M. Olu Bello V. Bamidele Fayose & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

This is a second appeal from the decision of the High Court of Ondo State (Adeloye CJ) entering judgment for the plaintiffs (now “the respondents”) against the defendant (now “the appellant”) for damages for trespass and restraining the defendant, his agents, privies and all those acquiring through him from continued trespass on land which the trial judge described as the said Fagbamila Falae of Esiran land.” The plaintiffs had claimed in addition to damages for trespass and injunction, “a declaration of title to Statutory Right of Occupancy of a piece or parcel of land situate lying and being at Ilula-Udo, “and an order voiding the purported sale of a portion of the said land to the defendant and some other person yet unknown to the plaintiffs.”

The trial Judge (Adeloye CJ), set out the plaintiffs’ claim at the beginning of his Judgment, but at the end of his Judgment he did not award any declaration. Also, in regard to the order “voiding the purported sale” to the defendant and persons yet unknown, although the learned Chief Judge had commented that:

“Any conveyance of the said land to him (the defendant) or to any person or group of persons claiming through him is null, void, illegal and untenable. All layouts of the said illegally acquired piece of land or sale of portion made thereof are equally void.”

At the end of the day, he did not make any order in relation to or in terms of the plaintiffs’ second claim. It cannot be assumed that the comments quoted above amounted to an order. First, a comment made in the course of a judgment cannot be regarded as an order in the sense that it directs something to be done or omitted to be done, qualities which an order must possess. Secondly the comments made were neither in terms of the order sought nor within what the plaintiffs asked for. For these reasons the decision of the High Court that comes for consideration on this appeal is confined to those aspects of the claim to which it was specific; namely, the award of N500 as damages for trespass against the defendant and order of injunction restraining him from entering the land in dispute.

The plaintiffs claimed to be owners of a large expanse of land over which they have successfully sued one Chief Daramola, the Ojumu of Akure, several years ago. In the present action they sued the defendant who was Chief Daramola’s Solicitor in that action, claiming the declaration and reliefs mentioned earlier in this judgment.

The plaintiffs’ case at the trial was that the land in dispute formed part of the plaintiffs’ family land which had been object of litigation in the High Court in suit AK/15/77 between the head of the plaintiffs’ family who was the 5th plaintiff in the case and one Chief Adaramola Ojumu. The land originally formed portion of a large area of land which belonged to one Deji Arakale to whom they traced the title they claimed. The plaintiffs as well as their ancestors have been in undisturbed possession of the land. The action arose because the defendant who was neither a member of the plaintiffs’ family nor purchaser from the plaintiffs’ family entered the land, made sales of several portions of it to other persons and super-imposed a different layout plan on one that the plaintiffs’ family produced.

The defendants’ amended statement of defence disclosed that the root of title he relied on was from “a family known as Eshiran family” whose head was the 5th plaintiff in this case. He pleaded a deed of conveyance executed in favour of persons including himself by one Mr. Babatunde Eshiran the son of the 5th plaintiff acting on behalf of Eshiran family in 1975. The defendant did not adduce any evidence at the trial in support of his claim as pleaded.

The trial judge found that the plaintiffs have proved their possession of the land because, first, they have successfully raised a claim against Chief Daramola in Suit AK/15/77 and, secondly, the defendant admitted buying the land from the plaintiffs through a member of their family. He held that “reference to Esiran family land is reference to Fagbamila Falae land to which all the plaintiffs were entitled”. He also found that Esiran or Fagbamila land as the area in dispute may be called is an unpartitioned family land, and that sale of the land by Babatunde Esiran to the defendant and 14 others as pleaded by the defendant was void. It is evident that from these findings. The trial judge held that the burden shifted on the defendant to prove that the plaintiffs have divested themselves of title to the land. That burden, he held the defendant did not discharge. In the event, he entered judgment against the defendant.

At the fore-front of the issues raised on the defendant’s appeal to the Court of Appeal was whether or not the trial judge was right in holding that a bare denial of paragraphs 4- 10 of the amended statement of claim amounted to an admission of the facts pleaded in these paragraphs. The facts averred in those paragraphs were summarized by Adio JCA (as he then was) who delivered the leading judgment of the Court of Appeal with which Ogundere and Akpabio J.J.C.A. concurred.

Adio, J.C.A., held that even if there could not be said to have been an admission of these paragraphs the facts averred therein have been established. In regard to paragraph 10 which was an averment that the plaintiffs’ family was the owner of the land in dispute the reasoning of the Court of Appeal (per Adio J.C.A.) was that the defendant, as counsel in suit AK/15/77, stood by in that suit and therefore could not raise the issue of ownership and possession of the land in the present case. In the alternative to the question of standing by, Adio J.C.A. held that on the evidence led by the plaintiffs which remained unchallenged the issues of the ownership and possession of the land in dispute and of the portion of the family land in dispute upon which the defendant trespassed have been established.

On this appeal from the dismissal of his appeal, the defendant raised the following two issues for determination:

“1. What are the consequences of the failure on the part of the plaintiffs/respondent:

(a) To produce at the trial a plan of the land claimed and pleaded by them clearly showing the area for which declaration of title was sought, on which the Defendant/Appellant had allegedly trespassed and from which the defendant/ appellant was restrained by an order of injunction.