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KADIRI BALOGUN
V.
TIJANI ANAMU BALOGUN AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
27TH DAY OF APRIL, 1943
2PLR/1943/52 (WACA)
OTHER CITATION(S)
2PLR/1943/52 (WACA)
(1943) IX WACA PP. 78 — 84
LEX (1943) — WACA PP. 78 — 84
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
KADIRI BALOGUN — Plaintiff-Appellant
AND
TIJANI ANAMU BALOGUN AND THIRTEEN OTHERS — Defendants-Respondents
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REPRESENTATION
E. J. Alex Taylor and M. N. Bright Wilson — for Appellant
A. Alakija — for first Defendant-Respondent
A. L. Johnson and O. I. Ajose — for the other Defendants-Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Lagos Native Customary Land Law — Partitioning of family property to convey absolute title — Historical and legal position
REAL ESTATE AND PROPERTY LAW — LAND:- Evidence of partition of land by and among the children of original land owner on his death intestate — persons benefitting therefrom — Whether allowed to attack a subsequent partition by and among the children of one of the beneficiary on his own death intestate.
REAL ESTATE AND PROPERTY LAW — LAND:- “Stool property” — Legal character of land holding Lagos State under customary land — Whether stool property has never been recognised as a special form of tenure in Lagos different from “family property”
REAL ESTATE AND PROPERTY LAW — LAND:- Where there is a physical partition of one building among several parties — Common rights of access by doors and passages reserved to the various “partitionees” — Whether does not detract from the absolute title of each “partitionee” to his or her share
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CASE SUMMARY
In 1903 the seven surviving children of Okolo Balogun by Deed partitioned the whole of their late father’s property at 53, Balogun Street among themselves. The various portions so partitioned were clearly specified in the Deed.
Alli Balogun, in addition to his own portion, acquired later, by purchase, the portion acquired by another of these seven children.
Alli Balogun died intestate, leaving two sons, the plaintiff and Yesufu Anamu Balogun, who partitioned between themselves their father’s share of the property in question. Later Yesufu Anamu Balogun conveyed his own share to the plaintiff’s by Deed. The plaintiff claimed that he was absolute owner of these two portions and issued a writ for the recovery of possession of the property.
The defendants averred that the house was family property and that the rights and interests disposed of by Yesufu Anamu Balogun could not override the defendants’ rights and interests in the property under native customary tenure.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal and setting aside the judgment appealed):-
1. That having admitted the partition by and among the children of original land owner on his death intestate, persons benefitting therefrom could not logically attack a subsequent partition by and among the children of one of the beneficiary on his own death intestate.
2. That the Deed of Partition of 1903 which is admitted by all the defendants is clearly and absolutely in terms a document effecting a partition giving to each of the parties absolute ownership of his or her portion. It is quite clear from its terms that the Deed is not simply an allotment of residential quarters in a family house although on the evidence it appears to have resulted from quarrels as to the allotment of residential quarters.
3. There was no suggestion whatever in the pleadings of the property being “stool property”. In regard to Lagos lands, stool property has never been recognised as a special form of tenure in Lagos different from “family property”. The defendants’ case on the pleadings was and is that the property was “family property”.
4. That where there is a physical partition of one building among several parties, it is generally speaking inevitable that common rights of access by doors and passages should be reserved to the various “partitionees” but that does not detract from the absolute title of each “partitionee” to his or her share; it is only a necessary conveyancing incident.
Cases referred to: –
(1) Oku v. Olushi and others (1 N.L.R. G7).
(2) Oshodi v. Braimah Balogun & ors. (4 W.A.C.A. p. 1 at p. 2).
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MAIN JUDGMENT
The following judgments were delivered:-
GRAHAM PAUL, C.J., SIERRA LEONE [DELIVERING THE JUDGMENT OF THE COURT]
The appellant in this case was the plaintiff in the Court below where his claim was for the recovery of possession of the parlour and room and its appurtenances thereto belonging, situate and being at Okolo Balogun’s compound No. 58 Balogun Street, Lagos, which was formerly occupied by one Yesufu Anamu Balogun now deceased. The appellant sued only the first defendant-respondent and pleadings were ordered and filed. The trial was started, the case for the plaintiff was closed and the case for the first defendant just began, when on the motion of the first defendant, the other defendants were joined. The new defendant filed their joint Statement of Defence and the trial was resumed. The first defendant and the other defendants except one who has died without issue are now the respondents in this appeal. Certain of the defendants were minors and they now appear through a guardian ad litem appointed by this Court for this appeal.
The Court below dismissed the plaintiff’s claim and from that judgment he has appealed to this Court.
The facts of the case are simple. The principal facts were admitted on the pleadings and the controversy of fact and law which arose at the trial was not of much complexity. It will be convenient first to state the facts which were admitted on the pleadings and I now do so.
Okolo Balogun the original owner of No. 53 Balogun Street died in 1895 intestate. He was survived by seven children:-
(1) Alli Balogun
(2) Disu Balogun
(3) Sule Lemomu
(4) Sule Balogun
(5) Asatu
(6) Awawu
(7) Awusatu
In 1903 these seven surviving children of Okolo Balogun agreed to partition the whole of the Raid property (53 Balogun Street) and they did partition the same. The relative Deed of Partition was executed in Lagos in 1903 and duly registered in the Lands Registry. The various portions were specified in a plan attached to the Deed of Partition and designated thereon by letters, “A”, “B”, “C” etc.
Alli Balogun under the Deed of Partition obtained the portion marked “D”. Subsequently Asatu’s portion marked “C” was attached and sold by her creditor and bought by Alli Balogun.
All these facts were specifically stated in the plaintiff’s claim and were expressly admitted in both Statements of Defence.
The only issue of fact on the pleadings was as to what happened after the death of Alli Balogun intestate in 1919 to the portions “D” and “C” which belonged to him by the 1903 partition and his subsequent purchase respectively.
The plaintiff is a son of the late Alli Balogun who had one other child, a son, Yesufu Anamu Balogun, the father of all the defendants.
The plaintiff’s case is that he and his brother, on the death of their father Alli Balogun, agreed to a partition between them of their father’s share of the property in question, as a result of which Yesufu Anamu Balogun became entitled as absolute owner to a definite portion of the property in question which for valuable consideration he in 1936 conveyed to the plaintiff by a formal Deed (Ex. B) which is in evidence.
That partition and conveyance were attacked by the defendants in both Statements of Defence on the ground that the house in question was a family property and that Yesufu Anamu Balogun could not have disposed of his right or interest in the property by Will and if he purported to convey any such right or interest in the property such act is of no effect and could not affect the defendants’ rights in the property. The case of the defendants is definitely and clearly stated in the new Defendants’ Statement of Defence paragraph 2 as follows:-
“The property in dispute was and still is a family property held under the native customary tenure distinguished from any conception of English form of tenure.”
That is how the case stood on the pleadings when it went to trial, and the issue was quite plain and definite, namely, “Could the plaintiff and his brother validly partition, and having partitioned could the plaintiff’s brother validly convey, his share under the partition to the plaintiff “.
In fact counsel for the first defendant, when in the course of the trial Yesufu’s conveyance to the plaintiff was produced, said:-
“The issue is narrowed to the conveyance Ex B. Was there a right to convey the property? What was the interest conveyed? On an intestacy, the property is inherited as family property. Does this extend to the grandchildren? I was taken by surprise by the conveyance of which I was not told and must ask leave to call expert evidence. I ask for an adjournment.”
The adjournment was granted and evidence was led, the additional defendants having been added in the meantime and their separate joint Statement of Defence filed. It was abundantly clear by this time that the only substantial question at issue between the parties was one of Lagos Native law and custom namely what were the rights of the children of the deceased Alli Balogun to partition and to convey Alli Balogun’s shares in this property acquired under the Deed of Partition of 1903 and his subsequent purchase.
It was obvious, and apparently somewhat vaguely realised by the defendants’ counsel, that having admitted the partition by and among the children of Okolo Balogun on his death intestate they could not logically attack the partition by and among the children of Alli Balogun on his death intestate. Apparently for that reason without any amendment of pleadings a very half-hearted attempt was made to attack in evidence the validity of the 1903 partition on the death of Okolo Balogun intestate, an attempt which in my view ought never to have been allowed by the Court on the pleadings.
The learned Judge in his judgment, referring to the Deed of Partition executed 1903 says —
“The Deed was registered at the Lands Registry and its construction as a partition deed has not been questioned”.
There can be no doubt whatever that the learned Judge was right in this. The Deed of Partition of 1903 which is admitted by all the defendants is clearly and absolutely in terms a document effecting a partition giving to each of the parties absolute ownership of his or her portion. It is quite clear from its terms that the Deed is not simply an allotment of residential quarters in a family house although on the evidence it appears to have resulted from quarrels as to the allotment of residential quarters. In my opinion the learned Judge was wrong in ignoring the definite terms of the 1903 Deed in favour of most unsatisfactory oral evidence as to the intentions of the parties.
The learned Judge goes on to refer to the second partition (by and among the two children of Alli Balogun) and he says:-
“The first defendant denies the alleged second partition and claims that the house is family property and that any conveyance was accordingly invalid.”
There it appears that the learned Judge appreciated that the only issue was as to the second partition and its validity.
The learned Judge however goes on:
“But the evidence points in this case to the property having been stool property or at the least family property in which the partition was for the purpose of giving each member his portion to reside on. A portion was left undistributed to give each access to his portion. There is nothing to show there was any further partition and in any event it was without the consent of the members “.
In regard to that part of the judgment it is necessary to point out that there was no suggestion whatever in the pleadings of the property being “stool property”. Moreover in the many cases decided in regard to Lagos lands, stool property has never been recognised as a special form of tenure in Lagos different from “family property”. The defendants’ case on the pleadings was and is that the property was “family property”.
The only question the Court had to consider in this case was whether, on the death of Alli Balogun intestate, his two surviving children could validly partition in absolute ownership inter se the shares which Alli Balogun had acquired in this property by the 1903 partition and by his subsequent purchase of Asatu’s share.
This question is one of Lagos native law and custom. As a matter of historical fact and of judicial decision it is now too late in the day to say that under that native law and custom family property is inalienable so as to give the grantee absolute ownership.
As long ago as 1907 the Full Court presided over by Sir William Nicol, C.J., in the case of Oku v. Olushi & Ors. (1 N.L.R. 67) quite clearly accepted the principle that by the consent of all the members of the family, family property could be sold outright to a stranger, and held that a sale to a stranger of family property to which one member had not consented was not void but only voidable by that member provided he exercised his right without undue or unexplained delay.
The judgment of the Privy Council in the case of Oshodi v. Brimah Balogun & Ors. (4 W.A.C.A. p. 1 at p. 2) Puts the historical and legal position very clearly:-
“In olden days it is probable that family lands were never alienated; but since the arrival of Europeans in Lagos many years ago a custom has grown up of permitting the alienation of family lands with the general consent of the family; and a large number of the premises at Lagos on which substantial buildings have been erected for the purpose of trade or permanent occupation have been so acquired. These alienations in the great majority of cases have been to persons not members of the family to whom the lands have been allotted, and their Lordship, see no reason for doubting that the title so acquired by these purchasers was an absolute one and that no reversion in favour of the chief was retained. In recent times the title deeds have been made out in English form and duly registered according to law, and their Lordships do not intend to express any doubt as to the validity of these titles”.
It being well established that there can be such absolute alienation of family property by general consent it is clear that the 1903 partition deed, to which all the members of Okolo’s family were parties, in this case effectually vested in each of the parties an absolute title to his or her share. Similarly the later partition and conveyance by and between the sons of Alli Balogun effectually vested in the plaintiff the absolute title of Alli Balogun to the portions to which the 1936 conveyance (Ex B) referred which it is not disputed include the premises of which the appellant now asks for recovery of possession.
In regard to the partitions the learned Judge after dealing with the 1903 partition went on to say: “There is nothing to show there was any further partition and in any event it was without the consent of the members”. It is necessary to point out two things in connection with this passage of the judgment. First, that Ex B, a solemn deed executed by the ancestor of all the defendants, the two partitions are specifically narrated and the conveyance follows on that narrative. Second, Alli Balogun’s title to the property the subject of the second partition and the conveyance was an absolute one under the 1903 Deed with no reversion left in the family, so that the only family with an interest was Alli Balogun’s family the two members of which were the parties to Ex. D.
It is also perhaps advisable to refer to the learned Judge’s comment on the 1903 partition when he says “A portion was left undistributed to give each access to his portion.” It is obvious that where there is a physical partition of one building among several parties it is generally speaking inevitable that common rights of access by doors and passages should be reserved to the various “partitionees” but that does not detract from the absolute title of each “partitionee” to his or her share; it is only a necessary conveyancing incident.
In my opinion the learned Judge arrived at a wrong conclusion on the essential fact and law in the case and the appeal from his decision should be allowed. The judgment appealed from in my opinion should be wholly set aside including the order as to costs, any costs paid being refunded.
The claim is one for recovery of possession and I think that there should be substituted for the judgment of the Court below a judgment for the plaintiff in the terms of his writ of summons with the costs of the Court below subject to the qualification that execution of this judgment should be stayed as regards the recovery of possession for two months from the date of this Court’s order.
KINGDON, C.J., NIGERIA.
I concur with the judgment which has just been delivered by my learned brother the Chief Justice of Sierra Leone. But since a passage from a judgment of mine in a previous case was quoted by the learned trial Judge in this case and apparently had some influence upon his decision I desire to add a few words in order to remove any possible misconception.
The passage to which I refer occurs in my judgment in the Full Court of Nigeria in the case of Brimah Balogun & ors. v. Saka Chief Oshodi (X N.L.R. p. 36 at p. 58), and is in the following terms:
“In passing I wish to refer to one point in connection with the question of changing the law which should not be overlooked. I refer to the rights of future generations. Under native customary tenure an individual cannot alienate the land he occupies, consequently the rights of his descendants are safeguarded and cannot be realized by him. But once the tenure becomes fee simple, the rights of generations yet unborn can be sold and the proceeds squandered by the present generation. This alone should, in my opinion, make the Court slow to implement, in the exercise of its equitable jurisdiction, the actions of persons who have selfishly sold or purported to sell the fee simple of land previously held under native customary tenure. The equities are not at all on one side.”
In using these words, I was, of course, well aware that the Supreme Court had over a considerable period implemented the actions of persons who had, either by sale or partition, purported to convert family property into property owned absolutely. The case of Oku v. Olushi (1 N.L.H. 67), already referred to by my learned brother, is an instance in point. But I entertained doubts as to what might be the attitude of a higher Tribunal towards these transactions. I thought it possible that it might be held that such transactions were inoperative to deprive family laud of its essential quality — the descent to future generations. But those doubts have been completely resolved by the passage in the Privy Council’s judgment in the same case, Oshodi v. Brimah Balogun & Ors. (4 W.A.C.A. p. 1 at p. 2) already quoted by my learned brother. That makes it perfectly clear and it must now be taken as well established law that family land can lose its character of family land and come to be land which is owned absolutely by an individual.
As I understand the present case, it gives two instances of this, first in 1903 the family land of Okolo Balogun was partitioned by his seven children amongst themselves so that each became the absolute owner of his own portion. Alli Balogun’s portion consisted of the two areas marked “D” and “J ” respectively in the plan upon the deed of partition. He purchased “C” outright from Asatu and it became incorporated in “D”. Secondly on his death his property “D” (including “C”) and “J” became his family property (not the family property of the family of Okolo Balogun) shared by his two children Yesufu Anamu Balogun and Kadiri Balogun. They subsequently partitioned this family property between themselves Yesufu Anamu Balogun taking “D” (including “C”) and Kadiri Balogun “J”. Each became absolute owner of his respective share. Later Yesufu Anamu Balogun conveyed his share “D” (including “C”) to Kadiri Balogun for valuable consideration. Hence Kadiri Balogun became the absolute owner of “D” (including “C”) and “J” and is entitled to the relief which he seeks.
PETRIDES, C.J., GOLD COAST
I concur.
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ORDER
The appeal is allowed, the judgment of the Court below, including the order as to costs is set aside, and it is ordered that any sum paid in pursuance of that judgment shall be refunded. It is directed that judgment be entered for the plaintiff in the terms of the writ of summons subject to the qualification that execution of the judgment be stayed as regards the recovery of possession for two months from the date of this judgment. The appellant is awarded costs in this Court assessed at sixty-five guineas and in the Court below assessed at forty-five guineas. The award of costs in each Court is against each defendant jointly and severally.
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