➥ CASE SUMMARY OF:
Bisiriyu Agbomeji v. Liadi Bakare & Ors. (SC.312/1991, 3 Jul 1998)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Family land partition.
➥ CASE FACT/HISTORY
The claims of the plaintiff who is the appellant in this court against the defendants (herein respondents) as endorsed on his amended writ of summons filed on 12th October, 1977 are as follows: ‘1. Declaration that all the entire property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom. 2. Partition of the said land into four parts amongst the four branches of the family namely: Ogeye Longe (ii) Otubose (iii) Otuberu and (iv) Otuboni. 3. ₦6,000,00 being both special and general damages for trespass to the plaintiff’s building on the land in dispute.’
A statement of claim was filed on behalf of the appellant on 14th June, 1976 and to it a composite plan was attached. After the learned trial Judge had fixed the case for trial on 27th and 28th September, 1977, the appellant sought and obtained leave to amend the statement of claim. The amended statement of claim was further amended by court order dated 12th February, 1979. The respondents, on the other hand, made several applications filed on their behalf to amend the statement of defence. The final amended statement of defence was filed on 12th June, 1981.
The appellant, in response thereto, filed a reply on 3rd July, 1981.
The facts of the case are not in dispute and I do not propose to set them out here. The case went to trial after the exchange of pleadings and following the addresses of counsel, the learned trial Judge, Agoro, J, held that the case succeeded in part.
For his claims for partition of family land and also for ₦6,000,00 special and general damages, these were dismissed. The learned trial Judge, however, ruled that the appellant was entitled to a declaration that the entire landed property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom. Aggrieved by this decision, the appellant appealed to the Court of Appeal, Lagos Division (Coram: Nnaemeka-Agu and Kutigi J.J.C.A. as they were then as well as Kolawole, J.C.A who wrote the leading judgment) and dismissed the appeal with costs to the respondents.
➥ ISSUE(S)
I. Whether the learned Justices of the Court of Appeal were right In affirming the finding of the learned trial Judge that the plaintiff/appellant did not prove any allocation of land to him by the head and principal members of the family?
II. Whether the learned Justices of the Court of Appeal were right in holding that the appellant did not make out a case for partition of the family land?
III. Whether, having regard to all the circumstances of this case, particularly issues of fact not resolved at the trial, a retrial ought to be ordered?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE APPELLANT PROVED ALLOCATION OF LAND TO HIM; TRIAL JUDGE AND THE COURT OF APPEAL WERE WRONG
‘I find at a glance the complaint of the appellant to be well grounded. For the learned trial Judge who earlier found that appellant had a bungalow on the allocated land in dispute to now turn round to say that the appellant had no land allocated him there on the land where his house stood, constitutes an inconsistent finding that must not be allowed to stand. See Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) 326; M.l.S.R. v. Ibrahim (1974) 5 SC. 55; Incar Nig. Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453 and Ramoonu Atolagbe v. Shorun (1985) 4 SC. (Pt. 1) 250 at 285; (1985) 1 NWLR (Pt. 2) 360 at 375, the latter in which a perverse decision has been held as one which ignores the facts or evidence and when considered as a whole, amounts to a miscarriage of justice. See also Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1. In the case in hand, I am of the view that the learned trial Judge was in error to have held that the appellant has failed to substantiate the allegation regarding allocation to him (appellant) of family land vide his pleading in paragraph 10 of (he amended statement of claim. The court below, with due respect, was also in error in affirming that finding.’
‘As I pointed out herein before, since the learned trial Judge in his judgment equivocated between saying (i) that there was no allocation of land to the appellant but (ii) turned round to say “plaintiff’s bungalow and wooden shed were destroyed by fire” and (iii) held that “as a fact that the bungalow building was destroyed during the Army Riot of 1975”, he by implication believed the appellant’s story that he (appellant) erected a bungalow on family land at 42/44 Aiyetoro Road, Epe. If there was no allocation how could the appellant have been on the land from 1961-975, 14 clear years without protest until the Army Riot? Having held elsewhere in this judgment that the decision of the trial court was therefore perverse the very act of its perversity will enable me to interfere with the supposed concurrent findings of fact of the two courts below by holding that the portion of land upon which the bungalow was built was allocated to the appellant, See Onwuka v. Ediala (1989)1 NWLR (Pt. 96) 182; Atanda v. Ajani (1989) 3 NWLR (Pt. 11) 511. The learned trial Judge had in fact misconceived the appellant’s case ab initio. The court below accordingly, in my view, was also wrong to have affirmed the erroneous conclusion arrived at by the trial court. Allocation of family land, I hold, is the equivalent of a grant. See evidence of DW2 who was present at the allocation of the land by the family head and principal members to appellant. See also the evidence of PW5, Saratu Ogeye – appellant’s mother which was not discredited under cross-examination.’
PER OGUNDARE: ‘True enough, this court does not readily interfere with concurrent findings or the courts below – see: Kale v. Coker (1982) 12 SC 252; Lokoyi v. Olojo (1983) 2 SCNLR 127; Ojomu v. Ajao (1983) 2 SCNLR 156; Ibrahim v. Shagari (1983) 2 SCNLR 176. As the concurrent finding of fact under consideration appears not to now logically from the other findings made by the trial Judge, I must hold that finding is perverse and I must consequently set it aside. In my respectful view, the finding that the land was not allocated to the plaintiff by the family is unreasonable given the fact that the land is situate in a family compound surrounded by houses in which members or the family lived, and still live. Plaintiff could not, without the family’s permission, build on it and live therein with his mother and family for 14 years without protests from the family. The defendants could not be speaking the truth that it was only a small piece of land on which plaintiff erected a wooden shed that was leased to him by the children of Shangodemuren. I say this because the learned trial Judge found that it was both the bungalow building and the shed that were burnt in the 1975 disturbance. The plaintiff admitted he had a shed but said it was not on the land in dispute but about 10 meters away from it.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE APPELLANT MADE OUT A CASE OF PARTITION OF THE LAND
‘In view of the above, coupled with my findings in issue 1. I am of the opinion that the learned trial Judge equivocated when he stated that there was no allocation of land to the appellant. In sum, the learned Justices of the court below were clearly in error in affirming the findings of the learned trial Judge that the appellant did not prove any allocation of land to him by the head and principal members of the family. Also, the learned Justices of the court below were wrong in holding that the appellant did not make out a case for partition of the family land whereas he was able to establish that the four branches of the family could no longer live together as one unit in peace and harmony on the land and to that extent issue 3 is resolved against the respondents.’]
.
.
.
✓ DECISION:
‘ The appeal therefore wholly succeeds and it is allowed by me. The decisions or the two courts below are accordingly set aside and I shall proceed to make the following orders: 1. Declaration that all the entire property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom. 2. That in the best interest of the branches or members of the Ogebule family, partition of the said family property be made and carried into effect amongst the four branches of the family namely (i) Ogeye Longe, (ii) Otubose, (iii) Otuberu and (iv) Otuboni by the trial court i.e. the Lagos State High Court at the behest of the Chief Judge thereof of. Costs are assessed in appellant’s favour in the sum of ₦10,000,00 only.’
➥ FURTHER DICTA:
⦿ DESPITE ALLOTMENT, FAMILY LAND IS FAMILY LAND
It is the law that family land remains family land, irrespective of allotment – see: Olangumo v. Ogunsanya (1970) 1 All NLR 223; (1970) All NLR (Reprint) 227. The plaintiff, however, has occupational right to occupy and use the land but cannot alienate it without the consent of the family – see Shelle v. Asajon (1957) 2 FSC 65;( 1957) SCNLR 286; Adagun v. Faghola 11 NLR 110, 111. — Ogundare JSC.
⦿ WHAT ALLOTTEE OF FAMILY LAND BUILDS ON LAND IS HIS IRRESPECTIVE OF LAND BEING FAMILY LAND
If an allottee has occupational rights over family land allocated to him, as decided by the authorities, with which I am in full agreement, it cannot be right, therefore, to say that whatever he has on the land either a building thereon or crops belongs to the family. Although the land does not belong to him the allottee, in my respectful view, has ownership of whatever he superimposes on the land by his own personal efforts. I agree with the following passage in Elias: Nigerian Land Law, 4th edition at page 125: “The other matter to be noted is the distinction made between the individual’s inalienable right in the family land as such and his alienable one in any structure such as a building which he may superimpose on the family land (with, of course, the consent of the family) by his own personal exertions. This seems to go on the analogy of the right given to the individual by customary law to formerly unappropriated land first cultivated by him or to crops planted by him on existing family land. There would seem to have been no direct Supreme (or higher) Court decision on the point, but in a case at Iperu in the Ijebu Province of Yoruba-land, one Desalu owed a debt to one Coker and the Supreme Court issued a writ of fi-fa to attach the judgment debtor’s interest. A successful interpleader summons was allowed to other members of the family who claimed that the land, but not the house erected by Desalu thereon, was their family property. The court, therefore, held that only the house could be attached, as it was the only thing which Desalu could claim as his absolute property.” It is only where the family of the allottee fails and becomes extinct that the family has a right of reversion – see Oshodi v. Dakolo and Ors. (1930) AC 667 at p.668. — Ogundare JSC.
⦿ THE DECISION TO ORDER PARTITION LAND IS AT THE DISCRETION OF THE JUDGE
The decision to order, or not to order, partition is at the discretion of the court but, like all other discretions, it must be exercised judicially and judiciously. — Ogundare JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Onu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Ogunde.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
