Engineer Bayo Akinterinwa & Anor V. Cornelius Oladunjoye (2000)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This is an appeal by the defendants from the judgment of the Court of Appeal dated 10 December 1993; whereby the Court of Appeal confirmed with some amendment the decision of the trial Ondo State High Court dated 19 April 1989. The trial court declared the grant of the land in question to the 1st defendant null and void but upheld the grant of the same piece of land to the plaintiff. He also awarded the plaintiff N1,000.00 as general damages for trespass.

The respondent was the plaintiff in the action. He sued the 1st defendant for the following reliefs:

1. Ten thousand naira (N10,000.00) being special and general damages for trespass committed by the Defendant on the plaintiff’s piece or parcel of land which is situate lying and being at Okuta Elerinla Itamerin in Akure township.
2. Injunction restraining the Defendant, his servants, privies and/or agents from further acts of trespass on the said Plaintiff’s land.

Originally the 1st defendant was the sale defendant. At the start of these proceedings the 5th defendant Mr. Olu Bello was counsel to the 1st defendant. At the hearing, however, PW 1 Joseph Famubo who as head of the family raised objection against the appearance of the 5th defendant for the 1st defendant for one major reason. The Famubo family in an earlier case over a larger piece of land engaged the 5th respondent as their counsel. The family won the portion of land now in dispute forms a part of the said larger piece of land. The PW1’s objection was upheld and consequently the 5th defendant withdrew his appearance for the 1st defendant.

Subsequently, however, Mr. Olu Bello together with his purported grantors were joined as 2nd, 3rd, 4th and 5th defendants.

Now, the case of the plaintiff was that he bought the land in question from the Famubo family of Akure in 1971 for #400. A receipt for this sum dated 15/7/71 was tendered and admitted in evidence as exhibit ‘A’. He called as a witness Joseph Famubo (PW 1) the head of Famubo family also known as Arowogbadamu family. He testified that the family sold the land to the plaintiff. He said they showed the plaintiff the land and he went into possession. He denied that his family ever gave land to the defendants. The witness disclosed that the 5th defendant was counsel for his family in the previous land cases in suits No. AKA/ICL/67, AK/14A/70 which they won. The 5th defendant later got Oba Deji of Akure to convey to him (5th defendant) part of the land he won against the Deji for Famubo family. Thereafter the 5th defendant sold part of the land he acquired to others.

The defendants’ case as related by the 5th defendant is this. The 5th defendant was the Famubo family lawyer for years. He represented the family in court in respect of disputes over the family land.

It was a large expanse of land. It was in 1964 when the 5th defendant approached the then head of the family one James Omeiye for a portion of the land to be sold to him and his relatives. The family obliged and took him to the land where he marked out the are which he wanted for himself, his wife, his wife’s brother and Dr. Ogunleye. There were together four plots. The 5th defendant paid a total of #550 to the family. The defendants were subsequently let into possession of the plots. Conveyances were later executed in their favour separately by the Deji of Akure Oba Ademuwagun Adesida as the legal trustee of all Akure land. The 5th defendant. Mrs. Bello and Dr. Ogunleye have since developed their plots.

After hearing both sides to the dispute the trial court entered judgment for the plaintiff. The defendants’ appeal to the Court of Appeal, Benin Division was dismissed. The defendants have further appealed to this court upon a number of grounds.

In their brief of argument. the defendants raised two issues for determination. These read:

“1. Whether upon the failure of the plaintiff to establish a clear and certain identity of the land to which his claim In trespass and injunction relates and his exclusive possession thereof, the Court of Appeal can properly give judgment for the plaintiff as it did in this case.

2. Whether the award by the Court of Appeal to the plaintiff of reliefs not proved by legal and credible evidence and reliefs not claimed by the plaintiff at all neither in his Writ of Summons nor in his Amended Statement of Claim can be sustained in law and on the high judicial authorities.”

The plaintiff, on the other hand raised one issue for determination which reads:

“Which of plaintiff – respondent and first defendant – appellant has a better claim to the land in dispute”

It would appear clear that the main question to be resolved in this appeal is which of the two parties has a better claim to the land in dispute’ In this regard there are two areas to consider. Firstly, the pleadings of the parties. Secondly, the evidence before the trial court. The pertinent paragraphs in the plaintiffs amended Statement or Claim are 3, 4, 5, 6 and 15. In these paragraphs the plaintiff averred as follows: