SOLOMON & ORS. V. MOGAJI
| Pages | 400-422 |
SOLOMON & ORS. V. MOGAJI
400
SOLOMON & ORS. V. MOGAJI
5
0.
SOLOMON & ORS.
V
10 A.R. MOGAJI & ORS.
SUPREME COURT OF NIGERIA
SOWEMIMO,
J.S.C.
BELLO,
J.S.C.
15
OBASEKI,
J.S.C.
ESO,
J.S.C.
NNAMANI,
J.S.C.
12th November, 1982
APPELLANTS
RESPONDENT
SUIT NO. SC 36/1981
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Customary Law - Yoruba - Land - Family Land - Defendants let into possession
by family head pursuant to sale of family land by him as his own personal
property - Sale void, not voidable
Equity - Laches and Acquiescence - Judgment declaring the land family land,
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obtained by family and published in newspaper as warning notice prior to
sale - Defendants building on land with knowledge of judgment and after
oral warning - Plaintiffs not barred from asserting rights - Defendant trespasser
ab-initio vis-a-vis the family.
30 ISSUES:
1.
What is the effect of the sale of family land by a family head as private owner
without the concurrence or consent of the family.
2.
Whether persons who go into occupation to take possession of family land by
virtue of a transfer of such family land by a family head as private owner without
35
the consent of his family are trespassers or are licensees.
3.
Under what circumstances will the defence of laches and acquiescence avail
a party in a claim for ownership of land?
4.
Whether mere warning by an owner of a land to a person with a reasonable
claim of title (though mistaken) who in good faith develops the land overtime,
40
will entitle the owner, who stood by, to enforce through the courts his right over
the land.
5.
What is the effect of a trial court's failure to resolve conflicting evidence adduced
by the parties on a fundamental issue between them?
FACTS:
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The land on which the appellants erected their buildings was sold to them clan-
destinely by the head of the Iposu family as his own. In actual fact the land be-
longed to the Iposu family and was sold to the appellants without the concurrence
or consent of the family. The Iposu family however had obtained against the head
of the family a declaration that certain parcels of land were family land and not his
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land
and advertised the effect of this
judgment in the newspapers. The Iposu fam-
ily/respondents also warned the appellants about the land before they (the appel-
lants) began to erect their buildings. Thereafter the respondents did nothing until
after the death of the head of their family when they demanded from the appellants
the payment of the purchase price of the land. This was some 10 to 15 years after
401
NIGERIAN SUPREME COURT CASES
[1982] N.S.C.C.
the appellants had been living on the land. Upon the refusal of the appellants to
make the paymen:, the respondents sued them for the recovery of the land. The
trial judge found the appellants to be trespassers and restrained them as such.
The effect of this judgment which was confirmed by the Court of Appeal was that
despite the delay in enforcing their rights, the I posu family would enjoy the benefit
5
of the clandestine sale of the land by the family head resulting in the improvements
on the land made by the appellants. The appellants would have no remedy what-
soever because the family head was dead.
On appeal, it was contended for the appellants that the sale to them by the fam-
ily's head was at tne worst voidable; that the respondents had slept too long on
10
their rights, and thus the defence of laches and acquiescence should have been
upheld by the court and also that they were not trespassers having regard to the
fact that it was the head of the family who let them into the land.
HELD:
1.
That the sale of family land as a private owner by the head of the family without
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the consent or concurrence of the principal members of the family is void.
2.
That since the sale is void, the purchasers acquired nothing and are therefore
trespassers in so far as the Iposu family as rightful owners are concerned.
Where the entry into possession is under a transaction which has been declared
void or found to be void
ab initio
as in this case. the entry itself is void
ab initio
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and its lawful character loses its lawfulness and acquires an illegal character
or unlawful character from the very moment entry was made. It has no
redeeming features because the head of a Yoruba family has no legal authority
to convert family land to his own private land. Any permission or authority
granted by him to a person to take possession of his own private land is only
25
valid in respect of his own private parcels of land and cannot be interpreted in
law to be permission to enter the family parcels of land.
3.
That the respondents warned the appellants, both orally and in the paper, before
the appellants started to build on the land in question, and as such it could not
be said that they slept on their rights. Thus the defence of laches and
30
acquiescence raised by the appellants had not been established and must
therefore fail.
4.
Where a land owner stands by and knowingly his inaction allows a stranger
to
develop the land in good faith without the owner appraising the stranger the
defect of his title, then the doctrine of acquiescence may properly be invoked
35
to estop the owner from reaping the benefit of the stranger's labour. But where
the owner promptly warns the stranger of his title as soon as he discovers the
presence of the stranger on the land, despite the warning, the stranger proceeds
to develop the land, then the doctrine may not assist the stranger.
5.
If a person builds on the land of another knowing him to be owner thereof, there
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is no principle in equity which would prevent the owner from claiming the land
with the benefit of the expenditure on it - the customary law of Yoruba land
enforces this rule rigidly.
6.
That since the appellants got the land by virtue of a null and void transaction,
they had no right whatsoever and were not owners, leasees, invitees or
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licencees of the land, but were trespassers. to be licensees the appellants
would have had to be on the land by the leave and license of the owner and
the family head was not the owner of the land in dispute.
7.
Proof of ownership is prima facie proof of possession unless there is evidence
that another person is in possession, but if there is a dispute as to which of two
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persons is in posession, the presumption is that the person having title to the
land is in lawful possession, thus redering the other person a trespasser.
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