PA TAYO OJO v. CHIEF JEROME AKINSANOYE
(2014)LCN/7091(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of April, 2014
CA/AK/90M/2011
RATIO
CIVIL PROCEEDING: BURDEN OF PROOF
Generally, the burden of proof in a civil matter such as this, lies on the party who alleges the affirmative, this could be the plaintiff or the defendant, depends on the state of the pleadings. Therefore, suffice to say that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden could be said to be on the party who alleges the affirmative in the pleadings, the second burden; the evidential burden lies on the adverse party to prove the negative. See Gaji vs. Paye (2003) FWLR (pt.163) 1, 21, paras D – E; Onyenge vs. Ebere ( ) All FWLR (pt.219) 981, 994 paras F-G. PER SOTONYE DENTON WEST, J.C.A.
PRINCIPLES GOVERNING THE GRANT OF DECLARATORY RELIEFS
It is settled law that the principles governing the grant of declaratory reliefs generally include:
(a) A declaration will be granted even when the relief has been rendered unnecessary by the lapse of time or the action to be tried if at the time the action was brought, it raised substantial issues of law,
(b) The claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to relief in the fullest meaning of the word.
(c) The plaintiff must establish a right in relation to which the declaration can be made; hence the court will not generally decide hypothetical questions.
(d) The relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant.
(e) The relief should also not be contrary to the accepted principles upon which the court exercises its jurisdiction.
See CBN V. Amao (2010) 16 NWLR (Pt.1219) 271 SC, Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 @ 553.
It therefore means that if a party approaches a court for a relief and proves as required by law; the court has the duty to grant same if it will meet the best interest of the matter. Also, the court of course must have the jurisdiction to grant such relief. See Osuji v. Ekeoha (2009) 16 NWLR (Pt.1106) 81 SC, Adigun v. A.G Oyo State (1982) 1 NWLR (Pt.53) 678, Igbokwe v. Udobi (1992) 3 NWLR (Pt.228) 214, Dantata v. Mohammed (2007) 7 NWLR (Pt.664) 176, Adu v. Gbadamosi (2009) 6 NWLR (Pt.1136) 110, Ogun v. Akinyelu (2004) 18 NWLR (Pt.905) 362. PER SOTONYE DENTON WEST, J.C.A.
WHETHER A DEAD PERSON MAY BE DEEMED A LEGAL PERSONALTY IN THE EYES OF THE LAW
Generally, a dead person is no longer in the eyes of the law a person but in the eyes of the law, he is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity, the personality of a human being is extinguished by this death. Thus, the common law principle of action personalis moritur cum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant. See Kareem v. Wema Bank Ltd (1991) 2 NWLR (Pt.174) 495, Akunmoju v. Mosadolurun (1991) 9 NWLR (pt.214) 296, Hodge v. March (1936) A.E.R 484.
As rightly submitted by learned counsel for the respondent, Issue 2 (two) is basically a question of law and indeed a plethora of cases have made pronouncements classification and clarifications where an action can survive the plaintiff(s) or defendant(s) in a pending suit if either of the parties dies. Agreeably, parties to a suit are the proper parties but if in the course of proceedings in court, circumstances of the parties changes, thereby making such party unable to carry on with the suit e.t.c. then it necessary upon an application to court, to alter the party concerned. Consequently, it becomes necessary for whoever inherits his property (i.e. beneficiary) or anyone designated as his legal representatives, executor, administrator, or trustees to be substituted in place of the deceased in order to continue the pending actions in court. See: Akumoju vs. Mosadolarun (1990) 9 NWLR (Pt.214) 236 @ 242; Eyesan v. Sanusi (1984) 15 N.S.C.C. 271 @ 283; Tesi Opebiyi v. Shittu Oshoboja & Anor (1976) 10 S.C. 195.
However, it is not every pending action of a deceased that enjoys this position of law, there are action that will automatically abate if the death of a party is occasioned, these are actions that are strictly personal in nature such as:-
(i) action to enforce a contract of personal service;
(ii) action for breach of promise to money, or seduction;
(iii) action for defamation;
(iv) action for enticements and harbouring.
Where the cause of action is not personal to the plaintiff/defendant as in this instant case, then such action can survive the deceased party. The only caveat to this is that the appropriate steps are taken to substitute a living person for the deceased. See: Akumoju vs. Mosadolorun (1990) 9 NWLR (Pt.214) 236 @ 242. Also Order 11 Rule 38 of the Ondo State Rules of the High Court 1987 the appropriate steps enunciated in the rules are basically 2 (two):
(i) Make an application;
(ii) The application must be made within reasonable time. PER SOTONYE DENTON WEST, J.C.A.
LAND: CIRCUMSTANCES FOR CREATING FAMILY PROPERTY
Starting with the latter, it is trite law that the concept of family property is original to our indigenous society and the foundation of our law of inheritance. The most common circumstances of creating family property is death intestate of a land owner whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land. Another method of creating family land is by a conveyance inter-vivos where land is purchased with money belonging to the family. Family land can also be created by the use of the appropriate expression in the will of the owner of such land. See the authorities of Olowosago & Ors. Vs. Adebanjo & Ors. (1988) 4 NWLR 275 @ 287; Lewis v. Bankole (1908) 1 H.L.R. 81; Shaw v. Kehinde (1947) 18 N.L.R. 129; Usiobaifo v. Usiobaifo (2000) 14 W.R.N. 70 @ 83. PER SOTONYE DENTON WEST, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
PA TAYO OJO Appellant(s)
AND
CHIEF JEROME AKINSANOYE Respondent(s)
SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State sitting at Ondo delivered on the 15th day of April, 2011 granting all the claims of the plaintiff (respondent herein) and dismissing the counter claim of the defendants (appellants herein). The facts that gave rise to this appeal are as follows:
The case of the respondent was that the land in dispute was purchased from the Baipie Family of the Appellants. The purchase was said to have been evidenced in writing as contained in Exhibit “A” titled “Sale of Land Agreement and Purchase Receipt dated 17th October, 1977”. However, early in year 2009, the appellants were alleged to have come to the original plaintiff to demand for an additional sum of N500,000 claiming that the purchase money for the land in year 1977 was too small. When the original plaintiff could not meet their demand; the defendants/appellants wrote a letter dated 9th July, 2009 (Exhibit “B”) to him demanding that he should vacate the land. The reply of the original plaintiff dated 16th July, 2009 was tendered as Exhibit “C”. The appellants allegedly went back to the said land and started different forms of activities which amounted to trespass.
However, prior to the delivery of judgment in the case, the original plaintiff passed away and his name was substituted only on the Writ of Summons by PW1, Chief Jerome Akinsanoye, who had earlier in his evidence described himself as the surveyor/draughtsman employed by the deceased plaintiff to demarcate the said land for him into plots. The substituted plaintiff is the respondent in this appeal.
The case of the appellants is that the land in dispute belongs to their family known as Baipie. The 1st appellant has been the Head of the Family since the demise of their father Baipie Ojo. And it was their contention that the land in dispute was not sold to the original plaintiff – Chief C. O. Olakanye.
According to the appellants the 1st appellant as Head of Family was not aware of the execution of Exhibit “A’ not to talk of appending his signature on same or receiving any purchase money from the original plaintiff, he alleged that it was when the appellants got to the land sometimes in 2009 that they found some persons who claimed to have purchased portions of the land from the original plaintiff, trespassing on the land. On being challenged, the original plaintiff – deceased Chief C. O. Olakanye claimed to have purchased the land from the late Baipie Bayo Ojo, a member of their family.
The appellant also contended that the land in dispute had once been a subject of customary arbitration before the Oloka Family, who were the original owners that granted the land in dispute to the appellants.
The original plaintiff initially filed a Writ of Summons and a 29 paragraph statement of claim dated 28th October, 2009 (pages 3 – 6 of the records). The defendants/appellants filed their Memorandum of Appearance dated 2nd November, 2009 on 20th January 2010 and also filed their statement of defence and counter claim dated 29th January, 2010 on the 3rd day of February, 2010.
The original plaintiff filed his reply to statement of defence and defence to counter-claim dated 15th March, 2010 on same day. Thereafter the original plaintiff filed his amended statement of claim dated 13th January, 2011 (amended on 12th day of January, 2011).
Prior to delivery of judgment on the 11th of April, 2011, the court was informed of the death of the original plaintiff, Chief C. O. Olakanye who died on the 2nd March, 2011.
As a result, the judgment was adjourned to the 15th day of April to enable the respondent regularize the writ of summons earlier filed. The writ of summons was subsequently amended on the order of court to reflect the substituted name of Chief Jerome Akinsanoye as the new plaintiff, who is now the respondent.
In judgment bearing the name of the new plaintiff, the trial court granted the reliefs claimed by the late plaintiff while dismissing the counter-claim of the defendants/appellants, (see pages 91 – 138 of the record).
The appellants, being dissatisfied with the decision of the trial court filed a notice of appeal on the 19th day of April, 2011 containing four (4) grounds of appeal. Later the appellants with leave of court filed an amended notice of appeal containing nine (9) grounds of appeal dated 8th February, 2012. The appellant formulated three issues for determination in this appeal based on the said amended notice of appeal filed on the 8th day of February, 2012. These are:
(1) Whether the appellants, BAIPIE FAMILY sold the land in dispute to the respondent thereby divesting itself of any interest in the said land.
(2) Whether the jurisdiction of the trial court to determine the instant case on appeal subsisted after the death of the original plaintiff.
(3) Whether the respondent was entitled to the three reliefs sought before the trial court.
On the part of the respondent’s counsel, A. J. Akindele, he adopted the three issues formulated by the appellant’s counsel, Mr. Ademola Adeyemo on page 4 paragraph 3 of their brief of argument dated 27th April, 2012. The brief of argument of appellant was deemed properly filed and served on 11th day of July, 2012, While the respondents brief of argument dated 11th June, 2013 and filed 12th June, 2013 was deemed filed on the 16th of January, 2014.
ISSUE 1
In respect of Issue 1, the appellants contended that the learned trial Judge erred to have held that there was an out-and-out sale of the land in dispute. The appellants contention was that the land in dispute was not sold by the appellants’ Baipie Family to the respondent, hence it could not be said that the family has divested its interest in the said land. The appellant submitted that the original plaintiff’s case was that he purchased the land in dispute from the appellants’ Baipie Family of Ondo Town in Ondo State. The said transaction was allegedly evidenced in writing via Exhibit “A” “SALE OF LAND AGREEMENT & PURCHASE RECEIPT” dated 17th day of October, 1977.
The appellant further submitted that on the face of the said Exhibit “A”, (see page 15 of records), it is clearly shown that
(1) The land transaction is between Chief Baipie Bayo Ojo of No. 9, Aiyeyemi Street, Oke-Odunwo, Ondo, Ondo State, Nigeria; and Christopher O. Olakanye of No. 36, Omolere Street, Oke-Odunwo, Ondo, Ondo State, Nigeria.
(2) Chief Baipie Bayo Ojo is the Sole Vendor while Christopher O. Olakanye is the Sole Purchaser;
(3) The said land is described as the BONA FIDE property of the vendor;
(4) The said land is said to be bounded on the right side by Chief Baipie Ojo’s remaining landed property’;
(5) The vendor has a good title to sell the land to the purchaser;
(6) Chief Baipie Bayo Ojo signed the agreement as the sole vendor while C. O. Olakanye also signed as the sole purchaser
(7) Others whose names, signatures and thumbprint appear therein are witnesses to the transaction.
He submitted further that from the pleadings and evidence of the parties at the trial there was a “consensus” that:
(1) The appellants Baipie Family was the original owner of the land in dispute same having been granted absolutely to them by the Okoka Family of Ondo.
(2) The land in dispute was not partitioned among the appellants’ family members before the purported sale hence it was jointly owned by all members of the appellants’ family
(3) Chief Bayo Baipie Ojo was a member and not head of the appellants’ family.
(4) The said Chief Balo Ojo did not own the land in dispute exclusively.
The appellant’s counsel, Mr. Ademola Adeyemo further questioned if Exhibit “A” properly conveys the sale or alienation of the appellants’ Baipie family land to the deceased plaintiff C. O. Olakanye.
He further answered this question by stating the position of the law on valid sale or alienation of family property under customary law stating a long list of authorities:
1. Sale of family land by a member of family who is not the head of the family, without the consent of the head of the family is void. See: Ekpendu.vs. Erika (1969) 4 FSC 79; Adejumo vs. Ayantegbe (1989) 3 NWLR (Pt.110) 417; Ojoh vs. Kamalu (2006) ALL FWLR (Pt.297) 978 @ 1015; Usiobaifo vs, Usiobaifo (2005) ALL FWLR (250) 131 @ 149; Onisese vs. Oyeleye (2008) ALL FWLR (Pt.446) 1826 @ 1879 – 1880.
2. Sale of family land by the head of the family as his own land is void. Ekpendu vs. Erika (supra); Usiobaifo vs. Usiobaifo (supra)
3. Sale of family land without the consent of the principal members of the family is voidable. Ekpendu vs, Erika (supra); Usiobaifo vs. Usiobaifo (supra); Adejumo vs, Ayantegbe (supra).
4. Neither the head of the family alone, nor the principal members alone can make any valid alienation or give title to any person with respect to the family land. Alu v. Ikusebiala (1985) 1 NWLR (Pt.4) 630; Usiobaifo v. Usiobaifo (supra)
5. A head of family not acting as such cannot convey a valid title in respect of family land. Alu Vs. Ikusebiala (supra)
6. A sale of family land by the head of the family with some important members of the said family but without the consent of some principal members of the family is voidable. Adejumo vs. Ayantegbe (supra).
7. Valid sale of family land must be with the consent of the family head and principal members of the family. Ekpendu vs. Erika (supra); Usiobaifo vs. Usiobaifo (supra) Essien vs. Etukudo.
The appellant contended that an application of the above principles in answering the question whether exhibit “A” properly conveys the sale or alienation of the appellants’ Baipie family land to the deceased plaintiff C. O. Olakanye, would be as follows:
(1) Chief Baipie Bayo Ojo, the sole vendor in Exhibit “A” wrongly and fraudulently sold the appellants’ family land to the deceased plaintiff – C. O. Olakanye as his own exclusive property and it was on this basis that the land was “fraudulently misrepresented as his BONA FIDE property”.
(2) The non pleading or showing of evidence that the family land was partitioned among family members couldn’t have conveyed distinct interest to the “sole vendor” i.e, Chief Baipie Bayo Ojo so as to enable him to sell or alienate the disputed land. He referred to Ojoh vs. Kamalu (2006) ALL FWLR (Pt.297) 978 @ 1014 F – G, 1021 paragraph C.
(3) Also on the face of Exhibit “A” nothing was shown that the land in question was conveyed for and on behalf of the appellants’ Baipie family as Chief Baipie Bayo Ojo signed Exhibit “A” as the sole vendor while others signed for him as ordinary witnesses.
(4) He also submitted that the appellants particularly in paragraph 6 of their statement of defence and counter claim on page B of the records and the evidence of the 1st appellant (as DW1 in the trial court) particularly as contained on pages 68 lines 8 – 11 and 73 lines 20 – 21 of the records without any equivocation, show that the 1st appellant was the head of the appellants’ family when the land in dispute was purportedly sold, But the sale was without his consent hence it is void ab initio. He referred is Ekpendu vs. Erika (Supra); Usiobaifo vs. Usiobaifo (supra); Onisese vs. Oyeleye (supra).
(5) Also that the name or signature or thumbprint of the 1st appellant, Pa Tayo Ojo, the head of the appellants family is not contained in Exhibit “A” as wrongly found by the learned trial Judge. The name Mr. Tayo Awonusi, inadvertently referred to by the learned trial Judge in the records is not that of the 1st appellant as all the court processes particularly the writ of summons, amended statement of claim reply and the statement of defence of the appellant and evidence of witnesses at the trial refer to the 1st appellant as Pa Tayo Ojo. The mix-up in the name of the 1st appellant, with utmost respect, could be misleading.
(6) Also that the 1st appellant, who is the head of the appellants’ Baipie family did not sign Exhibit “A” either as a co-vendor or witness to qualify him as a party to the alleged sale.
(7) Also that none of the witnesses in Exhibit “A” signed as co-vendors of the land in dispute to qualify them as parties to the alleged sale.
(8) Also that the genuineness of Exhibit “A” is doubtful as the slate contained therein, i.e. 17th October, 1977 clearly contradicts the 1978 date contained in the sworn affidavit of the deceased plaintiff – C. O. Olakanye dated 9th February, 2012 contained in paragraphs 3, 6 and 7 on pages 13 to 14 of the records and the evidence of DW4 (wife of the deceased) who though was the one that tendered Exhibit “A” yet said in her evidence that the land was purchased 20 to 25 years ago.
He therefore urged this Honourable Court to hold that:
(1) The sale in Exhibit “A” by Chief Bayo Baipie Ojo, a member of the appellants’ family without the consent of the head of the family, Pa Tayo Ojo, the 1st appellant and concurrence of the other principal members of the family on the authorities of Ekpendu vs. Erika (supra) and other cases earlier cited cases is a nullity and therefore void ab initio.
The respondent’s counsel, Mr. A. J. Akindele on the other hand contended that the transaction between late Chief C. O. Olakanye, which was evidenced by Exhibit “A” was done within the contemplation of the native law and custom and further submitted that contrary to the argument proffered by the appellants in paragraph 5:1:4 at page 8 of their Brief of Argument that BAIPIE FAMILY was the original owner of the land in dispute, it was only granted to the BAIPIE family at the instance of Chief Ojo Baipie by the Oloka family who were the original customary owner as stated by PW2 at page 46 lines 1 – 12 of the records and which same was equally corroborated by the evidence of DW1 (1st appellant) in pages 63 lines 7 – 8 of the records. He submitted that the essence of the grant of the land to the Baipie family through the intervention of Chief Ojo Baipie was to sell the land and have money to retrieve their chieftaincy house without more. See page 46 lines 1 – 11 of the records.
In regard to the above, the respondent urged this court to look specifically into the purpose of the grant of the land by the Otoka to the Baipie family vis-a-vis the person that holds the chieftaincy title of the family and who carried out for assistance to the Okoka family with the sole intention to preserve the chieftaincy house for the Baipie through the proceeds of sale from the granted land.
He further submitted that the principle of principal member(s) or the head of the family does not arise to vitiate the sale made by the parties as contained in Exhibit “A” and the issue of partitioning was not within the contemplation of the grant in that Chief Baipie Ojo was asked to present 5 names as condition precedent to the grant as stated by PW2 at page 46 line 4 of the records which corroborated the content of Exhibit “A” as contained in page 15 of same records.
The respondent submitted that the principle of law cited in paragraph 5:1:7 of the appellant brief is materially different in facts and circumstances of this instant case. And further asserted thus:
(a) Oloka family are the original owners of the land in dispute ab initio;
(b) The land in dispute was granted to the Baipie family through Chief Baipie Bayo Ojo (see page 46 lines 1 – 7 of the record):
(c) The purpose of the grant was specific (see page 46 lines 8 – 11 of the records).
(d) Parties involved were listed at the request of Oloka family as stated by PW2 n page 46 line 5 of the records and as reflected in Exhibit “A” in page 15 of the records.
(e) The land was sold to the late Chief C. O. Olakanye (deceased plaintiff) by the Chief Baipie Ojo with the concurrency of the 5 other family members involved at the point of grant including the 1st appellant.
(f) The land in dispute not being the heritage of the Baipie family but granted for a specific purpose cannot be said to be a family heritage and or property.
The respondent submitted that from the foregoing the cases cited by the appellant are not applicable in this regard and urged its discountenance.
In response to the issue canvassed in paragraph 5:1:8 of the brief of argument on:
“Whether Exhibit “A” properly conveys the sale or alienation of the appellant Baipie family land to the deceased plaintiff, C. O. Olakanye.”
The respondent submitted thus:
(a) That Exhibit “A” was executed with the concurrency of the other family members of Baipie Ojo who approached Oloka family for assistance inclusive the 1s appellant as he could not be seen approbating and reprobating at the same time or deny the obvious.
(b) On the issue of partitioning. That any attempt to partition the land in dispute by the Baipie family not being their heritage would be against the spirit of the grant and defeat the sole purpose or the objective of the grant as stated by the PW2 at page 46 lines 10 – 11 of the records.
(c) That contrary to the argument canvassed by the appellant that Exhibit “A” was not executed on behalf of the Baipie family, that the endorsement by the 5 members of the Baipie family identified and admitted by DW1 and DW2 as family members shows the concurrency of the Baipie family in the sale executed in Exhibit “A” and that this was further corroborated by DW1 (the 1st appellant) in his evidence at page 73 lines 22 – 31 of the records when he admitted he knew Baipie Ojo, Olabanji Ojo, Adedeji Awonusi, Adeoye Ojo, Bayo Ojo as members of the Baipie family and who were all signatories to Exhibit “A”.
(d) In response to issues raised in paragraph 5:1:8 (485) the respondent adopted the argument in paragraph C above re-emphasising that the land granted by the Oloka family was for a specific purpose not being the heritage of Baipie family hence would not require the accolade of a family land to make a valid sale and therefore discountenanced authorities relied upon by the appellant lacking relevance in this regard.
Also on the issue of the name Tayo Ojo (name of 1st appellant) as being different from the name Tayo Omotayo Awonusi as contained in Exhibit “A”. The respondent submitted that both parties agreed that the appellant bore the name “Tayo” while from his evidence on records at page 73 lines 22 – 31, it was clear that all family members mentioned, therein answered to the surname “Ojo” and also that DW2’s admission at pages 77 lines 4 – 5 under cross examination that “PA TAYO OJO” is her biological father puts to test the name agitation, moreso that the learned Judge having reviewed the contradictions in the evidence of the appellant as presented by DW1 and DW2 came to the conclusion that DW1 (1st appellant) had the prowess at telling lies and referred to page 132 paragraphs 3 of the records.
(e) The respondent also submitted that in response to paragraphs 5:1:8 (6, 7 & 8) of the appellant’s brief, the adoption of paragraphs C & D above, that the 1st appellant was a party to execution of Exhibit “A” and he did sign with other family members as rightly observed in the findings of fact by the learned trial Judge on page 133 paragraphs 5 lines 1 – 3 of the records coupled with the fact that the document exhibit “A” is well over 20 years after its execution and before the institution of this case in 2009 and this in itself passed the provision of Section 123 of the Evidence Act as amended.
The respondent therefore urged this court to preserve the findings of the trial Judge who had the opportunity to see the 1st appellant one-on-one vis-a-vis his demeanor, his pleadings and the evidence led resolved and resolve the first issue in favour of the respondent and dismiss the appeal on all the grounds from which issue (1) was distilled.
RESOLUTION OF ISSUE (1)
In dealing with this issue, it is glaring from the arguments adduced by counsels for both parties that their positions on the nature of the land in dispute is at variance. The appellant counsel views the disputed land as “family property” strictu sensu, which requires the consent of the head of the family (appellants’ Baipie family) with concurrence of principal family members to establish a valid sale, without which the appellants’ Baipie family could not be said to have divested itself of its interest in the said land.
On the other hand, the respondent’s counsel viewed and canvassed arguments that the land in question was not a family land/property in the real sense of the word and as such it did not require the principles of validity associated with sale of a family land. Rather, being a grant by the Oloka family for a specific purpose of sale to the Baipie’s family at the instance of Chief Ojo Baipie, it only needed to satisfy the conditions of a valid sale under native law and custom and this they claimed was rightly done by payment of N6,400.00 purchase price, presentation of hot drink, kolanuts, pouring of libation with prayer by the vendor’s family (as witnesses) and actual handing over of property. To solve this riddle, we have to put the puzzles in place, in other words, we have to find out if the land in question is a family heritage/property as contemplated in the eyes of the law.
The answer to this all important question can be gleaned from the facts of the case as contained in the record and also from an understanding of what a family property is vis-a-vis how a family property is created.
Starting with the latter, it is trite law that the concept of family property is original to our indigenous society and the foundation of our law of inheritance. The most common circumstances of creating family property is death intestate of a land owner whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land. Another method of creating family land is by a conveyance inter-vivos where land is purchased with money belonging to the family. Family land can also be created by the use of the appropriate expression in the will of the owner of such land. See the authorities of Olowosago & Ors. Vs. Adebanjo & Ors. (1988) 4 NWLR 275 @ 287; Lewis v. Bankole (1908) 1 H.L.R. 81; Shaw v. Kehinde (1947) 18 N.L.R. 129; Usiobaifo v. Usiobaifo (2000) 14 W.R.N. 70 @ 83.
Flowing from this, in order to ascertain if the disputed land foots the bill of the above as a family property, recourse have to be taken to the nature of the grant, According to PW2 at pages 46 lines 1 – 12 of the records, the land was granted by the Oloka family for the sole purpose of sale in order to raise funds and secure the family’s chieftaincy title. This fact was equally corroborated by the evidence of DW1 (1st appellant in page 68 lines 7 – 8 of the records) though only to the extent of it being granted by the Oloka family. In any case the testimony of PW2 in pages 46 vividly describes the purpose for which the land was granted in 1977 – To retrieve the Baipie’s family chieftaincy title through the proceeds of sale.
Placing these facts side by side with the legal position of creation of family property, I do not align with the position of the appellants counsel’s designation of the disputed land as a family property, apart from the deduced fact that it was not contemplated to be, it is like the character of Ikemefuna in THINGS FALL APART, just as Ikemefuna’s fate from birth had been decreed to be sacrificed to the gods by Okonkwo his ‘father’, the fate of the disputed land had been sealed before it ever became the Baipie’s family, it was decreed to be sold in order to retrieve the family’s chieftaincy title, simpliciter.
To this end, I agree with the position of the learned respondent’s counsel that the land was sold to the original plaintiff (late Chief C. O. Olakanye) as exhibited by evidence of Exhibit “A” in accordance to the specific purpose of the grant hence necessitated as a sale under native law and custom as opposed to a sale under family property principles. The courts have held that to effect a transfer of an absolute title under native law and custom, it is necessary that such a sale should be concluded in the presence of witnesses who saw the actual handing over of the property. See Cole vs. Folami (1956) I.F.S.C. 66; Ogunbambi vs. Abowab (1951) 13 W.A.C.A 222; Adekeke vs. Iyanda (1994) 9 N.W.L.R. (pt.366) 113 @ 128. Therefore the sale as evidenced by Exhibit “A” to my mind properly conveys the sale or alienation of the said land to the deceased plaintiff. Flowing from the above, the issue of the land not being partitioned does not hold water. Likewise the issue of the name Tayo Awonusi not being Tayo Ojo, are all immaterial in this regard.
There is no doubt that one of the methods by which family property can be determined is partition by which property which belongs to a family is split up into ownership of the constituent members of the family. The property may be, but is not invariably, divided among individual members of the family so as to vest absolute ownership in individual members. The division may be among constituent branches of the family. Where the division is among constituent branches of the family, a new family ownership is created in as many places as the property is divided, each branch becoming the owner of the portion partitioned to it. Partition must be by the general consent of the family.
The head of the family cannot on his own partition family property without the consent of joint owners of the property joining in the voluntary partition of the property. Although portion could be by deed, in customary law, oral partition is valid. Partition is to be distinguished from allotment. Allotment does not determine the family ‘ownership of the land so as to make the allottee an absolute owner. It can be affected by the head of family alone. Partition which does not make provision for all as the constituent branches of the family is void. Whether there was partition or allotment is a question of fact. The mere use of the word “Partition” may not settle the issue where this is an issue whether or not family property is determined.
The significance of the above general principles is that where details of partition are not given in the pleadings and the fact of determinative partition is not common ground, the mere use of the term “Partition” may not be conclusive of the fact that family ownership has been determined. See Kadin Balogun v. Tijani Balogun of WACA (1943) 78, Taiwo v. Taiwo 1 NSCC 46, 50 (1958) SCNLR 244, Majekodunmi v. Tijani 11 NLR 74, Onisiwo & Ors v. Gbangboye & Ors (1941) 7 WACA 69, Dosunmu & ors v. Adodo (1961) L.LR 149, @ 150.
In a case where family property is partitioned, the property belongs exclusively to the party as it is no more in the family melting pot. As owners of the partitioned portion they have acquired all the incidents of ownership in the sense that they can do anything they like with the property. The owners of the partitioned property are not subject to the right of another person. Because they are the owners, they have full and final right of alienation or disposition without seeking the consent of another person because as a matter of law and fact, there is no other party’s right over the partitioned property that is higher than theirs. They have the inalienable right to sell the property at any price, even at a giveaway price. They can even give it out gratis, that is for no consideration. The question is, can this be the situation in the instant appeal? I think not. The disputed land culminating in the appeal had a condition attached and what mattered should be whether the attached condition(s) was/use fulfilled. See Akayepe v. Akayepe (2009) 1 NWLR (Pt.1152) 217 SC, Osuji v. Ekeocha (2009) 16 NWLR (Pt.1166) 81 SC, Yesufu v. Adanma (2010) 5 NWLR (Pt.1188) 522 SC, Balogun v. Balogun (1993) 9 WACA 78, Majekodunmi v. Tijani 11 NLR 74, Onisiwo v. Amgboye (1941) 7 WACA 69, Olurunfemi v. Osuntokun (2001) 11 NWLR (Pt.723) Pg.62, Ayeni & or v. Sowemimo (1982) N.S.C.C. 104, 111, Adimora v. Ajuyo (1989) 1 NWLR (Pt.80) 1, Emegokwue v. Okadigbo (1973) NMLR 192, Abraham v. Olorunfunmi (1991) 1 NWLR (165) 53 @ 74 D, Oyede v. Olusesi (2005) 16 NWLR (Pt.951) Pg.341.
It however stands curious to the mind that a land sold in 1977, was left unchallenged until 2009 when all the principal actors of the appellant’s family except the appellant, had passed away, before the appellant (in the words of the trial Judge) decided to “stir up the ghost of the past”. In any case I am also inclined as a duty to put the ghost back to sleep permanently. This issue is accordingly resolved against the appellants.
ISSUE NO.2
On whether the jurisdiction of the trial court to determine the instant case on appeal subsisted after the death of the original plaintiff.
The appellants’ counsel contends that the jurisdiction of the trial court to determine the instant case on appeal abated after the death of the original plaintiff, Chief C. O. Olakanye. Counsel for the appellants reproduced the three reliefs sought by the said original plaintiff contained in paragraph 29 page 44 of the records as follows:
“(a) Declaration that it is the plaintiff that is entitled to the Certificate of Statutory Right of Occupancy over a piece of land situate, lying and being at Ajagbale Road, Oka, Ondo with the following boundaries:
On the right side by Chief Baipie Ojo (vendor remaining land);
On the left side by proposed road;
At the back side by Asohin Stream and
At the front side by proposed road (now Eniola Road)
(b) Two million Naira (N2,000,000.00) special and general damages against the defendants when they on or around 2009 unlawfully entered into this piece of land destroying baking pillars, foundations and peaceful enjoyment rights of those who derived titles from the plaintiff on the land.
(c) Perpetual injunction restraining the defendants, their agents, servants, privies and any other person claiming through them from further trespassing on the said piece of land.”
The appellants’ counsel argued that the above mentioned reliefs were personal to the original plaintiff, having not sued in a representative capacity invokes the suit a personal action of Chief C. O. Olakanye and no one else.
He argued further that the trial court was formally informed of the death of the original plaintiff on 11th April, 2011. (see page 89 of the records lines 22 – 23). A motion on notice dated 12th April, 2011 was filed on 13th April, 2011 to strike out the name of the dead plaintiff and substitute in his place the name of PW1, Chief Jerome Akinsanoye as the plaintiff (pages 56 – 62 of the records). That on the 15th day of April, 2011, immediately before the delivery of judgment, the lower court struck out name of the dead plaintiff and substituted in his place the name of Chief Jerome Akinsanoye. Also the lower court granted leave to amend the writ of summons to reflect the name of Chief Jerome Akinsanoye and equally deemed the amended writ of summoned filed and served that day as properly filed and served, the learned trial Judge went on to deliver judgment and that the judgment which is contained on pages 91 to 138 of the records reflects the name of Chief Jerome Akinsanoye as the plaintiff, also as the respondent in this appeal.
The learned counsel for the appellants submitted that the original plaintiff – Chief C. O. Olakanye ceased to be a legal personality on the 2nd day of Marc, 2011 when he died and that it is trite law that a dead person ceases to have legal personality from the moments of death, He referred to Okunzua vs. Doherty (2010) ALL F.W.L.R. (Pt.528) 929 @ 940 paragraph C – F; Incorporated Trustees of Jamat-Ul-Muslimeen Council of Lagos vs. Oki (2010) ALL FWLR (Pt.537) 730 @ 736 para C – E, E – H. In furtherance to the appellants’ submission was that the deceased plaintiff having sued in personal capacity, the action will not survive him, the action having abated with his death. He referred also to the pleadings of the dead plaintiff which according to him indicated that the deceased plaintiff instituted the action in his personal capacity, the evidence led by all the plaintiff witnesses, particularly that of the PW1, Chief Jerome Akinsanoye who was made to substitute him after his death also clearly shows that the suit was instituted in his lifetime to claim his personal right. The appellant’s counsel argued that neither did the said pleadings nor the pieces of evidence proffered on them indicate that the respondent, Chief Jerome Akinsanoye is related to the dead plaintiff and that he has any legal interest in the subject matter, since according to him he was only employed as a draughtsman /surveyor by the dead plaintiff to survey or bake the land he purportedly purchased from the appellants’ family (pages 28 lines 33 – 34, 30 lines 3 – 5 of the records) and that it was only after thought that the said Chief Jerome Akinsanoye was referred to as the younger brother to the late plaintiff. The counsel for the appellant submitted further, that even assuming without conceding that the respondent is related to the dead plaintiff, it is not shown in evidence that the deceased interest in the land; subject matter of the suit, has been transmitted to him on the death of the original plaintiff, moreso when it is not a property of the family to which both of them could have belonged. He referred to: Arowolo vs. Akapo (2007) ALL FWLR (Pt.345) 200 @ 206 paragraph H, 207 paragraph A where in his argument, the Supreme Court held that a person to whom a deceased party’s interest in the subject matter of proceedings has not been transmitted on the death of the party, will not on his own motion be substituted as a party to the proceedings in the place and stead of the deceased.
Contending further, the learned counsel for the appellant submitted that even if the application for substitution is genuine, it was not brought within the reasonable time envisaged by the provision of Order 11 Rules 38 of the Ondo State Rules of the High Court 1987 which is applicable to this case, having been brought when judgment was ready and about to be delivered.
He submitted that since it was only the writ of summons of the deceased plaintiff that was amended to reflect the so-called substitution of the respondent, the statement of claim being un-amended renders the substitution an exercise in futility, going by the law’s position that the statement of claim supersedes the writ of summons. He referred to: Imnia Nig. Ltd. vs. Dyktrade Ltd. (2007) ALL FWLR (Pt.394) 201 @ 225 paragraph E – F.
He concluded that the application of the aforementioned principle would portray that what was before the trial court prior to delivery of judgment was only the statement of claim of the deceased Chief C. O. Olakanye containing the reliefs he sought in his personal capacity and since the names substituted (of the respondents) was only reflected in the writ of summons and not statement of claim, it was an exercise in futility.
He maintained that the implication was that the learned trial Judge delivered judgment on the statement of claim of a dead plaintiff and the evidence proferred thereon. And submitted that it was trite law that a court of law will not make an order that is incapable of being carried out. He referred to: Abdulraheem vs. Olufeagba (2007) ALL FWLR (Pt.360) 1502 @ 1529 paragraph B. He therefore urged this Honourable Court to hold that:
(i) Jurisdiction of the trial court to determine the instant case on appeal abated on the death of the original plaintiff – Chief C. O. Olakanye.
(ii) The judgment delivered on the 15th day of April, 2011 after the demise of the said plaintiff is a nullity.
(iii) Chief Jerome Akinsanoye, the respondent in this appeal, cannot be made to enjoy the reliefs sought by the deceased plaintiff as he has no interest whatsoever in the suit under reference and equally had no claim before the trial court.
In reaction to issue two (2), the learned counsel for the respondent submitted that the basis on which Issue 2 can be resolved is essentially on the issues of law and that plethora of cases exist wherein classification and clarification were made on to situation where an action can survive the plaintiff(s) or defendant(s) in a pending suit if either of the parties dies.
He submitted that pending suit(s) that are not founded in tort, survives the parties; however action such as libel, defamation, assault, battery are classified as personal actions whereas other actions that do not fall within the above categorization survives the parties in a pending suit. He referred to: Atuegbu vs. Awka South Local Government (2002) 15 NWLR (Pt.971) pg. 635 @ 638 Ratio 2 where it was held that only defamatory, seduction, damages for adultery that were considered an action in personam, and which will not survive the deceased party.
He submitted further that the case of the respondent being an action for declaration of title to land will not abate at the death of the original plaintiff. He referred to: Oketie vs. Olugbor (1995) 4 NWLR (Pt.392) 655 thus:
“The Supreme Court in an appeal relating to an action for declaration of title to a piece of land granted an application to substitute the deceased appellant on the ground that the action survived the deceased appellant and it was filed in a representative capacity.”
Counsel for appellant also cited the case of Re: Ogundahunsi (2008) ALL FWLR (Pt.420) page 671 @ 693 paragraph B-C page 692-693 paragraphs H – A where the court of Appeal reiterated as follows:
“It is well settled principle of law that where a sole surviving plaintiff dies or sole surviving defendant also dies, provided the cause of action is such that survives, the facts of the death of both parties will not cause the abatement of the suit although proceedings will be temporarily stayed until an order can be obtained substitute the names of such other persons for the deceased patties. An order could be made with leave of court for the action to be continued with the names of the legal or personal representatives of the parties.”
On the question of if the status of the respondent was enough to qualify him as a substitute, the learned counsel for the respondent cited the motion filed and the deposed affidavit by the substituted plaintiff (now respondent) where he stated among other facts
“….2. That by virtue of my position as the younger brother to the deceased plaintiff, I am conversant with the facts of this case.
3. That I have been nominated by the family of the deceased plaintiff that my name be substituted in place of the deceased plaintiff.
5. ……….
To buttress his argument, he referred to: Okunzua vs. Doherty (2010) ALL FWLR (Pt.528) PAGE 929 @ 944 paragraph C – E, thus:
“It is also trite and as recently held by the Supreme Court that in an action to recover land from a deceased person as in the present case where the deceased person was, before his death, or is entitled to possession of the land or premises, thereof, the right of action shall be deemed to accrue or enure to the successor on or from the date of the deceased’s death. Consequently, the applicant’s right to take over the suit or the appeal in this case enure from the death of her husband as the beneficiary of the rights and obligation under the duly executed tenancy agreement executed between her late husband and the respondent (which normally binds, not only the parties but their heirs, successors and assigns.”
He submitted that the above stated principles, reasons were proferred in the application before the trial Court.
In answer to the reason why only the writ of summons was altered as against the statement of claim, the respondent’s counsel in his contention opined that an alternation of the statement of claim at point of delivery of judgment will distort the statement of claim as facts will equally be distorted on all paragraphs of the pleadings in contradiction to the evidence on record before the trial court. He submitted that these issues well thoroughly considered b the learned trial Judge when he made Order that the writ of summons be amended to reflect the names of the applicant – Chief Jerome Akinsanoye.
He urged this court to resolve this issue in favour of the respondent and dismiss the appeal on all grounds from which the Issue 2 was distilled.
RESOLUTION OF ISSUE 2
Substitution of a party simply means a designation of a person or thing to take the place of another or thing. It is the process by which one person or thing takes the place of another person or thing etc.
See Black’s Law Dictionary page 147, Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 365, A.G. Anambra v. A.G. Fed.(1993) 6 NWLR (Pt.302) 692.
It is settled law that among other supervening events which may cause a pending suit to become defective is death (i.e of a sole plaintiff or defendant or both)
See Sapo v. Sunmonu (2010) 11 NWLR (PI.1205) 374.
The pertinent question is: what is the effect of the death of a party to an action or court order? Does the action of court abate or survive the death of such a party? Question can further be asked whether the party can be substituted and the interest of the deceased capable of being transmitted or transferred to his heirs or personal representatives?
See Idris v. ANPP (2008) 8 NWLR (Pt.1088) 1/120 para H., Egbo Edo v. Raymond Nwosu: In Re: Monday Egbon (1978) 5 F.C.A 10113.
In the case of In re Otuedon (1995) 4 NWLR (392) 655 @ 667 E-F, the Supreme Court per Iguh JSC (As he then was) held thus:
“…apart from the legal rights of administrators, executors or the personal representatives of a deceased person, a dead person ceased to have any legal personality from the moment of death and as such can neither sue nor be sued either personally or in representative capacity. Where however, the cause of action survives the death of a party, such action is not terminated by death. This principle also applies to an appeal. See Nzom v. Linadu (1987) 1 NWLR (pt.51) 533 and Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt.81) 153.”
See further Re Adeogun (2001) 4 SC (Pt.1) 41 @ 60 lines 10-26, Sellors v. Goode (1892) 3 L.R Ir 298.
The common law principle expressed in the maxim: Actio personalis moritur cum persona presupposes the cause of action arising when both the plaintiff and the defendant, are alive and does not apply where the cause of action arose after the death of the plaintiff or the defendant.
See N.P.A PLC V. Lotus Plastics Ltd.(2005) 19 NWLR (Pt.51) 533 in the case of Okomu Oil Palm Ltd v. Okpama (2007) 3 NWLR (Pt.1020) P.71 the court stated thus:
“Although the plaintiff died in the instant appeal before the judgment was delivered by the lower court, the action survives him for or against his estate. The plaintiff’s claim does not fall within the exceptions created by the proviso to Section 15(1) of the Administration of Estates Law and I so hold. This therefore brings me to the next issue whether the judgment delivered after the death of the plaintiff is erroneous and null and void. The answer is clearly in the negative based on the statement of the law stated above. In the circumstances therefore, the common law maxim, actio personalis moritur cum persona does not apply in the present circumstances of this case. see Eyasan v. Sausi (1984) 4.SC.”
Generally, a dead person is no longer in the eyes of the law a person but in the eyes of the law, he is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity, the personality of a human being is extinguished by this death. Thus, the common law principle of action personalis moritur cum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant. See Kareem v. Wema Bank Ltd (1991) 2 NWLR (Pt.174) 495, Akunmoju v. Mosadolurun (1991) 9 NWLR (pt.214) 296, Hodge v. March (1936) A.E.R 484.
As rightly submitted by learned counsel for the respondent, Issue 2 (two) is basically a question of law and indeed a plethora of cases have made pronouncements classification and clarifications where an action can survive the plaintiff(s) or defendant(s) in a pending suit if either of the parties dies. Agreeably, parties to a suit are the proper parties but if in the course of proceedings in court, circumstances of the parties changes, thereby making such party unable to carry on with the suit e.t.c. then it necessary upon an application to court, to alter the party concerned. Consequently, it becomes necessary for whoever inherits his property (i.e. beneficiary) or anyone designated as his legal representatives, executor, administrator, or trustees to be substituted in place of the deceased in order to continue the pending actions in court. See: Akumoju vs. Mosadolarun (1990) 9 NWLR (Pt.214) 236 @ 242; Eyesan v. Sanusi (1984) 15 N.S.C.C. 271 @ 283; Tesi Opebiyi v. Shittu Oshoboja & Anor (1976) 10 S.C. 195.
However, it is not every pending action of a deceased that enjoys this position of law, there are action that will automatically abate if the death of a party is occasioned, these are actions that are strictly personal in nature such as:-
(i) action to enforce a contract of personal service;
(ii) action for breach of promise to money, or seduction;
(iii) action for defamation;
(iv) action for enticements and harbouring.
Where the cause of action is not personal to the plaintiff/defendant as in this instant case, then such action can survive the deceased party. The only caveat to this is that the appropriate steps are taken to substitute a living person for the deceased. See: Akumoju vs. Mosadolorun (1990) 9 NWLR (Pt.214) 236 @ 242. Also Order 11 Rule 38 of the Ondo State Rules of the High Court 1987 the appropriate steps enunciated in the rules are basically 2 (two):
(i) Make an application;
(ii) The application must be made within reasonable time.
From the above, all these conditions to my mind have adequately satisfied (see page 91 of records). As a matter of fact the record states that when the respondent informed the court of the passing away of the original plaintiff, Chief C. O. Olakanye, it was suggested by learned counsel for the appellant and with the plaintiff’s counsel’s consent that there may be the need to make a substitution before the delivery of judgment.
It is therefore perplexing for same counsel of respondent to begin to reprobate what he had approbated earlier.
On the submission that only ‘the related’ to the dead plaintiff that can be substituted, I am inclined to align with the submission of the appellant counsel that in the motion filed for substitution of names, the deposed affidavit (paragraph 2) by the respondent which referred to his position as younger brother to the deceased and (paragraph 3) which referred to his nomination by the family of the deceased plaintiff (see page 56 – 57 of the records) coupled with the fact that the wife of the deceased as PW4 (wife of deceased) was a witness to the plaintiff (now respondent) suffices and qualifies him as earlier explained.
Explanations have been given on why only the writ of summons was altered, so I need no further expatiation on that. This issue is accordingly resolved against the appellants.
ISSUE THREE (3)
On whether the respondent was entitled to the three reliefs sought before the trial court. The three reliefs in question are thus:
a) Declaration that it is the plaintiff that is entitled to the certificate of statutory right of occupancy over a piece of land, situate, lying and being at Ajagbale Road, Oke, Ondo with the following boundaries:
On the right side by Chief Baipe Ojo (Vendor remaining land
On the left side by proposed road
At the back side by Asohin stream and
At the front side by proposed road (new Eniola Road)
b) N2,000,000.00 (Two million Naira) special and general damages against the defendants when they on or around year 2009 unlawfully entered into this piece of land destroying baking pillars, foundation and peaceful enjoyment rights of those who derive titles from the plaintiff on the land.
c) Perpetual injunction restraining the defendants, their agents, servants, privies and any other person claiming through them from further trespassing on the said piece of land.
The appellants contend that the respondent was not entitled to these three reliefs sought before the trial court. The appellants’ counsel referred to his earlier submission under Issue No. 2 in this appeal in that the judgment of the trial court was based on the statement of claim of the original plaintiff who died before the judgment was delivered and the evidence led thereon and that the respondent in this case was the PW1 at the trial court who gave evidence that he was a draughtsman/surveyor engaged by the deceased plaintiff (Chief C. O. Olakanye) to “bake” his land for him.
The counsel for the appellant further adopted all the submission made under the said Issue No. 2 to the effect that the trial court’s jurisdiction to determine the case abated on the death of the original plaintiff and that the judgment delivered on the unamended pleadings of the deceased plaintiff in favour of the respondent who was hastily substituted on the judgment day is null and void.
In furtherance to this argument, the learned counsel for the appellant contended that even without necessarily conceding that the trial court’s jurisdiction had not abated the pleadings of the deceased plaintiff and evidence proferred thereon did not meet the requirements of the law to warrant the grant of the reliefs sought by the respondent. And that it is settled law that to prove valid sale under customary law the plaintiff must discharge:
(1) General burden of proof of this claim or relief before the court by S.137(1) Evidence Act,
(2) The burden of proof on the pleading, he cited Olateru vs. Sanni (2011) ALL FWLR (Pt.590) 1257
The respondent on his part, in response to paragraphs 5.3.2 of the appellant’s brief adopted their submission and agreement on Issues 1 and 2 respectively.
The stance of the respondent on the burden of proof as envisaged in S.137(i) of the Evidence Act and the burden of proof on the pleading as stated in paragraph 5.3.6 of the appellant’s brief, counsel for respondent submission was that the respondent (plaintiff at the trial court) had discharged the burden of proof envisaged in S.137(1) of the Evidence Act, as the burden is not beyond reasonable doubt but on the balance of probability. The respondent further referred this Honourable Court to the findings of the trial Judge on pages 113 paragraphs 4, 6 & 7 of the record and page 114 paragraph 1, 2, 3, 4, and 5 of the records wherein he noted that Exhibit A shows that it supports the case of the plaintiff on the fact that members of the Baipe family on 17/10/1977 sold the land in dispute measuring 240ft by 1,200ft to the Plaintiff. On the side of the vendor, Chief Baipe Bayo Ojo signed for the vendor while Omotayo Awonusi, Olabanji Ojo, Adedeji Awonusi and Adeoye Gbemi Ojo signed as witnesses and only Oladeji Adeboyeku thumb printed as a witness. On the side of the purchase; Mr. C. O. Olakanye signed as the purchaser, while Florence Olakanye and Samuel Akinjodebo signed as witnesses.
Still dwelling on the first leg of Issue 3 that the respondent was entitled to the certificate of occupancy over the land in dispute, the respondent’s counsel submitted that the evidence of PW1 at page 28,25,30 and 31 of the records were not only unchallenged but also the evidence of the PW2 who facilitated the grant of the land in dispute by the Oloko to the Baipie (see page 45, 46 and 47) and likewise the evidence of the PW4 on pages 65, 66 and 67 of the records were equally unchallenged.
On the above leg, the respondent’s counsel submitted that in line with the case of Olatetu vs. Sanni (2011) ALL FWLR (pt.590) page 1257 @ 1285 – 1286, cited by the appellant, there was a substantial compliance with the purchase of the land principle under native law and custom as could be gleaned from the pleadings and the evidence led by the plaintiff witnesses before the lower court.
On the second leg of Issue 3 which bothers on the relief of damages sought and granted by the lower court in favour of the respondent. The appellant did not make any further adumbration on this leg, however the respondent submitted that the evidence of PW4 on records and DW2 under cross-examination at pages 76 lines 32 – 33, page 77 lines 1 – 9 of records all admitted to the disturbance of the peace of the people by the forceful collection of money from them, sales of plaintiff’s land to 3rd party such as Chief Dada Ogunmola who bought 6 plots of land at N130,000 per plot. Both counsel however did not make any further submission or the third leg of Issue 3.
RESOLUTION OF ISSUE THREE (3)
It is settled law that the principles governing the grant of declaratory reliefs generally include:
(a) A declaration will be granted even when the relief has been rendered unnecessary by the lapse of time or the action to be tried if at the time the action was brought, it raised substantial issues of law,
(b) The claim to which the declaratory relief relates must be substantial, that is the plaintiff must be entitled to relief in the fullest meaning of the word.
(c) The plaintiff must establish a right in relation to which the declaration can be made; hence the court will not generally decide hypothetical questions.
(d) The relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant.
(e) The relief should also not be contrary to the accepted principles upon which the court exercises its jurisdiction.
See CBN V. Amao (2010) 16 NWLR (Pt.1219) 271 SC, Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 @ 553.
It therefore means that if a party approaches a court for a relief and proves as required by law; the court has the duty to grant same if it will meet the best interest of the matter. Also, the court of course must have the jurisdiction to grant such relief. See Osuji v. Ekeoha (2009) 16 NWLR (Pt.1106) 81 SC, Adigun v. A.G Oyo State (1982) 1 NWLR (Pt.53) 678, Igbokwe v. Udobi (1992) 3 NWLR (Pt.228) 214, Dantata v. Mohammed (2007) 7 NWLR (Pt.664) 176, Adu v. Gbadamosi (2009) 6 NWLR (Pt.1136) 110, Ogun v. Akinyelu (2004) 18 NWLR (Pt.905) 362.
The identity of the land not being a subject of dispute, the only major inference to be drawn from the first leg of Issue 3 is to the poser, if the respondent is entitled to the certificate of statutory right of occupancy on the disputed land, that is to say, has the respondent met the requirements of out-and-out sale of land under native law and custom in the acquisition of the disputed land.
To my mind, I am of the opinion that he did. The combined effect of testimonies of PW2 who was a member of the Oloka family who confirmed the sale by the Oloka family as a proprietary property as against possessory, in the presence of PW4 and one Samuel, and PW1 who confirmed the land in dispute, likewise PW3 who testified to buying a parcel of land from the plaintiff in 1993 and built his house, coupled with the evidence of Exhibit “A” as a receipt of the disposition has a combined effect to substantially meet the ingredients of a sale of land under Native Law and Custom.
It is a tale as old as time itself that an alienation of land under native law and custom in order to transfer an absolute title, there must be a sale, which must be concluded in the presence of witnesses, who saw the actual handing over of the property as witnessed in this instant case. See Cole vs. Folani (1956) 1 F.S.C. 66; Adeleke vs. Iyanda (1994) 9 NWLR (Pt.366) 113 @ 128.
Against this backdrop, I resolve this against the appellants.
On the second leg of the argument whether the respondent is entitled to the award of damages against appellants when they on or around year 2009 unlawfully entered into the piece of land destroying baking pillars, foundation and peaceful enjoyment rights of those who derive titles from the plaintiff on the land.
A court of appeal will not interfere with the findings of the trial Judge as to the amount/quantum of damages awarded unless it is satisfied that the trial Judge acted on a wrong principles of law or that the amount awarded was so high or so low as to make an erroneous estimate of damages which the claimants are entitled. Therefore it is only when there is a failure to follow the settled principles that an appellate court can properly interfere with the award of damages. See Williams vs. Daily Times (1990) 21 N.S.C.C. (pt.1) 15 @ 35; Solel Bonneh Overseas (Nig.) Ltd. vs. Ayodele (1989) 1 N.W.L.R. (pt.99).
The lower court awarded N200,000 (two hundred thousand Naira) as general damages against the defendants jointly and severally when they, on or around year 2009, unlawfully entered into this piece of land, destroying baking pillars, foundation and peaceful enjoyment rights of those who derive titles from the plaintiff on the land.
It is my considered view against the backdrop of the fact adumbrated by the respondent’s counsel, A. J. Akindele and same view shared by the learned trial Judge, the evidence of PW4 on records and DW2 under cross-examination at pages 76 lines 32 – 33, page 77 lines 1 – 9 of records all goes to show that through the direct acts of the appellants disturbed the peace of the people both by collecting money from them, destruction of the baked pillars, illegal sale of the land to 3rd party, all the evidence were adduced and admitted during trial.
The law respectively holds that general damages may be awarded to assuage/cushion such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded but arises from the inference of law and need not be proved by evidence and rather suffices if it is generally averred. See Incar vs. Benson (1975) 3 S.C. 177; Osuyi & Anor vs. Isiocha (1989) 3 NWLR (pt.111) 623 @ 636.
Consequently, the court can make an award of general damages even when it cannot point out any measure of assessment except what it can hold in the opinion of the reasonable man. The second leg of Issue 3 is consequently resolved against the appellant.
On the third leg of Issue 3 challenging the relief grant of perpetual injunction restraining the defendants, their agents, servants, privies and any other person claiming through them from further trespassing on the said piece of land. A perpetual injunction is an injunction granted after a final hearing on the merits. This will only be granted the applicant after he has duly satisfied the court that he has a legal right to be protected by the court. See C.B.N. vs. Ahmed (2001) 28 W.R.N. 38; Union Beverages vs. Pepsicola (1994) 2 S.C.N.J. 157.The respondent has been able to proof his case on the balance of probability and preponderance of evidence and therefore I resolve the third leg of Issue 3 against the appellant.
Generally, the burden of proof in a civil matter such as this, lies on the party who alleges the affirmative, this could be the plaintiff or the defendant, depends on the state of the pleadings. Therefore, suffice to say that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden could be said to be on the party who alleges the affirmative in the pleadings, the second burden; the evidential burden lies on the adverse party to prove the negative. See Gaji vs. Paye (2003) FWLR (pt.163) 1, 21, paras D – E; Onyenge vs. Ebere ( ) All FWLR (pt.219) 981, 994 paras F-G.
The respondent’s counsel, A. J. Akindele in this instant case has been able to adduce evidence at the lower court to show prima facie, when placed on an imaginary scale, that he is entitled to the declaration sought as against the appellant case.
In conclusion therefore, I find this appeal totally lacking in merit and uphold the judgment of the High Court of Justice Ondo State, Ondo Judicial Division in Suit No.HOD/138/2009 delivered on 11/04/2011 per Adebusoye A.O.J. with no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my Learned brother Sotonye Denton West JCA. I agree with the conclusion and I also abide with the consequential orders. The appeal lacks merit and it is accordingly dismissed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had a preview of the lead judgment of my learned brother SOTONYE DENTON-WEST, JCA. I agree with all the reasoning and conclusion reached therein. I too shall dismiss the appeal for lacking in merit and it is so dismissed. I abide by the consequential order as made.
Appearances
Ademola AdeyemoFor Appellant
AND
A. J. AkindeleFor Respondent
