Engineer Bayo Akinterinwa & Anor V. Cornelius Oladunjoye (2000)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This is an appeal by the defendants from the judgment of the Court of Appeal dated 10 December 1993; whereby the Court of Appeal confirmed with some amendment the decision of the trial Ondo State High Court dated 19 April 1989. The trial court declared the grant of the land in question to the 1st defendant null and void but upheld the grant of the same piece of land to the plaintiff. He also awarded the plaintiff N1,000.00 as general damages for trespass.

The respondent was the plaintiff in the action. He sued the 1st defendant for the following reliefs:

1. Ten thousand naira (N10,000.00) being special and general damages for trespass committed by the Defendant on the plaintiff’s piece or parcel of land which is situate lying and being at Okuta Elerinla Itamerin in Akure township.
2. Injunction restraining the Defendant, his servants, privies and/or agents from further acts of trespass on the said Plaintiff’s land.

Originally the 1st defendant was the sale defendant. At the start of these proceedings the 5th defendant Mr. Olu Bello was counsel to the 1st defendant. At the hearing, however, PW 1 Joseph Famubo who as head of the family raised objection against the appearance of the 5th defendant for the 1st defendant for one major reason. The Famubo family in an earlier case over a larger piece of land engaged the 5th respondent as their counsel. The family won the portion of land now in dispute forms a part of the said larger piece of land. The PW1’s objection was upheld and consequently the 5th defendant withdrew his appearance for the 1st defendant.

Subsequently, however, Mr. Olu Bello together with his purported grantors were joined as 2nd, 3rd, 4th and 5th defendants.

Now, the case of the plaintiff was that he bought the land in question from the Famubo family of Akure in 1971 for #400. A receipt for this sum dated 15/7/71 was tendered and admitted in evidence as exhibit ‘A’. He called as a witness Joseph Famubo (PW 1) the head of Famubo family also known as Arowogbadamu family. He testified that the family sold the land to the plaintiff. He said they showed the plaintiff the land and he went into possession. He denied that his family ever gave land to the defendants. The witness disclosed that the 5th defendant was counsel for his family in the previous land cases in suits No. AKA/ICL/67, AK/14A/70 which they won. The 5th defendant later got Oba Deji of Akure to convey to him (5th defendant) part of the land he won against the Deji for Famubo family. Thereafter the 5th defendant sold part of the land he acquired to others.

The defendants’ case as related by the 5th defendant is this. The 5th defendant was the Famubo family lawyer for years. He represented the family in court in respect of disputes over the family land.

It was a large expanse of land. It was in 1964 when the 5th defendant approached the then head of the family one James Omeiye for a portion of the land to be sold to him and his relatives. The family obliged and took him to the land where he marked out the are which he wanted for himself, his wife, his wife’s brother and Dr. Ogunleye. There were together four plots. The 5th defendant paid a total of #550 to the family. The defendants were subsequently let into possession of the plots. Conveyances were later executed in their favour separately by the Deji of Akure Oba Ademuwagun Adesida as the legal trustee of all Akure land. The 5th defendant. Mrs. Bello and Dr. Ogunleye have since developed their plots.

After hearing both sides to the dispute the trial court entered judgment for the plaintiff. The defendants’ appeal to the Court of Appeal, Benin Division was dismissed. The defendants have further appealed to this court upon a number of grounds.

In their brief of argument. the defendants raised two issues for determination. These read:

“1. Whether upon the failure of the plaintiff to establish a clear and certain identity of the land to which his claim In trespass and injunction relates and his exclusive possession thereof, the Court of Appeal can properly give judgment for the plaintiff as it did in this case.

2. Whether the award by the Court of Appeal to the plaintiff of reliefs not proved by legal and credible evidence and reliefs not claimed by the plaintiff at all neither in his Writ of Summons nor in his Amended Statement of Claim can be sustained in law and on the high judicial authorities.”

The plaintiff, on the other hand raised one issue for determination which reads:

“Which of plaintiff – respondent and first defendant – appellant has a better claim to the land in dispute”

It would appear clear that the main question to be resolved in this appeal is which of the two parties has a better claim to the land in dispute’ In this regard there are two areas to consider. Firstly, the pleadings of the parties. Secondly, the evidence before the trial court. The pertinent paragraphs in the plaintiffs amended Statement or Claim are 3, 4, 5, 6 and 15. In these paragraphs the plaintiff averred as follows:

3. The land, the subject-matter of the dispute, is a plot of land situate lying and being at Okuta Elerinla Itamerin, Akure, (township), and sold to the plaintiff by Joseph Famubo on behalf of Famubo family.
4. The said Vendor (Famubo family) sold 537,271 sq. meters being a small fraction of the Vendor’s land situate lying and being at Okuta Elerinla ltamerin along Akure/Ilesa Road, Akure.
5. Plaintiff shall at the trial rely upon judgments got by the said Famubo Family in respect of the said land in dispute viz: AKA/ICI/67. AK/14A/70 and CAW/29/72.
6. The Famubo family issued the Plaintiff a receipt dated 15/7/71 for the purchase of the said land. Plaintiff will rely on the receipt at the trial.
7. The Famubo family denied selling the land to the Defendant.

For their pan, the defendants pleaded in paragraphs 3, 4, 5, 6, 7 and 15 of their Amended Statement of Defence as follows:

3. The defendants deny paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, together with the particulars of claim in page 2 of the plaintiff’s Statement of Claim and puts the plaintiff to the strictest proof thereof.
4. The defendants aver that the piece or parcel of land which is the subject matter of this action is situate, lying and being at Okuta Elerinla in Akure town in Ondo State of Nigeria.
5. The defendants aver that the said piece of land formed part of a larger portion of land which originally consisted of four plots.
6. The defendants aver that in the year 1964, the said larger portion of land of which the land in dispute forms part was granted to Dr. A. I. Ogunleye, Mrs. G. I. Bello, Mr. Olu Bello 5th defendant and the defendant severally in plots by the late James Omeiye as beneficial owner acting on behalf of Olisa Arowogbadamu family otherwise known as Famubo family of Akure.
7. The late James Omeiye was at the time of the grant the eldest member and accredited head of Olisa Arowogbadamu family.
8. The 1st defendant avers that a deed of conveyance of the said plot dated 4th July,1972 was executed in favour of the defendant by Oba Ademuwagun Adesida II the Deji of Akure as the legal trustee of all Akure land.

The plaintiff called evidence in support of his case. The evidence is that he bought the piece of land in question from the Famubo family in 1971 through Joseph Famubo who was the head of the Famubo family. He paid #400. The said piece of land measured 537,271 sq. meters. In support of the grant to the plaintiff, Joseph Famubo testified that he sold the piece of land in question to the plaintiff in 1971 as head of Famubo family. He also said that the family put the plaintiff into possession. He denied selling the land in dispute to the defendants.

Mr. Bello (5th defendant) on the other hand claimed that James Omeiye who sold the land to him was the head of the family. He said two of the six members who put him in possession were PW1 Joseph Famubo and PW4 Aiku Fanimo. Both of them denied his claim. They gave evidence for the plaintiff. The other four members were dead.

After a review of the evidence, oral and documentary, the learned trial judge held as follows:

In my views it is too late in the day for Mr. Bello to deny Joseph Famubo’s headship of the Famubo family. In the case of Isaac Ogunkua against Ebun Babalola at the Customary Court in which Mr. Bello acted for Ebun Babalola, and by his advice, four members of the Famubo family were joined as co-defendants, Joseph Famubo in his evidence-in-chief at page 11 of the record described himself as head of Famubo family. This assertion was not challenged by Mr. Bello nor by any of the other co-defendants. This was on the 27th day of June 1969. Joseph Famubo conceded then that Daniel Ojo was the oldest in the family but could not walk due to old age. James Omeiye who was alleged by Bello to have been the head of family when Joseph Famubo claimed headship did not protest to the court or to Mr. Bello. James Omeiye gave evidence in the same case at the customary court but did not refer to himself as head of family. Both Adekunle Omeiye and Mr. Bello alleged that portions of land were granted to Funso Olujohungbe. Oyin Olupitan and others by James Omeiye as head of family before the grant to Mr. Bello. None or the persons named was called to confirm James Omeiye’s headship.

Apart from the case in court, the Akure Area Planing Authority issued the cheque for payment to the Famubo family in the name of Joseph Famubo. Notwithstanding the dishonest attempt to convert the money to his own use, the fact that payment to the Famubo family was through Joseph Famubo gave him the recognition that Mr. Bello is denying him. I hold therefore that at the time Mr. Bello acquired possession of the land in dispute which he described in the Conveyance exhibit “H” as 1964, James Famubo rather than James Omeiye was the head of Famubo family. Since Mr. Bello acquired his possession from sources other than the head of family the onus devolves in him to prove the legitimacy of his claim.

The learned trial judge continued at p.132 thus:

“All that is needed to prove a grant of land under native law and custom is the formal handling over of the plot to the grantee in the presence of a witness or witnesses. This has been adequately covered by the evidence of Joseph Famubo and PW4 Aiku Fanimo …………

One more word must be said about alleged sale of land to Mr. Bello. I very much doubt his claim that he bought the land from James Omeiye and the other members of family in 1964. lf any oral grant existed, why had the conveyance in respect of the alleged oral grant to be signed by someone other than the grantor Why in particular by an adverse claimant whose claim had been refused by the court It was not the case of Mr. Bello that his grantors were dead at the lime he prepared his conveyance for the Deji to execute, but it was traditional before the coming into effect of the Land Use Act for the Deji to sign all conveyances. I reject Mr. Bello’s contention that the Deji must sign all conveyances ……………

Joseph Famubo as head of the Famubo family joined Ebun Babalola as co-defendant and successfully defended the suit by Ogunkua and the Deji Oba Ademuwagun in a suit instituted by the latter against the former………….Any conveyance of the said land must be executed by the said Joseph Famubo family.”

In consequence thereof the learned trial judge declared the grant of the land in dispute to Engineer Akinlerinwa null and void but upheld the grant of the said piece of land to the plaintiff.

The appeal to the Court of Appeal was dismissed. The court below was of the firm view that the learned trial judge was right in holding that the Respondent had proved a better title to the land.”

As I indicated already the main question in this appeal is which of the parties has a better title to the land in controversy. It must be borne in mind that, the plaintiffs claim is for trespass and for an injunction against further trespass. That being so, it follows that he has put his title in issue. See Kponuglo v. Kodadja (1934) 2 WACA 24. The plaintiff and the 1st defendant say that they are in possession. The position however is that an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. Possession resides in the claimant that establishes a better title. See Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67 at 82; Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt.93) 215.

I shall now consider the plaintiffs case. His case was that he bought the land in question from Famubo family through Joseph Famubo (PW1) who was the head of the family. This transaction took place in the presence of PW4 Aiku Fabimo who showed him the land in dispute. He paid #400 for the land.

In order to constitute a valid sale of land under customary law, there must be payment or money and delivery of possession of the land sold in the presence of witnesses. This custom is of universal application throughout Nigeria See Egonu v. Egonu (1978) 11’9712 SC 111; Cole v. Folami (1956) SCNLR 180; 1 FSC 66 (1956) SCNLR 180. In this case, there is evidence that the plaintiff paid 400pounds to the head of Famubo family Joseph Famubo (PW 1) for the land. PW 1 through PW4 delivered possession of this land to the plaintiff. All this took place in the presence of witnesses. It would appear plain that from the outset the case of the defendants was bound to fail. I turn now to the case of the defendants. It really had no legs on which to stand. Let me explain.

The evidence is that the 1st defendant acquired the land in dispute through the 5th defendant. He is the brother-in-law of the 5th defendant. The 5th defendant (Olu Bello) testified in part thus:

“The land in dispute used to form part of a large tract of land. The property of Olisa Arawogbadamu a.k.a. Famubo family of Akure. I was a lawyer to the family, I used to write letter in respect of the family property and I used to conduct legal proceed arising from disputes over the land for the family. I did this for them in several courts. One of such proceeding was the case of AKA/ICL/67, Isaac Ogunkua v. Eben Babalola, Joseph Famubo, Daniel Ojo, James Omeiye and Aiku Fabimo. (Exh “C”).

Around 1964 I approached the family through the then head and accredited representative of the family far portion of the land to be sold w me and my relations. At the time James Omeiye was the only member of the family farming and physically operating on the land. He and his children owned all the cash crop on the land. The said James Omeiye told me that he would communicate my request to his family. Later I was summoned to the family meeting at Pa James Omeiye’s house at Odojoka Akure. I there repeated my request. Pa James Omeiye, Plaintiff witness 1- James Famubo and Tapere Omeiye were asked to take me to the land. The mother of Dr. A.I.A. Ogunleye, my cousin named Madam Felicia Famolayo accompanied me to the site. There I marked out the area which I wanted for myself, my wife, my wife’91s brother and Dr. Ogunleye the place was marked out by the family representatives. I gave money to Tapere Omeiye one of those who accompanied us to clear the area. He did so. Later Pa James Omeiye and Joseph Famubo accompanied me there. Tapere Omeiye was also there. He brought the tape, On measurement the area comprised three plots of 60 x 140 each. Another plot was 100 x 250. They agreed that I Should pay for them. I approached my wife and others and we agreed it was to be #100 each for the first three plots and 250 for the big plot retained by me for myself. I paid #550 to the family in two installments.

It is not in dispute that Mr. Olu Bello was Famubo family lawyer, Joseph Famubo as head of the family joined Ebun Babalola as a co-defendant and successfully defended the suit by Ogunkua and the Deji Oba Ademuwagun Exhibit ‘C’. Mr. Bello was counsel for the Famubo family in that case. Subsequently Mr. Bello said he approached the family for a portion of the land to be sold to him and his relations. But according to him it was one James Omeiye who was the head of the family. He gave evidence to the effect that the family members took him to the land when he marked out the area which he wanted for himself, his wife, his wife’s brother (1st defendant) and Dr. Ogunleye. There were four plots in all. He paid a total of #550. The conveyances in respect of these plots were executed by the Deji of Akure to the exclusion of all members of his grantor family.

Mr. Bello claimed that PW1 Joseph Famubo and PW4 Aiku Fanimo were among the family members who put him in possession. Both of them denied his claim. Their evidence was in favour of the plaintiff’s case.

The case of the defendants is stranger than fiction. The first significant thing to note is that Mr. Bello was Famubo’s family lawyer. He successfully prosecuted the plaintiff’s case against the Deji of Akure. Secondly, he exeised a portion of the same land to himself, his wife, his brother-in-law and Dr. Ogunleye, and tried so hard to fool everybody into thinking that he bought same from the family. Next he got the Deji of Akure to convey the land he won against the Deji to himself and his relations to the exclusion of members of the family he alleged sold the land to him. It was not his case that all members of the Famubo family were dead. It seems to me that for Mr. Bello to unashamedly contend this position offends common sense and justice. The astonishing thing is that he has fought this case up to this court. I believe that he does not have conception of the implication or all this. But i say no more.

The learned trial judge was so right in holding that:

“I very much doubt his claim that he bought the land from James Omeiye and the other members of family in 1964. If any oral grant existed. why had the conveyance in respect of the oral grant to be signed by someone other than the grantor Why in particular by an adverse Claimant whose claim had been refused by the court It was not the case or Mr. Bello that his grantors were dead at the lime he prepared his conveyance for the Deji to execute …. I reject Mr. Bello’s contention ……..”

On the state of the evidence. l am satisfied that the sale or the land in dispute to the plaintiff was a valid sale by native law and custom. The learned trial judge rightly. in my view upheld the grant or the land to the plaintiff Cornelius Oladunjoye. The court below was equally right in affirming the decision of the trial judge. One last point. I have already indicated that the court below affirmed the decision of the learned trial judge. In the course of doing so, that court declared title in favour of the plaintiff in the following terms:

“In sum, title is hereby declared in favour or the plaintiff in respect of the piece of land at Okuta Elerinla on Ilesha Road, evidence by Exhibit ‘B’ and sold to the plaintiff. Cornelius Oladunjoye by the Famubo Family.”

The defendants have attacked this declaration. It was said that the plaintiff’s claim was for damages for trespass and injunction against further trespass. It was pointed out that he did not claim title although his title was put in issue. That being the case, it was submitted for the defendants, that the Court of Appeal was in error when it granted the plaintiff a remedy that he did not seek.

It is trite law that parties are bound by their pleadings: See Obimiami Brick & Stone (Nig.) v. A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260. The essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought to avoid element of surprise by either party. It also guides the parties not to give evidence outside the facts pleaded as evidence on a fact not pleaded goes to no issue – see Onwuka v. Omogui (1992) 3 NWLR (Pt.230) 393; Emegokwue v. Okadigbo (1973) 4 SC 113.

In the present case, it is not in dispute that the claim of the plaintiff was for damages for trespass and injunction. He did not seek a declaration of title to the disputed piece of land. So the declaration of title granted by the court below was c1early a relief not claimed by the plaintiff. I do not think there is any justification for the grant. This is because a court has no jurisdiction to give to a party a relief he has not asked for: see Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Awosile v. Sotubo (1992) 5NWLR (Pt.243) 514;Ayanboye v. Balogun (1990)5 NWLR (Pt.151) 392. The plaintiff in this case is clearly not entitled to the declaration of title not claimed by him. In the result. I set aside the declaration of title in his favour and restore the decision of the learned trial judge in the following terms:

“In sum, I declare the purported grant of the piece of land at Okuta Elerinla on Ilesha Road, evidence by exhibit “H” and made to Engineer Akinterinwa null and void. I uphold the grant of the same piece of land to Cornelius Olaclunjoye.”

Subject to the above, this appeal by the defendants lack merit. Accordingly. I dismiss it with N10,000.00 costs in favour of the plaintiff.

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SC.98/94