⦿ CASE SUMMARY OF:
AWURE & ANOR. v. ILEDU (2007) – CA
by PipAr Chima
⦿ LITE HOLDING
When a family head or its’ principal members subsequently acquiesced to the sale of its’ land by a person who has no power to sell, such will be a bar to the family in asserting title.
⦿AREA OF LAW
Acquiescence and Estoppel
Amendment of pleadings
Awure & Anor.
Alhaji Adisa Iledu
(2007) JELR 33851 (CA)
(2008) 12 NWLR (PT. 1098) 249
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
HELEN MORONKEJI OGUNWUMIJU, J.C.A
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FINDING OF FACT
The brief facts of the appellants’ case who sued in a representative capacity is that the land in dispute situate at Masudo Village along University of Ilorin Road belongs to their family known and called Masudo family. It was the contention of the appellants that the respondent did not buy the land in dispute from their family and that no individual member of the family (Masudo) could unilaterally sell family land without the knowledge and consent of other family members.
Contrary to the appellants, the respondent by his pleading and oral testimony asserted that he bought the portion in question from 3rd plaintiff, Kawu Ora, (the said 3rd plaintiff did not appeal against the judgment of the trial court) who acted as principal member and agent of the appellants’ family and he was given receipt for the land. The respondent further stated that the appellants later enjoined him to pay again for the land in dispute if he wanted to retain the portion.
He testified that he reluctantly paid the agreed sum and peace was maintained until 2002 when the appellants approached him for more money on the land under the pretence that the new village head, called Oba, was appointed. He refused to pay and he was sued. The lower court dismissed the appellants’ claim hence this appeal.
⦿ CASE HISTORY
This is an appeal against the judgment of the High Court of Justice, Ilorin, Kwara State delivered by the Honourable Justice M. A. Folayan on the 13th day of June, 2005.
The appellants had claimed the following reliefs at the lower court by writ of summons filed on 7/2/2003:
1. Declaration of title over the piece or parcel of land on which defendant is encroaching upon.
2. Perpetual injunction restraining the defendant by himself, his agents, servants, successors, privies or workers from further encroaching or trespassing on the plaintiff’s family land at Masudo Village, University of Ilorin Road.
The appellants pleaded the amended statement of claim filed on 4/3/2003 while the respondent’s statement of defence and counterclaim as well as amended statement of defence and counter-claim were filed on 9/5/2003 and 21/2/2004 respectively.
The appellants filed a reply to the amended statement of defence on 23/9/2004. The 1st and 2nd appellants gave evidence and called a surveyor who surveyed the land in dispute as their witness. The respondent gave evidence and called five witnesses.
1. Whether the learned trial Judge was right to have allowed an amendment sought in this case on material issues and evidence to be led on the same by the defence after the close of plaintiff’s case without granting corresponding opportunity to the plaintiffs?
2. Whether the unilateral sale of family land by the 3rd plaintiff to the defendant which was a void act could be subsequently ratified by the plaintiffs’ family with or without the head of the family?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Both counsels are agreed in my view that generally an amendment can be granted to pleadings any time before judgment as long as it would not perpetrate injustice, overreach the other side or embarrass them. This is moreso desirable if the amendment would bring forward for adjudication all the issues in controversy between the parties, thus serving the overall interest of justice and the other side can be compensated in costs for any delay.
ii. In my view, and I am in complete agreement with the learned trial Judge, the amendment merely amplified and sought to give more details of the case already put forward by the parties. The 1st P.W. confirmed under cross-examination that a gate and fence was on the land and that the respondent had already sold a portion of the land to a 3rd party and a Mosque had been built on it. The 2nd P.W. the surveyor admitted that there were beacons on the land and a fence of three coaches of blocks. PW.3 – the 1st plaintiff now appellant also confirmed the existence of fence which they removed and a fence which they were advised not to destroy. The above was already in evidence before the amendment was granted. Amendment may be granted to bring pleading in line with the defence. See Kalu Igwe v. Okuwa Kalu (2002) 2 SCNJ 126, (2002) 14 NWLR (Pt.787) 435.
iii. The appellants’ complaint that they had closed their case to my mind is of no moment since they could easily cross-examine the respondent’s witnesses called as a result of amendment wherein the new issue of laches and acquiescence was purportedly introduced for the first time. However, a look at the old statement of defence shows that the respondent had stated that he had put the land in dispute to “positive use for years”. The amendment only itemized the use he had put the land including improvements he had made on the land since 1980. In my view, the amplification or addition of more details to the respondent’s pleading could not surprise or embarrass or do injustice to the case of the appellants at the lower court to warrant the lower court’s refusal of the application for amendment which the said court rightly granted. This is moreso when the facts were already in evidence.
iv. I cannot fault the reasoning of the learned trial Judge and could not have put matters better myself. I agree absolutely with the learned trial Judge that the appellants had used up all the opportunities allowed to them by the court. The issue of lack of fair hearing in the circumstances of this case just does not arise. A cry by a party that he/she had been denied fair hearing is not a battle cry behind which an appellate court should automatically fall. It calls our immediate attention, but, in our adversarial system of justice, justice is a three way street. It must flow to society, the plaintiff and the defendant in equal parts. It is not the exclusive preserve of any party. Every application must be treated on its own merit. In the exercise of its judicial discretion, the court has to apply its mind, not to any hypothetical set of facts but to the material before it, and if either party wishes to invoke the discretionary power of the court in his favour, it is for him to lay a basis for its exercise. The affidavit in support of the application to call additional witness, must indicate the importance of the document and the witness sought to be called to the merits of the appellants’ case. All the 2nd appellant said in the affidavit was that they were taken by surprise because the respondent who tendered an agreement drawn up by a practicing lawyer rather than the receipt which he had pleaded. Paragraph 8 of the affidavit, indicated their intention to tender a document obtained at the law school the existence of which was unknown to them while they were proving their case against the respondent.
2. ISSUE 2 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. On pages 131-132 of the records, the learned trial Judge accepted the evidence that there was a form of revalidation of the void sale by the members of the Masudo family by their acceptance of the N30,000.00 given to the family prior to 2002 by the respondent. The learned trial Judge also on page 132 held that since the original sale was void, the respondent was in illegal possession and his length of “illegal” though undisturbed possession did not affect the decision. The court based the decision on the issue of the revalidation made by family members to the original sale. The court concluded- “Having considered the totality of the evidence before me and all the considered views above I hold that the plaintiff has not establish their claim of reclaiming the disputed land from the defendant as this will amount to aiding injustice being perpetrated by land owners who would have legally sold their land when it was cheap and realizing the current high prices would want to reclaim and resell again. The plaintiffs’ case is therefore dismissed.”
ii. The respondent put up two defences. One, that he bought the land properly ab initio through proper representatives of the family. Secondly, that the family with its principal members validated the sale sometime prior to 2002 by accepting his further payment of N30,000.00.
iii. Let me say right off that I agree with the learned trial Judge that the original transaction was void ab initio and confers no legal title on the respondent. The evidence of the respondent regarding the 1st transaction does not support the claim that it met the requirements of customary law. Also the plea of laches and acquiescence is not normally acceptable under customary law as the length of possession of land cannot confer title. See Ajao v. Obele (2005) 5 NWLR (Pt. 918) pg. 400. Since the original transaction was void, he had no legal interest. However, being a bona fide purchaser for value of family land for consideration, he had acquired equitable interest in the land.
iv. Be that as it may, what is the effect of the act of revalidation done by the appellant’s family prior to 2002? Let us first consider the issue of whether it was properly pleaded. The amendment to the statement of defence has adequately pleaded the facts to buttress the defence of estoppel by conduct even though it was not put in such formal terms. I believe the respondent pleaded and proved the criteria set up by the courts to successfully plead and prove this defence. There is no special form needed to plead the equitable defences of waiver or estoppel so long as the defendant pleads sufficient facts thereof.
v. The incidents of the revalidation is the additional payment made by the respondent to the family of N30,000.00. The respondent’s evidence was that in respect of this second transaction he saw and contacted all principal members of the family, including the appellants in this case and the family head at that time. That part of his evidence was not seriously opposed under cross-examination. That was the finding of the learned trial Judge with which I am in agreement. Can a valid transaction be born from an invalid one? I would like to think so in the circumstances of this case. The principle of agency would hold. The appellants in my view had ratified the earlier transaction of their agent the 3rd plaintiff by accepting the N30,000.00 from the respondent. They as the principals thus acquiescence to the earlier transaction between the 3rd plaintiff and the respondent. There is evidence on record that the 3rd plaintiff was the accredited agent and representative of the family. It is interesting to note this portion of the evidence from the 1st plaintiff/appellant who was PW3.
**DISSENTING ON ALL ISSUES: MUNTAKA-COOMASSIE, J.C.A.
i. There is ample evidence and a plethora of authorities to back it up, that the defence did not plead those special defence of laches and acquiescence before the close of the plaintiff’s case. If the court should allow it, as it did, in this case, the plaintiffs must be given an opportunity to rebut or respond to it if they can. This new defence was not originally pleaded in the record. It actually intended to introduce a new cause of action and overreach the plaintiffs. It is clear that there is no way the plaintiffs could have been capable at that stage to traverse or debunk it.
ii. The most annoying thing was for the learned trial Judge to ignore the just resistance and opposition of the learned plaintiff’s counsel in allowing the amendment of the statement of defence and to disallow the plaintiffs to call further evidence to debunk the allegations in the amended statement of defence. This is a clear injustice, with due respect to both learned trial Judge and the respondents counsel. Has the trial court allowed the amendment of the statement of defence and allowed the plaintiffs to adduce evidence to counter the amended paragraphs in the amended statement of defence and later decided against the appellants, one would not have attempted to disturb the decision of the lower court. The paragraphs in the amended statement of defence are ridiculous and illegal. The most amazing thing is how the learned trial Judge allowed the said unfair and illegal amendment weighs heavily in the mind of the trial Judge that beclouded his vision and forced him to arrive at unjust decision on page 127 of the record of proceedings. How can any right thinking legal mind say that the discretion of the learned trial Judge was exercised judiciously and judicially, a Judge does not have unfettered discretion to order an amendment to the pleading which went against the interest of the other party unjustifiably.
iii. The plaintiffs were unjustifiably denied their right to fair hearing, that being the case, the judgment dished out by the trial court is tainted, vitiated and defective.
iv. I have considered the analysis and submissions of the appellants’ counsel on pages 12 – 16 of their brief of argument and held that the trial court was in error when it dismissed the plaintiffs’ case. I hold as held by Ademola, CJN in Lukan v. Ogunsusi supra, that the sale of family land by the head of the family is voidable, whilst a sale by the principal members of the family in which the head of the family does not consent is void ab initio.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Ogunwumiju JCA.
They have set up a system of extorting money from the purchasers of their family land. Prior to 2002 when they took money from the respondent to revalidate a sale more than 20 years old, they gave him the impression that that would be the end of the matter and he would have subsequent peaceable enjoyment of the land. All the principal members including the family head participated in the transaction. Now, a new Mogaji freshly installed wants his own bite from the unending family cake. They cannot eat their cake and have it. It is the duty of the courts to discourage this prevailing practice of land owners extorting money from land purchasers with the excuse that the wrong member of the family alienated the land. This was what the Land Use Act failed to achieve in spite of its lofty objectives. It is unfortunate in my humble view that the interpretation of the Land Use Act over time by the courts have taken the teeth out of and negatived the desired effect of the Land Use Act. The issue of the revalidation of sale of family land is a recondite point of law and I must say I considered the absolute position of the customary law in relation to alienation of family property vis-a-vis the current trend of the vendors using this position of the law to continue to defraud purchasers who innocently purchase family land. No modern society can progress economically without a high degree of certainty in land tenure and the imposition by law or equity of prescriptive titles to ensure that there is closure of land disputes. One can defend the intervention of equity on many grounds.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
In Akpan Awo v. Cookey Gam (1913) 2 NLR pg. 100, the full court held that it would be wholly inequitable to deprive the defendants of the land even assuming that “it were as clear as it is upon the evidence doubtful that they entered into possession contrary to the principles of native law”. In that case, the defendant had been in undisputed possession of the land in dispute with the full knowledge of the plaintiff for a period of 21 years and had collected rent and granted leases to individuals. It is also important that public policy should encourage quietude in the enjoyment of land held for a long time without disturbance.
The customary law that principal members must be present to sign or hand over the land to the purchaser may well be good when everyone lived in small farming communities, knew each other and were in fair walking or shouting distance from each other. How do we take care of the modem situation when the so called family head may not necessarily be in the immediate vicinity and have designated someone to act on their behalf as the 1st appellant confessed in his evidence. How do we take care of the cosmopolitan society in which people from all over the country have to make their home and build houses far from their own native villages. When a rule of customary law in itself not contemptible but established to ensure equal benefit of family interests is now being set up and utilized to perpetrate acts contrary to natural justice, equity and good conscience, I humbly think it is time to revisit it. It is not always easy for a purchaser to investigate and be given correct facts about the pedigree of a piece of land. Where it is clear as in this case that the family are deliberately re-selling the land at regular intervals, then the position of the law must be shifted to meet this current but prevailing social hazard. I believe that there is equitable jurisdiction vested in this court to protect the interest of a person who had been induced or encouraged to expend money under an invalid or unenforceable land transaction.
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
Error of the lower court is ineffectual when miscarriage of justice has not been occasioned by it in the way it has affected the result of adjudication. – Ogunwumiju JCA. Awure v. Iledu (2007)
Even though the learned trial Judge seemed to have rejected the respondent’s defence of acquiescence, I cannot ignore it. The lower court and this court need not agree on the reasons for arriving at the same conclusion. The focus of an appellate court is the correctness of the decision of the lower court and not the reasons given for it. – Ogunwumiju JCA. Awure v. Iledu (2007)
With due deference to learned counsel for the appellants, the aim of amending pleadings in general is to enable the court to decide the rights of the parties, and not to punish them for mistakes made in the conduct of their cases by deciding otherwise than in accordance with their rights. The age of technicalities is now history. Substantial justice is the order of the day. So it is either you get moving on the train of justice or you get left behind, with the necklace of technicalities wrapped around your neck to keep you warm company or, on the other hand, to choke you. – SANKEY, J.C.A, Awure v. Iledu (2007)
In our adversarial system of justice, justice is a three way street. It must flow to society, the plaintiff and the defendant in equal parts. It is not the exclusive preserve of any party. – Ogunwumiju JCA. Awure v. Iledu (2007)
The law is that family land can only be sold by the family head or Mogaji with the concurrence of principal members of the family. – Ogunwumiju JCA. Awure v. Iledu (2007)
The law is also that where there is alienation of family land by sale as in this case” the family head and principal members must concur therein. The transaction is void where these persons are not involved. These persons must act in a representative rather than personal capacity. Let us assume that the 3rd plaintiff and some family members concurred in the original sale to the respondent while expressing themselves to be acting on behalf of the family, the sale is valid but voidable at the instance of members of the family whose consent was necessary but not obtained. – Ogunwumiju JCA. Awure v. Iledu (2007)
We have established earlier my Lords that the onus is on the respondent in this case to prove a valid sale given the position of customary land law. – Ogunwumiju JCA. Awure v. Iledu (2007)
Also the plea of laches and acquiescence is not normally acceptable under customary law as the length of possession of land cannot confer title. – Ogunwumiju JCA. Awure v. Iledu (2007)
I know that the inflexible principle of customary law is that no prescriptive title can be declared in favour of the respondent in spite of his long possession of the land in dispute. However, the courts are courts of both law and equity. In the exercise of its equitable jurisdiction in this matter the court acts on three principles. First, the right of the occupier must be adverse to those of the real owner. That has been proved in this case by the appellants. Not only must the possession be adverse, it must have lasted a long time. Thirdly, the real owner must have been guilty of acquiescence and/or laches to enable the occupier bring into play the defence of estoppel by conduct. In its simplest form, acquiescence means conduct from which it can be inferred that a person has agreed to a certain state of affairs affecting his legal rights. Acquiescence therefore operates by way of estoppel. – Ogunwumiju JCA. Awure v. Iledu (2007)
The appellants have not denied that the respondent had been on the land since the Shagari administration and when they met him prior to 2002, a fence of three coaches of blocks, a gate which they removed and a Mosque were on the land. The appellants have shown a high degree of acquiescence which may amount to fraud. It was either they had voided absolutely the first sale to the respondent or they had chosen to revalidate it. They cannot approbate and reprobate. Equity will not allow it. The appellants have lost their reversionary right to title in the land through their conduct of revalidating the 20 years or more possession of the respondent. – Ogunwumiju JCA. Awure v. Iledu (2007)
The rules for the grant of amendment of pleadings are therefore very flexible and a matter within the discretion of the Judge. Nevertheless, an application to amend pleadings should be refused where: (1) It will entail injustice to the respondent. (2) The applicant is acting mala fide. (3) By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. – SANKEY, J.C.A, Awure v. Iledu (2007)