Chief J.A. Ojo & Ors. V. Saula Ogisanyin Anibire & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

This appeal concerns a land dispute with a chequered history. I do not intend to go into the history but confine myself to what has happened in the trial court and the Court of Appeal.

In the trial court the plaintiffs/appellants’ claims are for:-

“1. A declaration of title that the plaintiff for himself and on behalf of Ojeke Oke Aro family of 1, Ilata,Otta, Ogun State, Nigeria are entitled to a certificate of occupancy of the area of land measuring about 12.35 hectares of 277.6 acres situate, lying and being at Ilata Otun Quarters, Otta, Ogun State Nigeria particularly shown on the plan drawn by Sewaje Esquire, licensed surveyor.

2. The sum of N400.00 as damages for trespass committed on the land by each of the defendants except the 7th defendant.
3. An injunction restraining perpetually jointly the defendants, their agents, assigns and privies from committing any further acts of trespass on the land from selling, leasing constructing building thereon or dealing with the land in any manner without the consent and/or permission of the plaintiffs.
4. A declaration that any sale of any portion of Ojeke Aro family land, the land in dispute made by the defendants jointly or severally or by their agents are null and void.
5. A declaration that none of the defendants is a descendant of Ojeke Alashe or a member of the Ojeke Aro family of Ilata, Otta, Ogun State, Nigeria.
6. Any other reliefs or order as this Honourable court may consider necessary to make in favour of the plaintiffs”.

Pleadings were filed and exchanged between the parties in the C trial court and a total of 32 witnesses testified in the case; 13 for the plaintiffs/appellants and 19 for the defendants/respondents. At the end of the trial the parties’ counsel addressed the court and the case was adjourned for judgment. In a considered judgment delivered on 29th April 1991, the learned trial Judge Sofolahan J. found that the plaintiffs/appellants have failed to prove their claims and he dismissed the claim in their entirety.

The plaintiffs/appellants (hereinafter simply referred to as the appellants) were not happy with this decision and they appealed to the Court of Appeal, Ibadan, which heard the appeal and dismissed it as being without merit. They now appealed to this court.

In this court, both parties filed and exchanged their respective briefs of argument in accordance with the rules. The appellants formulated two issues for the determination of the court which read:

“(i) Whether a finding that the original appellant’s name had been removed as donee of Aro family’s power of attorney (exhibit K) did not occasion a miscarriage of justice

(ii) Whether as a principal member and/or an attorney of the family owning the land in dispute, the original appellant is not entitled to an order of injunction perpetually restraining any sale of the family land or portion(s) thereof without his consent; or to a declaration that any sale of the family land without his consent is null and void.”

The defendants/respondents (hereinafter referred to as the respondents) also raised two issues as follows:

“1. Whether there is any competent and valid appeal in the instance case.

2. Whether the Court of Appeal was right to have reached the conclusion it reached, and not to have granted the order of injunction and declaration being complainedof by the appellants herein.”

I have carefully looked at the issues set out by the parties, and I find that issue 2 in each case is the same. I also observe that respondent’s issue 1, did not arise from the grounds of appeal but since they have raised a notice of preliminary objection in their brief which they are entitled to do, the substance of that issue will be considered in the appeal. I therefore find the appellants’ issues germane to this appeal and I shall consider them accordingly.

Before considering the appellants’ issues for determination in this appeal, I find it necessary to consider first the preliminary objection raised by the respondents in the brief. The preliminary objection was based on two points:-

“1. That grounds (i) and (ii) of the appellants’ grounds of appeal did not emanate from the proceedings in the Court of Appeal, but are attack on the judgment of the High Court.