In The Court of Appeal
(Ibadan Judicial Division)
On Thursday, the 10th day of June, 2010
Suit No: CA/I/211/2004
Before Their Lordships
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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN |
....... Justice, Court of Appeal |
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CHIDI NWAOMA UWA |
....... Justice, Court of Appeal |
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MODUPE FASANMI |
....... Justice, Court of Appeal |
Between
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1. BODE SOWUNMI |
Appellants |
And
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1. MRS. FLORA IYABODE SOWUNMI AYINDE |
Respondents |
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RATIO DECIDENDI |
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WORDS AND PHRASES - "PARTITION": Meaning of Partition |
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"Partition of family land is one of the methods recognised under Yoruba Native Law and Custom for alienating family property. See: Abraham v. Olorunfunmi (1991) 1 NWLR (165) 53 at 74 D. "Partition" is defined in Cheshire Modern Law of Real Property (12th edition) by Burn as follows: "Partition is a method whereby joint possession is disunited and its effect is to make each former co-tenant separate owner of a specific portion of land and thus terminate the co-ownership forever. Instead of holding an undivided share in the whole, each person will hold a share severally".The definition was quoted with approval in Abraham v. Olorunfemi (supra) at page 75 P." Per Kekere-Ekun, J.C.A. (P. 23, paras. B-E) |
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LAND LAW - PARTITION: Effect of partition of family land |
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"It necessarily follows that once partitioned family land ceases to be family land. See: Olowosago v. Adebanjo (1988) 4 NWLR (88) 275 at 287 D: Balogun v. Balogun (1943) 9 WACA 78." Per Kekere-Ekun, J.C.A. (P. 23, para. F) |
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LAND LAW - SALE OF FAMILY LAND: Effect of sale of family land without the consent of family members |
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"It is the law that the sale of family property without the consent of some of the principal members of the family is voidable. See: Manko v. Bonso (1936) 3 WACA 62: Esan Vs Faro (1947) 12 WACA 135: Ekpendu v. Erika (1959) SCNLR 186."Per Kekere-Ekun, J.C.A. (Pp. 33-34, paras. F-A) |
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LAND LAW - SALE OF FAMILY LAND: Effect of sale of family land without the consent of the head of family |
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"On the other hand any sale or dealing with the land carried out by principal members of the family without the consent of the head of the family is null and void. See: Kuma v. Kuma (1938) 5 WACA 4; Aabole v. Sappor (1947) 12 WACA 187: Onayemi v. Idowu (2008) 9 NWLR (1092) 306 at 330 C - E."Per Kekere-Ekun, J.C.A. (P. 34, paras. A-B) |
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LAND LAW - SALE OF FAMILY LAND: Effect of sale of family land by a member of the family |
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"The law is that a sale of family land by a member of the family without the consent of the head or principal members of the family is void ab initio. The head of family must, under customary law join in a conveyance, lease or disposition of family land and the principal members must consent thereto otherwise such a disposition is void ab initio. See: Odukwe v. Ogunbiyi (supra) at page 114 and Uche v. Ire & Ors. (1998) 7 SCNJ 1, 12."Per Kekere-Ekun, J.C.A. (P. 35, paras. C-E) |
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KUDIRAT M. O. KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment) This is an appeal against the judgment of the High Court of Ogun State, Ota Judicial division delivered on 27/9/2000. By a writ of summons and statement of claim both dated 1/9/95 the plaintiff (now deceased and represented by the respondents herein) sought the following reliefs against the appellants (as defendants):
1. "A declaration: -
i. That the piece of land situate at Abule Ojo Sunmonu, Iju, Akute in Ifo/Ota Local Government Area of Ogun State covered by survey plan No. MAF/71 A & B/89L of 27th November 1989 is a family land.
ii. That the said land belongs to and is known as Sowunmi family land under Yoruba Native Law and Custom and the plaintiff is now head and principal member of the family.
iii. That the 2nd and 3rd defendants are not members of Sowunmi family.
iv. That being a most junior member of the Sowunmi Family, the first defendant's purported dealing with Sowunmi Family land without the consent of the plaintiff and Pa H. A. Sowunmi (deceased) as head and principal member of Sowunmi family is null, void and of no effect.
v. That the purported acquisition and/or dealing by defendants with portions of Sowunmi family land is null, void and of no effect whatsoever.
ORDER:
2. (i) Setting aside any purported dealings with the Sowunmi family land by the defendants whether by themselves, agents and/or servants and privies.
(ii) The sum of N500, 000.00 damages for trespass on the said land committed by the defendants, their agents and/or servants and privies.
3. Perpetual injunction restraining the defendants whether by themselves, agents, servants and/or privies from committing further acts of trespass on the said land."
Pleadings were filed and exchanged. At the trial the plaintiff testified on his own behalf and called one witness. The 1st defendant testified on his own behalf and called four other witnesses. Both parties tendered exhibits.
It was the case of the plaintiff at the trial court that the land in dispute situate at Abule Ojo Sunmonu, Iju Akute in Ifo/Ota Local Government Area, Ogun State, more particularly delineated on survey plan no. MAF/71 A & B/89L of 27th November 1989 is Sowunmi family land and has never been partitioned, he testified that Pa Orojobi Sowunmi their ancestor begat Hezekiah Salako Sowunmi. Hezekiah Salako Sowunmi had five children. Three died without issue. The two surviving children were Emmanuel Ayodele Sowunmi and Jacob Folarin Sowunmi and they constituted the two surviving branches of the family. Emmanuel Ayodele Sowunmi had three children, namely H. Adeniji Sowunmi, E. Oladipo Sowunmi (the plaintiff/respondent), and Iyabo Sowunmi. Jacob Folarin Sowunmi had two children, M. Babatunde Sowunmi and Bode Sowunmi (the 1st defendant/1st appellant). Jacob Folarin; Sowunmi became head of the family after the death of Emmanuel Ayodele Sowunmi. He remained head of the family until his death in 1981. At the time the suit was instituted the plaintiff was the oldest living member of the family.
It was the contention of the plaintiff that the 1st and 3rd defendants purported to sell plots of land to the 4th - 16th defendants without the authority of the family. The 3rd defendant is the wife of late M. Babatunde Sowunmi. The plaintiff contended that the purported sales were null and void and that all the defendants were trespassers.
It was the case of the defendants (now appellants) that Jacob Folarin Sowunmi partitioned the family land in 1973 when he was head of the family. That the 2nd defendant, at the family's, request, secured the services of a surveyor to survey the land after the partition. That when the family was unable to pay the N6, 500.00 charged for the survey, the 2nd defendant had to pay the surveyor out of his own pocket. It was the defendants' case that in return for the surveyor's fees paid by the 2nd defendant, the family gave him a portion of the partitioned land. The plaintiff however maintained that the land was never partitioned and that the family did not instruct a surveyor to conduct a survey thereon in 1973.
At the conclusion of the trial and after the addresses of learned counsel, the learned trial Judge in a considered judgment found in favour of the plaintiff and granted all but one of his reliefs.
The appellants were dissatisfied with the decision and filed a notice of appeal dated 20/10/2000 containing three grounds of appeal. Pursuant to leave granted by this court on 7/6/05 they filed nine additional grounds of appeal bringing the total number of grounds of appeal to twelve. The parties duly filed and exchanged briefs of argument in compliance with the Rules of this Court. As a result of the demise of the original plaintiff/respondent, Ebenezer Oladipo Sowunmi, this court on 27/5/09 granted an order of substitution whereby the present respondents were substituted for the deceased plaintiff/respondent. The parties amended their briefs of argument to reflect the order of substitution. The appellants' amended brief of argument dated 25/7/05 was filed on 25/3/10. The respondents' amended brief of argument is dated 6/4/10 and filed on 7/4/10.
At the hearing of the appeal on 14/4/2010, Chief (Dr.) V.A. Odunaiya adopted the appellants' brief and urged the court to allow the appeal. Mrs. A.N. Adetola adopted the respondents' brief and urged the court to dismiss the appeal.
The appellants formulated 7 issues for determination as follows:
1. Whether or not the learned trial Judge acted judicially and judiciously when he declined to grant leave to the appellants to amend their Defence in order to answer and plead the fraudulent acts of the plaintiff as it relates to paragraph 31 of the statement of claim? (Grounds 8 & 12
2. Whether or not the land in dispute remain (sic) the larger Sowunmi family land after the same was partitioned in 1973 during the life of Jacob Folarin Sowunmi as Head of Family, which partition was evidenced by Exhibit F? (Grounds 2, 7, 9,10 & 11)
3. Whether or not the 1st defendant as a Principal Member of the Sowunmi family can be guilty of trespass on the family land and thus be restrained therefrom by order of perpetual injunction? (Ground 4)
4. Whether or not from acts and evidence showing that only TWO out of FIVE branches of Salako Sowunmi family survived to date represented by the plaintiff (as one branch) and 1st defendant (as second branch), 1st defendant can be declared a trespasser, damnified in damages and perpetually restrained from the family land, more particular when the land was alleged top have been partitioned ion 1973 vide exhibit F? (Ground 5)
5. Whether or not the 1st defendant a Principal Member of the Sowunmi family was rightly sued along with the other defendants, and described as trespasser when he was lawfully on the land by virtue of his being a member of that family? (Ground 6)
6. Whether from the totality of the evidence before the lower Court, both oral and documentary, the decision arrived at was justifiable in the circumstances of the case before it, moreso when plaintiff's evidence was uncorroborated. (Ground 1)
7. Whether the plaintiff's as constituted is competent and therefore the lower court has jurisdiction to entertain it?
(Ground 7).
The respondent formulated 5 issues for determination thus:
1. Whether the land in dispute remained SOWUNMI FAMILY LAND OR had been partitioned prior to the suit.
2. Whether if the land had been partitioned there was proper partitioning of the land among the two surviving branches of Sowunmi Family in accordance with Native Law and Custom of the Yorubas.
3. Whether the first defendant/appellants, now deceased, has been sued along with others as trespassers notwithstanding that he was a member of the Sowunmi Family.
4. Whether firm totality of the evidence before the lower Court there was justification for the decision arrived at by the trial Court.
5. Whether the refusal of the trial court to allow an amendment of the defendants' statement of defence amounted to miscarriage of justice in the circumstances of this case.
A careful examination of the issues formulated by both parties reveals that the appellants' issue 1 and the respondents' issue 5 are the same; the appellants' issue 2 covers the respondents' issues 1 arid 2; The appellants' issues 3, 4 and 5 cover the respondents' issue 3; while the appellants' issue 6 is the same as the respondents' issue 4. I observe that the appellants formulated two issues from ground 7 of the notice of appeal. Issue 2 is formulated from grounds 2, 7, 9, 10 and 11. Issue 7 is also formulated from ground 7. The appellate courts have always frowned upon the practice of splitting a ground of appeal into more than one issue, as it is confusing and leads to prolixity. See: Agbetoba v. Lagos State Executive Council (1991) 6 SCNJ 1 at 12; Egbe v. Alhaji & Ors. (1990) 1 NSCC (vol.21) (Pt.I) 306 at 332 lines 39 - 94; Leedo Presidential Hotel Ltd. v. B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A-C; Adedipe v. Theophilus (2005) 16 NWLR (951) 250 at 216 D-F. Having already formulated an issue from ground 7 of the grounds of appeal, issue 7 formulated from the same ground is incompetent. It is accordingly struck out.
The appeal shall be determined on the appellants' issues 1, 2 and 6 (as issues 1, 2 and 4 respectively) and the respondents' issue 3 (as issue 3). Thus the issues for determination (with a slight modification to the appellants' issues 2 and 6 and the respondents' issue 3) are:
1. Whether or not the learned trial Judge acted judicially and judiciously when he declined to grant leave to the appellants to amend their Defence in order to answer and plead the fraudulent acts of the plaintiff as it relates to paragraph 31 of the statement of claim?
2. Whether the land in dispute was partitioned in 1973 during the life of Jacob Folarin Sowunmi as Head of Family as per Exhibit F?
3. Whether the first defendant/appellant, now deceased, ought to have been sued along with others as trespassers notwithstanding that he was a member of the Sowunmi Family?
4. Whether from the totality of the evidence before the lower Court, both oral and documentary, the decision arrived at was justifiable in the circumstances of the case before it?
Issue 1
Whether or not the learned trial Judge acted judicially and judiciously when he declined to grant leave to the appellants to amend their Defence in order to answer and plead the fraudulent acts of the plaintiff as it relates to paragraph 31 of the statement of claim?
It is contended on behalf of the appellants that the defendants sought leave to amend their statement of defence in order to plead certain facts to counter the averment in paragraph 31 of the Statement of Claim. Learned counsel for the appellants submitted that the learned trial Judge refused to grants the application on the ground that the proposed amendment sought to introduce a criminal element into the trial. He contended that the refusal of the learned trial Judge to grant the application amounted to a denial of the appellants' right to fair hearing. On fair hearing he referred to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution) and: Salu v. Egeibon (1994) 6 NWLR (348) 23; Alsthom v. Saraki (2005) ALL FWLR (246) 1385 at 1402 - 1403 G-B.
In. reaction to this issue, learned counsel for the respondents submitted that the application for amendment, which was filed on 9/6/98 was heard and dismissed in a considered ruling delivered on 21/10/98. He argued that the appellants did not appeal against the ruling and have not alleged any error of law or misdirection on facts.
The ruling of the learned trial Judge delivered on 7/12/98 refusing the application for amendment dated 9/6/98 can be found at pages 84A - 84L of the record. By a motion on notice dated 14/6/07 and filed on 15/6/07 the appellants sought and obtained an order for extension of time and the leave of this court to appeal against the ruling. The application was granted on 19/6/08. The grounds of appeal challenging the said ruling are grounds 8 and 9 of the additional grounds of appeal (not ground 12 as stated at page 4 of the appellants' brief). It is therefore not correct as contended by learned counsel for the respondents that the appellants did not appeal against the decision. Grounds 8 and 9 are competent grounds of appeal.
The motion on notice, supporting affidavit and the proposed amended statement of defence attached to the motion as Exhibit A are at pages 64 - 68 of the record. The appellants sought to add new paragraphs 15 -20 in answer to the averment in paragraph 31 of the statement of claim. In the said paragraph 31 it is averred as follows:
"In 1975, the plaintiff became aware that the 2nd Defendant and Babatunde Sowunmi (deceased) continued to perpetrate their trespassory and fraudulent practices on the family land and by plaintiff's letter to them dated 7/1/80 signed by members of family, they were warned to stand clear of Sowunmi family land or face the consequences."
Paragraph 15 - 20 of the proposed amended statement of defence read thus:
"15. With specific reference to paragraph 31 of the statement of claim, the 1st defendant states-
9a) that the plaintiff forced Jacob Folarin's signature unto the document from his sick bed;
(b) Jacob Folarin Sowunmi can read and write and he was the most literate and educated child of their late father;
(c) 1st defendant's signature was forged, he never signed the document and had not seen the document before.
16. The 1st defendant states that before and after the death of Jacob Folarin Sowunmi, the plaintiff started to devise various means by which he can gain exclusive possession of all the Sowunmi land.
17. The plaintiffs father, Emmanuel Ayodele Sowunmi, cursed him (plaintiff) during his lifetime because he ordered his father, the head of K & S Church Ebute-Metta, to wash a cup before serving him (plaintiff) with the Holy Communion wine.
His father also slapped and pushed him out from the church.
18. Apart from the land in dispute, the plaintiff is also laying claim to the land and church at no. 106 Freeman Street, Ebute-Metta as his own.
19. About 14 years ago, the plaintiff poisoned the 1st defendant. In the aftermath 1st defendant vomited a worm and wall gecko (omonile). For between 2-3 hours plaintiff ordered defendant to be taken (sic) some wine in his house every day, and defendant complied without any objection, until defendants wife (now deceased) raised alarm.
20. The plaintiff is boasting that he owns the family land at Ago-Egba which he has secretly agreed to sell to one Mr. Solesi."
The factors guiding the amendment of pleadings were succinctly stated in: Akaninwo v. Nsirim (2008) 9 NWLR (1093) 439 at 472 B - G where the Supreme Court per Tobi, JSC stated thus:
"The Court must be satisfied that the application is brought bona fide, or in good faith, and not designed to abuse the court process. ... The Court will take into consideration the totality of the content of the amendment sought vis a vis the relief or reliefs sought in the matter. In the consideration, of the nature of the amendment sought, the court will examine very closely the real issues in controversy in the litigation. The time or stage of the case when the application is brought is also an important consideration. And here, the court should take into consideration whether the applicant brought the application at the earliest opportunity in the proceedings. This will be considered in certain cases, along with the nature of amendment sought. If the application for amendment was delayed, the court should be interested to know what caused the delay."
(Emphasis supplied)
See also: Adekeye & Anor. v. Akin-Olugbarte (1987) 6 SC 268 at 280 - 281; (1987) 3 NWLR (60) 714 at 223 -224.
With regard to the proposed paragraph 15, the learned trial Judge held that the defendants' contention that Jacob Folarin Sowunmi's signature on the letter referred to in paragraph 31 was forged, is a fact that must have been within their knowledge at the time of filing the original pleading and ought to have been brought to the attention of counsel settling the pleading at the earliest opportunity. His Lordship questioned the bona fides of the allegation sought to be introduced by way of amendment particularly when the letter had been admitted in evidence as Exhibit C without objection.
He observed that no cogent reason had been given for not pleading the issue originally. He also noted that at that stage of the proceedings when the application was brought, the plaintiff had closed his case, while the first defence witness had concluded her) evidenced chief. He was of the view that the proposed amendment in paragraph 15 would not resolve any of the issue? in controversy in the suit.
His Lordship also found that the proposed amendments in paragraphs 16 - 20 would not assist the court in determining the dispute between the parties i.e. whether the land in dispute was ever partitioned and the validity or otherwise of the acquisition of portions of the land by the 2nd and 4th - 16th defendants.
I have considered paragraph 15 of the proposed amended statement of defence. A perusal of the original statement of defence (at pages 55 - 57 of the record) shows that the defendants Wily made a general traverse in paragraph 2 thereof of paragraph 31 of the statement of claim. On 26/2/98 the letter referred to in paragraph 31 of the statement of claim was tendered through PW1, Ebenezer Oladipo Sowunmi (the plaintiff, now deceased). The only objection raised by learned counsel for the defendants was that it was not pleaded. This was due to the fact that the date of the letter was given as 7/1/89 in the pleadings instead of 7/1/80. Learned counsel for the plaintiff made an oral application to amend paragraph 31 to read 7/1/80.
The application was granted without opposition.
Once the amendment was made, learned counsel for the defendants withdrew his objection. I am inclined to agree with the learned trial Judge that to seek to raise the issue of forgery after the plaintiff had closed his case and when the alleged forged document had been admitted in evidence without objection, suggests that the application was lacking in bona fides. This is even more so when the 1st defendant who deposed to the affidavit in support of the application was physically present in court on 26/2/98 when the said letter was tendered and admitted in evidence. I also agree with the learned trial Judge that whether or not the said letter was forged has rip bearing on the issues in controversy between the parties. It is a warning letter addressed to the 2nd defendant purportedly signed by Jacob Folarin Sowunmi and three other members of the family. The other signatures are not challenged. The plaintiff's case was that the land in dispute was family land that had never been partitioned and that the dealings on the land by the defendants amounted to trespass. I also agree with the learned trial Judge that while the averments
in paragraphs 16 - 20 of the proposed amended statement of defence might cast aspersions on the character of the plaintiff, they would not assist the court in determining the real question in controversy. The partition of family land is a historical fact that cannot be affected by the character of any of the family members. I am of the view and I do hold that the learned trial Judge exercised his discretion judicially and judiciously in refusing the application for amendment and that the refusal has note occasioned a miscarriage of justice. This issue is accordingly resolved against the appellants.
Issue 2
Whether the land in dispute was partitioned in 1973 during the life of Jacob Folarin Sowunmi as Head of Family as per Exhibit F?
In arguing this issue, learned counsel for the appellants traced the family tree of the Sowunmi family, He stated that Emmanuel Ayodele Sowunmi became the head of the family after the death of Hezekiah Salako Sowunmi and remained so until his death in 1954. That Jacob Folarin Sowunmi became head of the family from 1954 till he died in 1981. He stated that during Jacob Folarin Sowunmi's tenure as head of the family, the Sowunmi family land was partitioned into two parts, A and B, in favour of the children of Emmanuel Ayodele Sowunmi (first branch) and the children of Jacob Folarin Sowunmi (second branch). He submitted that the survey plan, Exhibit A made in 1989, tendered by the plaintiff shows that the land was divided into A and B parts. He submitted that Exhibit F, the survey plan made in 1975 and tendered by the defendants shows that the land was divided into parts A, B and C. He stated that parts A and B were for the two branches of the Sowunmi family while part C represents the land subsequently granted to the 2nd defendant in satisfaction of the Sowunmi family's indebtedness to him as evidenced by Exhibit E. He noted that the learned trial Judge, at page 134 lines 20 - 21 of the record found the l3nd described in Exhibits A and F to be identical. Learned counsel argued that from the time the land was partitioned in 1973 it ceased to be family land and became "branch family land".
Learned counsel observed that Exhibit F tendered by the defendants was made in 1973 but signed in 1975 because of the inability of the family to pay the surveyor's fees, which were eventually paid by the 2nd defendant in 1975. He noted that Exhibit A relied upon by the plaintiff was made in 1989. He contended that Exhibit E, titled "an agreement for sale of land" between Mr. H.A. Sowunmi, Oladipupo Sowunmi, Mr. M.B, Sowunmi, Miss Iyabo Sowunmi and Mr. Olabode Sowunmi on the one hand and the 2nd defendant, Samuel Olabode Adenugba on the other, was prepared by the plaintiff but he deliberately refused to sign it because he had ulterior motives. He submitted that even though the plaintiff refused to sign Exhibit E, it was still valid having been signed by two principal members of the family. He also stated that Exhibit E gave details of the partition of the land as between the two branches of the Sowunmi family and the land granted to the 2nd defendant marked C. He submitted that at the time Exhibit E was executed in 1975, Jacob Folarin Sowunmi, the head of the family was seriously in and that H.A. Sowunmi, one of the signatories and the plaintiff's older brother, was the oldest member of the family in good health. He submitted that H.A. Sowunmi executed Exhibit E as acting family head alongside other family members. He argued that the learned trial Judge failed to accord the necessary evidential value and effect to Exhibit E. He submitted further that partitions or partition agreements are not required by law to be in writing. He referred to: Idewu v. Hausa (1936) 13 NLR 96; Taiwo v. Taiwo (1958) 3 FSC 80 at 82: Sanni v. Akintnla (1958) LLR 107.
Learned counsel submitted that the plaintiff was estopped from refusing to execute Exhibit E because he was one of the family members who instructed the 2nd defendant to secure the services of a surveyor. He submitted that the plaintiff's conduct had led the 2nd defendant into taking an action that caused him to incur substantial expense. He submitted that it was too late for him to rescind from the agreement that gave rise to Exhibit E.
He relied on: Lion of Africa Insurance v. Fisayo (1986) 4 NWLR (37) 674 at 685.
Learned counsellor the respondents in response to this issue, referred to the evidence of the plaintiff at pages 73 and 74 of the record to the effect that from the time of his father as head of the family up till the time he testified in court, the land in dispute had always been held and managed by successive family heads as Sowunmi family land. He submitted that the evidence in this regard was never challenged. He noted that the plaintiff testified emphatically that the land had never been partitioned. He submitted that a perusal of both Exhibit A and F would reveal that the division of the land into A and B is due to an N.N.P.C. pipeline that runs through the land and not a partition. He referred to Exhibit F and argued that since the 2nd defendant was not a member of the Sowunmi family he could not have been involved in the partition of the land. He submitted that the family could not have contemplated the N6, 500.00 he allegedly paid on their behalf to the, surveyor at the time the plan was drawn. He submitted that Exhibit E, the sale agreement was not signed by all responsible members of the Sowunmi family as required by law.
He referred to Section 139 of the Evidence Act and submitted that the burden of proof of a particular fact lies on the appellants who wish the court to believe in its existence. He conceded that partitiori is one of the ways of determining ownership of family property. He relied on: Abraham & Anor v. Olorunfunmi & ors. (1991) 1 NWLR (165) 53; Olowosago & Ors. v. Adebayo & Ors. (1988) 4 NWLR (88) 275. He submitted that in