E. F. BANKOLE AND ORS. (PLAINTIFFS)

v.

LAMIDI TAPO (DEFENDANTS)

Division: High Court of Justice (West)

Date of Judgment: 25th January, 1961

Case Number: Abeokuta CIVIL Suit No. 1/139/55

Before: Fatayi Williams J.

The plaintiffs in this case brought this action for declaration of title and damages against the defendant in respect of a piece of land which the defendant bought at public auction pursuant to a Judgment given against a Judgment debtor. The Judgment Debtor is a member of the plaintiffs' family. The land was acquired under customary law by the deceased head of the family who before his death had allotted the piece of land to his grandson (now Judgment Debtor) who became the owner of the land at the time of the death of the head of the family; the land was sold to the defendant in satisfaction of the debt of the grandson.

HELD:

That although the law is that property acquired by a person under customary law becomes family property on the owner's death, and therefore jointly owned by his descendants, such property does not include any property which the owner, during his lifetime had earmarked and allotted to somebody else.

Judgment for defendant.

Case referred to:-

Onisango v. Akinkunmi and others 1955/56 W.R.N.E.R. 39.

Plaintiff in person.

Ayoola (Senior) for Defendant.

Fatayi-Williams, J.:-The plaintiff's claim against the defendant is for declaration of title to a piece of land lying and situate at Alapako in Egba Division. The plaintiff also claims from the defendant the sum of £200 being damages done by the defendant to the said farmland on or about the month of December, 1954.

In his Statement of Claim the plaintiff averred that the land in dispute was, about 43 years ago, acquired under customary law by one Samuel Bankole (plaintiff's father) from the Ikereku people, and thereupon the said Samuel Bankole took possession of it and planted cocoa and kola nut trees on it. The said Samuel Bankole was in possession of the land either by himself or by his agents until his death in 1939. After his death, the family continued in possession and built houses on the land in dispute. In 1943, the plaintiff sued successfully in the Ake Grade A Court, Abeokuta, for trespass committed on the land by one Ashafa and one Raji. In 1954, the defendant entered upon the land in dispute and destroyed cocoa and kola nut trees while surveying the land.

In his Statement of Defence, the defendant denied that the land in dispute passed to the family of Samuel Bankole upon the death of the said Samuel Bankole in 1939. He averred that the land was inherited by one Olusoji Sobande, a grandson of the said Samuel Bankole who was in possession thereof and exercised rights of ownership thereon from 1939 until 15th February 1954. He also averred that it was the said Olusoji Sobande who built a house on the land. He denied that it was the family who took the action in Suit No. 96/40 and averred that the plaintiff was Olusoji Sobande who claimed the land as his own and was granted Judgment accordingly. Lastly, the defendant contended that pursuant to a writ of fi fa taken by the plaintiff in Suit No. I/67/1950 before the Supreme Court, Ibadan: Rowntree-Fry-Cadbury (Nigeria) Limited v. Olusoji Sobande, a piece of land shown in Plan No. BB/4632 dated 19th April, 1941, was sold by public auction by the Deputy Sheriff, Abeokuta, on 15th February, 1954. He also averred that on the farmland in dispute is a portion of the land sold under the writ of fi fa. Under the said writ of fi fa a dwelling house roofed with thatch was also sold on the same day by the Deputy Sheriff, Abeokuta. The defendant was the highest bidder at the auction and thereby purchased both the farmland and the thatched house.

The plaintiff gave evidence and called three witnesses. It is pertinent at this stage to say that I do not believe a word of the evidence given by each of these three witnesses. They have obviously been schooled as to what to say in support of the plaintiff's Claim, but each of them broke down without any difficulty under cross-examination. To my mind, their evidence is valueless. The plaintiff said in evidence that the land in dispute shown on the Plan exhibit 'A' belonged to his father, Samuel Bankole, who died in 1939, leaving three children, namely Joseph Bankole, Rosannah Bankole and himself. Rosannah has since died leaving her surviving one Olusoji Sobande. Witness said that after the death of his father, he brought on action against one Ashafa and Raji for trespass on the land in dispute and tendered the record of proceedings in that case, exhibit 'B'. In 1954, he had a message that the farmland was attached. He returned home and saw the defendant and as a result he instituted the present action against the defendant for declaration of title to the land. He denied the sale at any time of any portion of the land in dispute to the defendant. When he asked the defendant how he came to lay claim on the land he was told that witness's nephew, Olusoji Sobande, sold the land to the defendant. His nephew, when questioned by the plaintiff, denied any knowledge of the sale but admitted that he owed the defendant some money. Under cross-examination, however, he admitted that it is clear from exhibit 'B' that Sobande claimed the land as his own. He also admitted giving evidence in support of Sobande's claim. Further, he admitted he knew when the property was attached, but that he did not interplead because he did not see the Bailiff. Finally, he admitted that he instituted the action for declaration of title about a year after the attachment because that was the time he had money for litigation.

The defendant also gave evidence. In his evidence, he said he bought the land from the Bailiff at a public auction and produced the receipts, Exhibits 'C' and 'D' in support of the sale. He also produced Certificate of Purchase of land, exhibit 'E'. Although he bought the land in 1954 and started using it four days thereafter his title was not disputed until he reported to the police that the defendant was collecting crops unlawfully on the land.

I believe the evidence of the defendant. In exhibit 'B', Suit No. 96/40, Olusoji Sobande and others v. Ashafa and Raji, it is clearly indicated as follows:-

(1)     The plaintiff claims a declaration that all that piece or parcel of farmland formerly known as the property of one Samuel Bankole (deceased) situate at Alapako river in Alapako village is the property of the plaintiff. An injunction to restrain the defendants and their agents from interfering with the plaintiff in the use and enjoyment of the said farm.

(2)     £20 as damages against the defendants for trespass committed by them on the said property.

Furthermore, the plaintiff, in his evidence in support of Sobande's claim in the same Suit stated at17 of the proceedings, exhibit 'B' as follows:-

In 1938, my father sent to me, and told me that the plaintiff wanted to go and work in the farmland in dispute and therefore he wanted me to take the plaintiff, my nephew, to the farmland in dispute. He said he wanted me to show the plaintiff the boundaries of the farmland in dispute, because he did not wish the farmland in dispute to be lost as his two children died at the time he was working in the farmland in dispute. I and my elder sister took the plaintiff to the farmland in dispute and showed him the boundaries thereof.

At this stage, I should point out that the plaintiff does not dispute the fact that the claim in exhibit 'B' relates to the same land as the one in dispute in the present action. In the face of the above admission and bearing in mind the claim of Olusoji Sobande that the land is his own, I am unable to agree with the plaintiff that the land is his family property. The claim in exhibit 'B' tendered by the plaintiff and his testimony before the court which heard the claim put it beyond any doubt that the land in dispute passed to Olusoji Sobande on the death of Samuel Bankole. In view of his evidence in that case, the plaintiff is estopped from denying that the land in dispute was, at the time it was sold under a court order, the exclusive property of Olusoji Sobande.