Omodele Ashabi Eya & Ors. V. Alhaja Risikatu Olopade & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C,

This is an appeal against the judgment of the Court of Appeal holden at Ibadan in Appeal No. CA/I/75/93 delivered on the 22nd day of March, 2001 in which the court affirmed the judgment of the High Court of Ogun State, Holden at Abeokuta in Suit NO. AB/22/84 delivered on the 27th day of November, 1985.

By a writ of summons at pages 1 and 2 of the record of appeal, the appellants, then plaintiff’s claimed against the respondent/defendant the following reliefs:-

“(i) Declaration that the plaintiffs are entitled to apply for the Certificate of Occupancy over the piece or parcel of land situate, lying and being at Idi-Aba quarters of Abeokuta Ogun State of Nigeria.

(ii) N500.00 (five hundred naira) damages against the defendants for the trespass committed on the land when the defendant without the permission or consent of the plaintiffs entered the land and together with their servants and agents cleared it and started erecting the foundation of some building structures on the land.

(iii) Injunction to restrain the defendants their servants and/or agents from further acts of trespass on the said land”.

However, in paragraph 31 of the Statement of Claim particularly at page 10 of the record of appeal, the reliefs claimed in the writ of summons and reproduced supra are paraphrased thus:-

“31. The plaintiffs therefore wish this Honourable Court to grant them leave to apply for certificate of statutory Right of Occupancy on the land in dispute, to find the defendants liable in trespass and to make an order for perpetual injunction against the defendant.”

It can be noted from the final claims of the plaintiffs that the relief of damages for trespass has been abandoned while the terms of the perpetual injunction are very uncertain.

It should always be noted that the law is settled that the statement of claim supercedes the writ of summons and that any relief claimed in the writ of summons but not mentioned/claimed in the statement of claim is deemed abandoned and can therefore not be granted at the conclusion of trial if the plaintiff succeeds. Learned counsel should therefore be careful when drafting the reliefs in the statement of claim.

However, it is the case of the plaintiffs/appellants that the land in dispute was granted to KEHINDE EYA after the death of SOLANKE who inherited same from ODEBI, one of the children of IKUOLOKO, the original owner in possession of a vast expanse of land as his share. At all time material to the action, the entire land was not partitioned among the descendants of KEHINDE EYA; that Kehinde Eya’s family gave permission to LOLADE (one of the descendants of KEHINDE EYA and its head at the material time) to sell an acre of the family land to Alhaji Bello Qudus, the original 1st respondent to settle some financial indebtedness as shown in Exhibit A, while the remaining land was intact. It is the contention of the appellants that three days after the death of LOLADE, the original 1st respondent approached the appellants and informed them that late LOLADE had sold the land in dispute, which is eleven acres to him and wanted the appellants to sign an agreement to that effect which they refused to do. Later on the appellants found two building foundations on the land constructed by the original 1st respondent which resulted in the institution of the action.

It is however the case of the respondents that the original 1st respondent bought two parcels of land from the appellants’ family at different times, the first being directly from Lolade at about 1965 which was for twenty acres as evidenced in Exhibit G while the other was in 1972 of eleven acres after the death of Lolade ; that the 2nd purchase was from the plaintiffs as evidence in Exhibit F. Lolade is said to have died in 1970. It is the contention of the respondents that the 1st and 2nd appellants witnessed the sale of 1972 by thumb printing the agreement after all formalities were duly complied with. It is also the contention of the respondents that the original 1st respondent was led into possession immediately after the sale and had remained in same letting and selling plots of the land to tenants thereof.

At the conclusion of the trial, the learned trial judge dismissed the case of the appellants which resulted in an appeal before the Ibadan Division of the Court of Appeal in appeal No. CA/I/75/93 which was dismissed by the court. The present appeal is therefore a further appeal by the appellants, the issues for the determination of which are listed by learned counsel for the appellants, DEMOLA BAKARE ESQ in the Amended Appellant Brief filed on 19/2/2010 as follows:-

“1. Whether the court below was right in refusing to set aside the judgment of the trial court when there was no evidential or legal basis for the latter’s finding that appellants’ family had earlier sold twenty acres of their land to the respondents (Ground).