Mr James Olowoyo V. Joseph Abiodun Ojo & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of M. A. Agbelusi, J of the Ekiti State High Court, Ikere judicial division, delivered on the 21st day of January, 2008.

The Appellant as plaintiff before the trial court claimed against the respondents as defendants the following declaratory and injunctive reliefs:

(a) “A declaration that the purported sale or alienation of plaintiff’s family land by the first to fifth defendants to the sixth to fifteenth defendants is illegal, unlawful ultravires, irregular, null and void and of no effect whatsoever same having been done or carried out without the consent authority consensus and concurrence of plaintiff.

(b) An order on the first to fifth defendant to render all accounts of the various plot of land sold to the sixth to fifteenth defendants and others.

(c) An order on the first to the fifth defendants to make available for inspection the survey plan, sales receipts layout plan and all the receipt of the Oshinio family land lying being and situate at the back of Bababoni Off Igbara – Odo Road Ikere Ekiti.

(d) The sum of N2,000,000.00 (Two Million Naira only) being general damages for trespass committed and still being committed on plaintiff’s land at the back of Bababoni off Igbara – Odo Road Ikere – Ekiti by the sixth to the fifteenth defendants.

(e) A perpetual or permanent injunction restraining the sixth to fifteenth defendant, their agents, servant, assigns and privies from committing any act(s) or further act(s) of trespass on the said land forthwith.

(f) A perpetual or permanent injunction restraining the first to fifth defendants their agents, servant, assigns and privies from further selling, granting, giving or alienating plaintiff’s land without his authority or consent forthwith and henceforth.”

The background facts on the part of the appellant is that he is the head of Oshinio famiy of Atiba Street, Ikere Ekiti and as such had the right over the Oshinio family property particularly the family land situate, lying and being behind Bababoni off Igbara – Odo Road, Ikere Ekiti. The appellant contended that the 1st – 5th respondents had no right to sell parts of the aforesaid family land to any person particularly the 6th – 15th respondents without his consent. The Appellant prayed the lower court to declare the proposed sale of parts of the family land to the 6th – 15th respondents void. He also prayed the court to order the 1st – 5th Respondents to render account of the proceeds and sale of the family land to the 6th – 15th respondents. The appellant and his son gave evidence before the trial court.

On the part of the respondents, they contended that even though the appellant and his son testified before the trial court, no principal member of the Oshinio family was called by the appellant to testify in his favour. The 1st – 5th respondents admitted that they sold the said plots of the Oshinio family land to the 6th – 15th respondents in their capacities as the Head, Secretary and principal members of Oshinio family of Ikere Ekiti. The respondents maintained that the appellant was not a member of their family talk less their head, he being a stranger. The respondents testified to the effect that they used the proceeds realized from the sale of their family land to construct their family hall. At the end of the trial, the trial court dismissed the appellant’s claims. The appellant was dissatisfied with the judgment and appealed against same, vide his Notice of Appeal dated 18th April, 2008, filed the same day, containing eight (8) grounds of Appeal, from which the appellant formulated eight (8) issues for determination by this court. They are:

(A) “whether it was proper and legally justified to dismiss the first leg of appellant’s claim and whether that should be a basis for dismissing legs or reliefs 2, 3, 4, 5 and 6 of appellant’s claim without more. Ground 1.

(B) Whether the lower court can declare 1st – 5th respondents as head and principal members of Oshinio family when there was no Counter -Claim. Ground 2.

(C) Whether the non-appraisal, consideration, appreciation, scrutinization, interpretation and examination of Exhibits ‘A’, ‘C’ and ‘C1’ respectively has not adversely affected the judgment of the lower court. Ground 3.