Chief Omoniyi Fayehun & Ors Vs Chief R.a. Fadoju & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

M.E. OGUNDARE, JSC. 

After hearing learned counsel for the Appellants we found it unnecessary to call on the counsel for the Respondent to reply. We dismissed the appeal and affirmed the judgment of the court below with N10,000.00 cost to each of the two sets of Respondents. We indicated then that we would give our reasons for the judgment today. Here are my reasons for dismissing the appeal.

The Plaintiffs and the first set of Defendants, that is, 1st to 4th Defendants are all members of the Ojomu Otenioro family of Akure. The land in dispute is admitted by all parties to belong to the said family. The land was laid out into plots by the family and a number of plots were sold to the 2nd set of Defendants, that is, the 5th to the 75th Defendants. The plaintiffs who claimed to be principal members of the Ojomu Otenioro family alleged that the plot sold to the 2nd set of defendants were sold without their knowledge and consent. They averred that the 1st defendant Chief R.A. Fadoju was not the Head of the family but, like 3rd and 4th defendants, only a principle member of the family. They further averred that the 2nd defendant was not a principle member of the family being the son of the 2nd plaintiff. They therefore, claimed:

(1) a declaration that the sales to the 2nd set of defendants were null and void and of no effect;

(2) an order or declaration setting aside such sales and

(3) an injunction restraining the 2nd set of defendants, their agents, etc. from committing further acts of trespass on the land. The case for the defence was to the effect that the 1st defendant was the head of the Ojomu Otenioro family the owner of the land in dispute and that the 2nd defendant Timothy Ajayi was the Secretary to the family at all times relevant to this action. The defendants, particularly the 1st to the 4th defendants, claimed that they were principal member of the family and that the family at a meeting held in the house of the 1st defendant at Ojomu chieftaincy house appointed the four of them as representative of the family with full powers to dispose of the family land and to execute all conveyances, leases, receipts, mortgages and all other documents required to be signed by the said family in respect of the family land. The four defendants admitted that they made sales of portions of the land to the 2nd set of defendants and they rendered account of all monies received and spent to the entire family at various meetings and that the family applied the proceeds to projects approved by the family. I must pause here to mention that originally the action was against 38 defendants, 34 of whom, that is, 5th to 38th defendants were purchasers of various plots of the land. In the course of the proceedings, the 39th to 75th defendants by order of trial court, were joined as co-defendants necessitating the 5th to the 75th defendants filing a joint statement of defence. At the trial, evidence was led both for the plaintiffs and the defence and learned counsel for the parties addressed the Court. The learned trial Judge in a reserved judgment found:

“1) that the 1st defendant as the Chief Ojomu is the head of the Ojomu Otenioro family and he has been so since 1964 when he was installed Chief Ojomu;

(2) that the 2nd defendant was appointed the Secretary of the family by the principal members of the family including the plaintiffs;

(3) that the 3rd and 4th defendants are principal members of the family;

(4) that members of the family including all the plaintiffs appointed the 1st to the 4th defendants as representatives of the family to deal with land for and on behalf of the family.

(5) Since the 1st – 4th defendants were validly appointed as the representatives of the family to deal with the family estate for and on behalf of the family and have not been removed from office, it stands to reason that any sale of family land carried out by them and any conveyances executed by them in favour of purchasers are valid.

(6) That all the grants were made, as shown by the deeds of conveyance and certificates of occupancy, after the 1st – 4th defendants had been appointed by the family members as representatives of the family invested with the power to make grants of land to purchasers

(7) That the 5th to the 75th defendants acquired their plots of land lawfully and are not trespassers.”

It is upon these findings that the learned trial Judge found plaintiffs’ claims not proved and dismissed them. The plaintiffs were dissatisfied with the judgment of the High Court and appealed to the Court of Appeal. The Court of Appeal after taking arguments dismissed he appeal. The plaintiffs have now, with leave of the court below further appealed to this Court. The parties filed and exchanged their respective Brief of arguments. The plaintiffs who are now appellants formulated four issues as calling for determination in this appeal to wit: