➥ CASE SUMMARY OF:
Alhaja Moriyamo Adesanya v Adetayo Olaitan Otuewu (1993) – SC
by Branham Chima (SAL).
Supreme Court – SC.217/1989
(1993) 1 NWLR (Pt.270) 414
➥ JUDGEMENT DELIVERED ON:
Friday, 22nd January, 1993
➥ AREA(S) OF LAW
Proof of title;
➥ PRINCIPLES OF LAW
⦿ PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE
It is trite law that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case: Kaiyaoja v. Egun(a (1974) 12 S.C. 55. — Olatawura, JSC.
⦿ COURT CANNOT LOOK FOR EVIDENCE WHERE A PARTY ABANDONS HIS PLEADINGS
Once a party abandons his pleadings it is not the business of the court to look for evidence from the other party so as to base a case on facts which the plaintiff does not plead and cannot rely upon. Judgment is given in respect of material facts pleaded and proved at the trial. The parties as well as the court cannot go outside the pleadings. Facts are pleaded, evidence is led in support of the pleadings. The court is therefore bound to adjudicate on the issues arising from the pleadings. Where therefore evidence led is not based on the facts pleaded such evidence goes to no issue: Emegokwue v. Okadigbo (1973) N.S.C.C. p.220. — Olatawura, JSC.
⦿ REGISTRABLE UNREGISTERED INSTRUMENT CAN BE USED AS PROOF OF SALE OF LAND
On the findings of the Courts below, respondents have only claimed possession, not even exclusive possession. Chief Ajayi, S.A.N. has submitted that if Exhibit C was the basis of defendants’ title, and requires registration under the Land Instrument Registration Law Cap, 65 to constitutes evidence in this case, and is not registered to be admissible, not being registered it was inadmissible. The Court below ought not have relied on Exhibit C for rejecting the grant of the land in dispute. Exhibit C is however admissible as an acknowledgment of the receipt of money and gifts to Medusope Family. Our Courts have held in several cases that payment of purchase money and delivery of possession to a grantee creates a valid title by native law and custom – See Ogunbambi v. Abowaba 13 WACA. 22. On this principle appellant on the facts which was neither denied nor challenged had a valid title. In the circumstances the mere possession relied upon by the Court below ought not have been relied upon to defeat the claim to title of the appellant established on the facts. — Karibe-Whyte, JSC.
⦿ REGISTRABLE UNREGISTERED INSTRUMENT CAN BE PROOF OF PAYMENT
I believe that the true position in law is that where a ‘ document such as Exh. C is itself one which limits, extinguishes or transfers title, then if it turns out to be invalid or inadmissible for being an unregistered instrument the whole transaction is invalid. But where as in this case the document is a mere evidence of a transaction already completed, it can be good evidence of receipt of money but its invalidity or inadmissibility will not affect the validity of the transaction. It appears to me that the part of the transaction between the defendant and the Medusope family which took place before the execution of Exh. C, that is payment of purchase money and being let into possession, which was further evidenced by the defendants survey of the land and preparation of plan No. BPO 863 BUGXII on 28/3/78, were sufficient to transfer the title to her under customary law. See on this Isaac Talabi Ogunbambi v. Adeniji Soyonbo Abowaba (1951) 13 WACA 222: also Griffin v. Talabi (1948) 12 WACA 371. — Nnaemeka-Agu, JSC.
⦿ PLAINTIFF SHOULD SHOW CLEARLY AND PROOF NATURE OF HIS POSSESSION
In a plaintiff’s pleading, he is required to show clearly and prove the nature of the possession which he is relying upon to sustain his action in trespass, that is whether he is relying on bare possession or on his possession or right to possession based on his title to the land. The rule of audi alteram partem, which is incorporated in our rules of pleadings postulates that a man must know the nature of the case which he is to meet in court. This is also a clear implication of the constitutional provision of fair hearing guaranteed by section 33 of our Constitution of 1979. As such is the case, a plaintiff cannot in his pleadings aver exclusive possession or right to possession based on title but, having failed to prove it, be allowed to succeed on bare possession. — Nnaemeka-Agu, JSC.
⦿ HEAVY BURDEN IS ON HE WHO ASSERTS AGAINST FAMILY LAND
Having found that the plaintiffs failed to prove either ownership or exclusive possession which they pleaded the court below ought to have held that they d id not prove their case and should have dismissed it. The onus of proof was on the plaintiffs. Moreover, it must be borne in mind that it has been established by a long line of decided cases that one of the incidents of our traditional communal ownership of land is that once it is admitted that a particular piece of land belongs to a family, the law places a rather heavy burden of proof on any person or group which asserts exclusivity of ownership or possession against the family or any person claiming through them. Mere evidence of occupation and user by a member of the family is not conclusive as against the family or a person who claims through the family. — Nnaemeka-Agu, JSC.
⦿ HOW PLEADING OF FACT IS DONE
How now should the respondent have pleaded the invalidity of the transaction? In considering whether the invalidity of the transaction was pleaded, I must bear in mind the fact that pleadings are no longer required to be technical in formulation. Subject to the requirement that parties must not offend against any of the known rules of pleadings as laid down by law, such as that they should not plead evidence or omit to plead facts which, when proved, may result in surprise to the other side, or facts which are frivolous or vexatious, or which may tend to prejudice, embarrass or delay the trial of the action, all that a pleader is now required to do in such a case is, where necessary, to allege illegality or invalidity and plead facts from which inferences of law thereof could be drawn: see on this Knowles v. Roberts (1888) 38 Ch.D. 263, at p.270 to 271; Willis v. Lovick (1901) 2 K.B. 195. That is the proper rule. But the court will itself take notice of the illegality or invalidity of a contract on which a party is relying if it appears on the face of the contract or from the facts pleaded, although the party has not expressly averred that it is illegal or invalid: see Windhill Local Board v. Vint (1890) 45 Ch.D 357; Gedge v. Royal Exchange Assurance (1900) 2 Q.B. 214. — Nnaemeka-Agu, JSC.
⦿ THE ILLEGAL PART OF A CONTRACT CAN BE SEVERED FROM THE OTHER LEGAL PART
This is because it is a recognized principle of law that a contract will rarely be totally illegal or void: certain parts may be entirely lawful in themselves, while others are valid. Where the illegal or void parts can be “severed” from the rest of the contract on the well-known principles of severance such will be done and the rest of the contract enforced without the void part. It is permissible for courts to adopt this course where the objectionable part of the contract involves merely a void step or promise and is not fundamental, and it is possible to simply strike down the offending part without re-writing or remaking the contract for the parties and without altering the scope and intention of the agreement; and lastly, the contract, shorn of the offending parts, retains the characteristics of a valid contract. See on these Vol. 9 Hals. Laws of England (4th Edn.) p.297 in paragraph 430. See also Commercial Plastics Ltd. v. Vincent (1964) 3 All E.R. 546, C.A. — Nnaemeka-Agu, JSC.
⦿ IN YORUBA CUSTOM WHERE NO HEAD OF FAMILY HAS BEEN NOMINATED
The problem raised by the peculiar fact of this case is, however, this: what is the position where no family head existed at the time. It is true that under English Law, equity does not lack a trustee: where there is none equity will constitute one. As the head of the family under Nigerian law is a trustee of a type will equity allow a vacancy in his position in such away as to defeat the right of a third party? I think not. For to do so could have disastrous consequences both to family interest and those of third parties. Now traditionally, under Yoruba customary law where no head of the family was nominated by a deceased father of the family (see Sogbesan v. Adebiyi 16 N.L.R. 26) or appointed by the members of the family, the eldest surviving male (Dawodu) is the head of the family: see Lewis v. Bankole (1908) 1 N.L.R. 82, although it was recognised that a woman could also be the head of the family (Taiwo v. Sarumi (1913) 2 N.L.R.106). — Nnaemeka-Agu, JSC.
⦿ WHERE NO HEAD OF FAMILY, PRINCIPAL MEMBERS SALE OF FAMILY LAND IS VALID
But even if I agree with the courts below that there was no head of the family at all times material to the agreement, l would still have held that they were wrong to have held that the transaction was void on the principle in Ekpendu v. Erika (supra). It is noteworthy that in that case, the head of family was in fact Erika. Not only was he known and very much alive, but also it was he who challenged the transaction. Indeed, one common feature in all the cases cited in the judgment or relied upon in arguments is that in each case the head of the family was alive and known but the transaction nonetheless went ahead without his consent. In the instant case, if there was no head of the family, there was nobody whose consent could have been obtained and so no ground for declaring the transaction void. I therefore agree with Chief Ajayi that were as found by the learned trial Judge in this case, there was no head of the family, a sale of the family land by the principal members of the family acting for themselves and on behalf of the other members of the family is valid – at least until it is set aside. — Nnaemeka-Agu, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Chief G.O.K. Ajayi, S.A.N.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
It is a case fought by a section or a branch of Medusope family claiming absolute title and possession to a land in dispute as against the present appellant who claimed to have bought the land from the entire family of Medusope and of which she is a member.
The case was fought principally on whether the land in dispute belongs absolutely to a section of the family.
The case of respondents who were plaintiffs at the court of trial was that their family Medusope consists of six branches. They traced their root of title to their ancestor, one Ogunnesi. Ogunnesi begat Okunuga who was survived by six children. They averred also that it was over 100 years ago that Medusope family started to farts on the land now known as Medusope farmland and that each section of the family has its own separate portion over which members of each section farm and plant various crops without any hindrance from any other section of the family. It was also argued that the present appellant who was the defendant at the court of trial was not a member of Medusope family and that since the plaintiffs’ branch, that is Otuewu section of Otuewu family, did not sell the land in dispute to the appellant she was therefore in trespass. They claimed also perpetual injunction restraining her and her agents from committing any other form of trespass.
The appellant, on the other hand, claimed to be a member of Medusope family and that the land in dispute was sold to her by members of Medusope family. A document was prepared. This document admitted in evidence as Exh. C featured prominently both in the lower court and in this court. She also claimed to have been put in possession by members of the family and therefore denied the claim of the present respondents.
The case went to trial, witnesses were called on both sides and after a review of the evidence and the authorities cited, the learned trial Judge, Odunsi, J. gave judgment in favour of the plaintiffs. He also dismissed the counterclaim filed by the defendant. Before going to the merits of this case, I will point out that the respondents, that is the plaintiffs at the court of trial filed a reply and defence to the Amended Statement of Defence and counter-claim.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court of Appeal was right in holding that the plaintiffs had in their pleadings raised the issue of the validity of the sale of the land in dispute to the defendant?
RULING: IN APPELLANT’S FAVOUR.
A. THE PLAINTIFF’S FAILED TO PROVE THEIR POSSESSION OF THE ENTIRE LAND AS THEY HAVE PLEADED
“Where a party claims for damages, trespass and injunction, such a party has put the title of the land in issue. There is no doubt that from the claim and pleadings the appellant and the respondents have put title in issue. As stated earlier, it is not in dispute that the land belongs to Medusope family, but since the respondents’ claim is based mainly on exclusive title and possession of the land in dispute as against the entire Medusope family, the plaintiffs must prove that there has been a partition of the Medusope family.”
“This becomes glaring when in reply to the counterclaim the respondent’s in paragraph 10 of the reply which I will have to quote again averred thus: “10. With reference to paragraphs 15, 20, 24 and 25 of the Amended Statement of Defence and Counter-Claim the plaintiffs say that although the whole area settled upon by all the Branches of Medusope Family is still known collectively and called Medusope Family Land but specific Branch Families from time immemorial occupy definite specific areas EXCLUSIVELY AS THEIR OWN and have been in occupation…………………………………………….” (Capitals supplied). The learned trial Judge having found that the respondents have failed to prove that the Medusope family land has been partitioned should have dismissed the plaintiffs’ claim which postulates title to the land in dispute. The respondents cannot now be allowed to rely on the title of Medusope family so as to defeat the claim of the appellant who claimed to have derived her title from Medusope family. It will be a departure from their pleadings: Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; (1985) 2 NSCC 1298; Airoe Con. & Civil Engr. Co. Ltd v. UNIBEN (1985)1 NWLR (Pt.2) 287; (1985) 1 NSCC 312.”
“The claim, the pleading and evidence led by the respondents are to the contrary. Their claim is exclusive ownership of the entire family property of Medusope and the burden is on them to prove this: Ajaghe v. Akanni (1973) 11 S.C. 47. Furthermore to allow the respondents to take refuge under the umbrella of Medusope Family at this late stage will only allow them to approbate and reprobate.”
B. THERE WAS A VALID SALE TRANSACTION TO THE APPELLANT
“She was not cross-examined on this important aspect of payment of N400.00, presentation of sheep, bitter kolanuts, etc. Neither was her evidence that she was put in possession by the family challenged. It was worth repeating if only to reemphasise the nature of her grant that it was after the customary presentation of the gifts that Exhibit C came into existence. This I had earlier said was evidence of receipt. It is not correct as contended in the respondents’ brief that the appellant said she bought the land “on two different occasions.” See paragraphs 3. 6 on page 4 of the Respondents’ brief. It is therefore a misconception of the appellant’s case by the lower court to think that the appellant relied on Exhibit C as evidence of sale. Exhibit C merely recorded the transaction of the payment of money and the gifts made to the family by the appellant. The case of J.E. Ehimare & Anor v. Okaka Emhonyon (1985) 1 NSCC 163 or (1985) 1 NWLR (Pt.2) 177 relied upon by Chief Adefala in his brief that the appellant “put forward a different story that the purported sale was made on two different occasions” as a case contrary to the appellant’s pleading overlooked paragraphs 8 and 9 of the Amended Statement of Defence and Counter-Claim already reproduced above. The authority of this case strengthens the case of the appellant. l agree with Chief Ajayi, S.A.N. that there was no specific and in fact effective challenge to the sale transaction.”
“The plaintiffs were carried away by Exhibit C which was inadmissible for non-registration forgetting the other aspect of the appellant’s case where she paid money etc. and was put in possession.”
“It is pertinent to observe that the appellant did not only plead and rely on Exhibit C as evidence of the transaction of the sale of the land in dispute. There was also a distinct and separate plea in paragraphs 8 and 9 of the amended statement of defence already reproduced in this judgment. Paragraphs 8 and 9 of the amended statement of defence clearly show that appellant paid the purchase price, made customary gifts and was put in possession. It is well settled law that the payment of purchase price coupled with being put in possession confers an equitable title enabling a purchaser in possession to call for a document of title. The title so acquired is capable of defeating subsequent purchasers – See Ogunbambi v. Abowaba 13 WACA 222.”
C. THE ISSUE OF FRAUD DOES NOT ARISE FROM THE CASE OF THE APPELLANT
“A heavy weather was made of Exhibit C on the ground that it was tainted with fraud. If the appellant’s claim to the land had been through Chief Taiwo Otuewu section of Otuewu branch and for her to rely on Exhibit C as emanating from the said Chief Taiwo Otuewu section then the issue of fraud against the Otuewu family would have been a valid ground. Medusope family who granted the land to the appellant (and be it noted that the respondents have denied Medusope family title) did not complain of fraud, it does not lie in the mouth of Taiwo Otuewu section to say that a fraud has been committed on Medusope family. Medusope family gave evidence that they put the appellant in possession. One may legitimately ask: where lies the fraud? The question of fraud does not arise since the court of trial held that the land did not belong to the plaintiffs. The respondents are trying to exploit the situation that if the appellant relied on Exhibit C which is inadmissible, consequently they must succeed. It is trite law that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case: Kaiyaoja v. Egun(a (1974) 12 S.C. 55.”
“The appellant has succeeded in proving title through Modusope family, it will therefore be inequitable to grant injunction not only against her but against the family through whom she derived title. In sum, I will allow the appeal; set aside the judgment of the lower coup dated 3rd day of June, 1987 and I will make the following orders: The claims of the plaintiffs who are the respondents in this Court are hereby dismissed. The costs awarded in favour of the plaintiffs against the defendant are hereby-set aside. There will be judgment in favour of the defendant/appellant in her counter-claim in respect of the four plots of land delineated in survey Plan No. BPO 863 Block XII as Plots Nos. 1, 2, 3 and 4 admitted and marked Exhibit 1 in the said proceedings; Costs in the High Court in favour of the defendant are assessed at N500.00. Costs in the Court of Appeal are assessed at N300.00 in favour of the defendant/respondent. Costs in this Court are assessed at N1,000.00 in favour of the defendant/appellant.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ ILLEGALITY OF A CONTRACT VIS-À-VIS PLEADINGS
In Northern Salt Co. v. Electroytic Alkaki Co. (1914) A.C. 461, Viscount Haldane, L.C., stated this rule at page 469, thus: “My lords, it is no doubt true that where on the plaintiff’s case it appears to the court that the claim is illegal, and that it would be contrary to public policy to entertain it, the court may and ought to refuse to do so. But this must only be when either the agreement relied on is on the face of it illegal, or where, if facts relating to such an agreement are relied on, the plaintiff’s case has been completely presented. If the point has not been raised on the pleadings so as to warn the plaintiff to produce evidence which he may be able to bring forward rebutting any presumption of illegality which might be based on some isolated fact, then the court ought not to take a course which may easily lead to a miscarriage of justice. On the other hand, if the action really rests on a contract which on the face of it ought not to be enforced, then, as I have already said, the Court ought to dismiss the claim, irrespective of whether the pleadings of the defendant raise the question of illegality.”
⦿ THERE MUST BE A SPECIFIC DENIAL OF PLEADINGS BY THE OTHER PARTY
In the case of Messrs. Lewis & Peat (N.R.I.) Ltd. v. Akhimien ( 1976) 7 S.C. 157 at page 163-4 where he stated: “We must observe, however, that in order to raise an issue of fact in these circumstances there must be a proper traverse: and traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: ‘defendant is trot in a position to admit or deny (the particular allegation on the statement of claim) and will at the trial put plaintiff to proof.” … We are, of course, not unmindful of the first paragraph of the statement of defence. Nowadays almost every statement of defence contains such a general denial. (See Warner v. Sampson (1959) 1 Q.B. 287 at 310-311. However, in respect of essential and material allegations such a general denial ought not be adopted; essential allegations should be specifically traversed. (See Wallersteins v. Moir (1974) 1 W.L.R. 991 at 1002 per Lord Denning, M.R.; also Bullen & Leake & Jacobs, Precedents of Pleadings 12th Edition 83).
➥ REFERENCED (OTHERS)