Omon Idogbo & Ors V. Stanley Ajayi (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Edo State High Court sitting at Abudu, in Suit No. HSO/12/2008, between Mr. Stanley Ajayi (for and on behalf of the children of Chief Sunday Ajayi) and Omon Idogbo, Alekijo Idogbo and John Imevbore, delivered on the 17/4/2012, wherein judgment was entered in favour of the plaintiff in the following terms:

“In view of the foregoing, I hold that the plaintiff’s claim succeeds. The Court grants reliefs 18(1) and (3) and N50,000 (fifty Thousand Naira) for damages for trespass.”

The substance of the Respondent’s case as plaintiff before the trial High Court (lower Court), is that he is the eldest surviving son of Chief Sunday Ajayi, while the defendants are natives of Uhunmora-Ora. That upon the death of his late grandfather Ajayi Ohimai, who built a house comprising two sitting rooms and 10 rooms, and the said house not having been shared according to the native law and custom in accordance with the Ora custom, but remained family property, with all his children having equal right to the property, states that his father

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married and had all his children in the family house, up till the year 2002, when he died. The plaintiff still averred that upon the death of all his uncles who are the rightful persons to have inherited the property, same devolved upon all the male grandchildren of Ajayi Ohimai according to Ora custom. The plaintiff is of the opinion and did aver that as one of the grand children of Ajayi Ohimai, he has equal right, stake and interest in the house and the land appurtenances thereto with other grandchildren and therefore entitled to protect his interest. His grouse is that, the defendants without the consent and concurrence of the other members of the family broke and entered unto the undeveloped portion of the land and erected a block of two stores thereon.

?The defendants on the other hand described the house in question as having two parlours and 28 rooms. It is the statement of the 3rd appellant, that after the death of Mr Ajayi Ohimai in 1952, and seven days after his burial, the house was shared in accordance with the Ora native law and custom, and same shared to Joseph Ajayi being the eldest son, and other properties shared to late Joseph

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Ajayi, late Chief Sunday Ajayi and Mr Isekhua Ajayi. He goes on to say that the 1st and 2nd appellants occupation of the portion of land surrounding House No. 36, Omueben Road is at the instance of the 3rd appellant who after inheriting same from his late father, leased the said land in his position as owner of the property, and therefore their stay on the land was lawful.

The plaintiff now respondent in the writ of summons filed on the 6th of October, 2008, and the amended statement of claim filed on the 28th of September, 2009 with the leave of Court, claimed against the defendants, jointly as follows:

“1. A declaration that the House No. 36 and the undeveloped portion of land appurtenance thereto along Umweben road, Broghaga Quarter, Uhonmora-Ora is the family property of Ajayi Ohimai’s children and grandchildren.

2. N1,000,000 (One Million Naira) damages for trespass in that the defendants unlawfully broke and entered Ajayi Ohimai family property and built a block of store thereon.
3. Perpetual injunction restraining the defendants, by themselves, servants, agents and or privies from further trespassing on the said land.”

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