➥ CASE SUMMARY OF:
Wahabi Alao & Anor V. Oladejo Ajani & Ors. (SC.25/1987, 23 Jun 1989)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Leasing family land without family consent;
Family member building on family land.
➥ CASE FACT/HISTORY
The plaintiffs, Wahabi Alao and Anor., sued the defendants, Oladejo Ajani and Ors., in an Ibadan High Court. Since the Statement of Claim supersedes the writ of summons the plaintiffs’ claims against the defendants will be as contained in paragraph 24 of their amended Statement of Claim dated 22nd October. 1982. The claims read thus:- “(a) Declaration that the alienation of Agbejobi family land at Oke-Ado market, upon which the building known as SW8/122, Annex, Lagos Bye Pass, Ibadan situate, made as by the 1st and 2nd defendants to either or both of the 3rd and 4th defendants is void, or in the alternative voidable. (b) Account by the 1st and 2nd defendants to the other members of Agbejobi family of Oke-Ado, Ibadan in respect of the monetary proceeds from the said alienation.”
The case proceeded to trial in an Ibadan High Court before Sijuwade, J. Evidence was led on both sides. On the question whether the transaction between the 1st and 2nd defendants on the one hand and the 3rd and 4th defendants on the other hand, as evidenced by Exh. E. to which I have earlier on referred to in this judgment amounts to an alienation of family land, the learned trial Judge relying on the case of Lawani Buraimo and Ors. v. Taiwo Gbamgboye and Ors. (1940) 15 N.L.R. 139 held that the nature of the transaction in the present case was nothing short of an alienation of the family landed property. As regards the contention by the defence as contained in paragraph 17 of the amended Statement of Defence namely:- “Any member of Agbejobi who builds on the family land is entitled to let out his building and collect rent without consultation with any other member of the family.” the learned trial Judge held as follows:- “From the foregoing facts and following the decided authorities, the 1st and 2nd defendants, being members of the Agbejobi family, cannot on their own, without consent of the family leased, (sic) the family property to the 3rd and 4th defendants as they purported to have done in Exhibit ‘E’ in 1972.”
The defendants being dissatisfied with the judgment of the trial court appealed against it to the Court of Appeal, Ibadan Division. That court allowed the appeal. The judgment of the trial Court was set aside and in its place an order dismissing the plaintiffs’ claim was entered. The plaintiffs being dissatisfied with the decision of the Court of Appeal have, in turn, appealed against it to this Court.
➥ ISSUE(S)
I. Whether the house which the 1st and 2nd defendants demolished and the shops subsequently built on the site upon which the house stood were family properties?
II. Whether a member of a family who built on a portion of family land can alienate the building without the consent of the family?
III. Whether the failure of the family to challenge a wrongful act by a member of the family can translate the wrongful act into a custom?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE SHOPS ERECTED IN THE LAND IS CONSISTENT WITH THEIR INTEREST IN THE LANDED PROPERTY
‘The shops were not erected by them for the family but for themselves. In so far as they themselves would occupy the shops for any purpose of their own, the erection of the shops on the land is consistent with their interest in the land which I have stated above. And in so far as the shops were erected by the defendants for themselves and not for the family on the land, as I have just shown, the reference in oral and documentary evidence to the defendants as owners of the shops is also consistent with the interest of the defendants in the land, bearing it in mind that the word “owner” is used in a loose, and not a strict, sense in relation to land held under customary tenure. What stands out in bold relief in this case is that the land upon which the shops stand remain Agbejobi family land or property throughout, in the absence of partition of Agbejobi family land. It is the interest of the defendants in the land which makes them owners in a limited sense of the shops on it, to the exclusion of other members of Agbejobi family in so far as the right to occupy the shops is concerned. Whether the defendants can transfer their undoubted right to occupy the shops or the land even for a limited term to those who are not their successors but strangers to Agbejobi family boils down in the final analysis to the consideration of the incidents of the native law and custom as regards their interest in the land upon which the shops stand. Their interest in the land is the mainstay of the interest of the defendants in the shops. The ownership in a loose sense of the 1st and 2nd defendants in the shops in question derive from their interest in the land upon which the shops stand. So in my judgment, the said ownership of the shops by the defendants is inseparable or inextricable from their interest in the land upon which they stand. So in the consideration of the nature of the ownership of the 1st and 2nd defendants in the shops cognizance must in my view be necessarily taken of the nature of their interest in the land upon which the shops stand. All what have been saying above illustrates the point made in Ajuwon v. Akano 5 W.A.C.A. 4 at 8 and Akana v. Ajuwan (1967) N.M.L.R. 7 at pages 9 – 10 about the loose use of the word “owner” in relation to the Chief or head of a family or community or village vis-a-vis land held by him under Customary tenure. In Ajuwon v. Akano (supra) this court refused to ascribe a strict meaning to the word “owner” used in the evidence and even in the pleading in the case in the context of land held under customary tenure. The decision in the case turned on an overall view of the whole evidence and the native law and custom applicable to it and not on the use of the word “owner” as regards the interest of the head of the family in the land in dispute.’
‘Because of what I have just said above I am of the clear view that the Court of Appeal was in error to have treated the ownership of the shops on the land in question by the 1st and 2nd defendants in such a way as to give the erroneous impression that the defendants’ ownership of the shops was separate from and independent of their interest on the land on which they stand.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[HOUSE BUILT ON FAMILY LAND WITHOUT AID IS SELF-ACQUIRED PROPERTY
‘I cannot agree with this reasoning – No custom was proved that when a house is built on the site of the ruins of a family house it becomes family property, and I know of no such custom. The general rule is that which the learned trial Judge applied in the case of the other house, namely that if a house is built by the unaided efforts of the deceased and without using any family building materials, it is regarded as his self-acquired property and will pass under his will. In the case of the store, if it had been proved that a single brick from the ruins of the former family house had been used by the deceased in building the store, the store would be family property; but this was not proved. There was nothing before the court to show the material of which the original house was built; if it was only a mud house it is unlikely that there would be anything left of it. I can find no authority for the proposition that the mere using of the site brands the house with the stamp of family property; although, of course, the site on which the house is built remains family land. I am of opinion therefore that the appeal should be allowed in respect of the house used as a store, and that the declaration given to the plaintiff/respondent in the court below should be cancelled on the ground that this house was the self-acquired property of the deceased and passed to the defendants/appellants under his Will.’
BUILDING ON FAMILY LAND CANNOT BE ALIENATED WITHOUT CONSENT OF THE FAMILY
‘The following passage from the decision of this court in Shelle v. Asajon (supra) leaves me in no doubt that under Yoruba Customary Law a member of a family who built on a portion of family land could not alienate the building thereon without the consent of the family:- “It is a well settled principles of native law and custom that family property belongs to the family as a whole and that all individual members of the family are entitled to enjoy the property. It is also a settled rule of native law and custom that the Head of the family is the person entitled to look after and manage family properties. Although pieces of land may be allotted to members of the family, the allottees have only the right to occupy and use the lands which they cannot alienate or part with without the consent of the family. In this connection I would only refer to a few of the decided cases in the former Supreme Court of Nigeria which are still good law. See Miller Bros. (of Liverpool) Ltd. v. Abudu Ayeni (1), Lawani Buraimo v. Taiwo Bamgbose, (2), and Adamo Akeju. Chief Obanikoro v. Chief Suenu and 2 others, (3). See also Exhibit “E” in this case which relates to Supreme Court Suit No. 250/1936, in which Momodu Kosoko, a member of the Kosoko Chieftaincy family, got the court to declare the land and buildings at 9A and 11 Ereko Street. Lagos, the properties of the family and that the defendants, John Dungba (alias John Kosoko) and another, members of the family, could not lease or alienate the properties without the consent of the family. The occupation of family land does not pass ownership of the land to the occupier. When one is allowed to live in a family house, he has only personal occupational right which can never ripen into ownership In a Gold Coast case in which a man built a house on family land and devised the house in his Will. Fixon Owoo v. Robert Williams Owoo and others, (5), it was held that he had only a life interest in the house which upon his death became family property.”’
‘Accordingly, the agreement reached by the respondents in exhibit E for the 3rd and 4th respondents to finance the building on the land in dispute of a storey building and after the construction to occupy the storey building as tenants for 40 years is voidable, since the consent of the head of Agbejobi family was not obtained. The fact that the Agbejobi family asks for a declaration that the agreement be void indicates that the family had no intention of ratifying the agreement at the time of instituting the suit. In the result, I agree that the High Court was right in granting the declaration sought and ordering an account to be rendered to the appellants in respect of proceeds realized from the wrongful lease of the land in dispute.’]
.
.
↪️ ISSUE 3: IN APPELLANT’S FAVOUR.
[FAILURE OF FAMILY TO CHALLENGE A WRONGFUL ACT DOES NOT MAKE IT A CUSTOM
‘The decision in Shelle v. Asajon gives me a ready answer to this issue and the answer is contained in the following passage from the judgment in the case at p.68:- “There is no doubt that the appellant has for some years been letting out the house in dispute and putting the rents collected in her own pocket. It is also clear from the evidence that she is not alone in this as there are at least 15 others against whom the respondent has taken action similar to this which is regarded as a test case. It is not disputed that the last Chief before the present one had not helped to preserve the customary law regarding the properties of the Iga as he himself had also let portions of the Iga out. It cannot be disputed that this is a flagrant breach of native law and custom and a fraud on the other members of the family who are entitled to live in the houses let out.” So in my judgment a clear answer to the point raised in that issue is that the failure of the family to challenge a wrongful act of the type we are now can side ring in this case will not turn that wrongful act into a valid custom.’]
.
.
.
✓ DECISION:
‘The conclusion I reach therefore is that the Court of Appeal was wrong in holding that the cases of Miller Bros. v. Ayeni 5 N.LR. 42; Buraimah v. Gbamgbose, 15 N.LR. 139 and Shelle v. Chief Asajon (1957) 2 F.S.C. 65; (1957) S.C.N.LR. 286, are not on all fours with the facts in the present case and that, in my view, the trial Court was right in relying on these cases in giving judgment for the plaintiffs against the defendants. In the result the plaintiffs/appellants’ appeal is allowed by me. The judgment of the Court of Appeal is hereby set aside by me. In its place I restore the judgment of the trial High Court entering judgment for the plaintiffs as follows:- “the plaintiffs’ action succeeds, the alienation or leasehold agreement in respect of the property situate, lying and known as SW8/122 Annexe Lagos Bye Pass Oke Ado Market, Ibadan entered into on or about May, 1972 between the 1st and 2nd defendants on one side and the 3rd and 4th defendants on the other is hereby declared null and void. The said property is declared the family property of Agbejobi and the proceeds thereon forthwith become the joint property of all the members of that family.” with costs as assessed by the learned trial Judge. The plaintiffs are entitled to their costs in the Court of Appeal and in this court which I hereby assess at ₦350.00 and ₦500.00 respectively against the defendants.’
➥ FURTHER DICTA:
⦿
➥ LEAD JUDGEMENT DELIVERED BY:
Agbaje, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A. Olujinmi.
⦿ FOR THE RESPONDENT(S)
R. A. Ogunwole.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
