Chief J.O. Lahan & Ors v. R. Lajoyetan & Ors (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C.

The appellants, who were plaintiffs in the High Court, Ibadan in Suit No. 1/98/67 sued the defendants, now the respondents, claiming the following:-

“(a) An order of the court setting aside an unauthorised deed of conveyance dated the 17th day of October, 1963, registered as No. 29 at page 29 in Volume 705 of the Lands Registry kept at Ibadan, made between the 1st to the 8th defendants of the one part and the 9th and 10th defendants of the other part which conveyance was made without the knowledge, consent, and authority of the Mogaji of the Tubosun family and the other principal members of the plaintiffs’ family.

(b) An injunction restraining the defendants, their servants and/or agents from entering the land described in the said conveyance or in any way dealing with or interfering with the same without the permission of the plaintiffs.

(c) The sum of SIX HUNDRED POUNDS (‘a3600) from the 9th and 10th defendants jointly and severally as damages for trespass committed by them upon the said land, which acts of trespass are continuing.”

In paragraph 9 of their statement of claim, the plaintiffs averred as follows:-

“The plaintiffs aver that the 1st to the 8th defendants have not the authority to convey Tubosun family land to the 9th and 10th defendants without the knowledge and consent of their Mogaji and of the other important members of the said family, and that the said conveyance should be set aside and declared null and void.” (Italics ours).

It is settled law that a statement of claim supersedes the writ; hence if some special form of relief be claimed on the writ and not in the statement of claim, it will be taken that so much of the claim is abandoned. So also where in the statement of claim a consequential relief is added to the claim in the writ such additional claim will be deemed as claimed before the court. In that wise the claim in item 1(a) of the writ of summons may be taken to have been amended by the additional claim that the said conveyance “be declared null and void.”

The case for the plaintiffs, who are the Mogaji of Tubosun family and seven (7) other principal members of the family, is that the land in dispute formed part of the Tubosun family property from time immemorial. The 1st to 8th defendants, who belong to a section of Tubosun family, are known as Lajoyetan Oyeku. In their statement of defence they averred that at a certain time the Tubosun family property consisting of four farmlands viz:-

(a) Anlugua near Idi-Ape

(b) Oke-Elere

(c) Ojo (this is the largest)

(d) Odo Onigege

was partitioned and that Odo Onigege was the portion given to Lajoyetan Oyeku section. It is not in dispute that the land the subject matter of the case falls within Odo Onigege farmland.

The two questions which the learned trial judge had to decide were:-

(1) Is Odo Onigege property of the Tubosun family- i.e. the plaintiffs-or had it been apportioned to the Lajoyetan Oyeku section of the family and therefore the property of the 1st to the 8th defendants

(2) Was the sale of the property by 1st to 8th defendants to 9th and 10th defendants valid if it is held that there was no partition

After a review of the evidence before him the learned trial judge held that the farmland Odo Onigege was never at any time apportioned to 1st to 8th defendants, who are members of the Lajoyetan Oyeku section, and indeed, as a matter of fact, that at no time was the Tubosun family property ever partitioned.

With regard to (2) above following his decision in (1) he held that the purported sale by 1st to 8th defendants without the consent and knowledge of the Mogaji and other principal members of the Tubosun family was void.

The learned trial judge in his judgment regarding claim (1)(a) of the writ as amended by paragraph 9 of the statement of claim said:-

“I hold that the land in dispute was at the time of the execution of exhibit A Tubosun family land.

It follows in my judgment that since the 1st plaintiff, the Mogaji, did not join in the sale of the land in dispute to the 9th and 10th defendants, the sale is void, exhibit A, conveyance of the land in dispute, is void and I so declare it. Rather than set it aside, since it is a nullity, I would merely declare it void”; (Italics ours).

On the claim for damages for trespass the learned trial judge held:-

“Adopting the same approach as in Ekpendu v. Erika 4 F.S.C. 79, since exhibit A is void, it cannot afford any justification for the entry of the 9th and 10th defendants into the land in dispute. They are therefore liable in trespass. Since the 1st to the 8th defendants are members of the Tubosun family, I cannot hold them liable in trespass since they have a right to go on the land in dispute nor can I order an injunction in the terms of the relief sought against them.

In the final analysis, I hereby declare the conveyance registered as No. 29 at page 29 in Volume 705 of the Lands Registry kept at Ibadan (exhibit A in this proceedings) as void.” (Italics ours).

“I also award against the 9th and 10th defendants the sum of (pounds)25 as damages for trespass ….

I would grant an injunction against the 9th and 10th defendants in terms of claim (b) on the plaintiffs’ writ, but the injunction is to be suspended for a period of six months from today to enable the 9th and 10th defendants to remain on the land in dispute if they come to terms with the plaintiffs.”

The defendants appealed against this judgment to the Western State Court of Appeal. Four grounds were filed with the notice of appeal and are as follows:-

Grounds of appeal:

1. The judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
2. The learned trial judge erred in law and on the facts by holding that the land in dispute is not the exclusive property of the defendants.
3. The learned trial judge erred in law by giving judgment in favour of the plaintiffs when there is preponderance of evidence to support partition of family property.
4. The learned trial judge erred in law by holding that there is no basis upon which to grant the equitable relief claimed by the 9th and 10th defendants.”

Later the appellants obtained leave to argue the following additional grounds of appeal:-

Additional grounds of appeal

“1. The learned trial judge, having held that exhibit A the conveyance was void, ought to have dismissed the first leg of plaintiffs’ claim praying the court to set aside the conveyance and he erred in law by not so doing.

2. The learned trial judge erred in law in declaring exhibit A void when such a claim is not before him.
3. The learned trial judge erred in law in finding for the plaintiffs on their claim for trespass when there is no finding in their favour of possessory title at the time of the trespass complained of.
4. Having regard to grounds 1-3 above, the learned trial judge erred in law in granting the injunction sought by the plaintiffs against the 9th and 10th defendants.”

When the appeal came up for hearing at the Western State Court of Appeal, a somewhat unusual procedure was adopted. We will, therefore, set out, as it is short, the proceedings and judgment of that Court.

” R. LAJOYETAN & ORS. v. CHIEF LAHAN & ORS.

Oloko (Okueyingbo with him) for appellants, Okubadejo for the respondents.

Oloko refers to application for leave to file and argue additional grounds of appeal. Leave to file and argue additional grounds of appeal granted.

Court:-We think that the first leg of the motion (action) to set aside the conveyance is misconceived and the learned trial judge having found that exhibit A was void ought to have dismissed the first leg of the claim to set aside the conveyance.

Court asks Oloko to argue ground 3 of the additional grounds of appeal. The plaintiffs should have sued for declaration of title.

There is no evidence that Tubosun family was in possessory title at the time of the trespass, the basis of the claim is exhibit A.

Okubadejo says what was sold to 9th and 10th defendants was Tubosun family land.

Court refers to exhibit A-land of Lajoyetan/Oyeku family. Judgment:-We agree with Mr. Oloko that this whole action was misconceived. The learned trial judge having found that exhibit A was void ought to have dismissed that leg of the action asking for exhibit A to be set aside.

The proper action should have been a claim for declaration of title.

As to trespass since there was a finding by the learned judge that the 9th and 10th appellants were put on the land by Lajoyetan/Oyeku family who had rights so to do, as there had been no partition, there can be no question of trespass.

The appeal is allowed on both grounds. The judgment and order as to costs by Ayoola J. dated 16th September, 1968 is hereby set aside. Plaintiffs/respondents’ claims are dismissed with costs assessed at 60 guineas in the High Court and 55 guineas in this Court.”

The appellants filed eight grounds of appeal with their notice of appeal to this Court. It is enough to point out, as we shall show later on, that the appeal can be disposed of on ground 1. We regret we cannot but repeat, that a procedure whereby a court of appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.

The counsel for the appellants in the Western State Court of Appeal was asked to argue only ground 3 of the additional grounds which he was granted leave to argue. That ground, as we stated above, complained that since there was no finding that the then respondents i.e. plaintiffs were in possession of the land, the trial judge erred in law in awarding damages for trespass. The learned counsel also submitted that the plaintiffs/ respondents before the appeal court should have sued for a declaration of title. The learned counsel for respondents countered that argument by contending that the land having been held to be Tubosun family land, and the 9th and 10th defendants/appellants having entered on the land and having erected some structures, and having planted many kinds of crops thereon and even engaged in piggery, without any authority or licence from the true owners-all these constituted definite acts of trespass. The learned trial judge had held that the 9th and 10th defendants had no right to be on the land because the 1st to 8th defendants, who purported to put them on the land, by the sale of the land to them, had no right whatsoever to do so. The right of the 9th and 10th defendants to be on the land derived from exhibit A, and exhibit A had been found a nullity and declared void. Having removed the basis of their purported legal right to possession, we do not see the ground upon which the Court of Appeal could justifiably have held that a wrong cause of action had been instituted, especially when that was not the complaint in the ground of appeal argued before that court.

The learned trial judge found that the Lajoyetan/Oyeku sub-family, represented by the 1st to 8th defendants, are members of the Tubosun family. In fact it was claimed that out of nine sections which form the Tubosun family, the 1st to 8th defendants represent only one section. The learned trial judge also held that there was no partition of the landed properties of the Tubosun family; that Odo Onigege land, which is the subject matter of the claim before him, belonged to the Tubosun family, and all that the 1st to 8th defendants as well as other members of family could claim was the right to the use and occupation of the family land. The 9th and 10th defendants did not claim to be tenants of the 1st to 8th defendants. They claim as owners and challenged the title of the plaintiffs. In spite of these findings of the learned trial judge and the acceptance of the Western State Court of Appeal that exhibit A (which is the title on which the 9th and 10th defendants depended for their possessory right) was void, we fail to see how the Court of Appeal came to the conclusion that the 9th to 10th defendants were not trespassers. We are inclined to think that the somewhat improper and hasty manner in which the appeal was handled by the Court of Appeal prevented it from giving a careful consideration to the judgment of the learned trial judge and the court thereby came to an erroneous conclusion.

There is this other aspect of the appeal. Despite the fact that the Western State Court of Appeal called on the counsel for defendants/appellants to argue only ground 3 of the additional grounds of appeal, yet in its judgment it stated that the appeal was allowed on two grounds.

We think it necessary to point out the impropriety of the manner in which the Western State Court of Appeal had dealt with this matter, in the hope that such judicial pitfalls may be avoided in future.

The only ground, that is ground No. 1 of the grounds of appeal, argued before us, as already stated above reads:-

“The Court of Appeal of the Western State of Nigeria erred in law in reversing the decision of the learned trial judge when this case is indistinguishable from the Federal Supreme Court decision in Ekpendu and Ors. v. Erika 4 ,S.c. 79, at 81, a decision binding on the Court. ”

It does not appear from the records of the proceedings before the Western State Court of Appeal that its attention was drawn to Ekpendu’s case, but it was quite clear that the learned trial judge based his decision on it. The learned trial judge found as a fact that exhibit A was void, and that it could not afford justification for the entry by 9th and 10th defendants on the land and that they were therefore liable in trespass and therefore awarded damages for trespass and injunction against the 9th and 10th defendants to whom the 1st to 8th defendants had sold family land, which sale was declared void ab initio.

In the Ekpendu’s case, Abbott F.J., delivering the judgment of the Federal Supreme Court, had at page 81 this to say on a similar point:

“Briefly, then, the joint effect of the two decisions is that a sale of family land which the head of the family carries out, but in which other principal members of the family do not concur, is voidable, while a sale made by principal members without the concurrence of the head of the family is void ab initio.

Applying that principle to this appeal, and agreeing, as I do, with the learned trial judge that the land in dispute is family land, and not the absolute property of the 3rd appellant, it follows that the lease by him to the 1st and 2nd appellants was void ab initio, it being beyond that the respondent, the head of the family, never agreed to, and, in fact, consistently opposed the grant of the lease.

That being so, the learned trial judge, in my opinion, was correct in his awards of damages and injunction to the respondent, who is also, once it is settled that the land in dispute is family land, entitled to the declaration of title granted by the court below. I would, therefore,dismiss this appeal.”

The counsel for respondents had no convincing answer to the contention of appellants’ counsel. His reply was that on the evidence the trial judge was in error to have found for the appellants on the first item of claim which was to set aside exhibit A and to declare it null and void. This was exactly the point made by the Western State Court of Appeal. The court did not examine what was the judgment of the learned trial judge on that claim. The two relevant portions of the judgment which followed his finding that exhibit A, the conveyance, was void, read:-

“Rather than set it aside, since it is a nullity, I would merely declare it void. Since ‘Ex nihilo, nihil fit’ ….

In the final analysis, I hereby declare the conveyance registered as No. 29 at page 29 in Volume 705 of the Lands Registry kept at Ibadan (exhibit A in these proceedings) as void.”

Counsel for the respondents did not appreciate the fact that the appellants had in their statement of claim asked that the conveyance be declared null and void and what the trial judge did in his judgment was to grant that relief.

For the above reasons the appeal succeeds and it is allowed. The judgment of the Western State Court of Appeal and the award of costs to the respondents are hereby set aside. We therefore make the following orders:-

(1) That the judgment of High Court, Ibadan by Ayoola J. in Suit No. 1/98/67 with the award of costs in favour of the plaintiffs is hereby restored.

(2) That the judgment of the Western State Court of Appeal dismissing the claims of the plaintiffs be and is hereby set aside as well as its order as to costs.

(3) That the appeal of plaintiffs/appellants be allowed with costs assessed at 40 guineas in the Western State Court of Appeal, and 63 guineas in this Court.

And this shall be the judgment of the Court.

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Other Citation: (1972) LCN/1416(SC)