ADEDOKUN v. ADEJUMO & ORS

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MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court of Justice in Suit No. 1/70/2002 delivered on the 31st of July 2006 dismissing the claims of the Appellant.
By the Amended Statement of claim filed on the 20th of February, 2003, at page 13 of the record of appeal, Appellant as Plaintiff at the trial Court claimed as follows:-
1. DECLARATION that the Plaintiff is entitled to the Certificate of Statutory Right of Occupancy over all that piece or parcel of land situate, lying and being at Ataaba Village, Oke-Ogunpa Area, Off Lagos/Ibadan Expressway more particularly delineated on Plan No. ADE/OY/96/2000.
2. N1,000,000.00 (One Million Naira) only being General damages for trespass committed and still being committed by the Defendants on the Plaintiff’s land situated at Ataaba village and more particularly showed on Plan No. ADE/OY/96/2000.
3. PERPETUAL INJUNCTION restraining the Defendants, their servants, agents, privies and or anybody claiming through or hinder them from committing further acts of trespass on the Plaintiff’s land.
The case of the Appellant is that he purchased a parcel of land measuring approximately 211/2 acres at Ataba village of Ibadan/Lagos Express Way from Yidiatu Raimi Kegbeyale under native law and custom. It was the Appellant’s case that PW1 had inherited the land from her late father Raimi Ayoade Kegbeyale. It was also the Appellant’s case that Raimi Ayoade Kegbeyale had become the exclusive and individual owner of the land by virtue of the partitioning of Kegbeyale family land.
On the other hand, it is the case of the Respondents that the land in dispute formed and still forms part of partitioned and undivided Kegbeyale family land and the Appellant’s purported vendor PW1 had no right or title to sell such family land.
The case proceeded to trial. At the end of the trial, the learned trial Judge found that the Appellant failed to prove that Kegbeyale family land was partitioned and consequently dismissed the Appellant’s claims. Dissatisfied with the Judgment, Appellant filed his Notice of Appeal on the 18th of September, 2006 at pages 66- 69 of the record.
Appellant’s brief of argument was filed on the 6th of September, 2013. It was deemed properly filed and served on the 2nd of February, 2015. Learned Counsel for the Appellant adopts and relies on the arguments in the brief for the appeal. Learned Counsel urges the Court to allow the appeal.
Respondents brief of argument was filed on the 25/2/2015. Learned Counsel for the Respondent adopts and relies on the arguments contained in the brief. Learned Counsel urges the Court to dismiss the appeal.
Learned Counsel for the Appellant distilled a sole issue for determination thus:-
Whether the dismissal of the Plaintiff’s case is wrong given the state of the pleadings and the evidence both oral and documentary before the trial Court that Kagbeyale family land had been partitioned and there has been individual sale of land. (Covers grounds 2, 3 and 4 of the notice of appeal).
Learned Counsel for the Respondents distilled a sole issue for determination thus:-
Whether or not the learned trial Court was justified in holding that the Appellant had failed to establish that the land in dispute had been partitioned by the Kegbeyale family to his vendor and consequently dismissing the Appellant’s claims.
I have taken time to consider the facts of this case as in the printed record. I have also calmly reviewed the submissions of counsel in their respective briefs. I will adopt the sole issue formulated by the Respondent in the determination of the appeal as it captures the controversy between the parties. The issue states:-
Whether or not the learned trial Court was justified in holding that the Appellant had failed to establish that the land in dispute had been partitioned by the Kegbeyale family to his vendor and consequently dismissing the Appellant’s claims.
Learned counsel for the Appellant submitted that the Appellant pleaded purchase of the land in dispute from one Yidiatu Raimi Ayoade Kegbeyale, who had in turn inherited the land in dispute from her father Raimi Ayoade Kegbeyale to whom the land was partitioned long ago while the Yidiatu Raimi Ayoade Kegbeyale was still a child. The Respondents filed a Statement of Defence denying the claim of the Appellant and pleaded that Kegbeyale family was made up of four (4) branches viz: Karimu Adejumo, Ganiyu Adejumo, Mudasiru Adejumo and Akanmu Raimi Ayoade.

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Learned Counsel for the Appellant submitted that the live issue before the trial Court is whether there were two sections comprising of several branches and whether the Kegbeyale family lands had been partitioned with individual owners exercising ownership over the parcel partitioned to them. It is contended that PW1 gave evidence of the partitioning of the family land in various villages along the Adeojo and Adejumo branches.
The evidence was backed with documentary evidence which is Exhibits 5 which contained evidence of land sold by the Adejumo section in different places. It is further contended that the evidence of PW1 Yidiatu Adeojo Kegbeyale and exhibits tendered are unchallenged and uncontroverted. Submitted that the trial Court ought to have relied on the evidence of the Appellant and his witnesses. Reliance was placed on the case of West Africa Shipping Agency Coy Ltd & Anor. vs. Kalla (1978) 3 SC at 21 and Arabambi vs. Advance Beverages Ind. Ltd.(2006) ALL F.W.L.R (Pt. 295) Pg. 581 at 610.
Learned Counsel for the Appellant submitted that the evidence of the Appellant on the number of branches constituting Kegbeyale family and evidence of partitioning of the family land in various villages outweighed that given by the Respondents to warrant the Appellant being entitled to judgment. He referred to the case of Mogaji & Ors. vs. Odofin & Ors. (1978) 4 S.C. Pg. 91 at 94. Learned Counsel for the Appellant urged the Court to resolve the sole issue in favour of the Appellant and allow the appeal.
Learned Counsel for the Respondent submitted that it is common ground between the parties that the land in dispute originally formed part of Kegbeyale family land. While in paragraph 8 of the Amended Statement of Claim, the Appellant contended that it had been partitioned to his father. The Respondents denied this at paragraph 14 of their Amended Statement of Defence thereby joining issues on this crucial point.
Learned counsel for the Respondent submitted that once a party pleads and traces his root of title to land to a particular person or source and this averment is challenged, the Claimant to succeed must not only establish his own title to such land, he must also satisfy the Court of the validity of the title of that particular person from which he claims to have derived his title. He referred to the case of Adesanya Vs. Aderounmu (2000) 9 N.W.L.R (Pt. 672) Pg. 370 at 384 para E.

Apart from the Appellant’s bare assertions that the land in dispute had been partitioned, nothing more is pleaded to establish that partition in fact took place. Submitted that Appellant’s case was therefore bereft of any pleadings or receivable evidence on this fundamental issue on which his case was open to stand or fall. The Respondents pleaded at paragraph 6 of their Amended Statement of Defence and led cogent evidence through DW1 the eldest member of the Kegbeyale family that there were in fact four branches of the kegbeyale family and not two as contended by the Appellant. He submitted that the learned trial Judge was therefore right and correct in dismissing the Appellant’s claim at the lower Court. Learned Counsel for the Respondents urged the Court to resolve the sole issue against the Appellant and dismiss the appeal as lacking in merit.
Partition of family land means a permanent division of the land for purposes not only of use but ownership. See the cases of Etuwewe vs. Etuwewe (1967) N.M.L.R. Pg. 41 and Alafia vs. Gbede Ventures (Nig.) Ltd (2016) 7 N.W.L.R. (Pt. 1510) Pg. 116 at 147 paras B – C.
The partitioning of family property is one of the methods by which family property can be determined in favour of constituent members or branches of a family. The effect of partitioning family land is that the property that had hitherto belonged to the family as a whole is split up into ownership by constituent members of the family. It puts an end to the communal ownership. Where the division is among constituent branches of the family, a new family ownership is thereby created as many places as the property is divided. Each branch becoming the owner of the portion or position partitioned to it. See the cases of Anyanbunsi vs. Ugwunge (1995) 6 N.W.L.R. (Pt. 401) Pg. 255, Oyadiji vs. Olaniyi (2005) 5 N.W.L.R. (Pt. 919) Pg. 561, Yesufu vs. Adams (2010) 5 N.W.L.R. (Pt. 1188) Pg. 522 and Alafia vs. Gbade Ventures (Nig.) Ltd (2016) 7 N.W.L.R (Pt. 1510) Pg. 116 at 134 paras F- H and 149 paras B – E.
It is not enough for a party claiming that family land had been partitioned to merely make such an assertion. He needs to

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plead and lead credible evidence in proof of certain very salient facts which would go to establish that there was in fact a partition. Such facts which need to be proved include the people who called for the partition, those who were present when the partition took place, who actually did the partition for the family; among whom was the land partitioned and why the partition took place. Where the Plaintiff failed to lead sufficient evidence of partition as required by law, his case would be dismissed. See the cases of G. Olorunfemi & Ors. vs. R. E. Asho & Ors. (2000) 2 N.W.L.R. (Pt. 642) Pg. 143 at 163 paras E and Theophillus O. Jaiyeola vs. Olaojo Abioye (2003) 4 N.W.L.R. (Pt. 810) Pg. 397 at 419 paragraphs A- C.
Applying the above principles to the case at hand, has the Appellant proved partition of the land in dispute? Appellant in paragraph 8 of the Amended Statement of Claim at page 12 of the record avers:
The Plaintiff avers that the land sold by Yidiatu Raimi Ayoade Kegbeyale to the Plaintiff was partitioned to Raimi Ayoade Kegbeyale during his lifetime which he farmed exclusively of the other family members.
Again in paragraph 9 of the reply to the Statement of Defence, he pleaded thus:-
Further to paragraph 8, the land in dispute was partitioned to Raimi Ayoade during his lifetime and evidence of the boundary men will be led at the trial that Raimi Ayoade farmed exclusively on the land in dispute.
The evidence of PW1 at pages 19 -24 of the record did not state who called for the partition, who were present at the partition, who did the partition, among whom were the land partitioned. Bare assertion that the land in dispute had been partitioned is not enough to establish that partition in fact took place.
While Appellant stated that there are two branches, the Respondent in paragraph 6 of their Amended Statement of Defence stated that there are four branches and at page 32 of the record of appeal DW1 Karimu Adejumo stated:-
PW1 is not the owner of the land sold to the Plaintiff. The land belongs to the family of Adejumo in general. The land in dispute does not belong to the father of PW1 … the land sold to the Plaintiff by PW1 has not been partitioned.
Respondent also stated in paragraph 14 of the Amended Statement of Defence thus:-
The Defendants avers that at no time was any of the Kegbeyale family land inclusive of the one in dispute partitioned.
Appellant has the burden of satisfying the Court that upon his pleadings and the evidence adduced, he is entitled to the declaration sought. Exhibit F is not a document of transfer of title to land. It is evidence to show that Appellant paid some money to PW1 on the disputed land. See Ogunbambi Vs. Abowe 13 W.A.C.A 222 where the Court held that a purchase receipt being an unregistered instrument was not admissible to prove title but admissible as an acknowledgment of the payment of money. Since PW1 has not proved partition of the area in dispute, Appellant has no title as PW1 could not sell what does not belong to her. See the case of Ojoh Vs. Kamalu (2005) 18 N.W.L.R. (Pt. 958) Pg. 523.
For the family land to be validly sold, the head of the family with the principal members must participate in the exercise. See Akeredolu & Ors. Vs. Akinremi & Ors. (1989) 3 N.W.L.R. (Pt. 108) Pg. 164 (Atanda &Ors. Vs. Ajani (1989) 3 N.W.L.R. (Pt. 111) Pg. 511 and Layinka & Ors. Vs. Gegele (1993) 3 N.W.L.R (Pt. 285) Pg. 518.Sale by individual without the consent of the head of the family renders the sale void. The learned trial Judge at pages 61-62 of the record had this to say:-
There is no evidence of partition from the evidence of PW1 and no member of the family has shown to be part of such partition. No document of written or oral partitioning has been established. I do not believe PW1. Evidence of PW2 did not help his assertion that he bought the area in dispute after he had been satisfied that it belonged to PW1. Pw2 knew nothing on the partition but believed father of PW1 was using the area in dispute. I believe the evidence given by PW1 showing each member of the defendant family having different portions of land from the family land goes to no issue. See George & Ors. vs. Dominion Flours Ltd. (1963) 1 All NLR7; Atanda & Ors. vs. Ajani (1989) 3 NWKR (Pt.111) 511; Usentowokan vs. Idowu & Anor. (1969) 1 All NLR 125. These are facts that should be pleaded. Conspicuously there may be allotments to each person but not

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partitioning. The averments of the defendants on lack of partitioning are more probable when compared with that of the PW1, who apart from being the only witness with no one to support her evidence from the whole of Kegbeyale family did not plead copious facts on how the family property was shared, what custom guided the sharing and what happened to the areas belonging to the family that have not been shared. When this is compared with the evidence of the DW1 who narrated the history of the family, named each branch and how shares from sale had once been given to the father of PW1 on the sale of family land. Sale by PW1 to the plaintiff based on partition that has not been proved could not be valid. Having given careful consideration to the evidence of both parties and weighed them on an imaginary scale that of the plaintiff support by PW1 paled into insignificance as the PW1 had no right to sell the family property as her own.
The evaluation and ascription of probative value to such evidence are the primary preserve of the Court of trial. The findings of the learned trial Judge are supported by credible evidence on the record. This Court will not interfere with the findings of the learned trial Judge who had the privilege of seeing and listening to the witnesses who gave oral evidence before the Court. See the cases of Olatunde vs. Abidogun (2001) 18 N.W.L.R. (Pt. 746) Pg. 712 at 722 – 723 paras H-C and Eyo vs. Onuoha (2011) 11 N.W.L.R. (Pt. 1257) Pg. 1 at 38-39 paras G-A. The sole issue is hereby resolved against the Appellant.
Finally, the appeal lacks merit and it is hereby dismissed. The judgment of the lower Court in suit No. 1/70/2002 delivered on the 31st of July 2006 is hereby affirmed. Parties are to bear their respective costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother, MODUPE FASANMI JCA. I agree with the reasoning and conclusions contained therein. The burden of proving the partitioning of family land rests on the party that asserts same. There are authorities as to what exactly the party has to aver and prove. In OBIAZIKWOR & ORS. V. OBIAZIKWOR (2006) LPELR-1557(CA) the Court of Appeal per Aderemi J.C.A observed.
The law relating to proof of partitioning of family property is now well settled. It is very important, to prove partition of family property, that evidence of those who were present at the time the partition took place and the extent of the property so partitioned be given. See (1) Akinloye vs Eyiyiola (1968) NWLR (Pt. 92) and (2) Okerengwo vs. Imo Education Board (1989) 5 NWLR (Pt. 121) 295
In ERUOLA & ORS V. OJO & ORS (2014) LPELR-23102(CA) the Court of Appeal per Dongban Mensem JCA elaborated further quoting with approval form the judgment of the lower Court.
Unfortunately, this Court is not convinced by the uncorroborated testimony of the 1st Defendant that the land was partitioned as no material evidence was adduced in proof of the assertion. How it was partitioned, the size given to his father and/or other family members. Whether it was partitioned per stock or individually…
These are the kind of facts to be averred in the pleadings and established by evidence. The Appellant in the present appeal failed to do so. I agree that there is no merit in the appeal. I also dismiss it. I abide by the consequential orders in the lead judgment including the order as to costs.
NONYEREM OKORONKWO, J.C.A.: I have carefully read in advance the draft of the judgment in this appeal as written by my lord Modupe Fasanmi JCA.
The case again brings to the fore one essential characteristic of family land and the nature of customary law associated with it.
Family land implies that title to such land is vested in the family. From this underlying fact has evolved a presumption of ownership in favour of family ownership where the issue is between the family and the individual who claims that the family ownership has been extinguished by for example partition the onus is always on such individual to satisfactorily establish acts that severed family ownership and vested the property in the individual. SeeEze vs. Igillegbe (1952) 14 WACA 61.
The onus on an individual claimant is a herculean but not insurmountable.
In this case the trial Court believed that onus was not discharged. See Adenle vs. Oyegbade (1967) NBJ 69 where it was held that in a claim for declaration of title to land accepted by both parties as being originally family land, the onus lies on the party who claims that he is exclusively entitled to the property to establish his claim.
As my lord observed, it is difficult to fault the findings of the trial Court in holding that partition which would have extinguished the family ownership was not proved. In such situation, the family ownership remains unattested.
I agree with the judgment and abide by the orders made therein.