“It is a settled position of law that, by Yoruba Customary Law, a transaction for the sale and conveyance of family land requires the consent of all members of the family or substantial majority of them. See AFOLABI COKER VS MARIAMO OGUNTOLA & ORS (1985) 2 NWLR (Pt. 87); ELIAS VS OLAYEMI DISU & 3 ORS (1962) 1 ALL NLR 214; FOKO VS FOKO (1965) NMLR 3, EBOSIE VS EBOSIE (1976) 6 UILR 217. A crucial fact that is central to the validity of the lease in Exhibit H is consent in line with the law under which the property is being held intestate. Consent in this circumstance must be direct and not inferential. Knowledge of a transaction, assuming the Respondents family had knowledge of the lease, is different from consent. In our complex society, knowledge may be given or perhaps inferred. What is important is that consent of necessary family members were sought and obtained.” Per BAGE, J.S.C. at P. 14, Paras. A-B.
DR. CHIKE ONYEKWULUJE v. G.B ANIMASHAUN (2019-LCER-36851-SC)
Facts
The 1st Respondent (G.B. Animashaun) is the administrator of the Estate and younger son of Late Badaru Asuni Animashaun (B.A. Animashaun). The 2nd Respondent is a co-administrator of the estate of the deceased. The Appellants are the children of the Late G.E.N Onyekwuluju, the substituted Appellant who was the Solicitor and Caretaker of the landed property in dispute.
The land in dispute was the property of the Late B.A. Animashaun which was granted under a Kola Tenancy by the Mgbeleke family of Onitsha situate and lying at No. 23 New Market Road, Onitsha. Upon his death, the landed property devolved to his heirs as a family property as he died intestate. Upon the death of I. B. Onyekwuluje (elder son of B.A. Animashaun) in 1975, the 1st Respondent indicated that a purported lease had been granted to the Appellants in respect of the landed property without his knowledge or consent. The makers of the purported lease are I. B. Onyekwuluje (who is a distant relation of the Badaru Family) and G.E.N. Onyekwuluje.
Consequently, the Respondent reached out to the late G.E.N. Onyekwuluje to protest the purported lease, The matter was sought to be resolved amicably by the parties, but was not successful leading to this suit, which essentially seeks to set aside the purported deed of lease.
Issues
1. Whether the Court of Appeal was right in introducing Yoruba Customary Law into the case and relying thereon in coming to its decision in the case.
2. Whether the Defendant-Appellant was obliged to call Raji Babatunde Animashaun to testify for him and whether any adverse presumption arose against the Defendant-Appellant under Section 149 (d) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990, in that he did not call Raji Babatunde Animashaun to testify for him.
3. Whether the Defendant-Appellant needed to call Barrister Henry Afolabi Lardner to testify as for whom he prepared Exhibit `S’.
4. Whether there was evidence that the Badaru Animashaun family consented to the lease granted to the Defendant-Appellant.
5. Whether the Court of Appeal was not wrong in holding that the findings of the trial Court were perverse and on embarking on its own review of the evidence led at the trial.
6. Whether the Court of Appeal was not wrong in its appraisal and evaluation of the evidence led before the trial Court and whether its findings thereon are wrong.
7. Whether the issue of delay in seeking to set aside the lease granted to the Defendant-Appellant by the Badaru Animashaun family was properly raised or considered by the Court of Appeal.
8. Whether the Plaintiffs-Respondents pleaded fraud in their Statement of Claim as prescribed by law.
Lead Judge(ment)
SIDI DAUDA BAGE, J.S.C. (Delivering the Lead Judgment)
Held
Unanimously dismissing the appeal.
Alternate Citations
Read Full Judgment
Counsel:
N.F.P. Egonu with him, Emmanuel Udu…..For Appellant
And
Oladipo Akinosun with him, Lovett Okocha…..For Respondent
For Appellant(s)
For Respondent(s)
Counsel’s Photograph(s) Needed.