Chief Mukaila Jagbenaiya Olukoga & Ors V. Alhaji N. O. Alowonle & Ors (2002)

LawGlobal-Hub Lead Judgment Report

A. AKINTAN, J.C.A. 

This is an appeal from the judgment delivered by Osidipe, J. at Sagamu High Court in Ogun State on 19th September 1997 in Suit No. HCS/49/92. The present appellants were the defendants while the respondents were the plaintiffs in the lower court. The plaintiffs instituted the action in a representative capacity on behalf of themselves and on behalf of the Igbasonyin family of Ikorodu.

The plaintiffs’ claim as set out in paragraph 46 of the amended statement of claim is as follows:

(1) Declaration that the defendants are by their joint and several acts of excavation of sand from the family farmland known as Igbasonyin farm situate, lying and being at Magbon Village, off Ikorodu/Sagamu Road, near Ita Oliwo, via Ogijo in Sagamu Local Government area and which is

particularly described and delineated in survey plan No. AT/OG/8483 dated 6/12/89 and drawn by W.T. Adeniji licensed surveyor and having boundaries with (1) Pakisa farm (2) Lapete farm (3) Muti farm (4) Kajola farm and (5) Igborufu farm in the jurisdiction of this Honourable Court since 1990 causing severe damages and destructive waste to and detrimental to the inheritance and/or interests of the other members of the family and by such acts have been diminishing the value of the farmland.

(2) Declaration that the defendants’ excavation of sand and destruction of natural and ecological objects on the said farmland due to the said excavation are wrongful, illegal and contrary to statute.

(3) Ten Million Naira (N10,000,000.00) being special and general damages for the said destructive waste and damage committed on the said farmland by the defendants, their servants, agents and/or privies.

(4) Perpetual injunction restraining the defendants jointly and severally, their agents, servants and/or privies from committing any further acts of destructive waste, damage and/or dealings on the said farmland in any manner whatsoever detrimental to the collective interests and/or inheritance of the other members of the Igbasonyin family.”

The dispute that led to the institution of the case was over a large plot of family farmland fully described in the first leg of the claim. Pleadings were filed and exchanged. The parties later amended their pleadings and as such the claim was heard on the parties amended pleadings.

The parties led evidence in support of their respective pleadings at the trial.

It is clear from the pleadings and evidence led that the parties were members of the same family, the Igbasonyin family of Ikorodu. The first respondent is the current head of the family. He was elected into that office in 1992 following the death of the former head of the family, Alhaji Ariyo, in 1991. The election of the first respondent in 1991 caused a division within the family.

The first appellant and his splinter group claimed that the 1st appellant was the elected head of the family and not the first respondent.

On assumption of office of the first respondent as the head of the family in 1992, the family took a decision to survey the family land which is the subject of the present dispute. To that end, members of the family were ordered to make contributions towards the cost of engaging the services of the surveyor. This was done and a surveyor was engaged for the purpose. It was when the surveyor went on to the site that he noticed that many parts of the land had been devastated as a result of some people carrying on excavations for sand. He reported his findings to the family. On receipt of the surveyor’s report, the family made investigations about the people responsible for the excavations on the land. They found that the appellants were responsible for the excavations.

They warned them to stop further excavation on the land.

When it was discovered that they still continued, the present action was instituted against them at the Sagamu High Court.

The respondents employed the services of a firm of Quantity Surveyors, Olatunji Nosiru & Partner, to prepare a cost estimate/evaluation report of the damage done to the farmland. This was done. A copy of the report was admitted in evidence at the trial as Exhibit ‘A’. The estimated total cost of reinstatement of earth, trees and checking of erosion on the land was given in the report as N5,992,191.65. Apart from the Quantity Surveyor’s report (Exh. A), pictures of areas where excavations were carried out were taken, tendered and admitted in evidence during the trial.

At the conclusion of the trial, the learned trial Judge delivered his reserved judgment in the case. He held, inter alia, that the 1st respondent was the duly elected head of the family, that the excavation works carried out on the family land by the appellants were done without the consent or permission of the head of the family and/or any principal member of the family.

The excavations were therefore declared illegal. The learned Judge then entered judgment for the plaintiffs, in the case as follows in the concluding portion of his said judgment:

“In conclusion the action of the plaintiffs for and on behalf of Igbasonyin family of Ikorodu succeeds. There shall be judgment for the plaintiffs accordingly as follows:

1. Declaration that the defendants by their joints and general acts of excavation of sand from the family farmland at Magbon village since 1990 have caused severe damages and destructive waste to and detrimental to the inheritance and/or interest of other members of the family and these have diminished the value of the farmland.
2. Declaration that the defendants excavations of sand and natural resources of the said farmland without proper authority or consent of the Head of family and his Council are wrongful and illegal.
3. General damages of One million naira (N1,000,000.00) is herewith awarded in favour of the plaintiffs.
4. I hereby grant perpetual injunction against the defendants jointly and severally; their agents, servants and privies from committing further acts of excavation of sand and natural resources from the family farmland at Magbon village.”

The defendants were dissatisfied with the judgment and they therefore appealed against it to this Court.

Six grounds of appeal were filed against the judgment.

The parties filed their brief of argument in this Court.

The appellants filed the appellants’ brief and a reply brief. The appellants formulated the following three issues as arising for determination in the appeal:

“1. Whether in the light of the evidence the plaintiffs/respondents had discharged the onus required by them to warrant the judgment in their favour.

2. Whether the award of N1, 000, 000 was not excessive when viewed from the fact that the defendants and the plaintiffs are members of the same family and therefore had interest in the family land and also the fact that the plaintiffs did not proffer any evidence on waste to warrant the excessive award of damages.
3. Whether the grant of perpetual injunction against the defendants was proper in view of the fact that His Lordship found as a fact that they are all members of the Igbasonyin family of Ikorodu and could not be excluded in perpetuity.”

The respondents, on the other hand, formulated four issues in their brief. The four issues are merely a repetition of the three issues formulated in the appellants’ brief. I therefore consider it unnecessary to reproduce them.

The point canvassed in the appellants’ first issue relates to the proof required of the respondents. It is submitted that the claim that acts of the defendants have caused damage to the land and diminished the value of the land was not proved. It is argued that for the plaintiffs to succeed there should have been evidence from persons not only that there have been excavations, but that the excavations have in fact diminished the value of the property. The plaintiffs are said to have pleaded a survey plan and instrument of transfer to some members of the family but none of them was tendered at the hearing.

The averments that the digging on the land has caused erosion were said not to have been proved. It is submitted that the evidence of the Quantity Surveyor was not enough as he is said not to be an expert on waste but on bills of quantities. The failure to tender the survey plan is said to be fatal to the plaintiffs’ case because the correct boundaries of the land was not clear as the defendants disagreed with the boundarymen mentioned in the plaintiffs’ claim.

It is finally submitted in respect of the first issue that the action of the defendants not having been towards sale of family land but one of waste is said not to be one that is actionable by the rest of the family for a claim in damages. The failure of the plaintiffs to lead evidence to show that the land, as it was, could hold no crops is also said to be fatal to the success of their claim. The photographs tendered could only show that the land had been dug but not that it could no longer sustain farm crops.

The damages awarded by the learned trial Judge is the point considered in the appellants’ issue 2. It is argued that since damages are awarded in an action for negligence, the plaintiff is only entitled to such as will put him in the position he would have been had the act constituting the negligence not occurred, the damages claimed in the instant case is said not to have been proved. The award made is therefore said to be too excessive and punitive. This is particularly so when the parties are members of the same family.

The injunctive order made by the learned trial Judge is the point attacked in the appellants’ third issue.

It is submitted that a court will not grant injunction to restrain an actionable wrong for which damages are an adequate remedy. The learned trial Judge is therefore said to have acted wrongly by slaming the order of injunction on the appellants.

It is submitted in reply in the respondents’ brief that the problem involved in the case is one of administration of family land and not that of title to land or that of possession or trespass. It is argued that no individual member of the family therefore has a right to deal with the family land, as in the instant case, as if it were his own without the consent of the family. It is further argued that since the plaintiffs were the proper executive council of the Igbasonyin family and the 1st plaintiff as the head of the family, the plaintiffs had a right to manage and control the family land. The said right is said to include the right to prevent the land from being used by the defendants for acts that are against the family interests.

On the award of damages, it is submitted that since damage had been proved, it was appropriate for the court to award damages. The trial Judge exercised his discretion in arriving at the damages awarded in the case and the conditions for interfering with the exercise of the discretion do not exist in the instant case.

On the grant of injunction, it is submitted that since injunction is generally granted to prevent the continuation of an unlawful and/or illegal act, the trial court therefore acted within the law by restraining the appellants from returning to the family land to continue with their unauthorised and wrongful excavation work on the said family land. The issue of failure of the respondents to tender the survey plan at the trial is said not to be material. This is because the parties knew the land and the relevant boundaries of the land in dispute. The identity of the land ‘Was never an- issue between the parties and as such, there was no need for the plaintiffs to lead evidence in proof of what was not in dispute between the parties.

It was not in dispute that all the parties in the case are members of the same family, the Igbasonyin family of Ikorodu. The land in dispute is also the family land of the same Igbasonyin family of Ikorodu.

The law is settled that family property is property which devolves from father to children and grand-children under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole. Members of the family who do not reside or farm on the family land have no general right of ingress and egress but have a right of entry to attend family meetings and if he or she is a member of the family council, a right of entry to inspect the state of repairs in case of family house: See OGUNDAIRO V. ABEJE (1967) L.L.R. 9; LEWIS V. BANKOLE (1908 -09) 1 NLR 81; and OTUN V. EJIDE (1933) 11 NLR 124.

As already stated earlier above, the land in dispute is the family property of Igbasonyin family of which the appellants and the respondents are members. The facts disclosed at the trial are that the 1st respondent is the current head of the family and that the remaining respondents are members of the family council. No evidence was led as to the exact current occupiers of the land and what the land was being used for, or who were the exact occupiers of the land. All that was established is that after the death of Alhaji Ariyo, the former head of the family in 1991, the 1st respondent was elected as Alhaji Ariyo’s successor as the head of the family in 1992. There was a dispute over his election and the 1st appellant was the leader of those who opposed the 1st respondent’s election. It has not been shown that any of the respondents was occupying any of the land in dispute.

In fact the decision of the family council headed by the 1st respondent was that the land should be surveyed with a view to allocating portions of it to members of the family who would put the plots allocated to them for farming purposes or other uses. The Council called for contributions towards the cost of surveying the land. A surveyor was in fact engaged and it was the surveyor who brought to the knowledge of the respondents that excavations were taking place on portions of the land.

Although evidence was led to show that the appellants were the people who were carrying on excavations on the land, the respondents, as plaintiffs/failed to show that all the excavations took place after he assumed office as the head of the family. They also failed to establish that excavations by members of the family were proscribed during the period Alhaji Ariyo was head of the family.

Similarly, the respondents, as plaintiffs, failed to prove at the trial that access to the land was not thrown open to every member of the family. In other words, it was not shown that the appellants, as members of the Igbasonyin family, had no right to enter the land for the purpose of excavation on the land or that their access to the land was restricted because some named members of the family already granted permission to occupy the land were in occupation.

In the result, the question of awarding damages against the appellants in favour of the respondents

could not arise for the reasons already given above.

Similarly the respondents, as plaintiffs, failed to lead evidence to establish that the family council had taken a decision proscribing excavations on the land by members of the family and that the excavations carried out by the appellants were in fact carried out by them after the family had taken the decision proscribing excavations from the land by members of the family. There was therefore no basis upon which an injunction order made restraining the appellants from entering the land for the purpose of carrying on excavations on the land.

There is therefore merit in the appeal and I hereby allow it. The judgment of the lower court delivered on 19th September 1997 and all the awards and orders made therein are hereby set aside. In their place, I hereby make an order dismissing the plaintiffs’ claim. But I will not make any order on costs so as to help in healing the existing rift within the family. To that end, the parties are to bear their costs.

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Other Citations: (2002)LCN/1321(CA)