In The Supreme Court of Nigeria
On Friday, 13th day of July 1990
Alhaja Suara Yusuff ....... Appellant
Mrs. Yetunde Dada ....... Respondents
Mrs. Letitia Laniyonu
Judgment of the Court
The action which gave rise to this appeal originated in an Ibadan High Court. There Mrs. Yetunde Dada & 3 Ors. as Administratrices/Administrators of the estate of Chief J.O. Laniyonu. deceased, sued Alhaji Yusuff for the following reliefs:-
1. N25,000.00 damages for trespass committed by the defendant his servants, agents and tenants in respect of Chief J.O. Laniyonu's land lying and situate at AGBAAKIN FAMILY LAND/LAYOUT Iwo Road, Ibadan on or about August, 1979 and which trespass still continues;
2. AN INJUNCTION to restrain the defendant his servants, agents, tenants, workmen or otherwise howsoever from entering, remaining, or further trespassing on the said land.
Pleadings were ordered, filed and delivered.
Relevant to the issues raised in this appeal are the following averments in the plaintiffs' statement of claim:-
l. The 1st and 3rd plaintiffs are the children of late Chief Josiah Oladipo Laniyonu who died intestate at Ibadan on 6/9/78 while the 2nd and 4th plaintiffs are the widow and cousin of the said late Chief J.O. Laniyonu respectively.
2. By virtue of a Deed of Conveyance dated 21/7/60 registered as No. 23 at page 23 in Volume 391 of the Lands Registry in the Office at Ibadan, the late Chief J.O. Laniyonu became seised of a parcel of land lying and situate at Agbaakin Layout, Iwo Road Idi-Ape Ibadan by grant from AGBAAKIN FAMILY for a consideration of £l00.00 (One hundred pounds).
3. The late Chief Laniyonu was put in possession immediately after the execution of the said conveyance and no one disturbed him on the land.
4. The plaintiffs are the lawful administrators of the estate of the late Chief J. O. Laniyonu having obtained Letters of Administration dated 22/9/81 from the Probate Registrar of the High Court of Justice Oyo State of Nigeria.
5. The defendant is unlawfully occupying late Chief Laniyonu's land and it is the area marked RED in PLAN No. OB.5095 dated 30/1/84 and drawn by Mr. O. BAMGBOSE. a Licensed Surveyor and attached to this document. Plaintiffs will found on this Plan at the trial of this action.
6. On or about August, 1979 the defendant wrongfully occupied the and in dispute at Iwo Road, Ibadan without lawful authority and commenced building construction of the structure shown in the said Plan No.OB.5095.
The defence of the defendant to the claims against him is contained in part in the following paragraphs of his statement of defence:-
3 The defendant admits paragraph 1 of the plaintiffs' statement of claim but will add that the 3rd plaintiff being the eldest surviving son is the Dawodu and head of late Chief J. O. Laniyonu family under native law and custom. The defence case will be founded upon this legal issue at the trial of this suit.
4. With reference to paragraphs 4, 5 and 6 of the statement of claim the defendant avers that before the grant of the letters of ad-ministration to the plaintiffs on 22/9/81 by the Probate Registrar, 3rd plaintiff in order to meet the funeral and testamentary expenses of his late father (Chief J. O. Laniyonu) and being the eldest surviving son had sold and transferred the land in dispute to the defendant for valuable consideration in the presence of witnesses in accordance with native law and custom.
The plaintiffs filed a reply to the statement of defence and having regard to the issues raised in this appeal mention need only be made of paragraphs 1, 2. and 3 of the reply which read as follows:
1. With reference to paragraph 3 of the Statement of Defence the plaintiffs say that no one has been appointed Head of late Chief J. O. Laniyonu's Family but that the plaintiffs are joint Administrators/Administratrices of the Estate of Chief J. O. Laniyonu in which the land in dispute forms a part.
2. With further reference to paragraphs 3 and 6 of the Statement of Defence the plaintiffs never at anytime authorised any single Administrator to sell the land in dispute to the defendant nor acquiesced in the illegal possession of the land in dispute by the defendant.
3. With reference to paragraph 4 of the Statement of Defence the plaintiffs say that the funeral and testamentary expenses of late Chief J.O. Olaniyonu were borne by a relation, Chief Sobo Sowemimo (S.A.N.) who was later reimbursed from estate account on the grant of Letters of Administration to the plaintiffs.
The case proceeded to trial before Sijuade, J., who having heard the parties and their witnesses gave his judgment in the case on 2nd July, 1984. He found for the plaintiffs holding in doing so as follows:-
On the whole, the defendant has failed to prove that his possessory title to the land in dispute is legal and better to oust the legal title of the plaintiffs whose claim I find overwhelmingly proved to my satisfaction. The defendant's hold has therefore been an adverse possession of the land in dispute since 1979 without the authority and consents of legal owners, and must therefore be restrained. He is therefore a trespasser who is liable in damages to the plaintiffs notwithstanding the huge investments said to have been made by him on the land. It is an act of recklessness on his part to proceed to development without first obtaining a legal title or instrument from his vendor even though he described A himself as a land agent in his pleading.
The defendant being dissatisfied with the judgment appealed against it to the Court of Appeal Ibadan Division. His appeal was not successful. This is therefore a further appeal by the defendant against the decision of the trial court against him, albeit by way of appeal from the decision of the Court of Appeal
An important issue in this appeal turns on the following submissions which counsel foi the appellant made in the court below and which was rejected there. It was the submission of counsel there that the 3rd plaintiff, Abiodun Laniyonu, being admittedly the most senior male member of the children of the late Chief Laniyonu, deceased, became ipso facto, the head of Chief Laniyonu family upon the demise of Chief Laniyonu. Rejecting this submission Adenekan Ademola, J.C.A., in his lead judgment in which Uche Omo and Ibiahim Kolapo Sulu-Gambari, JJ.C.A., concurred held as follows:-
Dealing now with Proposition No.3, 1 would regard it not as a proposition of law, but at least an exaggerated statement about the position of the eldest son (Dawodu) in the Yoruba society. There is no power of sale vested in any eldest son under customary law. In the sociology of the Yorubas, a Dawodu or the eldest son exist during the lifetime of his father and it does not come into being after his death. He (the Dawodu) is like other children of the father with no special power in relation to family land. He occupies a position of pre-eminence among his father's children and no more.
I am sure Chief Afe Babalola in ascribing to him (Dawodu) a power to alienate family land is confusing his status with that of the status of the head of a family. The two positions are distinct and different under customary law and may co-exist in one person depending upon the circumstances within the family. The submission of Chief Afe Babalola is a preposterous statement of the Yoruba Customary Law. I cannot accept it .
In my view, there is no automatism in the Customary law of the Yoruba as to succession by the eldest child either to the position of the headship of the family, or family title. In their sociological dealings, they are a pragmatic people who are not given to theorising in any shape or form. I agree with the learned Judge, Sijuade, J., when he said thus in his judgment and I quote:
According to the testimony of the expert witness called by the defence on matters of customs of Yoruba people of Ibadan, such meeting could be called, even though he maintained that the most senior male member even if junior to the other female children, is the head of that family. Much as I am inclined to agree with this statement on customs being a Yoruba man myself, I, nonetheless, take a judicial notice that the statement is not unqualified; it is not true in all cases. Suppose the most senior male or rather the only male child is an infant or an imbecile, or incapacitated by reason of bad health or legal confinement, or even one that he is of notorious character in the family, does such person automatically step into the shoes of the headship? it would become absurd and ridiculous if that statement of native law and custom is accepted without any qualification.
As I have said earlier on in this judgment the crux of the defence of the defendant to the claims of the plaintiffs against him is contained in paragraphs 3 and 4 of his statement of defence. The bedrock of this defence is the contention by the defendant that the 3rd plaintiff being the eldest surviving son of the late Chief J.O. Laniyonu, i.e., the Dawodu of Chief Laniyonu, became, on the death of Chief Laniyonu, the head of late Chief J.O. Laniyonu family under native law and custom. This contention having been rejected it is easy to see why the courts below found against the defendant.
The Court of Appeal apart from rejecting the above vital contention of the defendant gave another reason why in its own judgment the claims of the plaintiff must succeed against the defendant. The reason is contained in the following passage in the lead judgment of Ademola, J.C.A.:-
Finally, I come to the issue as to what effect the letters of administration granted by the Probate Division of the High Court of Oyo State has upon the case as a whole. Mr. Ladapo, senior learned counsel, did say that Exhibit C has now vested the real and personal property of the late Chief Josiah Laniyonu in the administrators named in that document. The learned Judge was also of the same view that it is the only legal instrument by which the family can transfer or deal with the real properties of their deceased father. I think they are both right.
Section 10 of the Administration of Estate Laws of Oyo State states thus:
here a person dies intestate and administration is granted under this Law in respect of his real and personal
estate, that estate shall be deemed to have been vested from the date of his death until administration is granted, in the Chief Judge in the same manner and to the same extent as it vests in