This case started in the Ibadan Native Land Court, the plaintiffs there claiming an injunction to restrain the Defendant from interfering with the Plaintiffs’ Family land and also for damages for trespass committed on the said land. This suit was by order under Section 25 (c) of the Native Courts Ordinance (No. 44 of 1933) transferred to the High Court Ibadan. The order of transfer was made at the instance of the Plaintiffs for the reason that the President of the Native Land Court had an interest in the result of the suit.
In the High Court pleadings were ordered and a statement of Claim and statement of Defence were filed. From the statement of claim it appeared that the Plaintiffs sued on behalf of themselves and the other members of Bashorun Oluyole Family of Ibadan. The trespass alleged against the Defendant was that he, his agents workmen and or servants dug a portion of the Plaintiffs' family land, made bricks thereon and generally carried on building operations on the said land in defiance of Plaintiffs warnings.
The Plaintiffs further say in their statement of claim that the Defendant alleged that the portion of land in question was sold to him by Suberu Adeniran, the Mogaji of the Plaintiffs’ family and two junior members of the said family. The kernel of the plaintiffs’ case is contained in paragraph 5 of the statement of claim which is in the following terms :-
That the alleged sale if true is contrary to Native Law and Custom and invalid as it was made without the knowledge and consent of the Plaintiffs and other principal members of the said Bashorun Oluyole’s Family.” The substance of the Defendant’s case on the pleadings is contained in paragraphs 5, 6 and 7 of the statement of Defence which are as follows:
5. The Defendant admits paragraph 4 of the Plaintiffs’ Statement of Claim and says that he bought the said portion of land from Oluyole Family under a Deed of conveyance dated 20th day of August, 1941 signed by Adeniran the present Mogaji, Tella, Laoye, Oyeniran, and Adeoye, al senior and principal members of the family after the consent of all members of the family was obtained including the plaintiffs who are junior and unimportant members,”
“6. The Defendant denies paragraph 5 of the Plaintiffs’ Statement of Claim and puts the Plaintiffs to the strict proof thereof.”
“7. The Defendant states that the sale of the Said portion of land was with the full knowledge and consent of the Plaintiff and of the other principal members of the Family, and that the Plaintiffs only objected to the sale and instigated some other junior members to do the same when it came to ! the distribution among members of the family of the consideration paid by the Defendant for the portion of land.” Evidence was led by both patties at the trial and in his judgment the learned Judge -defines the issue to be determined by him as follows :-
“It is common ground that the land in dispute-part of the Bashorun Oluyole Family land situated on the Ijebu Bye Pass in Ibadan~was on 20th August, 1941, sold to the pefendant by Suberu Adeniran, the present Mogaji or Head, and certain members of the family. It is however contended by the Plaintiffs that this sale was contrary to Native Law and Custom and it is therefore invalid as it was effected without the knowledge and consent of the Plaintiffs and certain other principal members of the family. The following issue arises for determination by this Court viz. was the sale to Defendant effected in accordance with the Native law and Custom? Briefly, the Plaintiffs’ case is that Native Law and Custom requires that before any family land may be disposed of the consent of all the principal members of the family be obtained, and in this case; the Plaintiffs and other members, on behalf of whom they are suing, were not consulted before the sale was effected.”
“On the other hand the Defendant asserts that Native Law and Custom in Ibadan requires only the sanction and approval of the Head of the family to a sale of family land and in any event before this particular transaction was concluded a family meeting was called at which all the principal members including the Plaintiffs were present and approved of the sale.” Upon that issue the learned Judge found as follows;-
“The preponderance of evidence however undoubtedly supports the Defendant’s contention, Apart altogether from the testimony of those members of the family called by Defendant the evidence of M. Akande Iyalode one of the Judges of the Native Land Court of Ibadan manifestly supports the contention that by Native Law and Custom the Mogaji or Head of an Ibadan family has the power to dispose of family land even though, in an extreme case, it may be against the wishes of the family. It is said this witness, customary for him to consult the principal members of the family but in his capacity as Head he may act against the wishes of the majority or even all the representatives of the various branches.
“This evidence from a person of the standing of Mr. Iyalode seems to me to be conclusive, and moreover it undoubtedly establishes what can only be regarded as a reasonable state of affairs, having regard to present day conditions. Were it not so there would be very little if any security of tenure, for however careful a prospective purchaser or lessee of land might be to ensure that all is in order before completing his transaction he could never be certain that after considerable expenditure on the land some member or members of the family would succeed in obtaining a rescission of the contract on the grounds that they had not been consulted.
“I accordingly find that the sale of the land to the Defendant Mr. Makanjuola as evidenced by the Conveyance-Exhibit E-was in accordance with the customary law of Ibadan and so perfectly valid. That being so the action is dismissed with cost to Defendant.”
It seems to us that in his statement of Defence the Defendant did not plead that the Mogaji had the power to dispose of Family land without the consent of the principal members of the Family, and such a startlingly novel proposition would certainly require to be very clearly and specifically pleaded.
The Defendant’s case on the pleadings appears to be an admission that consent of the Family was necessary but that such consent was in fact obtained to this sale. Even if the pleadings were doubtful on that point it is put beyond any possibility of doubt by the Defendant himself in his sworn evidence when he said ., I knew that the land was family land. 1 know that no Mogaji can sell Family land without consent of the Family”. Nothing could be more definite, and after that definite admission by the Defendant himself there was-no need for the Plaintiffs’ counsel to cross-examine Defendant’s witness or do anything else to establish his case that the consent of the Family was necessary to the sale.
Upon that definite admission by the Defendant on oath the Court below was bound to accept the position that the consent of the Family was necessary and to proceed to enquire into and determine the question of fact whether the necessary Family consent had been obtained to the sale in question.
It is clear from his express definition of the issue he had to determine and from his findings thereon that the learned Judge considered it unnecessary, and therefore did not attempt, to decide the question whether the necessary Family consent had in fact been obtained to this sale. That in our opinion was a vital misdirection.
The learned Judge was at some pains to point out that it was in the interests of strangers trying to acquire Family land that the consent of the Family should not be required to an alienation of Family land. That may be so hl1t such considerations of policy are matters for the legislature and not for the Courts. The native law and custom throughout West Africa in regard to the alienation of Family land quite naturally has as its basis the interest of the Family and not the interest of strangers who may wish to acquire Family land.
We must further point out that the conveyance in this case does not in its terms even profess to convey Bashorun Oluyole Family land but only certain hereditaments of which the Vendors, a number of individuals, not in any representative capacity, were “seised in fee simple” . In this respect the conveyance differs from the sale agreement on which it was supposed to follow. The conveyance was ineffectual to convey to the Defendant the legal estate in the Family land and the question which still has to be decided in this suit is whether the agreement of sale of the Family land had the consent of the Family and so gave to the Defendant an equitable right of occupation which would prevent the Court granting the 'injunction sought or awarding damages for trespass.
The appeal is allowed and the judgment of the Court below set aside, including the order as to costs and it is ordered that any costs paid thereunder shall be refunded.
The case is sent back to the Court below for further consideration on the basis that the Court was bound by the express admission of the Defendant that no Mogaji can sell Family land without the consent of the Family, and for judgment.
The appellants are awarded costs in this Court assessed at 55 guineas; and it is ordered that the costs in the Court below, both as to the trial and as to the further hearing shall be costs in the cause.