the respondents being women would one day get married and ?depart to their husbands? house?. He added that since the death of their father, he had automatically been vested with the authority as the head of the family as well as being the secretary of Owaero family, the larger family body to which their father

4

belonged, and he is the custodian of the land in dispute herein and has been exercising control over the land as the head of family, especially since the 1st claimant his elder sister is married and resides outside Ekiti State and he the “2nd eldest child” resides at Ido-Ekiti. He insisted that since his sisters the respondents were not the “bona fide” owners of the land in dispute, the appellant was not obliged to heed their warning,? he having become the “rightful owner” of the land in dispute after the transfer. He described his sisters? claims as ?frivolous, actuated by malice and gold-digging? and besought the Court to dismiss them with substantial costs.

On these averments, parties (including Kayode Fawekun who was then alive and testified as DW3) testified after adopting their witness statements on oath filed in the course of the proceedings, in line with the new High Court (Civil Procedure) Rules of Ekiti State of 2011 which came into effect while the action was pending.