Yele Oyeneyin & Anor V. Dr. A. Akinkugbe & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

The parties in this appeal commenced an action before the High Court of Justice, Ondo State in the Ondo Judicial Division. The respondents-cross appellants as plaintiffs before the trial court sued the 1st appellant/cross-respondent claiming as follows:-

(i) Possession;

(ii) N100 per day from the 1st December, 1989 as agreed penalty until possession is given up

(iii) N100,000 damages for trespass committed by the 1st defendant, his agents and privies to Chief E. A. Akinkugbe’s land to the North and West of the area granted to the 1st defendant by the plaintiffs in 1972 which is verged black in the survey plan by G. G. Okunsanya dated 2nd June, 1992.

(iv) Perpetual injunction restraining the 1st defendant from committing further acts of trespass over the land referred to in (3) above.

The 2nd appellant who was joined as 2nd defendant by the Order of the High Court dated 26th July, 1990, counterclaimed against the respondents and the 1st appellant respectively as follows –

(i) Declaration that the Loduti and Ajaka family are the ones entitled to a grant of statutory right of Occupancy over the land in dispute at Lisaluwa otherwise called Oke-Obara, Ondo.

(ii) Declaration that the Loduti and Ajaka family as represented by the 2nd defendant are the ones entitled to collect rent from the 1st defendant or anybody occupying the land in dispute.

(iii) An order against the 1st defendant not to pay any rent in respect of the land in dispute to the plaintiffs or any other person except to the 2nd defendant’s family.

(iv) An order against the 1st defendant to pay any rent due and any subsequent rent on the land in dispute to the 2nd defendant’s family

(v) An order of injunction restraining the plaintiffs, their servants, privies, agents or anybody claiming through them from collecting rent from the 1st defendant or from anybody or all in respect of the land in dispute or from any claim to the land in dispute.

Both defendants-appellants joined issues with the plaintiffs-respondent in their further Amended Statement of Defence as the matter proceeded to hearing. The two plaintiffs-respondents relied on their evidence and called two other witnesses. The respondents/cross-appellants prosecuted the case as executors of the estate of their deceased father to whom they traced their root of title. They relied on Deed of Conveyance of the disputed land to their late father, Exhibit A dated the 10th of December, 1962 from the Okedoko family, and remaining part of the land from the Loduti and Ajaka Families by virtue of Exhibit B another deed of Conveyance also dated 16th December, 1962 a composite survey plan of the land Exh. K, notice of plaintiffs/respondents/cross-appellants intention to terminate the tenancy and recover possession after three years grace given to the 1st appellant/cross-respondent to relocate his sawmill from the land in dispute, Exh. H and Letters of Probate incorporating the will of their deceased father, Chief S. A. Akinkugbe. The 1st and 2nd appellants/cross-respondents testified in person and called four other witnesses. In an exhaustive and considered judgment of the learned trial Judge delivered on the 20th of February, 1995 the court partially granted the claims of the respondents/cross-appellants against the 1st appellant as follows:-

(a) The relief for possession