The Registered Trustee Of All Christian World Missionary Out Reach International V. Mr. Sunday Aladejebi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

Endorsed on the writ of summons dated 30th January, 2006 and issued in the Registry of the High Court of Justice of Ondo State Owo Judicial Division are the Respondent’s (then Plaintiff’s) claims against the appellant (then defendant):

(a) A declaration that all that piece or parcel of land situate at and known as Oyoyo Farm Land, along Owo – Ifon Road is a family property of Ujigan family of Igbe-Owo as per the subsisting Judgment of the High Court of Justice, Owo in Suit No.

HOW/21/86 between Samuel Ogunleye & 10 order (for and on behalf of themselves and Ujigan family, Igbe Owo) v. Owoyemi & Alatake, delivered on the 23rd day of June 1994.

(b) A declaration that the Plaintiff has not sold, lease (sic) or let the land or any part thereof to the defendant and that the plaintiff has not allowed the defendant to erect structure on this land.

(c) A declaration of the Court setting aside the purported sale of the part of Ujigan family land to the defendant in that it was sold to the defendant without the consent of the head of Ujigan family.

(d) An order of Court ordering the defendant to pay the sum of N4m as damages for trespass committed on the plaintiff’s land.

(e) A perpetual injunction restraining the defendants his agents Servant and or privies from trespassing on the plaintiff’s land.

The operative pleadings are the amended statement of claim dated and filed on 7th November, 2006 and the amended statement of defence dated and filed on 23rd June, 2007.

At the conclusion of the trial the Learned Trial Judge, in the reserved Judgment dated 18/4/87; held as follows:

In sum I hereby make the following orders:

1. A declaration that all that piece or parcel of land situate at and known as Oyoyo farm land, along Owo-Ifon Road, is a family property of Ujigan family of Igbe-Owo.
2. A declaration that the plaintiff has not sold leased or let the land or of part thereof to the defendant and that the Plaintiff has not allowed the defendant to erect any structure on this land.
3. The purported sale of the part of Ujigan family land to the Defendant is hereby set aside in that its was sold to the defendant without the consent of the head of the Ujigan family.
4. The defendant shall pay the sum of #200,000.00 damages to the plaintiff for trespass committed on the plaintiff’s land.
5. An order of perpetual injunction is hereby issued restraining the defendant, its agents, servants and or privies from further trespassing on the plaintiff’s land. See page 54 of the records.

Aggrieved by the Judgment the appellant in a notice of appeal dated and filed on 24/4/07 appealed on seven (7) grounds hereunder reproduced but shorn of the particulars:

1. The learned trial Judge erred in law in granting relief B deeming the amended statement of claim already filed and served as properly filed and served in the Plaintiff’s/Respondent’s application dated and filed on 7th November, 2006.
2. The learned trial Judge erred in law in refusing to join the 2nd, 3rd and 4th applicants who were vendors as Defendants and in dismissing their joinder/counter-claim application dated 10th day of January, 2007 and filed on 11th day of January, 2007.
3. The learned trial Judge erred in law when it held that

“In the present case the plaintiffs (sic) have exercised that right by bringing this action. There must be proof of substantial opposition in order to deprive them of their representative capacity. This is done by motion and not by statement of defence. In this case, the capacity of the plaintiff has not been properly and satisfactorily challenged by the defendants.

4. The learned trial Judge erred in law when it held that the Defendant did not plead that the plaintiff is not member of Ujigan family.
5. The learned trial Judge erred in law when it held that Olagundoye J.K was the head of family after the death of Chief Olabode Adegbeha.
6. The trial learned Judge erred in law when it held that “All the excuses she sought to raise in this Court are novel and without basis in law. Two wrongs have never been shown to make a right. If indeed other members of the family like the named plaintiff in this suit and late Kolapo Olagundoye have been selling Ujigan family land without lawful authority and requisite consent, all aggrieved members of that family could do is to approach the Courts and seek the nullification of such deals. The answer does not lie in travelling the same read of wrong doing and unlaMul conduct to remedy the wrong”
7. The learned trial Judge erred in law in not disqualifying himself from hearing this suit.”

Briefs of argument were filed and exchanged by the parties in accordance with the rules