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In The Supreme Court of Nigeria

On Friday, the 6th day of April, 1990

SC 7/1989

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Salihu Modigbo Alfa Belgore

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

  

Between

 

Abibatu Folami & Ors.

.......

Appellant

 And

Flora Cole & Ors.

.......

Respondent

 

Judgement of the Court

Delivered by

Salihu Modigbo Alfa Belgore

 

 

 

The appellants were the plaintiffs in the trial court of High Court of Lagos State. The suit they took to that court concerned a piece of land at Oja Village, Oshodi District which area is now called Ilupeju. The land containing the plot now in question was acquired by one Madam Adisatu Ama and it was registered in the Land Registry, Ibadan (when that area was part of the defunct Western Nigeria) as No.45 page 45 Vol.751 on 8th day of September, 1947. The land was laid out into plots in the approved Layout Plan No. CT/144/A,B, and C. The plot referred to in the dispute leading to this appeal is Plot No.6. It is now called No.6 Ilaka Street, Ilupeju, Lagos, perhaps it was named after the 3rd respondent. The land was conveyed to Madam Adisatu Ama in fee simple free of all incumbrances.

 

 

In 1951, Adisatu Ama died and left five daughters, to wit, Flora Cole (1st respondent), who was the eldest of the children, Abibatu Folami (the first appellant), Safuratu Ajike, Morinatu Tomori Eletu (the 3rd appellant) and Seliatu Ashabi Openibo (2nd appellant). There were grandchildren of Adisatu Ama, including Nathaniel and Edward Marsh (children of Flora Cole), and also children of Ajatu, who pre-deceased Adisatu Ama.

 

 

According to the plaintiffs as Adisatu Ama left no male issue, all her estate evolved on the five children, who were all female including the children of Ajatu, who pre-deceased her. Safuratu Ajike died in 1961 intestate, leaving surviving children including the 4th appellant, Adolphus Alade Bailey. In their statement of claim, the plaintiffs averred inter alia, first in paragraph 9,10,11,12, 13 and 14:

 

 

(9) The 1st Defendant alone is alleged by her children Edward Marsh and Nathaniel Marsh to have given them a Power of Attorney dated the 2nd day of September, 1961 and registered as No.26 at page 26 in Volume 466 of the Lands Registry, Ibadan (now kept in the Lands Registry, Lagos) without the consent and knowledge of her sisters and that of the 2nd and 4th plaintiffs.

 

 

(10) The 1St Defendant alone through and by her children Nathaniel Marsh and Edward Marsh acting on the Power of Attorney recited in Paragraph 9 above, sold to the 2nd Defendant the piece or parcel of land whose Survey Plan is attached to the Deeds of Conveyance sought to be set aside by the action without the knowledge and consent of the Plaintiffs.

 

 

(11) The said Power of Attorney recited above was fraudulently made by the 1st Defendant and was also fraudulently obtained by her children.

 

(12) The 1St Defendant had no right or authority of the Plaintiffs and from all the children and family of the said Adisatu Ama to give or execute the said Power of Attorney in favour of her sons.

 

 

(13) The Plaintiffs will show at the trial that the donees of the said Power of Attorney i.e. Messrs Nathaniel Marsh and Edward Marsh fraudulently and without any authority of the Plaintiffs and the entire members of the family obtained the said Power of Attorney.

 

 

(14) The purported Power of Attorney was fraudulently executed without the knowledge and consent of the Plaintiffs.

 

 

and then in paragraphs 16 - 22:

 

 

(16) The sons of the 1St Defendant who are the donees of the said Power of Attorney and who sold on behalf of their mother are now dead.

 

 

(17) The 1st Defendant fraudulently purported to have sold a portion of the said land to the 2nd Defendant without the knowledge and consent of the Plaintiffs.

 

 

(18) The said sale is evidenced by a Deed of Conveyance dated 12th March, 1962 and made by the 1st defendant and executed by her Attorneys, Nathan Marsh and Edward Marsh, her sons above and registered as No.14 at page 14 in Volume 548 of the Lands Registry Ibadan.

 

 

(19) That notwithstanding that the sale was not to the knowledge and consent of the Plaintiffs the 1St Defendant did not give any money or proceeds thereafter to the Plaintiffs.

 

 

(20) The 1St Defendant has in similar manner sold all the landed property as recited in the Paragraph 1 without the authority, knowledge and consent of the Plaintiffs.

 

 

(21) The 1st Defendant has been dealing with the land in manner inconsistent with the family Ownership of the Land and as if she is the absolute owner to the exclusion of the other members of the Adisatu Ama's family.

 

 

(22) The Plaintiffs will contend at the trial that Flora Cole the 1st Defendant is not the head of the family of Adisatu Ama.

 

 

Apparently, Flora Cole executed in favour of her two sons, Nathaniel and Edward, a power of attorney to deal with the land. They sold plot now in issue to Mohammed Aderounmu Bamgbose, 2nd respondent, who in turn sold to Lasisi 0. A. Ilaka, the 3rd respondent. Thus there is no dispute that the root of title is traced, for the purpose of the descendants of Adisatu Ama, to Adisatu Ama. Now the claim of the appellants as plaintiffs could be summarised as follows:

 

 

(1)    That all Adisatu Ama's children being females, were equal and that though Flora Cole was the eldest she could not arrogate to herself the leadership of Adisatu Ama's family.

 

 

(2)    That on the premises above she could not dispose or alienate the property of Adisatu Ama without the consent of her other sisters.

 

 

(3)    That Flora Cole or her Attorney, without the knowledge or consent of her other sisters, had no legal right to sell or convey the land in dispute to 2nd respondent who in turn sold and conveyed to the 3rd respondent.

 

 

There was the evidence of the High Court of Lagos, sitting at Ikeja, in suit No. ID/65/71 in which these same sisters sued Flora Cole in respect of another land in similar circumstances as the one now in issue, of which the land now in issue formed a part, and won mainly because it was held she was not the head of the family and that the sale was held void. Flora Cole never appealed against this decision. But in the case now on appeal before another Judge of Lagos High Court, reliance was placed on Lewis V. Bankole I N.L.R. 80, where it was held that in Lagos a woman could be head of the family if she is the eldest and the others who are junior to her are female. She need not be elected or appointed as the head of the family in such a circumstance. Against this judgment, an appeal was lodged at the Court of Appeal, where in dismissing the appeal, it was held that the decision in Lewis v. Bankole (supra) is not only sound but would be followed. The appellant took up the issue on reliance on this case. The appellants submitted that the Court below, especially the Court of Appeal ought to have relied on the opinion of Dr. G.B.A. Coker (who later became a Justice of the Supreme Court), in his book (which is an amplification of his thesis for Ph.D.)- "Family Property Among Yorubas" when he stated that where all the children of a deceased who died intestate are females, the head of the family must be appointed and that the question of age or eldest would not apply. [See pages 78, 148, 149 of the book which is the only edition].

 

 

What must be manifestly observed in this case is that apart from the appellants contending that where all the children of the deceased are females, all of them share equally in the estate of the intestate deceased, there is no evidence led to support that contention except the case of 1971 (supra) which the trial High Court of Lagos of concurrent jurisdiction refused to follow in this case. However, the line of cases on Yoruba native law and custom hardly precludes a woman from being the head of the family. The trial Judge, Agoro, J., after reviewing all the evidence before him proceeded to hold as follows:-

 

 

It is clear from the evidence before the Court, which I accept that upon the death of Adisatu Ama intestate in Lagos in 1951 she was survived by five female children the eldest of whom was Flora Cole the 1st Defendant in the present action. Adisatu Ama was the owner of a large area of land shown on the survey plan Exhibit A. Since Adisatu Ama died intestate the land in Exhibit A became the family property of her heirs under customary law. Thus the five surviving children of Adisatu Ama became co-owners of the family land shown on Exhibit A under customary law.

 

 

It is not in dispute that the management of family land or property is the responsibility of the Head of Family. The question then arises: Who is the Family Read of Adisatu Ama Family? The plaintiffs have stated that upon the death of Adisatu Ama none of the surviving children was appointed as the Head of Family. The learned counsel for the plaintiffs in his closing address also contended, quite erroneously in my view, that there was no proof of any Yoruba Custom that the eldest female child could be Head of Family if the other members of the family are females. The eldest surviving male member of the family is generally recognised as the Head of the Family and the question of an election or appointment by the family could not arise, except in Chieftaincy families. The position of the eldest surviving female member of family was considered in Lewis v. Bankole (1909)1 N.L.R. 81 and Osborne, C.J., observed at page 102 as follows:-

 

 

On the other hand the view of the Lagos Chiefs is that it is the eldest child, whether male or female who becomes head after the Dawodu.

 

 

There is nothing inequitable in this recognition of women's right; and the town of Lagos bears striking testimony to the honour here accorded to women in the names of the square wherein this Court house stands, some and one of the principal markets, both called after women of wealth and importance in by gone days. I must accept the pronouncement of the Lagos Chiefs in this matter, and I declare that the proper person to be head of Mabinuori's family is the eldest surviving child of Mabinuori, that is, the defendant Fakeye. There are certainly no reasons for making exception to the rule in her case, for the chiefs appointed by the Court to go into this matter described her as appearing to them 'gentle and intelligent and capable, in fact, she should be the mother and guiding head of this family.

 

 

In applying those principles to the case in hand, I have come to the conclusion that Flora Cole the eldest surviving child became the Head of Family upon the death of Adisatu Ama. Accordingly Flora Cole thereby became responsible for the management of the family land shown on the survey plan, Exhibit A.

 

 

It is thus clear learned trial Judge adverted to existing authority that has never been disputed for a long time. He agreed that Flora Cole as head of the family never consulted the appellants when she sold the plot to Bamgbose. Then what is the step to take? The authorities agree that where head of the family disposes of the family land without consulting members of the family, that disposition is not void, it is merely voidable at the instance of those members of the family. Yesufu Esan and Ors. v. Bakare Faro & Ors. XII W.A.C.A. 135; Ekpendu v. Erika (1959) 4 F.C.S. 79; [1959] SCNLR 186; Adjarho v. Aghoghovwia (1985) 4 S.C. I and 5. The land now in issue was sold by Bamgbose to the 3rd defendant, Mr. Ilaka in 1966 and he developed thereon a duplex building. The street seems to be named now after him as Ilaka Street. The deed of conveyance is Exhibit D. As the 3rd defendant/respondent relied on the title of Bamgbose, he could not get a better title than Bamgbose so that his own right could be voided by the other members of the family who sued Flora Cole. Surely, Ilaka is a purchaser innocently for value on what he believed was an apparently good title registered in Bamgbose's name. The appellant also alleged fraud on the part of Flora Cole and her Attorney in hiding the conveyance to Bamgbose from them. In law this is a heavy burden they shouldered and to be relieved of that burden, they must prove fraud beyond reasonable doubt [Nwobodo v. Onoh & Ors. (1984)1 SCNLR 1.]

 

 

If commission of a crime by a party is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt - S. 137(1), Evidence Act. There was hardly anywhere in the whole proceedings where evidence of fraud was adduced by the appellants. The trial Court dismissed the claim and went further that it was too late in bringing the action as they stood by for sale to be made to Bamgbose and thence to Ilaka. As for the claim that Bamgbose first, then Ilaka, had notice of the High Court of Lagos decision which held Flora Cole was not head of the family in suit No. IK/61/63, no evidence was offered to support the averment as the judgement was not tendered.

 

 

The appellants appealed to Court of Appeal where the decision of the trial court was upheld, and consequently the appeal to this court was lodged. The appellants filed the following grounds of appeal:-

 

 

Grounds of Appeal

 

 

(1)    That the learned Justices of the Court of Appeal erred in law in not allowing the appeal when they found that there is no judicial notice of the custom amongst the Yorubas in Lagos that the eldest female child amongst the other female children shall be an automatic head of the family after the death of the founder.

 

 

Particulars

 

 

(a)    There is no such custom among the Yoruba in Lagos to the effect that where all the surviving children of the founder of the Family are female that the eldest female child amongst the other female children must be the automatic Head of the Family after the death of the founder.

 

 

(b)    That there are abundant legal opinions by eminent writers that in a case like this the Head of the Family should be appointed by all the surviving female children.

 

 

(c)    Section 14(1), (2), (3) of the Evidence Law of Lagos State makes it mandatory that if a custom is not judicially noticed. it must be proved by the party alleging its existence.

 

 

(d)    There is no such proof in this case.

 

 

(ii)    That the Justices of the Court of Appeal erred in Law in holding that an obiter dictum by one of the Judges in Lewis v. Bankole N.L.R. Page 81 at page 102 is binding on them.

 

 

In their brief of argument the appellants formulated the following issues:

 

 

"Issues for Determination:

 

 

(1)    Whether the learned Justices misdirected themselves in dismissing the Appeal when they found that they could not find any precedent supporting that such custom in Lagos or among the Yorubas has been judicially noticed.

 

 

(2)    Whether the learned Justices properly directed themselves as to the burden of proof having regard to the facts that Defendant called no evidence in proof of the custom at the Lower Court or before them in accordance with the provision of Evidence Act.

 

 

(3)    Shouldn't the learned Justices have made the appropriate order setting aside the Deeds when they held that the sale was voidable?

 

 

It seems the appellants misconstrued the Court of Appeal's decision on the question of who is the head of the family. There are certainly precedents. The person to manage the family property, in Yoruba custom is normally the oldest male member of the family, whether he is the first born (as in Lewis v. Bankole (1909)1 N.L.R. 81) or if the oldest or first child is female and happens to be a strong and influential character or if there are no other male members of the family old or pushful enough to assert a claim to the headship, female child senior enough may be made head of the family. [See Nigerian Land Law by T.O. Elias, 4th Edition, p.104; Ricardo v. Abal (1926) 7 N.L.R. 58; Taiwo v. Sarumi (1913) 2 N.L.R. 106. It is true family head may be nominated or elected (as has been interchangeably used in the work quoted above). See the case of Ajoke V. Olateju (1962) L.L.R. 32 where even in the availability of a male preferred erroneously by the testator thinking he had no more close relation living, the Court held that a close female relation had the right to succeed as the head of the family.

 

 

The appellants faced virtually only the 3rd respondent in this case at the trial. The reason for this was the deaths of Flora Cole and her two sons who were her attorneys and the death of Bamgbose. All the 3rd respondent knows is his innocent purchase for value from Bamgbose. Against Bamgbose's name was a fully registered title and he had no reasons to suspect anything irregular. He entered into possession and developed the land before the action was brought. Who was to give evidence of such a custom? What are available as decided cases including Lewis v. Bankole, suffice for the court to take notice judicially that a female child could be head of the family.

 

 

Surely, whenever the head of a family conveys family property to a third party without consent of the family or if the family has branches, the principal members of the family, the conveyance is voidable at the instance of those other members of the family. In the instant case, the Court of Appeal held as to the position of 3rd respondent in the matter of traversing the appellants' averment in paragraph 11, 12, 13 and 14; and paragraphs 22 and 23 in their statement of claim as follows:

 

 

The third respondent was not obviously in a position to admit or deny all the allegations contained in paragraphs 11-14, 22 & 23 of the statement of claim. The plaintiffs were therefore put to the proof of the fraud the particulars of which they never gave and evidence by which they did not give. The learned Judge was therefore right when he held that the plaintiffs have failed to lead evidence to substantiate the allegations of fraud on the part of Flora Cole or on the part of her two sons who executed Exhibit C as Attorneys of Flora Cole.

 

 

The third respondent, for all he was supposed to know and if he was not to depend on hearsay (which at any rate would be inadmissible as evidence) had completely met the pleading of the appellant.

 

 

Finally, equity must be considered. Where were the appellants since 1966 when the 3rd respondent purchased the land and erected a duplex house thereupon? No single evidence was offered. Nobody builds on open or empty land in secret and a person with interest in land surely must be vigilant as to what happens to it. Vigilantibus non dormientibus jura subveniunt. There was no evidence that from the time the 3rd respondent purchased from Bamgbose in 1966 to the time he erected the duplex house to the time he occupied part of the building and leased part of it, he was challenged. It was in 1975 the appellants went to court and throughout the hearing the 2nd and 1 st defendants were absent. They were later found to have died. The appellants not only facilitated but also stood by and did nothing to stop the 3rd respondent who was the only defendant in court. Equity aids the vigilant, not the indolent. I affirm the decision of the Court of Appeal, which upheld the judgment of the trial court. I therefore dismiss this appeal with N500.00 costs to the 3rd respondent, Ilaka.

 

 

 

 

Judgement Delivered 

by

Obaseki. Ag. C.J.N

 

 

I have had the advantage of a preview of the judgment just delivered by my learned brother, Belgore, J.S.C., and I find the opinions on all the issues for determination expressed therein in accordance with mine. Accordingly, I agree with him that the appeal fails and should be dismissed.

 

 

This appeal deals with intestate succession to property under Lagos Yoruba custom, devolution of property and alienation of family land by the head of the family alone (i.e. without the consent and participation of the principal members of the family). The appellants commenced action in the High Court against the respondents in respect of the family property (land) sold by the 1st defendant/respondent, Flora Cole, to the 2nd defendantl respondent who, in turn, sold it to the 3rd defendant/respondent. The family is a Lagos Yoruba family and its surviving members at the death of the founder of the property were all females, the eldest of whom was Flora A. Cole, the 1St defendant/respondent. The original owner of the land was Madam Adisatu Ama. She died leaving her surviving five daughters of whom Flora A. Cole was the eldest. Others included the 1st appellant, the 2nd appellant, the 3rd appellant and Safuratu Ajike.

 

 

The main contention between the parties was whether Flora A. Cole was the head of the family or not. If she was head of the family, the sale was valid but voidable at the suit of the other children. If she was not, the sale was void. It was contended on behalf of the appellants by counsel that since all the children were females, Flora A. Cole, by Yoruba custom has to be elected by the other sisters before she can assume the headship. On behalf of Flora Cole, it was contended that being the eldest, on the death of their mother, the headship of the family automatically devolved on her.

 

 

The contention found support in the case of Lewis v. Bankole I N.L.R. 80 where it was held that in Lagos a surviving female child could become head of the family if (1) she was the eldest, and (2) all the surviving children were females. In the instant appeal, (the Court) the learned trial Judge found in favour of Flora A. Cole and the Court of Appeal affirmed the decision. The contention that Lewis  v. Bankole (supra) was the only single decision in support does not deprive it of the weight of authority.

 

 

It is the customary law of the Yorubas that a sale of family property by the head of the family alone is valid until it is set aside. In other words, the sale and transfer of title is voidable. It is also the customary law that to constitute an unvoidable sale and transfer, all the principal members must join the head in the sale and transfer of the property (see Akano & Anor v. Ajuwon (1966) 1 All N.L.R. 246 at 248 and 249). See also Solomon & Ors. v. Mogaji (1982) NSCC Vo. 13 page 400 at 409; (1982)11 S.C. 1). Although the sale and transfer of the property in dispute is by Flora A. Cole alone, the appellants slept over their right of action.

 

 

The appeal fails and I hereby dismiss it with N500.00 costs to the respondents.

 

 

 

Judgement Delivered 

by

Eso. J.S.C.

 

 

I have had the privilege of a preview of the judgment of my learned brother, Belgore, J.S.C. I am in complete agreement.

 

 

 

Judgement Delivered 

by

Kawu. J.S.C.

 

 

I have had the advantage of reading in draft the judgment of my learned brother, Belgore, J.S.C., which has just been delivered. I entirely agree with his reasoning and his conclusions that the appeal ought to be dismissed. Accordingly I too will dismiss the appeal with N500.00 costs awarded to the 3rd respondent.

 

 

 

Judgement Delivered 

by

Wali. J.S.C.

 

 

I have read before now, the lead judgment of my learned brother, Belgore, J.S.C., and I agree with his reasoning and the conclusions. For those same reasons in the lead judgment which I hereby adopt as mine, I also dismiss the appeal and confirm the judgment of the Court of Appeal in which it affirmed the judgment of the trial court.

 

 

The respondents are awarded N500.00 costs against the appellants.

 

 

 

Counsel

 

Chief Adedeji Adekoya

  ........

For the Appellants

A. A. Adesina Esq.

  ........

For the Respondents