FASEHUN V. ADESIDA: On whether Wrongful Alienation of Land by a Family Member Makes the Offending Member a Trespasser

An insight into the decision of the Court of Appeal therein.

Courtesy: Moruff O. Balogun, Esq.

Citation: (2021) 4 NWLR PT. 1767 AT 514.

(For themselves and on behalf of members of Fayamoju, Lomuyike Ogunsuntokun and Osungbeni stocks of Olobun family of Ondo)
(For themselves and on behalf of members of Fawenlu stocks of Olobun family of Ondo)

Summary of fact

The appellants as plaintiffs sued the respondents seeking amongst others: a declaration that the Olobun Family members are jointly entitled to the Statutory Right of Occupancy in respect of a piece and/or parcel of landed property, situate at Otasora Street, Ondo: a declaration that the Olobun family members are jointly entitled to the statutory right of occupancy of the piece and/or parcel of land, being, lying and situate at Igo-Olobun, near Old Ondo/Okeigbo Road, Off Funbi Crescent, Ondo; injunction restraining the respondents, their agents, servants and/or privies from alienating the aforementioned landed property or dealing with them in any manner whatsoever, setting aside any sale or lease of or any part of the landed property by the respondents and N1,000,000.00 (One Million Naira) general damages for trespass committed by the respondents on the land.

At the conclusion of hearing, the court dismissed the appellants claims as regards reliefs 3rd, 4th and 5th and granted only reliefs 1 and 2 being declarations that the parties are jointly entitled to a statutory right of occupancy in respect of pieces of landed properly located at Otasoro street, Ondo and Igo-Olubun, near old Ondo Oke-lgbo road, off Funbi Fagun Crescent, Ondo which boundaries were pleaded and testified to.

Dissatisfied, the appellants appealed to the Court of Appeal.

The respondents raised a preliminary objection to the competence of the appeal. The fulcrum of the objection was that the Originating process was signed by a law firm and not a legal practitioner known to the Legal Practitioners’ Act.

Held: Unanimously dismissing the appeal.

The following issues were raised and determined by the Court of Appeal.

On whether wrongful alienation of land by a family member makes the offending member a trespasser-
The fact that a family member alienates wrongfully or dealt with the property by alienation, sale or lease or pledge without authorization of the heads or principal members of the family did not constitute the offending member into a trespasser in law where they are jointly in possession of the land. In the instant case, the appellants’ evidence revealed that both parties were members of the same family and made up of 6 stocks. The evidence in exhibit P1 tendered at the trial court and the evidence of PW1, exhibits D1, D2 and D3 (1-8) and the admission of DWI under cross examination justified the decision of the trial court that the property in dispute was truly a family property. The parties had a joint interest and possession thereof.

Per DANJUMA, J.C.A. paras B-E:
On the merit of the appeal, I do not find anything warranting the grant of the reliefs of damages for trespass nor injunction or any prohibitive remedy against the respondents at all even if the action was competently initiated.
The evidence on the record is clear on the Joint ownership and use of the family lands in dispute; no exclusive possession was proved by the appellants herein in their favour and against the respondents. By paragraphs 1-8 of the statement of claim see pages 8-18 of records of appeal, the plaintiffs/appellants were not exclusively in possession or in ownership as pleaded and relied upon in their submission in this court. I find nothing in evidence indicating exclusivity of possession or superior title by the plaintiffs/appellants over the defendants/ respondents to warrant any claim as made at the trial court for the reliefs of damages for trespass and injunction.

At page 526, paras. D-E:

“The facts of the instant case and the fact that both parties had a right of possession and use, I think it will be unjust and inequitable to adjudge the contending respondent members as trespassers. The appellants learned counsel attempted to argue that the relief sought at the trial court was not one for perpetually retraining the respondents from going into the family landed property; but to restrain them from alienating and or dealing with them in any manner whatsoever. The argument and relief sought are two sides of the same coin, and the interest of justice warrants an order of partition rather, and upon the application of the aggrieved herein at the trial court.”

On whether injunction can be granted against a family member on an un partitioned family land-
Where members of families are in possession as branches of a family and there is no evidence of an identified portion complained of, no injunction can lie against any of the family members from entering unto the land where it is not shown that such member has no right to the land at all, as the right of ingress, egress and participating in its management enured in favour of the whole family.
A perpetual injunction restraining a co-owner from interfering with a co-owner’s property can only be issued after a partition order.

On Remedy for family where part of family land is wrongly alienated-
The available remedy for the family whose land is wrongly alienated by a family member is an action for the partition of the subject family property.

On Meaning of trespass-
Trespass is an invasion against possession by a person who is neither in possession nor have a right to ownership or title.

On treatment of legal process not signed by a legal practitioner-
By virtue of sections 2(1) and 24 of the Legal Practitioners’ Act, Laws of the Federation of Nigeria, 2004, a legal process not signed by a legal practitioner is incompetent. In the instant case, the writ of summons signed by A.O.A. Obiyemi & Co was incompetent.

On Effect of originating process signed by a law firm-
The effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It is dead at the point of filing. Such originating process is fundamentally defective and incompetent. It is inchoate and legally nonexistent and cannot be cured by way of amendment as it is not initiated by due process and should be struck out.

Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.


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