Oladejo Adewuyi Ajuwon V. Fadele Akanni & Ors. (1993)
LawGlobal-Hub Lead Judgment Report
IGUH, J.S.C
By a writ of summons filed on the 19th August, 1977 in the Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiffs, who are now respondents, for themselves and on behalf of the Ibala Arikoto Family, sued the first defendant now appellant, claiming as follows:-
(1) Declaration of title in accordance with native law and custom to all that piece or parcel of land situate at Aponrin in Ibadan – Ajia Road, Ibadan, in Oyo State of Nigeria.
(2) Five thousand Naira being special and general damages for trespass committed by the first defendant, his servants or/and agents on the said land in 1976.
(3) Injunction to restrain the defendant. his servant, privies or land agents from entering or committing further trespass on the said land.” There was a fourth claim by the said plaintiffs against the 1st, 2nd, 3rd, 4th and 5th defendants as follows:-
“(4) In the alternative to claim (1) above. The plaintiffs’ claim against the defendants is for setting aside of the deed of conveyance made between the first defendant on the one hand and the 2nd, 3rd, 4th and 5th defendants on the 20th September, 1974 without the authority, consent, knowledge or accreditation of the plaintiffs of Ibala Arikoto family.” Pleading were ordered in the suit and were duly filed and exchanged. At the trial, evidence was led in support of the plaintiffs’ case and that of the first defendant. The 2nd – 5th defendants were absent throughout the hearing although they were duly represented by counsel who, on their behalf, cross-examined all the witnesses who testified before the court. The case for the plaintiffs who prosecuted the action for themselves and on behalf of members of the Ibala Arikoto family was that they were the owners in possession of the land in dispute.
The said land was situate at Ogbere, Aponrin on the Ibadan-Ajia Road, Ibadan. In suit No. CV/80/72 at the Grade “A” Customary Court Mapa, Ibadan, the Ibala Arikoto family members who were represented in that action by the 2nd – 5th defendants as plaintiffs claimed against one Lasupo Anisere a declaration of title to a customary right of occupancy to the piece or parcel of land described and more particularly delineated on Survey Plan No. AD/97/73, damages for trespass and injunction and obtained judgment. The said Survey Plan No. AD/97/73 covered and included the land allegedly trespassed upon by the defendants in the present action.
The plaintiffs’ case was that the 2nd – 5th defendants without the knowledge, consent, anthorisation and/or approval of the Ibala Arikoto family unlawfully sold a piece or portion of their said land to the 1st defendant. Following the purported sale, the 1st defendant went into this land. It was as a result of this entry that the plaintiffs, for themselves and on behalf of members of the Ibala Ankoto family, instituted this action against the defendants.
The 1st defendant, for his own part, claimed that he bought the land in dispute shown in his plan No. EBS 973 from the 2nd – 5th defendants in June, 1972. The four defendants sold the land to him for N2,200.00. When he asked for a conveyance in respect of the land, the 2nd -5th defendants informed him that the land was then the subject matter of litigation at the Grade “A” Customary Court, Ibadan. They advised him to wait until the determination of that action. The Arikoto family eventually obtained judgment against the said Lasupo Anisere, the defendant in the Customary Court suit, for title to the land in accordance with customary law on the 28th June, 1974. He stressed that the 2nd – 5th defendants represented the Ibala Arikoto family in that case. It was after the determination of suit No. CV/80/72 that the 2nd – 5th defendants executed a deed of conveyance in respect of the land in his favour. This was on the 20th September, 1974.
The 2nd – 5th defendants conveyed the land to him as the accredited representatives of Arikotokowosi family. He paid no further consideration for this conveyance apart from the N2,200.00 he paid to the vendors when he first bought the land in 1972. He was told by his vendors that Arikoto was an abbreviation of Arikotokowosi and he believed them. The 2nd – 5th defendants in their Statement of Defence admitted that members of the Ibala Arikoto family are the owners in possession of the land in dispute. They also admitted that they did not obtain the consent, authorisation or approval of the Ibala Arikoto family to sell their land to the 1st defendant.
They admitted that the plaintiffs’ family was known as and called Ibala Arikoto and not Arikotowosi family. At the conclusion of hearing, the learned trial Judge in a reserved Judgment, found for the 1st defendant and dismissed the plaintiffs claims. Being dissatisfied with this judgment, the plaintiffs lodged an appeal to the Court of Appeal which in a unanimous decision allowed the same and set aside the judgment and orders of the Ibadan High Court delivered on the 17th January, 1980 in the suit. In line with the provisions of the Land Use Act, 1978, the Court of Appeal, Ibadan Division, granted to the plaintiffs a declaration that they were entitled to a customary right of occupancy in respect of the land described and more particularly delineated in Plan No. AD/97/73 which included the land covered by the conveyance. Exhibit 3. On the claim for damages for trespass, the Court of Appeal was of the opinion that the purported sale was void and consequently awarded N500.00 general damages to the plaintiffs against the 1st defendant. An injunction was also granted restraining the 1st defendant, his servants, agents and privies from entering or committing any further acts of trespass on the land in dispute. This appeal is against the said judgment of the Court of Appeal. Altogether seven grounds of appeal were filed by the 1st defendant who hereinafter will be referred to as the appellant. These grounds of appeal, without their particulars, are as follows-
1. The learned Justices of Appeal misdirected themselves in law and on facts when they held that in so far as the 1972 transaction is void, then the conveyance, Exhibit 3, made in furtherance thereof is void also and did not operate to transfer any title to the appellant.
2. The learned Justices misdirected themselves in law and on facts when they held; as they did, that Arikotowosi is not the same as Ibala Arikoto.
3. The learned Justices erred on facts and in law when they held that the sale by the 2nd – 5th defendants to the appellant could not be regarded as sale by the accredited representatives of Ibala Arikoto family.
4. The learned Justices of the Court of Appeal erred in law when they held in their judgment at lines 32 to 36 and page 150 lines 1 & 2 as follows:- “Applying the doctrine of lis pendens to the facts of the case on hand, it is my view and I so hold that the present case falls within the doctrine and in the circumstances, the 1972 transaction is void and as the conveyance, Exhibit 3, was made in furtherance of the void transaction, it, too, is void and did not operate to transfer any title to the respondents” in that the said doctrine was raised suo motu by the Court of Appeal without giving the parties an opportunity to be heard particularly as the issue was neither raised by the pleadings of the parties not at the trial.
5. The learned Justices of the Court of Appeal erred in law by holding in their judgment at page 151 line 36 and page 152 lines 1 – 5 that it may be true that the Arikoto family held out the 2nd – 5th defendants as their accredited representatives as regards representing the family in the Customary Court action but not as regards the sale of the family land
6. The learned Justices of the Court of Appeal misdirected themselves in law when they held in their judgment at page 150 lines 31 – 35 that in the absence of any finding that Ibala Arikoto and Arikotowosi are one and the same, it cannot be concluded that Exhibit 3 conveyed to the appellant title the land of Ibala Arikoto family.
7. The Court of Appeal erred in law by relying on the admission of paragraph 20 of the Statement of Claim by the 2nd – 5th defendants to the effect that the family of the plaintiff was known, called and styled as lbala Arikoto family and not Arikotokowosi family, as admission against appellant who did not adopt the said averment in his own Statement of Defence.
Learned counsel for the parties filed and exchanged their respective written briefs of argument. Both Mr. E.O. Lahide for the appellant and Chief O.A. Ogundeji for the respondents, appeared to be in agreement on the issues for determination in this appeal. Each formulated four questions as calling for determination. I have carefully examined these questions set out by learned counsel in their briefs of argument. I am satisfied that the questions raised in the brief of argument of learned counsel for the appellant are more consistent with the issues raised in the grounds of appeal. I will therefore adopt the four issues as formulated in the appellant’s brief. These are as follows –
“1. Whether the Court of Appeal could in law raise suo motu the doctrine of lis pendens on which no issue was joined by the parties either by their pleadings or evidence at the trial without calling on the parties to address on the issue.
2. Whether the learned Justices of the Court of Appeal could disturb the findings of fact made by the learned trial Judge that the 2nd to 5th defendants were the accredited representatives of Ibala Arikoto family when they executed the conveyance, Exhibit 3, when the conclusion of the trial court was supported by undisputed evidence.
3. Whether the Court of Appeal was right in holding that a specific finding of fact by the trial court on the issue of whether Arikoto and Arikotokowosi refer to one and the same
Other Citation: (1993) LCN/2493(SC)