This appeal raises the questions first, whether a conveyance of family land by the head of family in his personal capacity, and as beneficial owner is void and conveyed no legal estate. Secondly, in such a state of facts whether oral evidence was admissible to show that in reality the conveyance was in his capacity as head of family.

The case was first heard before Abina J. in 1968, and plaintiff’s claim was dismissed. Plaintiff appealed to the Western State Court of Appeal. His appeal was allowed and a retrial was ordered. It is the result of the retrial before E.B. Craig J (as he then was) which is the subject matter of the appeal before this Court. At the retrial, parties filed new pleadings, and agreed that the issue to be determined was whether the sale to the plaintiff was valid.

The following facts are common to both parties and uncontroverted. Sunmonu Adeleke was, at all material times, the Mogaji of Abogunloko family, but no so disclosed in the transaction or conveyance. On the 12th July, 1956, Summonu Adeleke conveyed the land in dispute as Beneficial Owner to Lasisi Lasupo Alli, plaintiff/appellant, for the sum of #80 (N160 now). The deed of conveyance is exhibit 2 in these proceedings. The land conveyed is a portion of Abogunloko family land and is described as plots No. 299 and 280 in the Abogunloko family layout plan. The plan is exhibit 9 in these proceedings.

On the 28th September 1957, the same Sunmonu Adeleke as Mogaji jointly with two other members of the Abogunloko family, sold and conveyed the same parcel of land to Mrs. Araba as Beneficial Owner. The deed of conveyance is exhibit 7 in these proceedings. The 1st and 2nd respondents bought plots 299 and 280 from Mr. Araba, who sold and conveyed to them on behalf of Mrs. Araba – See exhibit 8 and 6 respectively in these proceedings. It is not disputed that respondents bought more than eleven years after appellant, and that they entered the land in dispute in 1968. It is the entry into the land in dispute by respondents that provoked this action.

In his evidence before the court appellant stated that Salawu Ajao introduced Sunmonu Adeleke as Mogaji of Abogunloko family, and that before the conveyance was made Sunmonu Adeleke and other members of the Abogunloko family took him to the land in dispute before he paid for the two plots. He claimed that members of the Abogunloko family knew and consented to the sale.

The witness called by the plaintiff/appellant, gave evidence that the Abogunloko family sold the land in dispute to the plaintiff/appellant, and that all members of the family were present at the time of the sale. There was also evidence that Sunmonu Adeleke was the Mogaji at the relevant time, and that other members of the Abogunloko family knew of the sale. The evidence of 2nd witness for the plaintiff, Jinadu Adeosun, which would have otherwise been crucial if supported by credible proof, was that, “He (meaning Sunmonu Adeleke) alone was authorised to sign all documents relating to land, on behalf of the family.”

The case of the respondents in simple. They pleaded in paragraph 6 of their statement of defence, their title by purchase and relied on their conveyance of the 28th September, 1967. In paragraph 8 of the statement of defence, the title of plaintiff was challenged as follows: -

“With reference to paragraph 3 of the statement of claim the defendants say that if, which is denied, the plaintiff obtained a deed of conveyance from members of Abogunloko family, the said act was not authorised by the Abogunkolo family and none of the signatories include the Mogali of the said Abogunloko family.”

Sunmonu Adeleke, the principal character in this litigation, gave evidence for the respondents. He admitted he sold the land in dispute and that he had no right to do so alone without the consent of the family.

In a well-considered judgment dismissing the plaintiff’s claim, the learned judge found that Sunmonu Adeleke was Mogaji of Abogunloko family at the time of the transaction, but that, Sunmonu Adeleke did not sell the land in dispute in his capacity of Mogaji and head of Abogunloko family. Furthermore there was no evidence that the land sold was family land. Consequently, the learned judge refused to allow oral evidence to show that Sunmonu Adeleke sold the land in dispute as Mogaji of and on behalf of the Abogunloko family, in his view, to allow this will infringe the provisions of section 131(1) 9a) of the Evidence Act. Finally, he held that since Sunmonu Adeleke was recited as having conveyed as ‘Beneficial owner’ the transaction was void.

An appeal was entered. The Court of Appeal in a split decision of 2: 1, (Akanbi, Dosunmu JJ.C.A, and Uche Omo J.C.A. dissenting) dismissed the appeal for the same reasons as the trial judge.