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3PLR – GANIYU
BADMUS V. A.O.
ABEGUNDE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

3PLR –
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AKINOLA MAJA 3PLR – FIRST

BANK OF NIGERIA

V. PLC V. HON.
JUSTICE

AUGUSTUS RUFAI SULU ABUBAKAR

ALKALI ABBA

FEDERAL SUPREME COURT OF NIGERIA

7TH JULY, 1958.

F.S.C.260/1957

3PLR/1958/51 (FSC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:

SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided and Read the Judgment of the Court)

WILFRED HUGH HURLEY, AG. F.J.

SAMUEL OKAI QUASHIE-IDUN, AG. F.J.

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]

MAIN ISSUES

LAND LAW – Declaration of title – Acts of possession – Non cultivation of land – Whether evidence that
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LAND LAW – Declaration of title – Family property – Calling member of family to testify to title –
Necessity of.

LAND LAW – Family property – Family made up of two branches – Only a branch executing deed of
conveyance – Effect.

REPRESENTATION:

Of ine
MAIN JUDGMENT

ADEMOLA, F.C.J. (Delivering the Judgment of the Court):

On the 23rd June, 1958, the Court dismissed this appeal with costs to the respondent allowed at 32
guineas and intimated at the time that the reasons for the judgment would be given later.

The appellant has appealed against the judgment of the High Court, Lagos, declaring the plaintiff-
respondent as lawful owner of a piece of land at Idi-Oro in the environs of Lagos.

At the trial the plaintiff-respondent based his title on a deed of conveyance dated 1.9.25. which recited
that the land had been sold since 1913 to the purchaser, one Sinabu Lajumoke, by one Fafunmi, head of
Eyisha family who owned the land. The defendant-appellant relied on a deed of conveyance dated 1920
by one Fasinro to one Peters.

The learned trial Judge in his judgment examined the root of title in each case and found that the
plaintiff’s title to the land was better than that of the defendant and so made a declaration in his favour.

The three grounds of appeal filed are as follows:

1. The learned trial Judge erred in law and on the facts in holding:”I find therefore that the land was
originally Eyisha family land and it has not been shown that Fasinro ever acquired title to it. In my
view this is fatal to defendant’s title when compared with plaintiff’s.”

2. The learned trial Judge misdirected himself on the evidence and thereby came to an erroneous
decision in holding:- “First the family took no action to evict Lajumoke and secondly in 1925 some
10 years after the settlement and the decision that conveyances would be executed only in favour
of other purchasers who paid additional sums Fafunmi as head of the family executed a
conveyance to Lajumoke.”

3. The judgment is against the weight of evidence.

In his arguments on the first and second grounds, Counsel for the appellant submitted that it was not
established before the learned trial Judge that the land originally belonged to Eyisha family as no
member of that family was called to say so. We do not think it was necessary to call a member of Eyisha
family in the circumstances since the head of the family has executed a conveyance (Exhibit 4) in which
he purported to have conveyed on behalf of the family as beneficial owner. Further, the argument is
without weight in as much as the defendant-appellant himself in a previous litigation in respect of the
land in dispute – see Exhibit 14 tendered by the defendant -made a claim to the land through the Eyisha
family. In that case (Exhibit 14) the present defendant – appellant staked his claim to the land, as
against the then defendant, on the ownership of Eyisha family; he contended that Fasinro, on whose
title he based his claim, was head of that family. The assertion that Fasinro was head of Eyisha family
was never proved nor was it established then or in the present litigation. In fact, the evidence in Exhibit
14 (tendered by the defendant-appellant), was that he was never the head of Eyisha family. His
relationship to the family was never at any time in the proceedings clearly established.

The appellant’s Counsel then argued that the family consisted of two groups, namely, the Eyisha family
and the Osu family; that since the land in dispute belonged to the two groups, the head of each group
should have executed the deed of conveyance (Exhibit 4) on which the plaintiff based his root of title. He
contended that as only the head of Eyisha group executed the deed of conveyance, the transfer was
ineffective. It is clear, however, from an earlier proceedings in 1913 which was marked Exhibit L in
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Exhibit 14, put in evidence in the present proceedings, that the main family is Eyisha family and the
Apeno Osu family merely form a branch of the family.

In that 1913 case (See Exhibit L in Exhibit 14) different branches of Eyisha family, namely Osu Apeno
family and others complained that Fafunmi had been selling family land without their consent. Fafunmi,
on the other hand, alleged that they were not members of the family and sought to oust them. It was
not suggested or contended that Fafunmi was not head of the family. A settlement was arrived at on the
case; the dispute was settled and judgment was entered in the terms of settlement, it being agreed that
Osu Apeno and others be declared members of the family of Eyisha and that various purchasers of
portion of the family land be made to pay an amount, varying in sum according to the extent of land
purchased, to Osu Apeno and his people before they were put in possession of the land sold to them by
Fafunmi. Lajumoke, from whom the present plaintiff derives his title, was asked to pay £20. (See Exhibit
Of ine
L in Exhibit 14 in this case).

The arguments by the appellant’s Counsel that the interest of the Apeno Osu family was not declared in
the conveyance Exhibit 4 and that a member of the family did not execute the conveyance with Fafunmi
appears unmaintainable since the principal family is the Eyisha family and Apeno osu is only a branch,
the greater having absorbed the less. It was further argued that there was no proof before the learned
trial Judge that Lajumoke paid the £20 she was adjudged by the family to pay before she was to be put
in possession of the land. The learned trial Judge, in our view, drew the right inference that although
there was no other evidence to substantiate the evidence of Lajumoke’s daughter that her mother paid
the £20, the fact that the family took no steps to evict Lajumoke from the land and also that ten years
later Fafunmi, as head of the family, executed a conveyance in her favour are all evidence from which it
can be rightly inferred that she had paid the £20 or that the payment must have been waived by the
family. There was apparently no evidence before the learned trial Judge that any other, but Fafunmi,
executed a deed of conveyance as head of the family to any other purchaser from Eyisha family.

Counsel for the appellant also argued that the original purchaser Lajumoke, from whom the plaintiff-
respondent claimed, did not cultivate the land and therefore was never in possession of the land.

It was submitted that as she was never in possession there was hardly any need for eviction. There was
clear evidence that the land at the time it was bought 44 years ago was virgin land. Osenatu, daughter
to Lajumoke, stated that she and her mother went frequently on the land to inspect it and they drew
water from a well sunk on the land. There was hardly anything one could do on a virgin bush in that far
off area of Lagos 44 years ago; it is common knowledge that the area developed only about 15 years
ago. Non-cultivation of land is certainly not enough ground to arrive at the conclusion that an owner is
not in possession.

This disposes of the first two grounds of appeal.

The argument on the third ground of appeal centred round the fact that the land in dispute was at one
time sold to a third party by one Imoru who executed a deed of conveyance Exhibit 16 tendered by the
defendant. This argument, in our view, does not strengthen the defendant’s claim. There is hardly any
doubt, judging from various proceedings in Court, and it is common knowledge that land in this area
was sold indiscriminately, sometimes to two or more purchasers by one owner or a supposed owner. In
the deed of conveyance Exhibit 16, the vendor Imoru claimed to be a son to the original purchaser
Lajumoke (from whom the plaintiff claims); and from the evidence before the learned trial Judge, it was
clear that Imoru was a grandson of Olajumoke. His mother, Osenatu, in her evidence, stated that she
and her sister asked her son Imoru to sell the land by public auction and that when it was sold a
conveyance was executed. The sale by Imoru was in 1948 and the conveyance was executed by Imoru
himself. It is evident that this was an unauthorised sale and it had nothing to do with Osenatu and her
sister.

The sale to the plaintiff was in 1949 and Osenatu (Imoru’s mother) and her sister, Ashiata Apike, both
executed the conveyance (Exhibit 3). We failed to see how this helps the defendant’s case.

The appeal, therefore, failed on all grounds and was therefore, dismissed with 32 guineas costs.

HURLEY, AG. F.J.: I concur.

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QUASHIE-IDUN, AG. F.J.: I concur.

Appeal Dismissed

Law Nigeria Admin

Of ine

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