CHIEF MUKAILA JAGBENAIYA OLUKOGA & ORS v. ALHAJI N. O. ALOWONLE & ORS(2002)

CHIEF MUKAILA JAGBENAIYA OLUKOGA & ORS v. ALHAJI N. O. ALOWONLE & ORS

(2002)LCN/1321(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 17th day of December, 2002

CA/I/218/2000

JUSTICES

SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria

Between

CHIEF MUKAILA JAGBENAIYA OLUKOGA
2. OYAIKU SALAMI
3. JIMOH ALUKO
4. ALHAJI RAUFU ATEBO Appellant(s)

AND

ALHAJI N. O. ALOWONLE
2. BASIRIYU ONIBUDO
3. ALHAJI YAKUBU K. AZEEZ
4. MR. Z. A. AWOBO
5. YEKINI AMURE
6. YEKINI SANMI ARIYO
(For Themselves and on behalf of the Igbasonyin Family of Ikorodu.) Respondent(s)

RATIO

DEFINITION OF A FAMILY PROPERTY

THE POSITION OF THE LAW ON THE RIGHT OF THE FAMILY HEAD TO SUE ON BEHALF OF THE LAND

WHETHER OR NOT THE COURT CAN GRANT RELIEFS NOT SOUGHT BY PARTIES

Generally an award of damages by the court below is based by the court on the assessment of loss to the claimant proved by the claimant in the court. It is in the discretion of the judge but it is made judiciously. There are however restraint in the rules in the award of damages. The primary rule is that the court will not grant a relief which is not sought by the party See EKPENYONG V. WYONG (1975) 2 SC 71 80/81. PER OMAGE, J.C.A.

A. AKINTAN, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment delivered by Osidipe, J. at Sagamu High Court in Ogun State on 19th September 1997 in Suit No. HCS/49/92. The present appellants were the defendants while the respondents were the plaintiffs in the lower court. The plaintiffs instituted the action in a representative capacity on behalf of themselves and on behalf of the Igbasonyin family of Ikorodu.
The plaintiffs’ claim as set out in paragraph 46 of the amended statement of claim is as follows:

(1) Declaration that the defendants are by their joint and several acts of excavation of sand from the family farmland known as Igbasonyin farm situate, lying and being at Magbon Village, off Ikorodu/Sagamu Road, near Ita Oliwo, via Ogijo in Sagamu Local Government area and which is
particularly described and delineated in survey plan No. AT/OG/8483 dated 6/12/89 and drawn by W.T. Adeniji licensed surveyor and having boundaries with (1) Pakisa farm (2) Lapete farm (3) Muti farm (4) Kajola farm and (5) Igborufu farm in the jurisdiction of this Honourable Court since 1990 causing severe damages and destructive waste to and detrimental to the inheritance and/or interests of the other members of the family and by such acts have been diminishing the value of the farmland.

(2) Declaration that the defendants’ excavation of sand and destruction of natural and ecological objects on the said farmland due to the said excavation are wrongful, illegal and contrary to statute.
(3) Ten Million Naira (N10,000,000.00) being special and general damages for the said destructive waste and damage committed on the said farmland by the defendants, their servants, agents and/or privies.
(4) Perpetual injunction restraining the defendants jointly and severally, their agents, servants and/or privies from committing any further acts of destructive waste, damage and/or dealings on the said farmland in any manner whatsoever detrimental to the collective interests and/or inheritance of the other members of the Igbasonyin family.”

The dispute that led to the institution of the case was over a large plot of family farmland fully described in the first leg of the claim. Pleadings were filed and exchanged. The parties later amended their pleadings and as such the claim was heard on the parties amended pleadings.
The parties led evidence in support of their respective pleadings at the trial.
It is clear from the pleadings and evidence led that the parties were members of the same family, the Igbasonyin family of Ikorodu. The first respondent is the current head of the family. He was elected into that office in 1992 following the death of the former head of the family, Alhaji Ariyo, in 1991. The election of the first respondent in 1991 caused a division within the family.
The first appellant and his splinter group claimed that the 1st appellant was the elected head of the family and not the first respondent.
On assumption of office of the first respondent as the head of the family in 1992, the family took a decision to survey the family land which is the subject of the present dispute. To that end, members of the family were ordered to make contributions towards the cost of engaging the services of the surveyor. This was done and a surveyor was engaged for the purpose. It was when the surveyor went on to the site that he noticed that many parts of the land had been devastated as a result of some people carrying on excavations for sand. He reported his findings to the family. On receipt of the surveyor’s report, the family made investigations about the people responsible for the excavations on the land. They found that the appellants were responsible for the excavations.
They warned them to stop further excavation on the land.
When it was discovered that they still continued, the present action was instituted against them at the Sagamu High Court.
The respondents employed the services of a firm of Quantity Surveyors, Olatunji Nosiru & Partner, to prepare a cost estimate/evaluation report of the damage done to the farmland. This was done. A copy of the report was admitted in evidence at the trial as Exhibit ‘A’. The estimated total cost of reinstatement of earth, trees and checking of erosion on the land was given in the report as N5,992,191.65. Apart from the Quantity Surveyor’s report (Exh. A), pictures of areas where excavations were carried out were taken, tendered and admitted in evidence during the trial.
At the conclusion of the trial, the learned trial Judge delivered his reserved judgment in the case. He held, inter alia, that the 1st respondent was the duly elected head of the family, that the excavation works carried out on the family land by the appellants were done without the consent or permission of the head of the family and/or any principal member of the family.
The excavations were therefore declared illegal. The learned Judge then entered judgment for the plaintiffs, in the case as follows in the concluding portion of his said judgment:
“In conclusion the action of the plaintiffs for and on behalf of Igbasonyin family of Ikorodu succeeds. There shall be judgment for the plaintiffs accordingly as follows:
1. Declaration that the defendants by their joints and general acts of excavation of sand from the family farmland at Magbon village since 1990 have caused severe damages and destructive waste to and detrimental to the inheritance and/or interest of other members of the family and these have diminished the value of the farmland.
2. Declaration that the defendants excavations of sand and natural resources of the said farmland without proper authority or consent of the Head of family and his Council are wrongful and illegal.
3. General damages of One million naira (N1,000,000.00) is herewith awarded in favour of the plaintiffs.
4. I hereby grant perpetual injunction against the defendants jointly and severally; their agents, servants and privies from committing further acts of excavation of sand and natural resources from the family farmland at Magbon village.”

The defendants were dissatisfied with the judgment and they therefore appealed against it to this Court.
Six grounds of appeal were filed against the judgment.

The parties filed their brief of argument in this Court.
The appellants filed the appellants’ brief and a reply brief. The appellants formulated the following three issues as arising for determination in the appeal:

“1. Whether in the light of the evidence the plaintiffs/respondents had discharged the onus required by them to warrant the judgment in their favour.

2. Whether the award of N1, 000, 000 was not excessive when viewed from the fact that the defendants and the plaintiffs are members of the same family and therefore had interest in the family land and also the fact that the plaintiffs did not proffer any evidence on waste to warrant the excessive award of damages.

3. Whether the grant of perpetual injunction against the defendants was proper in view of the fact that His Lordship found as a fact that they are all members of the Igbasonyin family of Ikorodu and could not be excluded in perpetuity.”

The respondents, on the other hand, formulated four issues in their brief. The four issues are merely a repetition of the three issues formulated in the appellants’ brief. I therefore consider it unnecessary to reproduce them.
The point canvassed in the appellants’ first issue relates to the proof required of the respondents. It is submitted that the claim that acts of the defendants have caused damage to the land and diminished the value of the land was not proved. It is argued that for the plaintiffs to succeed there should have been evidence from persons not only that there have been excavations, but that the excavations have in fact diminished the value of the property. The plaintiffs are said to have pleaded a survey plan and instrument of transfer to some members of the family but none of them was tendered at the hearing.
The averments that the digging on the land has caused erosion were said not to have been proved. It is submitted that the evidence of the Quantity Surveyor was not enough as he is said not to be an expert on waste but on bills of quantities. The failure to tender the survey plan is said to be fatal to the plaintiffs’ case because the correct boundaries of the land was not clear as the defendants disagreed with the boundarymen mentioned in the plaintiffs’ claim.
It is finally submitted in respect of the first issue that the action of the defendants not having been towards sale of family land but one of waste is said not to be one that is actionable by the rest of the family for a claim in damages. The failure of the plaintiffs to lead evidence to show that the land, as it was, could hold no crops is also said to be fatal to the success of their claim. The photographs tendered could only show that the land had been dug but not that it could no longer sustain farm crops.
The damages awarded by the learned trial Judge is the point considered in the appellants’ issue 2. It is argued that since damages are awarded in an action for negligence, the plaintiff is only entitled to such as will put him in the position he would have been had the act constituting the negligence not occurred, the damages claimed in the instant case is said not to have been proved. The award made is therefore said to be too excessive and punitive. This is particularly so when the parties are members of the same family.
The injunctive order made by the learned trial Judge is the point attacked in the appellants’ third issue.

It is submitted that a court will not grant injunction to restrain an actionable wrong for which damages are an adequate remedy. The learned trial Judge is therefore said to have acted wrongly by slaming the order of injunction on the appellants.
It is submitted in reply in the respondents’ brief that the problem involved in the case is one of administration of family land and not that of title to land or that of possession or trespass. It is argued that no individual member of the family therefore has a right to deal with the family land, as in the instant case, as if it were his own without the consent of the family. It is further argued that since the plaintiffs were the proper executive council of the Igbasonyin family and the 1st plaintiff as the head of the family, the plaintiffs had a right to manage and control the family land. The said right is said to include the right to prevent the land from being used by the defendants for acts that are against the family interests.
On the award of damages, it is submitted that since damage had been proved, it was appropriate for the court to award damages. The trial Judge exercised his discretion in arriving at the damages awarded in the case and the conditions for interfering with the exercise of the discretion do not exist in the instant case.
On the grant of injunction, it is submitted that since injunction is generally granted to prevent the continuation of an unlawful and/or illegal act, the trial court therefore acted within the law by restraining the appellants from returning to the family land to continue with their unauthorised and wrongful excavation work on the said family land. The issue of failure of the respondents to tender the survey plan at the trial is said not to be material. This is because the parties knew the land and the relevant boundaries of the land in dispute. The identity of the land ‘Was never an- issue between the parties and as such, there was no need for the plaintiffs to lead evidence in proof of what was not in dispute between the parties.
It was not in dispute that all the parties in the case are members of the same family, the Igbasonyin family of Ikorodu. The land in dispute is also the family land of the same Igbasonyin family of Ikorodu.

The law is settled that family property is property which devolves from father to children and grand-children under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole. Members of the family who do not reside or farm on the family land have no general right of ingress and egress but have a right of entry to attend family meetings and if he or she is a member of the family council, a right of entry to inspect the state of repairs in case of family house: See OGUNDAIRO V. ABEJE (1967) L.L.R. 9; LEWIS V. BANKOLE (1908 -09) 1 NLR 81; and OTUN V. EJIDE (1933) 11 NLR 124.
As already stated earlier above, the land in dispute is the family property of Igbasonyin family of which the appellants and the respondents are members. The facts disclosed at the trial are that the 1st respondent is the current head of the family and that the remaining respondents are members of the family council. No evidence was led as to the exact current occupiers of the land and what the land was being used for, or who were the exact occupiers of the land. All that was established is that after the death of Alhaji Ariyo, the former head of the family in 1991, the 1st respondent was elected as Alhaji Ariyo’s successor as the head of the family in 1992. There was a dispute over his election and the 1st appellant was the leader of those who opposed the 1st respondent’s election. It has not been shown that any of the respondents was occupying any of the land in dispute.
In fact the decision of the family council headed by the 1st respondent was that the land should be surveyed with a view to allocating portions of it to members of the family who would put the plots allocated to them for farming purposes or other uses. The Council called for contributions towards the cost of surveying the land. A surveyor was in fact engaged and it was the surveyor who brought to the knowledge of the respondents that excavations were taking place on portions of the land.
Although evidence was led to show that the appellants were the people who were carrying on excavations on the land, the respondents, as plaintiffs/failed to show that all the excavations took place after he assumed office as the head of the family. They also failed to establish that excavations by members of the family were proscribed during the period Alhaji Ariyo was head of the family.
Similarly, the respondents, as plaintiffs, failed to prove at the trial that access to the land was not thrown open to every member of the family. In other words, it was not shown that the appellants, as members of the Igbasonyin family, had no right to enter the land for the purpose of excavation on the land or that their access to the land was restricted because some named members of the family already granted permission to occupy the land were in occupation.
In the result, the question of awarding damages against the appellants in favour of the respondents
could not arise for the reasons already given above.
Similarly the respondents, as plaintiffs, failed to lead evidence to establish that the family council had taken a decision proscribing excavations on the land by members of the family and that the excavations carried out by the appellants were in fact carried out by them after the family had taken the decision proscribing excavations from the land by members of the family. There was therefore no basis upon which an injunction order made restraining the appellants from entering the land for the purpose of carrying on excavations on the land.
There is therefore merit in the appeal and I hereby allow it. The judgment of the lower court delivered on 19th September 1997 and all the awards and orders made therein are hereby set aside. In their place, I hereby make an order dismissing the plaintiffs’ claim. But I will not make any order on costs so as to help in healing the existing rift within the family. To that end, the parties are to bear their costs.

V.A.O. OMAGE, J.C.A.: I have read before now the lead judgment of my learned brother Akintan J. C. A, and find myself not in agreement with the conclusion therein. In my view this appeal should not be allowed as the judgment of the court below should be affirmed. Here is how, I have reasoned.
In this appeal the issues before the court below is contained in the writ of summons filed for themselves and on behalf of the Igbasonyin family of Ikorodu. “It is a declaration that the defendants are by their joint and several acts of excavation of the sand from the family farm land situate lying and being at Imagbon via Ogijo in Sagamu Local Government and having boundaries with (1) Pakisa farm (2) Lapete farm (3) Muti farm (4) Kajola farm (5) Igborufu farm in the jurisdiction of this honourable court since 1990 causing destructive waste injurious to the and detriment to the inheritance and or interests of the other member of the family, and by such acts have been diminishing the value of the farmland.

(2) Two million naira being general damages for the said destructive waste committed on the said farmland by the defendants, their agents, servants and privies.

(3) Perpetual injunction to restrain the defendants jointly and severally their agents, servants and or privies from committing any further acts of waste and or dealing on the said farmland in any manner whatsoever detrimental to the interest of the other members of the Igbasonyin family. 2 million naira as general damages in order for perpetual injunction.
At the hearing in the court below the plaintiffs called 5 witnesses and the defendants called 3 witnesses. In this judgment after the hearing, the Honourable Justice O. Osidipe delivered judgment in favour of the plaintiffs as prayed, and awarded the sum of one million naira to the said plaintiffs. The court also ordered perpetual injunction against the defendant jointly and severally against the acts of the defendant of excavation of sand and natural resources from the farmland. The defendants were dissatisfied with the judgment of the court below and appealed. The grounds of appeal are as stated below; viz,

(1) The learned trial judge erred in law in entertaining the claims of the Plaintiffs/Respondents and pronounce over same when he (the court) lacks original jurisdiction to hear the causes and matters relating to the land in dispute. (The particulars are supplied. It can be interpreted to mean that the claim of the plaintiffs should have originated from the customary court).
(2) The learned trial judge erred in law in holding that the acts of excavation of sand from the family farmland at Magbon village by the defendants is illegal when the said allegation of excavation was not proved as required by law.
(3) The learned trial judge erred in law and in fact when he held at page 16 line 2 of the judgment, that “I can say outright that there is no specific claim of family status by either parties in this case” and still proceeded erroneously to hold at page 17 lines 13-15 of the judgment as follows.

” therefore hold that the 1st plaintiff is a member of Igbasonyin family and as a matter of fact was lawfully elected head of the family on 12/4/92 as evidenced by exhibit K, thereby making a pronouncement on an issue of adjudication, by the trial court.”

(4) The learned trial judge erred in law when he awarded a sum of one million naira general damages against the defendant when the Plaintiffs did not provide the court with sufficient materials upon which to base its assessment.

(5) The learned trial judge erred in law in granting an order of perpetual injunction restraining the defendants from carrying out excavation on the land.

(6) The judgment is against the weight of evidence.

Upon the above grounds of appeal, the appellants formulated the following issues:-
“(1) Whether in the light of the evidence, the Plaintiffs /Respondents had discharged the onus required by them to warrant the judgment in their favour.

(2) Whether the award of N1,000,000 was not excessive when viewed from the fact that the defendants and plaintiffs are members of the same family and therefore had interest in the family land, and also of the fact that the plaintiffs did not proffer any evidence of waste to warrant the excessive award of damages.

(3) Whether the grant of perpetual injunction against the defendants was proper in view of the fact that His Lordship found as a fact that they are all members of the Igbasonyin family of Ikorodu and could be excluded in perpetuity.”

In the respondents brief, four issues are formulated:-
(1) “The issue of administration of family land and not ownership of land or possession and or trespass as is being canvassed by the defendants/appellants counsel.

(2) The issue of award of damages as between the parties.

(3) Whether the trial court upon the totality of the evidence adduced on both sides was right in granting the order of perpetual injunction to protect the family land from further devastation and devaluation arising from the appellants acts of excavation of sands therefrom.

(4) Whether in the light of the evidence adduced by both parties, the court acted upon reasonable grounds in holding as it did that the defendants/appellants were liable to the plaintiffs/respondents in damages for their unauthorised acts of excavation of sands from the family land resulting in devastating consequences to the familys collective interests.”

I have deliberately set out above the grounds of appeal of the appellant so that it can be seen whether the issues formulated by both parties derive from the ground of appeal. In this connection the issue 4 of the respondents’ issue for determination, unless considered with the respondents issue one and three of the said respondents issue for determination should be considered as different from the substance of the grounds of appeal filed by the appellant, and could or indeed should have been struck out. See CHIEF BALOGUN V. MOSES ADEJOBI’S (1995) 2 NWLR (Pt.376) P.131, however if the said issue 4 of the respondent is argued with issues one and three of the respondents it could operate as an omnibus issue and can be conveniently be a response to issue one formulated by the appellant. This is so because the respondent did not file a cross appeal and cannot formulate an issue not founded on a ground of appeal. See also OKPALA V. IBENE 1989 2 NWLR. (Pt.102) (P.208) at 221.
The issue formulated by the respondent is his issue four can conveniently be considered with his issue 3, in answer to issue one formulated by the appellant, which issue has the theme of proof by evidence.
In order therefore to make meaning of the issues formulated by both the appellants and respondents I deem it appropriate to so consider it rather than strike out the said respondents issue 4, and I so proceed.
The appellant in this appeal also filed a reply brief to the respondents brief, there the appellants inter alia submitted that the averments in the respondents brief are not known to law, because it did not originate from the customary court, which could have determined the customary rights of the parties. Issue one formulated by the appellant is;

Appellants issue:
“Whether in the light of the evidence the plaintiffs/respondents had discharged the onus required by them to warrant the judgment in their favour.”

Respondents issue:
“Whether in the light of the evidence adduced by both parties the court acted upon reasonable grounds in holding as it did that the defendant/appellants were liable to the plaintiffs/respondents in damages for their unauthorised acts of excavation of sands from the family land resulting in devastating consequences to the family.”

In the two issues of the appellants and the respondents, there are contained questions to be determined on the weight of evidence, tendered by both parties the proof of the evidence, the propriety of the decision of the court below on the evidence and the eligibility of the claim before the High Court. In issue one, the appellant has complained in his brief, and in his particulars has shown that the plaintiffs claim was not a proper claim before the High Court, and said the claim should have originated in the customary court, or if in the High Court it should have been for an account for the money collected by the appellant for the sand excavated. The claim before, the court below in the first arm is a declaration that the defendants/appellants have excavated the family land of the joint landed property of the plaintiffs and defendants at Imagbon, near Ogijo, and having done so have caused destructive waste injurious and detrimented to the interests to be inherited by those entitled thereto and that by such excavation have diminished the value of the land.
The question to be determined is this, is there no relief in court for such pronounced wrong if proved? The rule of common law which has” for long guided the claim for detects (wrong) in a court of law is “ubi” jus, ibi remedium” where there is a wrong there is a remedy.
It cannot be said correctly that a high court of Nigeria, which is described generally under the common law as possessing of an unlimited jurisdiction has no jurisdiction to entertain a matter and grant a relief where a claimant or plaintiff can establish the right and prove the wrong (delict) occassioned to him by an identifiable defendants, ‘vide Section 236 of the constitution of Nigeria 1999 also provides wide jurisdiction to the High Court of Nigeria. The error has been corrected by the judgment of the Supreme Court that both the High Court and the Customary Court can adjudicate on claims on customary land under the land use Act. The answer therefore to the appellants complaint is that the High Court of Sagamu is possessed of jurisdiction to determine the issue, and relief sought by the plaintiffs in the court below.
The next issue contained in the said appellants issue one and the respondents issue 4 is on the status of the plaintiffs who act as representatives of the Igbasonyin family of Ikorodu.
This issue comes into consideration in order to view whether all aspects of proof by the plaintiffs was made, and to consider whether the plaintiffs as against the defendants/appellants were entitled to judgment ordered by the court. From the record before the court, all the plaintiffs are shown to be descendants of Igbasonyin family. The defendants in their testimony that is 3rd – 6th defendants deny th1at the 1st. plaintiff is descended from the Igbasonyin family the acclaimed ancestor of both parties. They deposed that they are descendant of Igbasonyin and that they belong to the family. The court below considered the historical evidence of the origin tendered by both parties and concluded thus:-
“The plaintiffs evidence of traditional history on this point is preferred to that of the defendants. I have looked at the printed record, I am satisfied that in his preference of the traditional evidence of ownership of the land tendered before the court, the trial court has considered the evidence of the plaintiffs continuous and exclusive possession of the land by their ancestor, and that the property in the land devolve on the parties and the plaintiffs who he represents in court.”
Furthermore, it is settled law that an appellate court does not interfere in a finding of fact by the court below, unless it is found that the evidence tendered in court is not justified by the conclusion. I do not so find by the findings of the court below on the evidence of historical origin of both the plaintiff and the defendant, the court below has ruled thus:-
“There are four branches of Igbasonyin family as Igbasonyin himself had four children who were Olujoyewa, Lugbusi, Oduaga and Odufalu, the descendants however agree that Igbasonyin family has four Branches, named Oonowo, Onibuda, Jagbonaya and Ekoso. The conclusion on the history of the family is not different from the evidence tendered.
I have no reason to hold differently from the conclusion of the trial court; and I accept that both the plaintiffs and defendants are members of the Igbasonyin family, though separated at the time of the action and each faction has appointed its own head of family which caused the filing of this action in part.

The next issue to be considered on the combined issue is on the identity of the land. Both parties, the plaintiffs and the defendants by the evidence tendered in the court below show that the land which belong to the family is according to the evidence before the court about 320 acres, the plaintiffs/respondents unsuccessfully surveyed, but did not complete survey of the land. It is on the land in dispute in part thereof that the plaintiffs tendered exhibit L-L10, which shows evidence of excavation of the land which the court below believed. The said exhibits are said to be photographs of the excavated portion of land, the land in dispute, in the evidence in court below, the defendant did not deny the complaint. The court below ruled thereon:-
“The picture exhibit L-L10 show the destructive nature of excavation and the valuation report exhibit A. show the damages done by the excavation. ”
The court had recorded earlier in the judgment see P .197 of the record thus:-
“The defendant themselves agree that the excavation was on during the tenure of the last head of family.”
It is in evidence tendered by both the plaintiffs and defendants now appellants that before the defendant created its own faction, the 1st plaintiff now, was appointed by the former head of the family to head a committee which investigated the excavation of the land. In the finding of facts made by the court below the land on which the plaintiffs/respondent made the claim is located at Imagbon in an area known to both parties, therefore it is not necessary to file a plan identifying the said land. See IBULUWA V. DIKIBO (1976)6 SC, at P.772 (11) BANGBADE V. BALOGUN 1994 1 NWLR Pt. (111) OKE V. OKE 12 SC 218. (IV) ARABE V. ASANLU 1980 5-7 SC 78.

The learned trial court restated the basis of the position of the plaintiffs to sue on behalf of the land, which is the position of the customary law. It is this,it is the head of the family that controls family land not yet partitioned or demarcated. The control of the family land includes also the administration of the family land – See EKPENDU V. ERIKA (1959) FSC. 79. (11) ERINOSHO V. OWOKONIRAN (1965) NWLR 179. The expressed consent of the head of the family is required before any member of the family can deal with the land. Before the family land is partitioned, any dealing with the land without such consent by a member only of the family is void, whereas, the law recognises it if the head of the family acts solely on the land, his action will be held voidable. See AJOSE V. HARWORTH & ORS (1925) 6 NLR 98. (11) ALADE V. BAMGBOLA (1962) WNLR 67.As the custodian of the interest of the family land the head of the family and in this case the 1st plaintiff/respondent are possessed of right to institute an action in court to protect his own interest and the interest of the family on the landed property of the family. In the court below the defendant did not deny that they excavated the land, but claimed that they had the permit of unauthrised persons to carry out the excavation. Such a permit is not valid, and it is a flagrant admission of the plaintiffs complaint.
The admission by the defendant is evidence of liability. The court below found as a fact thus:-
“These excavations naturally have diminished the value of the area excavated. I am inclined to grant the declaration sought.”

The above quoted testimony of the parties on which the court below ruled has shown that the court prefered the evidence of the plaintiffs/respondents which was proved and admissible on a balance of probability see Section 38 E. A. In the event, I resolve the issue, one against the appellants and rule that the totality of evidence show on the fact that the respondents was entitled to judgment as pronounced by the court below.
The appellants issue two is on the award of damages by the court below. The respondents also referred in his issue to the issue of award of damages. I will treat both together, the appellants has submitted that the damages awarded by the court below of one million naira is excessive, and submitted that the respondents failed to produce any indices upon which the court can make the said order. I have read the printed records which contain the judgment of the court. In his analysis, the learned trial court referred to exhibit A, of the plaintiffs tendered in evidence by the quantity surveyor. The trial court in his judgment has shown that the damage suffered by the plaintiffs is assessable from Exhibit A. It seems to me that the appellant is misconceived of the law when he wrote that the plaintiffs in the court below supplied no indices for determination of the general damages awarded. Generally an award of damages by the court below is based by the court on the assessment of loss to the claimant proved by the claimant in the court. It is in the discretion of the judge but it is made judiciously. There are however restraint in the rules in the award of damages. The primary rule is that the court will not grant a relief which is not sought by the party See EKPENYONG V. WYONG (1975) 2 SC 71 80/81.Consequently if the plaintiff did not seek and claim for damages the court will not grant it. The rules on proof of special damages are different and not applicable here. In a claim on general damages there are also rules on the measure of damages, the consideration thereon is the need for the court to place the plaintiffs who proves the loss in court, in a position where he would be if the loss on damage had not occurred to him. There is therefore a restraint on the judge not to order the payment of damages which would place the successful plaintiffs in affluence (restituo opulantem), and give him an underseing a windfall. See OKONGWU V. NNPC 1989 4 NWLR (Pt.115). A claim for special damages must be strictly proved.In the instant appeal, the court below has made an order for general damages.
It is based on the testimony before him. The learned trial judge has ordered damages in the sum of one million naira in favour of the respondents.
The appellants has not shown any reason to question, or disagree with the discretion of the court founded on the exhibit before the court and I resolve issue 2 of the appellants against the appellants, I therefore strike out the appellants said issue 2, having refused it.
The appellants issue three is whether the grant of perpetual injunction against the defendants was proper in view of the fact that his Lorship in the court below found as a fact that both appellants and respondents are all members of the Igbasonyin family of Ikorodu and could not be excluded in perpetuity.
The respondent offered no response to the appellants issue there.
Unless the said order of court is set aside by another order of court of superior jurisdiction the said order of perpetual injunction made in the High Court remains effective and infinition against the appellants.
The court below on page 196 of the printed record made order as follows:-
“The defendants as members of the family had right to family land, they need the grant from the family to specific area that would not breach of peace within the family etc.”
By the finding quoted above, it is evident that the defendants may subsequently be entitled as members of the Igbasonyin family of Ikorodu to any allocated part of the family land when they come within the fold of the family. It is their right. An order of perpetual injunction made by the court could limit the rights of the defendant to the land perpetually.
Indeed without speculating, the justice of the situation would have directed that the excavated area be allocated to the defendants/appellants as members of the Igbasonyin family when and if the occassion arises, but the respondents are free to decide as they will when and if the appellants apply for allocation. In my view, an order for perpetual injunction to restrain the appellants for all times from using the land would be extreme, and unfair, however it is clear that the appellant are misconceived of the order of the court below. The order of perpetual injunction is not as conceived by the appellant, an order of injunction for all times, of the land is demarcated, the order of court read thus:-
“I hereby grant perpetual injunction against the defendants jointly and severally, their agents, servants and privies from committing further acts of excavation of sand and natural resources from the family farm land at Imagbon Village.”
The underlined portions of the order shows that the act of perpetual restraints is for excavation of the land, and that only when the land remains family land. If the land is allocated to any other person, the portions thus given cease to be family land, and order lapses, when the land is not a family land.
In sum I resolve this issue against the appellants and dismiss same.
I dismiss the appeal in its entirety, and affirm the judgment of the court below. There will be costs to the respondents in the sum as ordered in the lead judgment.

FRANCIS FEDODE TABAI, J.C.A.: I was privileged to read the leading judgment prepared by my learned brother AKINTAN, J.C.A. and I agree with the reasoning and conclusion. I also agree on the issue of costs.

Appearances

Chief (Mrs.) C.J. Aremu (with Mr. G. Oladele)For Appellant

AND

Mr. A. SoboyejoFor Respondent