In The Court of Appeal

(Ibadan Judicial Division)

On Thursday, the 10th day of June, 2010

Suit No: CA/I/211/2004

Before Their Lordships

 Between

 And

KUDIRAT M. O. KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment) This is an appeal against the judgment of the High Court of Ogun State, Ota Judicial division delivered on 27/9/2000. By a writ of summons and statement of claim both dated 1/9/95 the plaintiff (now deceased and represented by the respondents herein) sought the following reliefs against the appellants (as defendants):

1. "A declaration: -

i. That the piece of land situate at Abule Ojo Sunmonu, Iju, Akute in Ifo/Ota Local Government Area of Ogun State covered by survey plan No. MAF/71 A & B/89L of 27th November 1989 is a family land.

ii. That the said land belongs to and is known as Sowunmi family land under Yoruba Native Law and Custom and the plaintiff is now head and principal member of the family.

iii. That the 2nd and 3rd defendants are not members of Sowunmi family.

iv. That being a most junior member of the Sowunmi Family, the first defendant's purported dealing with Sowunmi Family land without the consent of the plaintiff and Pa H. A. Sowunmi (deceased) as head and principal member of Sowunmi family is null, void and of no effect.

v. That the purported acquisition and/or dealing by defendants with portions of Sowunmi family land is null, void and of no effect whatsoever.

ORDER:

2. (i) Setting aside any purported dealings with the Sowunmi family land by the defendants whether by themselves, agents and/or servants and privies.

(ii) The sum of N500, 000.00 damages for trespass on the said land committed by the defendants, their agents and/or servants and privies.

3. Perpetual injunction restraining the defendants whether by themselves, agents, servants and/or privies from committing further acts of trespass on the said land."

Pleadings were filed and exchanged. At the trial the plaintiff testified on his own behalf and called one witness. The 1st defendant testified on his own behalf and called four other witnesses. Both parties tendered exhibits. 

It was the case of the plaintiff at the trial court that the land in dispute situate at Abule Ojo Sunmonu, Iju Akute in Ifo/Ota Local Government Area, Ogun State, more particularly delineated on survey plan no. MAF/71 A & B/89L of 27th November 1989 is Sowunmi family land and has never been partitioned, he testified that Pa Orojobi Sowunmi their ancestor begat Hezekiah Salako Sowunmi. Hezekiah Salako Sowunmi had five children. Three died without issue. The two surviving children were Emmanuel Ayodele Sowunmi and Jacob Folarin Sowunmi and they constituted the two surviving branches of the family. Emmanuel Ayodele Sowunmi had three children, namely H. Adeniji Sowunmi, E. Oladipo Sowunmi (the plaintiff/respondent), and Iyabo Sowunmi. Jacob Folarin Sowunmi had two children, M. Babatunde Sowunmi and Bode Sowunmi (the 1st defendant/1st appellant). Jacob Folarin; Sowunmi became head of the family after the death of Emmanuel Ayodele Sowunmi. He remained head of the family until his death in 1981. At the time the suit was instituted the plaintiff was the oldest living member of the family.

It was the contention of the plaintiff that the 1st and 3rd defendants purported to sell plots of land to the 4th - 16th defendants without the authority of the family. The 3rd defendant is the wife of late M. Babatunde Sowunmi. The plaintiff contended that the purported sales were null and void and that all the defendants were trespassers.

It was the case of the defendants (now appellants) that Jacob Folarin Sowunmi partitioned the family land in 1973 when he was head of the family. That the 2nd defendant, at the family's, request, secured the services of a surveyor to survey the land after the partition. That when the family was unable to pay the N6, 500.00 charged for the survey, the 2nd defendant had to pay the surveyor out of his own pocket. It was the defendants' case that in return for the surveyor's fees paid by the 2nd defendant, the family gave him a portion of the partitioned land. The plaintiff however maintained that the land was never partitioned and that the family did not instruct a surveyor to conduct a survey thereon in 1973.

At the conclusion of the trial and after the addresses of learned counsel, the learned trial Judge in a considered judgment found in favour of the plaintiff and granted all but one of his reliefs.

The appellants were dissatisfied with the decision and filed a notice of appeal dated 20/10/2000 containing three grounds of appeal. Pursuant to leave granted by this court on 7/6/05 they filed nine additional grounds of appeal bringing the total number of grounds of appeal to twelve. The parties duly filed and exchanged briefs of argument in compliance with the Rules of this Court. As a result of the demise of the original plaintiff/respondent, Ebenezer Oladipo Sowunmi, this court on 27/5/09 granted an order of substitution whereby the present respondents were substituted for the deceased plaintiff/respondent. The parties amended their briefs of argument to reflect the order of substitution. The appellants' amended brief of argument dated 25/7/05 was filed on 25/3/10. The respondents' amended brief of argument is dated 6/4/10 and filed on 7/4/10.

At the hearing of the appeal on 14/4/2010, Chief (Dr.) V.A. Odunaiya adopted the appellants' brief and urged the court to allow the appeal. Mrs. A.N. Adetola adopted the respondents' brief and urged the court to dismiss the appeal.

The appellants formulated 7 issues for determination as follows:

1. Whether or not the learned trial Judge acted judicially and judiciously when he declined to grant leave to the appellants to amend their Defence in order to answer and plead the fraudulent acts of the plaintiff as it relates to paragraph 31 of the statement of claim? (Grounds 8 & 12

2. Whether or not the land in dispute remain (sic) the larger Sowunmi family land after the same was partitioned in 1973 during the life of Jacob Folarin Sowunmi as Head of Family, which partition was evidenced by Exhibit F? (Grounds 2, 7, 9,10 & 11)

3. Whether or not the 1st defendant as a Principal Member of the Sowunmi family can be guilty of trespass on the family land and thus be restrained therefrom by order of perpetual injunction? (Ground 4) 

4. Whether or not from acts and evidence showing that only TWO out of FIVE branches of Salako Sowunmi family survived to date represented by the plaintiff (as one branch) and 1st defendant (as second branch), 1st defendant can be declared a trespasser, damnified in damages and perpetually restrained from the family land, more particular when the land was alleged top have been partitioned ion 1973 vide exhibit F? (Ground 5)

5. Whether or not the 1st defendant a Principal Member of the Sowunmi family was rightly sued along with the other defendants, and described as trespasser when he was lawfully on the land by virtue of his being a member of that family? (Ground 6)

6. Whether from the totality of the evidence before the lower Court, both oral and documentary, the decision arrived at was justifiable in the circumstances of the case before it, moreso when plaintiff's evidence was uncorroborated. (Ground 1)

7. Whether the plaintiff's as constituted is competent and therefore the lower court has jurisdiction to entertain it?

(Ground 7).

The respondent formulated 5 issues for determination thus:

1. Whether the land in dispute remained SOWUNMI FAMILY LAND OR had been partitioned prior to the suit.

2. Whether if the land had been partitioned there was proper partitioning of the land among the two surviving branches of Sowunmi Family in accordance with Native Law and Custom of the Yorubas.

3. Whether the first defendant/appellants, now deceased, has been sued along with others as trespassers notwithstanding that he was a member of the Sowunmi Family.

4. Whether firm totality of the evidence before the lower Court there was justification for the decision arrived at by the trial Court.

5. Whether the refusal of the trial court to allow an amendment of the defendants' statement of defence amounted to miscarriage of justice in the circumstances of this case.

A careful examination of the issues formulated by both parties reveals that the appellants' issue 1 and the respondents' issue 5 are the same; the appellants' issue 2 covers the respondents' issues 1 arid 2; The appellants' issues 3, 4 and 5 cover the respondents' issue 3; while the appellants' issue 6 is the same as the respondents' issue 4. I observe that the appellants formulated two issues from ground 7 of the notice of appeal. Issue 2 is formulated from grounds 2, 7, 9, 10 and 11. Issue 7 is also formulated from ground 7. The appellate courts have always frowned upon the practice of splitting a ground of appeal into more than one issue, as it is confusing and leads to prolixity. See: Agbetoba v. Lagos State Executive Council (1991) 6 SCNJ 1 at 12; Egbe v. Alhaji & Ors. (1990) 1 NSCC (vol.21) (Pt.I) 306 at 332 lines 39 - 94; Leedo Presidential Hotel Ltd. v. B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A-C; Adedipe v. Theophilus (2005) 16 NWLR (951) 250 at 216 D-F. Having already formulated an issue from ground 7 of the grounds of appeal, issue 7 formulated from the same ground is incompetent. It is accordingly struck out.

The appeal shall be determined on the appellants' issues 1, 2 and 6 (as issues 1, 2 and 4 respectively) and the respondents' issue 3 (as issue 3). Thus the issues for determination (with a slight modification to the appellants' issues 2 and 6 and the respondents' issue 3) are:

1. Whether or not the learned trial Judge acted judicially and judiciously when he declined to grant leave to the appellants to amend their Defence in order to answer and plead the fraudulent acts of the plaintiff as it relates to paragraph 31 of the statement of claim?

2. Whether the land in dispute was partitioned in 1973 during the life of Jacob Folarin Sowunmi as Head of Family as per Exhibit F?

3. Whether the first defendant/appellant, now deceased, ought to have been sued along with others as trespassers notwithstanding that he was a member of the Sowunmi Family?

4. Whether from the totality of the evidence before the lower Court, both oral and documentary, the decision arrived at was justifiable in the circumstances of the case before it?

Issue 1

Whether or not the learned trial Judge acted judicially and judiciously when he declined to grant leave to the appellants to amend their Defence in order to answer and plead the fraudulent acts of the plaintiff as it relates to paragraph 31 of the statement of claim?

It is contended on behalf of the appellants that the defendants sought leave to amend their statement of defence in order to plead certain facts to counter the averment in paragraph 31 of the Statement of Claim. Learned counsel for the appellants submitted that the learned trial Judge refused to grants the application on the ground that the proposed amendment sought to introduce a criminal element into the trial. He contended that the refusal of the learned trial Judge to grant the application amounted to a denial of the appellants' right to fair hearing. On fair hearing he referred to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution) and: Salu v. Egeibon (1994) 6 NWLR (348) 23; Alsthom v. Saraki (2005) ALL FWLR (246) 1385 at 1402 - 1403 G-B.

In. reaction to this issue, learned counsel for the respondents submitted that the application for amendment, which was filed on 9/6/98 was heard and dismissed in a considered ruling delivered on 21/10/98. He argued that the appellants did not appeal against the ruling and have not alleged any error of law or misdirection on facts. 

The ruling of the learned trial Judge delivered on 7/12/98 refusing the application for amendment dated 9/6/98 can be found at pages 84A - 84L of the record. By a motion on notice dated 14/6/07 and filed on 15/6/07 the appellants sought and obtained an order for extension of time and the leave of this court to appeal against the ruling. The application was granted on 19/6/08. The grounds of appeal challenging the said ruling are grounds 8 and 9 of the additional grounds of appeal (not ground 12 as stated at page 4 of the appellants' brief). It is therefore not correct as contended by learned counsel for the respondents that the appellants did not appeal against the decision. Grounds 8 and 9 are competent grounds of appeal.

The motion on notice, supporting affidavit and the proposed amended statement of defence attached to the motion as Exhibit A are at pages 64 - 68 of the record. The appellants sought to add new paragraphs 15 -20 in answer to the averment in paragraph 31 of the statement of claim. In the said paragraph 31 it is averred as follows:

"In 1975, the plaintiff became aware that the 2nd Defendant and Babatunde Sowunmi (deceased) continued to perpetrate their trespassory and fraudulent practices on the family land and by plaintiff's letter to them dated 7/1/80 signed by members of family, they were warned to stand clear of Sowunmi family land or face the consequences."

Paragraph 15 - 20 of the proposed amended statement of defence read thus: 

"15. With specific reference to paragraph 31 of the statement of claim, the 1st defendant states-

9a) that the plaintiff forced Jacob Folarin's signature unto the document from his sick bed;

(b) Jacob Folarin Sowunmi can read and write and he was the most literate and educated child of their late father;

(c) 1st defendant's signature was forged, he never signed the document and had not seen the document before.

16. The 1st defendant states that before and after the death of Jacob Folarin Sowunmi, the plaintiff started to devise various means by which he can gain exclusive possession of all the Sowunmi land.

17. The plaintiffs father, Emmanuel Ayodele Sowunmi, cursed him (plaintiff) during his lifetime because he ordered his father, the head of K & S Church Ebute-Metta, to wash a cup before serving him (plaintiff) with the Holy Communion wine.

His father also slapped and pushed him out from the church.

18. Apart from the land in dispute, the plaintiff is also laying claim to the land and church at no. 106 Freeman Street, Ebute-Metta as his own.

19. About 14 years ago, the plaintiff poisoned the 1st defendant. In the aftermath 1st defendant vomited a worm and wall gecko (omonile). For between 2-3 hours plaintiff ordered defendant to be taken (sic) some wine in his house every day, and defendant complied without any objection, until defendants wife (now deceased) raised alarm.

20. The plaintiff is boasting that he owns the family land at Ago-Egba which he has secretly agreed to sell to one Mr. Solesi."

The factors guiding the amendment of pleadings were succinctly stated in: Akaninwo v. Nsirim (2008) 9 NWLR (1093) 439 at 472 B - G where the Supreme Court per Tobi, JSC stated thus:

"The Court must be satisfied that the application is brought bona fide, or in good faith, and not designed to abuse the court process. ... The Court will take into consideration the totality of the content of the amendment sought vis a vis the relief or reliefs sought in the matter. In the consideration, of the nature of the amendment sought, the court will examine very closely the real issues in controversy in the litigation. The time or stage of the case when the application is brought is also an important consideration. And here, the court should take into consideration whether the applicant brought the application at the earliest opportunity in the proceedings. This will be considered in certain cases, along with the nature of amendment sought. If the application for amendment was delayed, the court should be interested to know what caused the delay."

(Emphasis supplied) 

See also: Adekeye & Anor. v. Akin-Olugbarte (1987) 6 SC 268 at 280 - 281; (1987) 3 NWLR (60) 714 at 223 -224.

With regard to the proposed paragraph 15, the learned trial Judge held that the defendants' contention that Jacob Folarin Sowunmi's signature on the letter referred to in paragraph 31 was forged, is a fact that must have been within their knowledge at the time of filing the original pleading and ought to have been brought to the attention of counsel settling the pleading at the earliest opportunity. His Lordship questioned the bona fides of the allegation sought to be introduced by way of amendment particularly when the letter had been admitted in evidence as Exhibit C without objection.

He observed that no cogent reason had been given for not pleading the issue originally. He also noted that at that stage of the proceedings when the application was brought, the plaintiff had closed his case, while the first defence witness had concluded her) evidenced chief. He was of the view that the proposed amendment in paragraph 15 would not resolve any of the issue? in controversy in the suit.

His Lordship also found that the proposed amendments in paragraphs 16 - 20 would not assist the court in determining the dispute between the parties i.e. whether the land in dispute was ever partitioned and the validity or otherwise of the acquisition of portions of the land by the 2nd and 4th - 16th defendants.

I have considered paragraph 15 of the proposed amended statement of defence. A perusal of the original statement of defence (at pages 55 - 57 of the record) shows that the defendants Wily made a general traverse in paragraph 2 thereof of paragraph 31 of the statement of claim. On 26/2/98 the letter referred to in paragraph 31 of the statement of claim was tendered through PW1, Ebenezer Oladipo Sowunmi (the plaintiff, now deceased). The only objection raised by learned counsel for the defendants was that it was not pleaded. This was due to the fact that the date of the letter was given as 7/1/89 in the pleadings instead of 7/1/80. Learned counsel for the plaintiff made an oral application to amend paragraph 31 to read 7/1/80.

The application was granted without opposition.

Once the amendment was made, learned counsel for the defendants withdrew his objection. I am inclined to agree with the learned trial Judge that to seek to raise the issue of forgery after the plaintiff had closed his case and when the alleged forged document had been admitted in evidence without objection, suggests that the application was lacking in bona fides. This is even more so when the 1st defendant who deposed to the affidavit in support of the application was physically present in court on 26/2/98 when the said letter was tendered and admitted in evidence. I also agree with the learned trial Judge that whether or not the said letter was forged has rip bearing on the issues in controversy between the parties. It is a warning letter addressed to the 2nd defendant purportedly signed by Jacob Folarin Sowunmi and three other members of the family. The other signatures are not challenged. The plaintiff's case was that the land in dispute was family land that had never been partitioned and that the dealings on the land by the defendants amounted to trespass. I also agree with the learned trial Judge that while the averments

in paragraphs 16 - 20 of the proposed amended statement of defence might cast aspersions on the character of the plaintiff, they would not assist the court in determining the real question in controversy. The partition of family land is a historical fact that cannot be affected by the character of any of the family members. I am of the view and I do hold that the learned trial Judge exercised his discretion judicially and judiciously in refusing the application for amendment and that the refusal has note occasioned a miscarriage of justice. This issue is accordingly resolved against the appellants. 

Issue 2

Whether the land in dispute was partitioned in 1973 during the life of Jacob Folarin Sowunmi as Head of Family as per Exhibit F?

In arguing this issue, learned counsel for the appellants traced the family tree of the Sowunmi family, He stated that Emmanuel Ayodele Sowunmi became the head of the family after the death of Hezekiah Salako Sowunmi and remained so until his death in 1954. That Jacob Folarin Sowunmi became head of the family from 1954 till he died in 1981. He stated that during Jacob Folarin Sowunmi's tenure as head of the family, the Sowunmi family land was partitioned into two parts, A and B, in favour of the children of Emmanuel Ayodele Sowunmi (first branch) and the children of Jacob Folarin Sowunmi (second branch). He submitted that the survey plan, Exhibit A made in 1989, tendered by the plaintiff shows that the land was divided into A and B parts. He submitted that Exhibit F, the survey plan made in 1975 and tendered by the defendants shows that the land was divided into parts A, B and C. He stated that parts A and B were for the two branches of the Sowunmi family while part C represents the land subsequently granted to the 2nd defendant in satisfaction of the Sowunmi family's indebtedness to him as evidenced by Exhibit E. He noted that the learned trial Judge, at page 134 lines 20 - 21 of the record found the l3nd described in Exhibits A and F to be identical. Learned counsel argued that from the time the land was partitioned in 1973 it ceased to be family land and became "branch family land".

Learned counsel observed that Exhibit F tendered by the defendants was made in 1973 but signed in 1975 because of the inability of the family to pay the surveyor's fees, which were eventually paid by the 2nd defendant in 1975. He noted that Exhibit A relied upon by the plaintiff was made in 1989. He contended that Exhibit E, titled "an agreement for sale of land" between Mr. H.A. Sowunmi, Oladipupo Sowunmi, Mr. M.B, Sowunmi, Miss Iyabo Sowunmi and Mr. Olabode Sowunmi on the one hand and the 2nd defendant, Samuel Olabode Adenugba on the other, was prepared by the plaintiff but he deliberately refused to sign it because he had ulterior motives. He submitted that even though the plaintiff refused to sign Exhibit E, it was still valid having been signed by two principal members of the family. He also stated that Exhibit E gave details of the partition of the land as between the two branches of the Sowunmi family and the land granted to the 2nd defendant marked C. He submitted that at the time Exhibit E was executed in 1975, Jacob Folarin Sowunmi, the head of the family was seriously in and that H.A. Sowunmi, one of the signatories and the plaintiff's older brother, was the oldest member of the family in good health. He submitted that H.A. Sowunmi executed Exhibit E as acting family head alongside other family members. He argued that the learned trial Judge failed to accord the necessary evidential value and effect to Exhibit E. He submitted further that partitions or partition agreements are not required by law to be in writing. He referred to: Idewu v. Hausa (1936) 13 NLR 96; Taiwo v. Taiwo (1958) 3 FSC 80 at 82: Sanni v. Akintnla (1958) LLR 107.  

Learned counsel submitted that the plaintiff was estopped from refusing to execute Exhibit E because he was one of the family members who instructed the 2nd defendant to secure the services of a surveyor. He submitted that the plaintiff's conduct had led the 2nd defendant into taking an action that caused him to incur substantial expense. He submitted that it was too late for him to rescind from the agreement that gave rise to Exhibit E.

He relied on: Lion of Africa Insurance v. Fisayo (1986) 4 NWLR (37) 674 at 685.

Learned counsellor the respondents in response to this issue, referred to the evidence of the plaintiff at pages 73 and 74 of the record to the effect that from the time of his father as head of the family up till the time he testified in court, the land in dispute had always been held and managed by successive family heads as Sowunmi family land. He submitted that the evidence in this regard was never challenged. He noted that the plaintiff testified emphatically that the land had never been partitioned. He submitted that a perusal of both Exhibit A and F would reveal that the division of the land into A and B is due to an N.N.P.C. pipeline that runs through the land and not a partition. He referred to Exhibit F and argued that since the 2nd defendant was not a member of the Sowunmi family he could not have been involved in the partition of the land. He submitted that the family could not have contemplated the N6, 500.00 he allegedly paid on their behalf to the, surveyor at the time the plan was drawn. He submitted that Exhibit E, the sale agreement was not signed by all responsible members of the Sowunmi family as required by law.

He referred to Section 139 of the Evidence Act and submitted that the burden of proof of a particular fact lies on the appellants who wish the court to believe in its existence. He conceded that partitiori is one of the ways of determining ownership of family property. He relied on: Abraham & Anor v. Olorunfunmi & ors. (1991) 1 NWLR (165) 53; Olowosago & Ors. v. Adebayo & Ors. (1988) 4 NWLR (88) 275. He submitted that in order to establish partition of family land under customary law the person who asserts must prove:

a. Those who were present at the time of the alleged partition; and

b. The extent of the land partitioned.

He referred to Olorunfemi v. Asho (supra) Akinloye v. Eyiyola (1968) NMLR 92 at 95: Okerengo & Anor. v. Imo State Education Board (1991) 5 NWLR (121) 295.

He submitted that no witness testified as to the alleged partition. He noted that Exhibit F shows a division into three parts and not between the two surviving branches of the family. He further contended that Exhibit E is a receipt of purchase and does not constitute evidence of partition. He

maintained that in any event the then head of the family did not sign Exhibit E. He stated that the 3rd defendant, a wife of the family, was not competent to testify on behalf of the family regarding the sale of family land not being a person authorized in that behalf. He maintained that there was no partition of the family land at any time.

An appropriate starting point in determining this issue is to consider the law and decided authorities on how partition of family land under native law and custom can be established. It is common ground between the parties that the land in dispute was family land, at least up till 1973. While the respondents maintain that the land remains so up till today, the appellants contend that the land was partitioned in 1973 during the tenure of Jacob Folarin Sowunmi as head of the family. Partition of family land is one of the methods recognised under Yoruba Native Law and Custom for alienating family property. See: Abraham v. Olorunfunmi (1991) 1 NWLR (165) 53 at 74 D. "Partition" is defined in Cheshire Modern Law of Real Property (12th edition) by Burn as follows: 

"Partition is a method whereby joint possession is disunited and its effect is to make each former co-tenant separate owner of a specific portion of land and thus terminate the co-ownership forever. 

Instead of holding an undivided share in the whole, each person will hold a share severally" 

The definition was quoted with approval in Abraham v. Olorunfemi (supra) at pace 75 P.

It necessarily follows that once partitioned family land ceases to be family land. See: Olowosago v. Adebanjo (1988) 4 NWLR (88) 275 at 287 D: Balogun v. Balogun (1943) 9 WACA 78. Thus, in the instant case, if the appellants were able to establish that the land in dispute was partitioned and that the 1st and 3rd appellants dealt with the land apportioned to their branch of the family, it would have been a valid and effective defence to the respondent's case at the court below. 

It is correct, as submitted by learned counsel for the appellants that under Yoruba Native Law and Custom evidence

of partition need not be in writing as it could be effected orally.

See: Taiwo v. Taiwo (1958) 3 FSC 80 at 82; Idewu v. Hausa & Ors. 13 NLR 96. It was held in: Iwuno v. Dieli (1990) 5 NWLR (149) 126 at 135  that where family land is partitioned it is sufficient if there is evidence of the portion allotted to each party. The partition could also be indicated by landmarks or could be inferred from common or mutual understanding of user. In order to prove partition however evidence must be given of those who were present at the time the partition took place and the extent of the property so partitioned. See: Akinloye v. Eyiyola (1968) NMLR 92; Okerenge v. Imo State Education Board (1989) 5 NWLR (121) 295; Obiazkwor v. Oniazikwor (2008) 8 NWLR (1090) 551 at 576 F-G.

In paragraphs 16 and 17 of the statement of defence (at page 56 of the record) the appellants pleaded as follows:

"16. The 1st and 3rd defendants state that the Sowunmi family land was partitioned in 1973 between the children of Emmanuel Ayodele Sowunmi i.e. the plaintiff, Iyabo and late Hezekiah Sowunmi and the children of Jacob Folarin Sowunmi i.e. the 1st defendant and late Babatunde Sowunmi, the 3rd defendants husband.

17. The partition referred to in paragraph 16 above was duly reflected in an agreement dated 10th May 1975 made between the Sowunmi family and the 2nd defendant, which agreement was duly signed by H.A. Sowunmi, plaintiffs senior brother."

Two factors are immediately evident from the pleading.

The first is that there is no averment as to those who were present when the partition allegedly took place and no description of the portion allotted to each branch of the family.

Secondly, as admitted by all the parties at the trial, the 2nd defendant is not a member of the Sowunmi family. The agreement referred to in paragraph 17 above was admitted in evidence as Exhibit E.

The learned trial Judge after examining the document held at page 140 lines 7 - 26 of the record:

"I must observe right away that Exhibit E on its face does not pretend to be a deed of partition. What it is, is clearly stated at the top. Agreement for Sale of Land and a perusal of the content of the Exhibit confirms that it is indeed an agreement for sale of land and nothing more. In my view,clauses 4 and 7 of the said exhibit wherein allusion was made to the partition of land owned by Sowunmi family cannot be said to be proof of the fact of the partition of the land in dispute, relying on the provision of Section 123 of the Evidence Act which only creates a rebuttable presumption in respect of the handwriting or signature of a person in or the due execution or attestation by a person of a document proved to be twenty years old when making of the same handwriting, signature or due attestation or execution is in issue. The said section does not create a presumption of any kind concerning the truth of the content of such a document ... I hold that the defendants have failed to establish the fact of the partition of the land in dispute by deed of partition."

(Emphasis supplied).

I am in complete agreement with the learned trial Judge that Exhibit E, which is clearly an agreement for the sale of land executed between some members of the Sowunmi family and the 2nd defendant, a stranger to the family, cannot constitute evidence of partition of the land.

His Lordship however acknowledged the fact that partition of family land need not be by deed of partition and that it could be effected orally. He therefore considered the evidence of the 1st DW and 5th DW and found as follows at page 141 lines 6 - 26 of the record:

"I must say that the 1st and 5th DW who gave evidence in the proof of the fact of the partition of the land in dispute did not disclose the identities of those that were present at; the time of partition. All the 1st DW stated concerning the fact of the partition of the land in dispute was that the land in dispute was partitioned to the two branches of Sowunmi family in 1973 in the lifetime of J.F. Sowunmi. On his own part the 4th DW stated that "before my father died he partitioned the land in dispute in 1973. It was partitioned into two parts. One part was for Jacob Folarin Sowunmi and the other part for Emmanuel Ayodele Sowunmi." It is glaring from the pieces of evidence of the 1st and 5th DWs earlier quoted that while the 1st DW never disclosed the identities of those present when the land in dispute was partitioned, the 5th DW made it clear that the partitioning of the land was done by his father and never disclosed the identities of those who were present when this was done or that his father partitioned the said land with the consent of the joint owners.

In the case of Olorunfemi v. Asho (supra)  it was made clear that the head of family cannot on his own partition family property : without the consent of the joint owners jointly in the voluntary partition of the property."

Based on these findings His Lordship held that the appellants had failed to establish the fact of the partition of the land in dispute under Yoruba Native Law and Custom. Having regard to the pleadings and the evidence before the court, I find the conclusion of the learned trial Judge unassailable in this regard. 

It was contended on behalf of the appellants that the plaintiff prepared Exhibit E but later refused to sign it. There was no evidence led to substantiate the assertion that he prepared it. It is also evident from the document that two signatures are missing: not only that of the plaintiff but also that of Miss Iyabo Sowunmi. There is nothing on the face of Exhibit E to suggest, as argued by learned counsel for the appellants, that H.A. Sowunmi executed the document in his capacity as acting head of the family. It is also rather curious that notwithstanding the appellants' assertion that the land was partitioned between the two branches of the family in 1973, members of both branches of the family purported to sign the purchase agreement executed two years later in 1975 in favour of the 2nd defendant. The position of the law as stated in Olowosago v. Adebanjo (supra) and Balogun v. Balogun (supra) is that once family land has been partitioned it ceases to be family land and each member has absolute right to his own partitioned portion.

The learned trial Judge carefully examined Exhibits A and F. Exhibit A is survey plan no. MAF/171 A & B/89L dated 27/11/89 tendered by the respondents while Exhibit F is survey plan no. MOD/1141/75 dated 12/4/75 tendered by the appellants. He held at page 143 of the record that Exhibit F, which shows the land in dispute divided into A, B and C does not support the pleading in paragraph 16 of the statement of defence (reproduced above) that the land was partitioned between the two branches of the Sowunmi family. He held that from the evidence before the court, including the evidence of the 2nd defendant himself, the 2nd defendant to whom part C was partitioned or allocated in Exhibit F is not a member of the Sowunmi family. His Lordship went on to state:

"Indeed, I cannot but observe that it is most strange that the land in dispute would have been partitioned in the lifetime of J.F. Sowunmi as testified to by the 5th DW and yet the said J.F. Sowunmi would not be reflected on the alleged partition plan of the said land as one of the persons to whom the land was partitioned. That is exactly what Exhibit F reveals. It reveals that J.F. Sowunmi who from available evidence was the head of the family as at the time of partitioning the land in dispute as alleged by the defendant was not allocated any land at all while Mr. S.O.  Adenugba who is not a member of Sowunmi family is shown as having a portion of land allocated to him."

(See Page 143 lines 15 - 26 of the record).

I have examined Exhibits A and F and once again I find the meticulous appraisal of the exhibits and ascription of probative value thereto by the learned trial Judge to be  accurate. According to the appellants, J. F. Sowunmi died in 1981. He was therefore alive in 1975 when Exhibit F was made. 

There is no explanation for the non-inclusion of his name in Exhibit F, being the head of one branch of the family. It was the appellants' case that Exhibit F was prepared in 1973 but signed in 1975 because of the family's inability to pay the surveyor's fees. I agree with the observation of learned counsel for the respondents that if the land was partitioned between the two branches of the family in 1973, a plan made in 1973 could not reflect a third portion allotted to the 2nd defendant as a result of payment made by him two years later. 

PW2, the surveyor who prepared Exhibit A testified that the land in dispute is divided into two parts by an N.N.P.C. pipeline. The pipeline is clearly shown on both Exhibits A and F. I agree with His Lordship's conclusion that that the only division on the land, as can be seen from both Exhibits A and F is that created by the N.N.P.C. pipeline. The findings and conclusions of the learned trial Judge are fully supported by the evidence on record. I therefore hold that the appellants failed to prove that the Sowunmi family land was partitioned in 1973 or at any time at all. In light of all the observations above, this issue is hereby resolved against the appellants.

Issue 3 

Whether the first defendant/appellant, now deceased, ought to have been sued along with others as trespassers notwithstanding that he was a member of the Sowunmi Family?

Learned counsel for the appellants argued that the 1st appellant (now deceased) being a principal member of the Sowunmi family ought not to have been described as a trespasser on family land. He conceded that where the land has been partitioned a member of the family could be said to be committing an act of trespass if he went outside the area apportioned to him and on to areas apportioned to other members of the family. He submitted that in the instant case there was no evidence that the 1st and 3rd appellants sold any land apportioned to the plaintiff's branch of the family. He submitted that being adjudged a trespasser, ordered to pay damages and being perpetually restrained from going onto the land was erroneous and occasioned a miscarriage of justice. In arguing this issue, learned counsel repeated some of the arguments advanced in respect of issue 2 particularly with regard to Exhibits A, E and F, which have already been addressed.

Learned counsel for the respondents submitted that by being a party to the sale of family land the 1st appellant had acted contrary to the possessory rights of the family without the family's consent. He also referred to the finding of the learned trial Judge that the appellants failed to establish partition of the land either by deed of partition or by oral evidence. He submitted that Exhibit E, as rightly held by the learned trial Judge could not constitute evidence of partition. 

In the course of resolving issue no 2 supra, I agreed with the finding of the learned trial Judge that the appellants failed to prove that the Sowunmi family land in dispute was partitioned, it follows that the entire land in dispute remained Sowunmi family land. To that extent I agree with learned counsel for the appellants that the 1st appellant, being a member of the Sowunmi family, could not be guilty of trespass on the said family land. I therefore hold that the learned trial Judge was in error to have awarded damages for trespass and a perpetual injunction against the 1st appellant. This issue is accordingly resolved in favour of the appellants.

Issue 4

Whether from the totality of the evidence before the lower Court, both oral and documentary, the decision arrived at was justifiable in the circumstances of the case before it?

It must be noted here that learned counsel for the appellants argued issues 6 and 7 together. Earlier in this judgment I struck out issue 7 on the ground that more than one issue had been formulated from the said ground. Having formulated issue 2 from grounds 2,7, 9, 10 and 11, a separate issue ought not to have been formulated from ground 7. I shall therefore consider the submissions on this issue in respect of issue 6 only. Issue 6 is formulated from ground 1 of the notice of appeal to wit: "The judgment is against the weight of evidence." 

Learned counsel submitted that the 4th - 6th appellants should not have been found guilty of trespass after obtaining title to their various plots of land from the 1st and 3rd respondents in respect of the areas shown as B and C on the alleged partitioned land. He submitted that H.A. Sowunmi who was a senior member of the Sowunmi family executed Exhibit E in his capacity as acting head of the family. He submitted further that H. A. Sowunmi executed the document along with other principal members of the family. He argued further that the 2nd appellant was a grantee of the land by the family and ought, not to have been sued along with the 4th - 16th appellants because they obtained their interests differently and under separate conditions. He submitted that the 4th - 16th appellants purchased their holdings at various times between 1975 and 1976 while the action was instituted in 1995, a period of nineteen years thereafter. He submitted that the respondent's action is caught by Section 6 (2) of the Limitation Law of Ogun State and is therefore statute barred. He also contended that the respondents are caught by the doctrine of laches and acquiescence.

Learned counsel for the respondents submitted that the court, after, a careful perusal of the totality of the evidence, came to the right decision in favour of the respondents.

The submission of learned counsel for the appellants regarding Section 6 (2) of the Limitation Law of Ogun State is a fresh issue being raised for the first time in the appellants' brief and not based on any ground of appeal. Where an appellant intends to raise a fresh issue on appeal not raised at the trial court he must first seek and obtain leave of the trial court or the appellate court to do so. The application of the Limitation Law of Ogun State is not raised in any of the grounds of appeal. No leave has-been sought either from the court below or this court to raise it as a fresh issue. The submission in this regard is accordingly discountenanced.

In considering issue 4, it must be borne in mind that the defence of the appellants at the trial court was that the 1st and 3rd appellants had a right to deal with the land in dispute because the land had been partitioned between the two branches of the family and they were entitled to deal with their own portion as they saw fit. It is the law that the sale of family property without the consent of some of the principal members of the family is voidable. See: Manko v. Bonso (1936) 3 WACA 62: Esan Vs Faro (1947) 12 WACA 135: Ekpendu v. Erika (1959) SCNLR 186. 

On the other hand any sale or dealing with the land carried out by principal members of the family without the consent of the head of the family is null and void. See: Kuma v. Kuma (1938) 5 WACA 4; Aabole v. Sappor (1947) 12 WACA 187: Onayemi v. Idowu (2008) 9 NWLR (1092) 306 at 330 C - E. It was in evidence that the 3rd appellant was the wife of the late M.B. Sowunmi and that the 1st appellant was the youngest member of the family.

Exhibits H & P are receipts for sale of land issued to Mr. W. A. Opere (4th Appellant) and Mr. Ademola Adekoya (11th Appellant) by the 1st Appellant (Bode Sowunmi) on behalf of Isaac Olabode Sowunmi family. Having failed to prove that the land was partitioned, the land remained Sowunmi family land.

The 1st appellant, who claimed to have sold portions of Sowunmi family land to the 4th - 16th appellants therefore had no authority to do so without the consent of the family head or principal members of the family.

With regard to Exhibit E, the appellants contended that the family land was partitioned into three, with the third part being given to the 2nd appellant in lieu of the surveyor's fees for preparing Exhibit F. They contended that even though the plaintiff refused to sign Exhibit E, other principal members of the family, signed it and the transaction was therefore valid. I had observed earlier  that although five vendors are named in the agreement, only three appended their signatures thereto. 

At page 152 lines 6 - 29 of the record, the learned trial Judge held thus:

"I have earlier in this judgment held that the land in dispute after it became Sowunmi family land has never ceased to be such. The pertinent question then is whether the alleged vendors of the 2nd defendant as stated in Exhibit E (particularly those that executed the said Exhibit) could validly pass title in respect of any portion of Sowunmi family land to the 2nd defendant.

Exhibit E was made on 10/5/75. It is not in doubt that Jacob Folarin Sowunmi was the head of the family. Curiously, Jacob Folarin Sowunmi the head of the family was not party to Exhibit E The law is that a sale of family land by a member of the family without the consent of the head or principal members of the family is void ab initio. The head of family must, under customary law join in a conveyance, lease or disposition of family land and the principal members must consent thereto otherwise such a disposition is void ab initio. See: Odukwe v. Ogunbiyi (supra) at page 114 and Uche v. Ire & Ors. (1998) 7 SCNJ 1, 12.

Given the authorities cited above and as Jacob Folarin Sowunmi, the head of the family as at 10/5/75 never joined in the purported disposition of any portion of the Sowunmi family land to the 2nd defendant having regard to Exhibit E, I hold that the 2 defendant accordingly acquired no

portion of the Sowunmi family land by virtue of the said Exhibit E."

In the course of resolving issue 2, I agreed with the learned trial Judge that Exhibit E is a sale agreement and does not constitute proof that the land was partitioned. I agree with His Lordship's conclusion that since the head of the family was not involved in the transaction, the 2nd appellant did not acquire anything vide Exhibit E. As observed earlier there is no support for the contention of learned counsel for the appellants that H. A. Sowunmi executed Exhibit E in his capacity as acting head of the family. This issue is accordingly resolved against the appellants.

Having resolved issued 3 in the appellants favour, the appeal succeeds in part. Orders 2 (ii) and 3 contained in the judgment of the  High Court of Ogun State in Suit No. HCT/203/95 delivered on 27/9/2000 awarding damages and ordering a perpetual injunction against the 1st defendant, being a member of the Sowunmi family, are hereby set aside. All other orders made in the said judgment are hereby affirmed. 

The parties shall bear their respective costs in this appeal.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother K. M. O. KEKERE-EKUN, J.C.A. His Lordship has dealt with the issues raised in this appeal in detail and resolved same comprehensively. 

I agree with the reasoning and conclusions arrived at in allowing the appeal in part. I abide by the order made as to costs. 

MODUPE FASANMI, J.C.A.: I have read before now, the Judgment of my learned brother K. M. O. Kekere-Ekun J.C.A. just delivered.

I am in complete agreement with the said judgment. For the lucid reasons set out in the judgment which I adopt as min, I also allow the appeal in part. I abide by all orders made including order as to costs. 

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