Alhaji Mohammed Layinka & Ors V. Alhaji Baba Agba Gegele (1993)
LawGlobal-Hub Lead Judgment Report
OGUNDARE, J.S.C.
By a writ of Summons issued in the High Court of Kwara State holden at Ilorin the plaintiff for himself and on behalf of the Galadima family of Gegele sued the seven defendants above claiming a declaration that the sale of portions of the family land by the 1st three defendants to the other four defendants be declared null and void. Pleadings were ordered, filed and exchanged. By paragraph 23 of the Statement of Claim the plaintiff claimed as hereunder:
“(i) the setting aside of the sale by declaring the sale illegal, null and void;
(ii) declaring the 4th, 5th, 6th and 7th defendants as trespassers on Galadima land along the Ilorin airport;
(iii) damages against all the defendants jointly and severally estimated at three thousand Naira (N3,000.00) only.
The defendants filed a joint Statement of Defence. At the trial of the action evidence was led on both sides and after addresses by learned counsel for the parties, the learned trial Judge in a reserved judgment found for the plaintiffs and set aside the sales by the 1st to the 3rd defendants of portions of the family land to the 4th to 7th defendants. He found as a fact that the land in dispute, portions of which were said to have been sold by the 1st to the 3rd defendants to the 4th to 7th defendants belonged to the Galadima family. In lieu however of an award of damages against the 4th to 7th defendants for trespass, the learned trial Judge ordered that they give up possession within three months of the date of the judgment. This is what he said:
“As the purchasers continue to tamper with the long established legitimate title and possessory right of the Galadima family the unlawful buyers invade the Galadima family’s rightful possession. The 4th to 7th defendants have, however, chosen not to defend this action and I hold that they are therefore liable to the Galadima family for the trespass, (See Adeniji v Ogunbiyi (1965) NMLR 395-7), However, when the 4th to 7th defendants occupied the land which they thought they had lawfully purchased, they must have thought that they had derived valid title. In the circumstances, therefore, I will award no damages against the 4th to 7th defendants on trespass but I consider it reasonable that they be given 3 months from today within which to remove their beacons and any other structures of theirs on the Galadima land.”
As the plaintiff did not appeal against the refusal of his claim for damages, I would make no comments on it.
The defendants being dissatisfied with the judgment above appealed to the Court of Appeal, (Kaduna Division) which latter Court after hearing arguments dismissed the said appeal and it is against that order of dismissal that the defendants have further appealed to this court. Pursuant to the rules of this Court the defendants, as appellants, filed through their counsel a written brief of argument. The plaintiff, as respondent, also filed through his counsel a respondent’s brief to which the defendants filed a reply brief. Seven issues are set out in the appellant’s brief as calling for determination, to wit:
“1. Whether the Respondent herein as Plaintiff in the High Court, had or showed any locus standi to sustain this action in the absence of pleading and evidence disclosing that the Respondent was a principal member of Galadima family.
- Whether the learned trial Judge was right in supplying the evidence that the Respondent was a principal member of Galadima family and whether the Court of Appeal was right to uphold his judgment.
- Whether the principle in Ekpendu v Erika (1959) SCNLR 186; (1959) 4 F.S.C. 79 was correctly applied to the facts of this case by the trial Judge and properly upheld by the Court of Appeal.
- Whether having regard to the Claim before the High Court the Court of Appeal was right in affirming the High Court’s direction that ‘the question which the learned trial Judge was called upon to resolve was whether the land was given to Musa as a gift.’
- If the answer to the fourth issue above is in the affirmative, whether the High Court and the Lower Court were right in placing the onus of proving the outright gift of the land to Musa as a gift upon the appellant herein.
- If the answer to the fourth issue above is in the affirmative. Whether upon a proper evaluation the totality of the evidence adduced in the case, the learned trial Judge and the Court of Appeal were right in coming to the conclusion that the gift of the land to Musa by the first Emir was an outright gift.
- Whether or not the Order of the High Court, affirmed by the Court of Appeal that the 4th to 7th Appellants should remove their beacons and other structures on the land not being an order sought by the Respondent was made without or in excess of jurisdiction.”
The respondent’s counsel, for his part, did not set out any issue but proceeded to argue the grounds of appeal As appeals are argued on issues in this Court one would have expected that learned counsel who, incidentally, is a Senior Advocate, would know this and argue the appeal on the issues formulated in the appellants’ brief where he has not formulated issues in his own brief.
The facts are briefly as follows:
The plaintiff and the 1st, 2nd and 3rd defendants are members of the Galadima family of Ilorin. Indeed, the 1st defendants is the head of the said family. The plaintiff claims that the land opposite the Airport at Ilorin belongs to the Galadima family and that part of the said land was sold to one Oredola Okeya during the life time of 1st defendant’s predecessor in office. Proceeds of that sale was brought to the family meeting and shared among members of the family. When the 1st defendant become head of the family he and the 2nd and 3rd defendants sold portions of the said family land to 4th, 5th and 7th defendants without the consent of the other members of the family and neither did he bring the proceeds to the family for distribution. The members of the family, including the plaintiff, made several efforts to get him to account to the family but the 1st defendant refused. In consequence, members of the family excluding the 1st, 2nd and 3rd defendants, having satisfied themselves that the three defendants had sold portions of their family land to the 4th, 5th, 6th and 7th defendants without obtaining the consent of the family, thereupon authorised the plaintiff to sue on their behalf claiming to set aside the sales and to evict the 4th, 5th, 6th and 7th defendant from their land. The 1st defendant denied that the land belonged to his family. His case is that the land was entrusted by Oba Abdul Salami the 1st emir of Ilorin to Musa the founder of the Galadima family, not as donee but as caretaker, and that the land had been held ever since by the reigning Galadima as the caretaker or agent of the Emir of Ilorin. It is 1st defendant’s case also that as caretaker, a reigning Galadima can only dispose of any portion of the said land on the permission of the emir and not that of the Galadima family. He stated that he obtained the permission of the Emir of Ilorin the late Oba Gambari before the sales to the 4th to 7th defendants.
From the pleadings and the evidence, it is my view that the real issue for determination in the case was as to whether the land in dispute was granted to Musa the founder of the Galadima family by Oba Abdul Salami the 1st Emir of Ilorin as an outright gift in which case title would be in the Galadima family or as a mere caretaker in which latter case, title would remain in the Emir Evidence was led by the parties on this principal issue and at the end of the day the learned trial Judge found in favour of the plaintiff. The Court of Appeal after a review of the facts came to the same conclusion. Thus there are concurring findings of the two courts below that Oba Abdul Salami gave the land in dispute to Musa as a gift. It has been held in a number of cases that in such a case, exceptional circumstances would have to be shown before this Court would interfere with such a finding:- see: Chinwendu v. Mbamali (1980) 3-4 S.C. 31; Ibodo v. Enarofia (1980) 5-7 S.C. 42, Kale v Coker (1982) 12 S.C 252, 272: Lokoyi v. Olojo (1983) 2 SCNLR 127; Ojomu v Ajao (1983) 2 SCNLR 156, 168.
At the hearing of this appeal, after listening to arguments of learned counsel for the defendants we did not consider it necessary to call on counsel for the plaintiff to reply. I have considered the arguments in favour of the issues formulated in the appellant’s brief. The main issue for determination in this appeal, in my respectful view is whether this Court ought to interfere with the concurrent finding of courts below that Musa was given the land in dispute by Oba Abdul Salami. With profound respect to learned counsel, I can find no justifiable reason to disturb this finding of fact which is adequately supported by the totality of the credible evidence before the trial court:- See: Njoku v. Eme (1973) 5 S.C 293, 306: Ibrahim v Shagari (1983) 2 SCNLR 176. From defendant’s own showing, it is obvious he did not alienate the portions of the said land to 4th-7th defendants as head of family. Rather he did so in a completely different capacity of agent to the Emir of Ilorin. That being the case his act is patently void See: C.P.D.L. v . Attorney-General Lagos (1976) 1 S.C. 71; Oyebanji v Okunola (1968) NMLR 221; Solomon v Mogaji (1982) 11 S.C. 1 and a court is entitled, at the instance of any member of the family, whether principal or not, to declare the sales void. All arguments therefore on whether the plaintiff is, or is not, a principal member of the Galadima family are of no consequence. He, as a member of the family, has a right and a duty to protect family property and therefore, has locus to institute an action in respect of any wrongdoing to his family land. Moreso, as in this case, where plaintiff is representing the family, the head of family having taken a stand against family interest – Ugwu v. Agbo (1977) 10 S.C. 27,40; Sogunle v. Akerele (1967) NMLR
The 1st defendant by his own showing had made it clear that he did not seek the consent of members, let alone principal members, of the Galadima family before selling portions of the family land to 4th-7th defendants. In such a situation, and having regard to his further showing that he acted not as head of family in disposing of family property but as agent of the Emir of Ilorin, the sales made by him are null and void.
The 4th to 7th defendants are not members of the Galadima family. As they have entered the family land under void transactions, they are trespassers – Onwuka v Abiriba City Council (1959) ERNLR 17; Solomon v Mogaji (supra) at p.72. The learned trial Judge rather than award damages against them ordered that they should remove their beacons and other structures on the land. This order was affirmed by the Court of Appeal and has come under attack in Ground 6 of the Grounds of Appeal in this Court. This ground is the basis of issue 7. The complaint of the defendants is that the order was not sought for by the plaintiff and the trial court not being a charity should not have made such an order. It has been held in a number of cases (see for example, Ekpenyong v Nyong (1975) 2 S.C. 71; Ademola & Anor v Sodipo & Ors (1992) 7 NWLR (Pt. 253) 251 that a court would be acting beyond its jurisdiction to grant reliefs not asked for by the claimant. In affirming the order of the trial court, the Court of Appeal, per Akpata J.C.A., (as he then was), observed:
“In ground 3, learned counsel contended that the learned trial Judge erred in law when he ordered the 4th to 7th appellants to remove their beacons and any other structures of theirs on the said land within three months. Generally, a court may not grant a relief not requested by the plaintiff. This legal principle does not embrace consequential orders made to sustain the relief claimed. I hold the view that the learned trial Judge made the consequential order in the interest of justice which he was entitled to do. In the case of Garba v University of Maiduguri (1986) 1 NWLR (Pt.18) 550 Obaseki J.S.C., agreed that the High Court has power to grant consequential orders not specifically prayed for. Also by Order 34 Rule 1 of the Kwara State High Court (Civil Procedure Rules) 1975, the High Court may in all cases and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not. In my view, prudence dictates that in a case of this nature where a plaintiff prays that the sale of a parcel of land belonging to his family be set aside for want of authority by the vendor and the court accedes to his prayers, the court may in its discretion in the interest of justice order that structures erected on the land be removed even though such an order was not specifically asked for. This is so as such structures may derogate from the plaintiff’s family ownership of the land.”
With respect to the learned Justices of the Court of Appeal, it would appear that their reasoning in affirming the order of the learned trial Judge runs counter to laid down principles. It is to be observed that the plaintiff did not even claim for an injunction. The case originated in a High Court where actions are tried on pleadings. The rule of Court, that is, Order 34 rule 1 of the Kwara State High Court (Civil Procedure Rules) 1975 on which the Court of Appeal anchored its affirmation of the order of the learned trial Judge will only apply where the order made is ancillary to the claims allowed by the court. That is not the case here. I have no hesitation whatsoever in setting aside the order complained of.
Having said this, it is to be hoped that the 4th to 7th defendants would not consider this conclusion any comfort to them. As trespassers on the Galadima family land they continue to be liable in damages for trespass for any period they continue to remain in occupation of the land or any part thereof. I hope they will not be foolish enough to remain a day longer on the land without the permission of members of the Galadima family.
In conclusion this appeal fails on the main issue and it is therefore, dismissed. The order of the Court of Appeal re-affirming the order of the learned trial Judge that the 4th to the 7th defendants do remove their structures and beacons on the land is, however, hereby set aside. I award to the plaintiff/respondent the costs of this appeal which I assess at N1,000.00 only.
SC.217/1988
