It is inappropriate to ask that a void deed of conveyance or transaction be set aside. There is no¬thing to set aside because it does not exist in law. This truism is confirmed in this appeal. However, one of the issues which calls for a decision is the legal position where a plaintiff seeks that the deed or transaction be declared void or voidable and also prays that it be set aside. Also for determination is the legal effect of failure to sufficiently denote in a survey plan filed along with the statement of claim the precise area of land allegedly trespassed upon in an action for damages for trespass and for an order of injunction.
By a writ of summons filed on 15th May, 1974 in the High Court of Jus¬tice, Ijebu-Ode, over sixteen years ago, Bisi Osho, the original plaintiff, on behalf of himself and Bolu, Oreke, Meyiwa and Oke sections of Ginija Fam¬ily, commenced an action claiming against five defendants jointly and sever¬ally:
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1
"Declaration that the deed dated 30/1/74 Registered as No.23 at page 23 in Volume 1967 of the Land Registry Ibadan, is void or voidable and should be set aside.
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2
N500.00 being damages for trespass committed to the land situate at Latogu, Ijebu Ode purported to be conveyed by the first four defendants to the 5th defendant by the Deed mentioned in (1) above.
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3
Injunction restraining the 2nd, 3rd 4th and 5th defendants from committing further acts of trespass upon the said land.
The original plaintiff died after he had instituted the action. Ambali Bakare was substituted for him by order of court. The second defendant also died. The action against him terminated and he was struck out from the suit. The third, fourth and fifth defendants were then renumbered second, third and fourth defendants respectively. The claim for injunction was therefore against the 2nd, 3rd and 4th defendants.
Pleadings were ordered, filed and exchanged. The defendants raised by paragraph one of their statements of defence a point of law that the plaintiffs claim as per the writ of summons and the amended statement of claim dis¬closed no cause of action and gave notice that they would urge the court to set the issue down for hearing before trial. The point of law was accordingly set down for hearing.
In his statement of claim the plaintiff averred that the land in dispute was a portion of Ginija family land which was partitioned in pursuance of the decision reached by the family. He pleaded a number of judgments in sup¬port of his contention that it was family land. The portions allocated to Bolu, Oreke, Meyiwa and Oke branches of the family, on behalf of whom the plaintiff instituted the action, constitute the area edged pink on plan No.BPO 715, and portions allocated to the remaining two branches, Potun and Otujoke, made up the area edged yellow on the said plan.
Going by the statement of claim the 1st, 2nd and 3rd defendants, acting on behalf of Potun and Otujoke sections, entered in 1972 the land edged pink and "laid out the portions thereof edged green into building plots for sale to prospective buyers. "The plaintiff went on to plead that the first three defendants by "the deed sought to be nullified in this case purported to con¬vey to the 4th defendant a portion of the land in dispute described in the plan No.JTO.6245 annexed to the said deed." It was also the case of the plaintiff, as pleaded, that "the defendants have jointly and severally broken into and entered the land in dispute and committed acts of trespass by erecting buildings thereon to the damage of the plaintiff."
The plaintiff also filed a reply to the statement of defence and averred amongst other things that he had constructed two roads called Ajegunle and Ginija roads on the land in dispute in exercise of his right there on, "and parts thereon also were sold by the plaintiff to several persons before the defendant made out a layout plan No.2/72 thereof." Three of the purchasers erected residential buildings on the portion sold to them.
At the hearing of the points of law raised by the defendants by their paragraph 1 of the statement of defence, learned counsel for the defendants made the following points:
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1
Action seeking to set aside the deed of conveyance was miscon¬ceived because the plaintiff was not a party to the deed and therefore could not seek to set it aside. The appropriate relief that should be sought is that of a declaration of title.
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2
A void deed cannot be set aside as it had never existed.
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3
Since trespass is an injury to possession and there was no averment in the writ and the statement of claim that the plaintiff was ever in possession, he could not institute an action for trespass. The plaintiff having sold could not be in possession as the sale to certain persons took place before the layout of the land by the defendants.
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4
The action for trespass is not maintainable against the 1st, 2nd and 3rd defendants, they having divested themselves of all rights on the land.
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5
The action for injunction is for the same reason not maintainable.
After learned counsel for the plaintiff had made his submissions in reply to the points canvassed by learned counsel for the defendants, the learned trial Judge in a reserved ruling held that since by his pleading the plaintiff claimed to have divested himself of the right to possession by sale, and the plaintiff had mentioned the names of those who were in exclusive possession and enjoyment, an action for damages for trespass was misconceived. The trial Judge also noted that the plan filed by plaintiff did not indicate areas sold to the various purchasers so as to be able to determine the area trespas¬sed upon. The action for trespass was accordingly struck out. The learned trial Judge was also of the view that apart from the fact that the statement of claim was not quite positive whether the deed was void or voidable, a deed which is void, that is which is a nullity ab initio and has never had any exis¬tence in law cannot be set aside and consequently, a claim for declaration that such a deed be set aside is misconceived. The learned trial Judge made the point that it is impossible to set aside a deed which has no existence in law.
The learned trial Judge also agreed with learned counsel for the defen¬dants that a person who is not a party to a deed of conveyance cannot seek to set it aside. With regard to the claim for injunction against the 2nd and 3rd defendants, the learned trial Judge also held that the action was miscon¬ceived since it was plain that the plaintiff and the people he represented had divested themselves of any right or title to deal further with the parcel of land. Besides, reasoned the learned trial Judge, "if on the plaintiff showing he himself had sold part of an unidentifiable portion of the land in dispute it is inconceivable that the court will grant 'an order of injunction upon an area of land which is not certain. The plaintiff Mid not show by a distinctive colour within the area in dispute the portions already sold by himself and what area remains in his possession, if any."
The learned trial Judge proceeded to dismiss the claim for declaration and injunction as against the 1st, 2nd and 3rd defendants while the claim against them for damages for trespass was struck out. The claim against the 4th defendant for declaration was also dismissed while the claim for damages for trespass and injunction were struck out.
Against the ruling the plaintiff appealed to the Court of Appeal, Ibadan Division which set aside the ruling of the trial court and held, relying on the case of Lahan v. Lajovetan (1972) 1 All N.L.R. (Pt.2) 217 that on the plaintiffs claims there was a cause of ac¬tion as it was opened to and permissible for the court to declare the deed void or voidable without the need to set it aside.
The defendants, being dissatisfied with the Court of Appeal's judgment overturning the decision of the trial court appealed to the Supreme Court.
