Jimoh Akinfolarin & Ors. V. Solomon Oluwole Akinnola (1994)

LawGlobal-Hub Lead Judgment Report

IGUH, J.S.C.

In the Ondo Judicial Division of the High Court of Justice, Ondo State, the plaintiffs, who are now the appellants, for themselves and on behalf of the Ansar-Ud-Deen Society, Ode, Ondo caused a writ of summons to issue against the respondent who therein was the defendant claiming, as subsequently amended, as follows:-

“(1) A declaration of title under Native Law and Custom to a piece of land situate and being at mile 2 Ondo Okitipupa Road and more particularly shown on Plan No. L & L/A3635 and Plan No. OB 4105;

(2) N200.00 being general damages for trespass to the said plaintiffs’ land; and

(3) A perpetual injunction restraining the defendant, his servants and/or agents from committing further trespass on the land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

At the subsequent trial, all three plaintiffs testified on their own behalf and called witnesses. The defendant also testified in his defence and called witnesses. At the conclusion of hearing, the learned trial Judge in a reserved judgment which was delivered on the 5th day of September, 1979, found for the defendant and dismissed the plaintiffs’ claims in their entirety.

Being dissatisfied with this judgment, the plaintiffs appealed to the Court of Appeal, Benin City Division, which in an unanimous decision on the 4th day of May, 1988 dismissed the appeal and affirmed the judgment of the trial court.

The plaintiffs have now further appealed to this court against the said decision of the Court of Appeal. I shall hereinafter refer to the plaintiffs and the defendant in this judgment as the appellants and the respondent respectively.

I think it is desirable at this stage to recapitulate the facts of this case. In doing so, I shall adopt the facts as ably set out in the judgment of the Court of Appeal which are as follows:-

“The land in dispute belonged originally to the Oloka Chieftaincy family of Ondo under customary law. Chief Oloka of Oka was and is still the accredited head of the family. In 1950 there was a vacancy in the Oloka Chieftaincy following the death of the then Oloka of Oka. There was a protracted dispute in the family as to succession to the vacancy. One Theophillus Adegoju claimed to have been rightfully appointed to the office by the family while S.A. Akinboye also laid claim to a similar appointment. There were thus rival claims to the title.

The Oloka Chieftaincy is a recognised minor Chieftaincy with the Osemawe of Ondo as the prescribed authority who had (and presumably still has) the power to approve the appointment of an Oloka. On 14th July, 1956, the Osemawe of Ondo approved the appointment of S.A. Akinboye as the new Oloka of Oka.

On 10th April, 1954, Theophilus Adegoju and some members of the Oloka family made a grant of the land in dispute to the Ansar-Ud-Deen Society of Ondo (hereinafter is referred to as the Society) for the erection of a school. The appellants claimed that the Society went into possession and exercised acts of ownership on the land by clearing it and planting cassava therein; they also erected a signboard on the land. Following the reconstruction on the Ondo – Ore highway, part of the land granted to the Society was encroached upon by the road and the society reported this to Adegoju who with some members of the Oloka family on 27th December, 1973 executed an agreement (Exhibit A) in favour of the Society confirming the 1954 grant but in respect of the land remaining after deducting the part encroached upon by the new highway.

Meanwhile in May, 1973. Chief S. A. Akinboye the Oloka of Oka and head of the Oloka family together with some other members of the family sold under customary law, the land in dispute in two lots to the respondent and executed two agreements dated 14th May, 1973 and 24th May, 1973 (Exhibits K and K1) in his favour. The respondent claimed he went into possession cleared the land and planted therein cassava, maize and pineapple and later surveyed the land. He denied seeing any survey pillars or signboard on the land at the time of the sales to him.”

It is necessary to observe that from the pleadings and evidence before the court the following facts are not in dispute between the parties namely:-

1, That the land in dispute originally belonged to the Oloka family.

2. That the land said to have been trespassed upon by the respondent is part and parcel of the land claimed by the appellants.
3. That both parties claimed the land through the Oloka family, and
4. That Chief Oloka, otherwise known as the Oloja of Oka is the traditional head of the Oloka Chieftaincy family.

It is also pertinent to point out that the learned trial Judge after a thorough consideration of the evidence adduced before the court found the following facts established, namely:-

1. That the appellants were not in possession of the land in dispute at the time of the institution of this action on the 27th day of May, 1974.
2. That it was the respondent who from the 20th May, 1973 at the least was in possession of the land in dispute.
3. That Chief Theophilus Adegoju whom the appellants claimed was the Oloja of Oka and the head of the Oloka family was never at any time the head of the Oloka family either before or after the 14th July, 1956.
4. That Chief S. A. Akinboye’s appointment as the Oloja of Oka and the head of the Oloka family was duly approved by Oba Osemawe of Ondo on the 14th July, 1956.
5. That the said Oba Osemawe of Ondo as the prescribed authority under the law was the proper person with the requisite power to approve the appointment of the Oloja of Oka.
6. That whoever was so appointed and approved by the Osemawe of Ondo as the Oloja of Oka was also recognised as the traditional head of the Oloka family.
7. That there was an interregnum in the Oloka Chieftaincy between 1950 and the 14th July, 1956 on which latter date Chief Akinboye’s appointment was approved by the Osemawe to fill the vacancy.
8. That neither Adegoju nor Akinboye had any valid claim to the headship of the Oloka family during the period of the interregnum,
9. That the grant or disposition of the land in dispute to the appellants in 1954 and in 1973 by Adegoju was void ab initio as he was not the head of the family, and
10. That between 1950 and the 14th July, 1956, there were two factions in the Oloka family built around the two contenders to the vacant Chieftaincy stool and that the rival groups operated side by side as the Oloja of Oka.

I should observe that there was abundant evidence before the trial court in support of the above findings which the Court of Appeal fully endorsed. Having set out the salient facts of this case, I will now proceed to consider this appeal on its merits.

Pursuant to the rules of this court, the parties, through their respective counsel, filed and exchanged their written briefs of argument. In the appellants’ brief, the following issues are set out as arising in this appeal, namely:-

“(1). Whether from the facts and issues joined by the plaintiffs and the defendant in this case, the point as to the headship of Oloka family in 1954 when the grant of the land in dispute was made to the plaintiffs was not directly in issue in this case so as to raise the question of family status for determination. If the answer is in the affirmative, whether the trial High Court had jurisdiction to determine the issue of family status so raised.

(2) Whether Exhibit E, a judgment of the Ondo State High Court relied upon by the Courts below against the appellant was not a nullity on the ground that the judgment was given without jurisdiction.

(3) Whether the respondent had locus standi to submit the issue of the headship of Otoka family in 1954 for determination by the trial court.

(4) Whether, in the absence of a substantive head of a family, the principal members of the family cannot transfer a valid title in the family property.”

The respondent, for his own part, submitted that all the four issues formulated for determination by the appellants are totally misconceived and mainly academic having regard to the specific findings of facts made by the trial court and endorsed by the Court of Appeal. He set out one single issue which, in his view, is enough to determine the appeal. This issue reads as follows:-

“Whether the appellants bought the land in dispute in 1954 or in 1973 from the Oloka family with the consent of the head of the Oloka family.”

A close study of the question posed in the respondent’s brief shows that it is sufficiently encompassed by the issues raised by the appellants in their brief of argument. Accordingly, I shall in this judgment adopt the set of question set out in the appellants’ brief.

At the oral hearing of the appeal, learned counsel for the appellants, proffered oral arguments in further elucidation of the submissions contained in their written brief. Learned counsel for the respondent, Prince Olu Mafo, who settled the respondent’s brief of argument was absent in court although served with hearing notice for the hearing of the appeal. The respondent however adopted the brief of argument filed by his learned counsel in the appeal.

The main thrust of the appellants’ complaint all the first issue is that the headship of the Oloka family in 1954 when the grant of the land in dispute was made to the appellants was directly in issue in this case and that this raised the question of family status for determination by the trial court. It was therefore contended that the learned trial Judge had no jurisdiction to entertain the suit by virtue of the proviso to Section 9(1) of the High Court Law of Western Nigeria Cap. 44, 1959 Laws of Western Region. It was argued that the question whether Chief Adegoju was the head of the Oloka family in 1954 was not a triable issue before the trial court as it concerned a matter relating to “family status” and that the Court of Appeal erred in law by holding that the trial court had jurisdiction to entertain the suit.

It was submitted on behalf of the respondent in his written brief that the headship of the Oloka family was not the paramount or primary issue in the case on hand and that this was merely incidental to the main issue which was a declaration of title to the land in dispute damages for trespass and an injunction.

I think it is right to observe that this issue of jurisdiction was never raised before the trial court. It is however a fundamental issue which can be raised at any stage of the proceedings up to the final determination of an appeal by the highest court of the land. See Owoniboys Technical Service Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550: Osadebay v. Attorney-General Bendel State (1991) 1 NWLR (Pt. 169) 525: Petrojessical Ent. Ltd. v. Leventis Tech. Co. Ltd (1992) 5 NWLR (Pt. 244) 675; Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661: Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 420 etc. I will therefore dispose of this issue of jurisdiction.

Section 9(1) of the High Court Law. Cap. 44, Laws of Western Nigeria 1959 which was applicable at the time the cause of action arose in this case (See Mustapha v. Governor, Lagos State (1987) 2 NWLR (Pt.58) 539 at 549, and Uwaifo v. A.G. Bendel State (1982) 7 S.C. 124 provides as follows:-

“9(1) To the extent that such jurisdiction may be conferred by the Regional Legislature, the jurisdiction by this Law vested in the High Court shall include all her Majesty’s civil jurisdiction which at the commencement of this law was, or at any time afterwards may be exercisable in the Western Region for the judicial hearing and determination of matters in difference, or for the administration or control of property and persons, and also all her Majesty’s criminal jurisdiction which at the commencement of this law, was, or at any time afterwards may be there exercisable for the repression or punishment of crimes or offences or for the maintenance of order, and all such jurisdiction shall be exercised under and according to the provisions of this Law and not otherwise:

Provided that, except in so far as the Governor may by order in council otherwise direct and except in suits transferred to the High Court under the provisions of Section 28 of the Native Courts Ordinance the High Court shall not exercise original jurisdiction in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death.”

It seems to me clear from the above proviso that the High Court of the former Western Nigeria was precluded from exercising original jurisdiction in all matters which are subject to the jurisdiction of the customary court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death. Where, however, a claim is within the substantive enactment that is to say, within the terms of subsection (1) of Section 9 aforesaid, the High Court is not precluded from adjudicating thereon merely because in the course of such an adjudication, it becomes necessary to make some incidental or casual inquiry into any of the matters classified in the proviso in issue, See Aderemi v. Opeyori (1976) 9-10 S.C. 31.

In the first place, it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same. See Ajaka Izeikwe & Ors v. Nnadozie (1952) 14 WACA 361 at 363 and Adeyemi v. Opeyori (supra) at p. 51. In the case on hand, the appellants have claimed a declaration of title to land, damages for trespass and injunction. It seems to me indisputable that not one of the reliefs claimed raises ex facie any issue which can possibly be construed as ousting the jurisdiction of the High Court within the frame work of section 9 of the said High Court law. The appellants from their claims as formulated did not seek for any declaration in the matter of the “family status” of Chief Samuel Akinboye and/or Theophilus Adegoju. I therefore accept the respondent’s contention that the trial court ex facie had ample jurisdiction to entertain the appellants’ claims. I am further in agreement from the reliefs claimed that the question of “famlly status” was not directly or fundamentally in issue in the claims. It was only an incidental or casual issue which emerged in the determination of the fundamental question relating to title to land, damages for trespass and injunction which are the claims before the trial court.

The case of Nwafia v. Ububa (1966) NMLR 219 referred to by learned counsel for the appellants is worthy of comments and must be distinguished from the present action. In that case, the plaintiff claimed in the High Court of Eastern Nigeria that he was entitled in accordance with customary law to occupy and possess the, house known as “Uno Obu” with its appurtenances called “Ilo Obu”, both of which by custom and as a matter of right must be under the management and control of the Okpala or the eldest surviving male child in the line of descent of the family. It seems to me plain from the very nature of the claim before that court that an issue relating to family status arose in that case as a fundamental and not an incidental issue for determination. That issue was the primary and the only issue which exfacie called for determination in the suit and arose directly from the very nature of the relief claimed. On appeal, it was held by this court that the only issue which called for determination in the suit was as follows:-

“Is the plaintiff the Okpala of the Dunu family In other words, is he the surviving eldest male child of Dunu. This undoubtedly is an issue relating to family status …………..”

The Nwafia v. Ububa, suit (supra), must be distinguished from the present case where any question of family status was merely incidental in the consideration of the appellants’ claims. The court below so held and I have no reason to disagree with it on the point. I am satisfied on the strength of the authorities that the jurisdiction of the High Court was ousted by the proviso to Section 9(1) of the High Court Law only where the issue of family status was the fundamental issue before the court. I agree with the view of the Court of Appeal that the headship of Oloka family was only an incidental issue in this case especially in the fact of Exhibits J and J1 whereby the appointment of Chief Samuel Akinboye as the Oloja of Oka had long been duly approved by the prescribed authority, the Osemawe of Ondo with effect from the 14th July, 1956. It seems to me fully established that the question of who the Oloja of Oka and head of the Oloka family was had long been settled with effect from the 14th July, 1956 and was not a fundamental issue for determination in this action. In the circumstance, the first issue must be resolved in favour of the respondent.

I now turn to the second issue which questions whether Exhibit E, a judgment of the Ondo High Court in Suit No. AK/58/64 relied on by the courts below against the appellants was not a nullity on the ground that it was given without jurisdiction. It is the contention of the appellants that Exhibit E is a nullity and consequently that all reliance placed on it by the lower courts are nullities. They argued that since the main issue decided in Exhibit E by the High Court was the issue of the status of Akinboye and Adegoju in Oloka family, the judgment in that suit was delivered without jurisdiction in that it is caught by Section 9(1) proviso of the High Court Law of Western Nigeria.

For the respondent, it was contended that the issue of who at all material times was the Oloka of Oka was settled as long ago as the 14th July, 1956 by the prescribed authority and that the point was no longer open to any dispute. Exhibit E is a declaratory action between Chief Samuel Akinboye, the Oloja of Oka as the plaintiff and Theophilus Adegoju as the respondent in respect of the Oloka family landed property, account of all monies received by the defendant in respect of the said property and perpetual injunction. It was submitted that all the High Court of Ondo State did in Exhibit E was to affirm the approval of Chief Samuel Akinboye as the Oloja of Oka by the prescribed authority with effect from the 14th July, 1956.

I have closely considered the arguments of learned counsel in this regard and wish to observe that the question posed by the second issue aforementioned appears to me mainly academic. In the first place, there is unchallenged evidence before the trial court to the effect that Chief Akinboye’s appointment under customary law as the Oloja of Oka was duly approved by the prescribed authority since the 14th July, 1956. In this regard, the Court of Appeal before which the same was canvassed dismissed the same as follows:-

“The issue of headship of the family either before or after 14th July, 1956 could not have been raised bonafide by Adegoju whom as I have held earlier, is estopped from denying that Chief Akinboye became Oloka and head of the family from 14th July, 1956. To still refer to himself as the Oloka and head of family even in 1973 shows how mischievous Adegoju was. Adegoju could not have been head of the family unless he was approved by the Osemawe as the Oloja (otherwise known as Oloja of Oka). The learned trial Judge found and quite rightly in my view, that there was an interregnum lasting from 1950 to 14th July, 1956 when Chief Akinboye was approved as the Oloja thereby rejecting Adegoju’s evidence that he was ever approved by the Osemawe as the Oloja of Oka. The family therefore had no head of family during that period of interregnum. To hold that each time before 1/10/79 there was a case in which the validity of a grant of Oloka family land was in issue and Adegoju, inspite of Exhibits E and H, claimed headship of the family, the jurisdiction of the trial High Court was ousted is to stretch the proviso to Section 9(1) to absurdity. For as long as Adegoju persisted in making his claim to headship of the family in any suit for so long would a trial High Court be obliged to pronounce on it not as a fundamental but an incidental issue. For the issue of the headship of the family was no longer open to question since 14th July, 1956 when the Osemawe in exercise of his power as the prescribed authority, resolved the rivalry between Adegoju and Akinboye for that title by approving the latter as the Oloka.”

I am with respect in complete agreement with the above observations of the Court of Appeal and fully endorse them. I accept the view of the Court of Appeal to the effect that Adegoju’s claim to headship of the family in the suit was baseless and rightly rejected by the Ondo State High Court in Exhibit E, not as a fundamental but as an incidental issue in the suit. In my opinion, once it was established that Chief Akinboye had been dully approved as the Oloka by the prescribed authority, the issue of his status as the head of the Oloka family was no longer in issue and he was entitled to judgment in respect of his claims in Exhihit E. The Ondo State High Court therefore acted within its jurisdiction in Exhibit E and its judgment was neither invalid nor a nullity.

In the second place, even if Exhibit E were to be a nullity, and I do not so hold, it is the judgment of a court of competent jurisdiction and may therefore not be ignored or discountenanced without its being firstly set aside. An order made by a court of competent jurisdiction even in ignorance of some essential fact which went to the validity of the order was not void or a nullity and the order stood and could not be discountenanced or ignored until it was set aside. See Oba Lawani Aladegbemi & Anor v. Oba John Fasanmade (1988) 3 NWLR (Pt. 81) 129. In other words, an order or judgment of a court of competent jurisdiction remains valid and binding unless and until it is set aside by the trial court itself where it acted without jurisdiction or by an appeal court.

In the Oba Aladegbemi’s case, (supra), Kayode Eso, J.S.C. at page 155 of the report put the matter as follows:-

“………….but more importantly is the fact that Lord Denning never said as is often claimed that a judgment of a court of competent jurisdiction could be ignored if it is found for any reason to be void without its being first set aside. He never said so and in my humble view if he had, it is with utmost respect not the law, for a court of competent jurisdiction, not necessarily of unlimited jurisdiction (and I will come to this anon) has jurisdiction to decide a matter rightly or wrongly. If that court never had jurisdiction in the matter, then its decision is without jurisdiction void but then should a court of law not even decide the point That is, the court without jurisdiction decided without jurisdiction Should the decision just be ignored. Surely it would not make for peace and finality which a decision of a court seeks to attain. It would, at least, be against public policy for persons without the backing of the court to pronounce a court’s decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view, it is not only desirable but necessary to have such decisions set aside first by another court before any act is built upon it despite the colourful dictum of the Law Lord in U.A.C. v. Macfoy, (supra),”

In the same case, Oputa, J.S.C. at page 162 of the report advanced his own contribution on the issue as follows:-

“The point that it needs an order of court to set aside even a judgment that is a nullity was brought out in Craig v. Kanseen (1943) All ER 108 at 111 per Green, M.R.:-

“An order which can properly be described as a nullity is something which the person affected by it is entitled ex facie debito justitiae to have set aside. As far as the procedure for having it set aside is concerned the court in its inherent jurisdiction can set aside its own order and an appeal is not necessary”

Whether the court sets aside its own order or an appellate court does it, the point being made is that there must be an application to a court to have the order set aside otherwise the order subsists – Gratton Isaac v. Emery Robertson (1984) 3 WLR 705. Therefore the ruling of Hedges, J. even if it was a nullity (which infact it was not) had to be set aside by a court and since Hedges, J. was no longer around, by an appellate court.”

Quite recently, in the case of Victor Rossek & Ors v. A.C.B. & Ors (1993) NWLR (Pt. 312) 382, this court, in a full panel, had cause to consider this aspect of the law. It reiterated in clear terms that there is an unqualified obligation on the part of every person against whom an invalid judgment of a court of competent jurisdiction is given to obey it unless and until it is set aside by the trial court itself where it acted without jurisdiction or by an appeal court. In his own contribution. Bello, C.J.N., stated the law as follows:-

“I entirely agree with Chief Ajayi, SAN that a judgment of a court of law is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for the enforcement of judgments are also obliged to enforce it unless it is declared a nullity or set aside by a court of competent jurisdiction. It has never been the law of Nigeria as some of our judges, like judicial robots, have been parroting the dicta of Lord Denning in Macfoy v. U.A.C. (supra) that there is no need for an order of a court which is void to be set aside by a court and thereby implies that all and sundry have the right to disobey the order. It is not also the law of England: Isaac v. Robertson (supra).

It has never been the law that a party may review a judgment, regard it a nullity and disobey it. A prisoner who thinks that his conviction was a nullity cannot with impunity walk out of prison. Similarly, a judgment debtor cannot lawfully resist execution because he considers the judgment against him was null and void. Thus, a judgment of a court of law remains valid and effective unless it is set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of an aggrieved party: Williams v. Sanusi (1961) All NLR 334 at 337; (1961) 2 SCNLR 129; Ojiako v. Ogueze (1962) 1 All NLR 58 at 61; Adebayo v. Shonowo (1969) 1 All NLR 174 at 194; Ajao v. Alao (1988) 5 NWLR (Pt. 45) 802 at 823; Yonwuren v. Modern Signs (Nig) Ltd. (1985) 1 NWLR (Pt. 2) 244; Odiase v. Agho (1972) 1 All NLR 170 at 176 and Melifonwu v. Egbuyi (1982) 9 S.C. 145”

I think it right to refer also to the lead judgment of Ogundare, J.S.C. in the said case of Rossek v. A.C.B. Ltd. (supra) where at page 434 of the report he restated the law on the issue as follows:-

“Chief Ajayi, SAN, contends that a judgment remains valid until otherwise so declared. Chief Solesi, for the 1st defendant, however contends that a judgment that is a nullity remains so ab initio and does not require an order of court to so declare it.

After examining the authorities, cited by the learned Senior Advocate, I must say I agree with him only to the extent that a judgment remains binding until it is set aside by a competent court. Hadkinson v. Hadkinson (1952) P. 285 (1982) 2 All ER 567, 569. To hold otherwise is to do the party against whom judgment has been obtained with the discretion to decide, in his wisdom, that the judgment is invalid and not binding on him. This, to my mind, is an invitation to anarchy. I do not understand the law to be so. And the often quoted dictum of Lord Denning, MR in Macfoy v. U.A.C. Ltd (1961) 3 All ER 1169 at 1172 (1962) A.C. 152 to the effect that:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more. ado, though it is sometimes convenient to have the court declare it to be so.”

is no more that an obiter given per incuriam – See Isaac v. Robertson (1984) 3 All ER 140 at 143 per Lord Diplock. While I agree with the noble Master of the Rolls in his exposition of the distinction between acts that are void and those that are voidable, it is my humble view that his pronouncement (if it was meant to extend to a judgment or order of a court) that there would be no need for an order of court to set aside a void judgment cannot be correct; it is against the weight of judicial opinion. With profound respect, I do not subscribe to such view ……..There is always a presumption of correctness in favour of a court’s judgment And until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed ……….”

It therefore seems to me crystal clear that a party who is aware of an order or judgment of a court of competent jurisdiction, whether valid or null, regular or irregular cannot be permitted to disobey or discountenance it unless and until such an order or judgment is duly set aside by a court of competent jurisdiction. See too Craig v. Kanseen (1943) 1 All ER 108 at 111. Exhibit E has not been set aside or declared null and void by any court of competent jurisdiction. Accordingly it must enjoy the legal presumption of regularity and must remain valid and binding on the parties concerned and their privies until it is set aside by the due process of the law.

In the circumstance and for all the reasons that I have given above, issue two is resolved against the appellants.

The third issue poses the question whether the respondent has locus standi to submit the issue of the headship of the Oloka family as at 1954 for determination by the trial court It is the contention of learned counsel for the appellants that the respondent has no locus standi to raise the issue of the headship of Oloka family as he was not and did not claim to be a member of the said Oloka family nor did he have an interest in the Chieftaincy dispute in question.

A close study of the pleadings filed by the parties as amended discloses in clear terms that the respondent at no time submitted the issue of the headship of the Oloka family for determination by the trial court This issue, as I have already observed earlier on in this judgment, was long settled in 1956 when the appointment of Chief Samuel Akinboye as the Oloja of Oka was approved by the prescribed authority, the Osemawe of Ondo, pursuant to the provisions of the Chiefs Law. The issue merely arose incidentally in the resolution of facts in respect of the competing claims of the parties as to who had good title to the land in dispute.

The appellants had in their amended statement of claim averred that they obtained their grant of the land in dispute with the approval of the head and the principal members of the Oloka family. This averment of fact was duly traversed by the respondent in his amended statement of defence. The respondent further proceeded, as he was entitled to do, to plead relevant facts in rebuttal of the said averments of the appellants. It seems to me clear that all the respondent did in his pleadings was to set out material facts in proof of his assertion that he purchased the land in dispute from the Oloka family with the consent of the recognised Oloja of Oka and head of the Oloka family. This, he was perfectly entitled to do. It ought also to be stressed that the respondent from his pleadings and evidence before the trial court never invited the court to determine who the Oloja of Oka was in 1956, as a main issue but merely contended that he purchased the land in dispute from the recognised Oloja of Oka and head of the Oloka family. With respect to learned counsel for the appellants, it is my view that the arguments advanced in support of issue three under consideration are entirely academic and inapplicable to the main issue in controversy between the parties in the case.

The Court of Appeal in dealing with the same issue of locus standi disposed of the matter as follows:-

“It is contended by learned counsel for the appellants that the respondent had no locus standi to raise the issue of headship of the Oloka family as he was not a member of that family. I have examined the amended statement of defence, particularly paragraphs 5-7 earlier quoted by me. What the respondent did in those paragraphs was to set out the factual situation necessary to give validity to the sales to him of the two lots of the Oloka family land and to establish that the issue of the headship of the Oloka family was no longer open to question. As a purchaser of land from the family he was entitled to plead the facts set out in paragraphs 5-7 more so that the appellants in their pleadings held out someone else as head of the family at the time of the sales to the respondent. I therefore find no substance in the appellants’ contention on this point. I hold that ground 3 fails.”

I agree with the above observation of the Court of Appeal and fully endorse the same. Accordingly issue three is hereby resolved in favour of the respondent.

Issue four questions whether in the absence of a substantive head of a family, the principal members thereof may not transfer a valid title in the family property. The main submission here is that where there is no head of family, the principal members may validly alienate family property on behalf of the family.

I must, again with respect, confess that this issue seems to me entirely academic, highly speculative and totally irrelevant and unrelated to the appeal under consideration. In this regard, it cannot be over emphasised that it is an elementary and fundamental principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties. It is not competent for a court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties. See Commissioner for Works Benue State & Anor v. Devcon Development Consultants Ltd & Anor (1988) 3 NWLR (Pt. 83) 407; Nigerian Housing Development Society Ltd & Anor v. Yaya Mumuni (1977) 2 S.C. 57; Adeniji & Ors v. Adeniji & Ors (1972) 1 All NLR (Pt. 1) 278 and A.C.B. Ltd v. Attorney-General Northern Nigeria (1969) NMLR 231.

In the second place, parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be discountenanced by the court. See Emegokwue & Ekpenyong & Ors v. Chief Ayi (1973) 3 E.C.S.C.R. 411; (1973) 1 NMLR 372; Kalu Njokwu & Ors v. Ekwu Eme & Ors (1973) 5 S.C. 293; National Investments and Property Co. Ltd. v. Thompson Organisation Ltd. (1969) 1 All NLR 138 at 142 and Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172.

Thirdly, a court of trial must limit itself to the issue raised by the parties in their pleadings as to act otherwise might well result in the denial to one or the other of the parties of the right to fair hearing. See Metalimpex v. A .G. Leventis & Co. Ltd. (1976) 2 S.C. 91; Kalio v. Daniel-Kalin (1975) 2 S.C. 15; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514; Shell BP Ltd v. Abedi (1974) 1 All NLR (Pt. 1) 13 and Alhaji Ogunlowo v. Prince Ogundare (1993) 7 NWLR (Pt. 307) 610 at 624. In other words, it is not open to a party to rely on material facts which he should have but had not pleaded at the trial because the other side had, owing to their absence from the pleadings, lost the opportunity of calling evidence to controvert them. See too J.O. Idahosa & Anor v. D.N Oronsaye (1959) 4 F.S.C. 166, 1959 SCNLR 407.

The gravamen of the appellants’ case from their pleadings is that they obtained a grant of the land in dispute from the head of the Oloka family and the principal members thereof.

This averment was controverted by the respondent and it was solely on this point that the parties joined issue with regard to their competing claims to title to the land in dispute. It was neither raised in their pleading nor was it suggested by the appellants all through the trial of the suit that where there is no head of family, the principal members of such a family may under some customary or other law validly alienate family property on behalf of the family. I agree with the submission of learned counsel for the respondent in his brief to the effect that whether or not in the absence of a substantive head of family,the principal members can transfer a valid title in the family property is a non-issue as this was not the appellants’ case. While it may be acceptable as an academic exercise to theorise and speculate, the rules of court governing pleadings do not recognise such an adventure.

In dealing with this issue which was also raised before it, the Court of Appeal inter alia stated as follows:-

“It was submitted that it was competent for the Oloka family to have transferred title in the land in dispute to the appellants in 1954 even where it was held that neither Adegoju nor Akinboye was the head of the family at that time.

That may well be but as pointed out earlier in this judgment, this is not appellants’ case. It was not pleaded nor evidence led to the effect that on the death of the former Oloka the members of the family met and either appointed an acting head or a committee of managers of the family property. There was evidence to this effect in Aromire v. Oresanya (1938) 14 NLR 116 (supra) but there was no such evidence. In Lukan v. Ogunsusi (supra). The latter case was a take over of power from the head of family just as in this case when in December 1973, Adegoju and his supporters executed Exhibit A in favour of the appellants. The conveyance the ‘rebels’ executed in Lukan v. Ogunsusi was held to be void. So also is Exhibit’ A’ in this case.

Parties must confine themselves to issues raised in their pleadings and it is therefore not now open to the appellants to rely on the rights of members of a family to deal in family property where there is no head of family:- See: James v. Mid-Motors (1978) 11 and 12 S.C. 31.”

I am in agreement with the above view of the Court of Appeal which are fully justified by the relevant issues and the evidence before the trial court.

In conclusion, it seems to me clear that the alleged grants of the land in dispute to the appellants in 1954 and in 1973 were made without the knowledge and consent of the recognised head of the Oloka family. The principles governing the grant or sale of family land are so notorious that I need not set them out here again.

It is enough for the purpose of this appeal to state that a grant or sale of family property by the principal members of the family without the consent of the head of the family is void ab initio. See Agbloe v. Sappor 12 WACA 187.

It is not in dispute that between 1950 and 1956, there was no Oloja of Oka and Chief Theophilus Adegoju who along with others purportedly made the alleged grant of the Oloka family land as the head of the family was infact not the head of the Oloka family. On the other hand, it is established that the head of the said family, Chief Samuel Akinboye, the Oloja of Oka, along with the principal members of the family duly made a grant of the land in dispute in 1973 to the respondent under customary law. Under the circumstance, it seems to me that there was abundant evidence before the trial court upon which the appellants’ claims against the respondent were dismissed in their entirety.

This appeal is totally devoid of substance and it is accordingly dismissed with N1,000.00 costs to the respondent against the appellants.

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SC.444/1989