⦿ CASE SUMMARY OF:
Mr. Joel Olayinka Salaja v. Chief Samuel Babatunde Osuporu Salaja & Ors (2013) – CA
by PipAr Chima
⦿ LITE HOLDING
Family land is owned by the family until partitioned.
⦿AREA OF LAW
Olowo of owo
Mr. Joel Olayinka Salaja
Chief Samuel Babatunde Osuporu Salaja & Ors.
(2013) JELR 35416 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
SOTONYE DENTON WEST, J.C.A
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FINDING OF FACT
The facts of this case are that the Appellant and the Respondent are members of Salaja family of Owo, Ondo State. The land upon which the house in dispute was built was given to the Salaja’s family by the then Olowo of Owo. Appellant’s case was that his father who held the Salaja chieftaincy title before the present one solely built the house No. 26 Oke-Ogun Street, Owo, subject matter of this suit and therefore that he inherited same from his father.
The Respondent on the other hand contend that the land upon which the house was built is part of unpartitioned Salaja family land. And that the house is the chieftaincy stool of the Salaja family which is usually occupied by any person holding the Salaja chieftaincy title. That the house was before the Appellant’s father was made the Salaja a mud house with thatched roof. When the Appellant’s father became the holder of Salaja, he moved into the house and the entire family members contributed and rebuilt the house. Parties agreed that Salaja family land has not been partitioned.
The Appellant as plaintiff at the Lower Court instituted this action via Writ of summons and Statement of Claim praying the Court for the following reliefs:
1. A declaration that the plaintiff’s father was the valid holder of the title (both possessory and proprietary customary right) over the building situates, lying and being at No. 26, Oke-Ogun Street, Owo, the subject matter of this suit.
2. A declaration that the 1st defendant is not entitled to the use, occupy, convert, converge, assemble and/or hold any meeting in any way or manner whatsoever contrary to the plaintiff’s occupation and right to the property situate, lying and being at No. 26 Oke-Ogun Street, Owo, the subject matter of this suit.
3. A declaration that the plaintiff’s father’s property situate lying and being at No. 26, Oke-Ogun Street, Owo (the subject matter of this suit) is/was not a traditional/Chieftaincy “stool or house” of any Salajas that ever reigned in Oke-Ogun, Owo.
4. A declaration that the 1st defendant is not from a male lineage of the plaintiffs family and as such his title (Salaja) is not recognizable by the plaintiff.
5. An order of perpetual injunction restraining the defendants by themselves, their servants, their agents, or privies or anybody claiming through them from interfering with or affecting in any manner whatsoever the possessory and proprietary right (customary right) of the plaintiffs over the building situate, lying and being at No. 26, Oke-Ogun Street, Owo, the subject matter of this suit.
6. The sum of N500,000.00 as damages for the publication by the 1st defendant’s “Ajo Feast” holding on 26th June, 2008 at the plaintiff’s house at No. 26 Oke-Ogun Street, Owo, the subject matter of this suit.
1. Whether the 1st Respondent’s Counterclaim was statute barred.
2. Whether the award of N200,000.00 general damages in favour of the 1st Respondent was properly made.
3. Whether the Lower Court was justified in dismissing the claims of the Appellant.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I have no difficulty in holding that this counterclaim is not statute barred because Section 1(2) of the Limitation Law of Ondo State 1978 provides inter alia as follows: “Nothing in this law affects actions in respect of the title to land or any interest in land held by customary tenure…” This is so for the reason that it is clear from the records that both parties are members of Salaja family. Salaja family property has not being partitioned. Ipso facto, it is subject to customary land tenure. Moreso, parties are in agreement that the land belongs to Salaja family. The case of the Appellant is that his father built the house. May be the land is floating in the air and not on Salaja family land. This the Appellant has not shown. The appellant should be aware of the old adage that he who owns the land owns whatever is on the land. The principle is quic quid plantatur solo solo cedit.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. At page 104 of the records, the learned trial judge made reference to the antagonistic conduct of the Appellant towards the Respondent at the trial. Indeed at page 105 of the record, the learned trial judge stated inter alia thus: “… it is not in doubt that the Plaintiff has admittedly done everything possible to frustrate the 1st Defendant from having access to this chieftaincy house in question and has thus subjected the 1st Defendant to stress. The Plaintiff has shown so much disdain for constituted authority by his actions toward the first Defendant. He wants to constitute himself a law unto himself and this must not be allowed to happen. The 1st Defendant as admitted by both the Plaintiff and the defence is the current Salaja, having been so appointed by the Olowo of Owo. There has been no challenge to the appointment of the 1st Defendant as Salaja by the Plaintiff or anybody for that matter. Instead of taking the normal process of challenging the appointment of the 1st Defendant by following due process, the Plaintiff has shamelessly resorted to self help and vowed to make the title a nightmare to the 1st Defendant. I have no doubt that this world will be unsafe and a living hell if people like the Plaintiff are allowed to behave as they please and take laws into their hands with impunity…”
Having found that the house in question is a chieftaincy house and that the plaintiff has indeed constituted himself into a stumbling block in preventing the 1st Defendant to have access, I am convinced that the 1st Defendant is entitled to general damages for the conduct of the Plaintiff.
ii. Consequently from the evidence and the conclusions arrived at by the trial court who had the opportunity of observing the parties and their respective witnesses’ demeanor, it is obvious that the acts of the appellant must have been so despicable towards the 1st Respondent that stakeholders in chieftaincy and family issues would readily agree that the Salaja has been treated with utter contempt by the appellant. Our good traditional and family values of respect should not be allowed to fizzle out. My conviction is further strengthened by the fact that the Appellant did not controvert the findings in this appeal.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is trite that an unpartitoned family land is prima facie family land. And a holder of such unpartitioned family land cannot devise same to his children; See OKE v. OKE (1974) ALL N.L.R.401. Granting the relief of the Appellant will run counter to the time tested principles enunciated in the above authorities. Thus, the finding of fact by the learned trial judge as contained on page 98 of the record to the effect that until it is proved that family land has been partitioned; individual members of the family have no distinct interest in the land which is alienable, cannot be faulted by any stretch of imagination. This is because family land are ancestral heritage of all members of the family, which by its very nature are owned and enjoyed communally by virtue of one being a member of that family. The incidence of heritage presupposes that the ancestors of the family acquired the land for the benefit of their children. Their children did not toil to acquire same. Their peaceful and communal enjoyment of family land fosters spirit of brotherhood and engenders stronger family ties. This is to be encouraged. Therefore for a member of family to claim exclusive ownership of land as in this appeal, by grant as claimed by the appellant, he must prove by credible evidence that there was a grant of that portion of family land to him or as in this case, to his father; the period the grant was made and the nature and/or type of grant; whether absolute or limited grant. The appellant herein could not prove these by credible evidence. All he could prove was that his father lived in that house and upon his father’s death, he inherited the house. The appellant has not renounced his membership of Salaja family. To this extent, I also resolve this issue in favour of the Respondent.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
Section 1(2) of the Limitation Law of Ondo State 1978 provides inter alia as follows: “Nothing in this law affects actions in respect of the title to land or any interest in land held by customary tenure…”
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
By its nature and necessary implications, the preliminary objection has to be taken first. – Denton West JCA. Salaja v. Salaja (2013)
It is trite law that one issue can contain many consistent grounds of appeal, but a single ground of appeal cannot give rise to two or more issues. – Denton West JCA. Salaja v. Salaja (2013)
It must be emphasized that declaratory reliefs are not given just for the asking. A party seeking declaratory relief must satisfy the court by cogent and proven evidence that he is entitled to such declaration. It cannot be proved half way. Where parties, as in this case, are in agreement that the land in dispute is a family land or originally founded by a family, any party who claims exclusive ownership of the land or part thereof must fail unless he is able to plead and prove by evidence how that exclusive ownership or title devolves on him. – Denton West JCA. Salaja v. Salaja (2013)
It is trite that an unpartitoned family land is prima facie family land. And a holder of such unpartitioned family land cannot devise same to his children; See OKE v. OKE (1974) ALL N.L.R.401. – Denton West JCA. Salaja v. Salaja (2013)