Alhaji Ganiyu M. B. Iseogbfken & Anor. Vs Alhaji. Sikiru Gberigi Adelakun & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

A. M. MUKHTAR, J.S.C.

As per the writ of summons taken out by the plaintiffs in the High Court of Justice of Lagos State the plaintiffs claimed the following reliefs:

‘(i) A declaration that the hereditaments situate at and known as No.24 Onisemo Street, Lagos is the family property under Yoruba Native Law and Custom of the decendants of Ajegun Bashua (deceased)

(ii) Possession of such portion of the said hereditaments as are in the possession or control of the defendants or any of them.

(iii) And in account of all rents and profits collected by the defendants from tenants on the said hereditaments and payments of the said rents and profits in die plaintiffs. Annual rental value is 50.00k.’

Learned counsel exchanged their pleadings, and the pleadings went through series of amendments. Briefly, the case of the plaintiffs is that they are the only surviving principal descendants of the family of late Ajegun Bashua who originally owned the land in dispute, which is situate at No. 24 Onisemo Street, Lagos. Ajegun Bashua had two children; Sule alias Baba Musa and Sinatu Abiodun. who was survived by a daughter Alhaja Suwebatu Adufe, who was survived by the plaintiffs, Sule having died without any child. Alhaja Suwebatu exercised many acts of possession on the land in dispute and even caused an iron sheet structure to be erected thereon, and leased the property out. She continued to collect rents from the tenants until she died in 1981. After her death the defendants who are the descendants of one Bakare Iseogbekun who was an arota of Ajegun Bashua instructed a solicitor to write to the tenants forbidding them from paying rents to the plaintiffs. The defendants started collecting rents and profits of the premises; and have now been in unlawful possession of the land by themselves or by their tenants. The defendants as per then- amended statement of defence denied most of (he averments in the amended statement of claim. Their case is that Ajegun was not a blood relation of the Bashua family, but was son-in-law to Esubi Bashua having married Seliyat his daughter. Seliyat begat Ayawo Ajegun and Sule Ajegun. The land in dispute originally belonged to the Onisemo family, from which Esubi Bashua got a parcel of land, and gave a portion of it to Ayawo Ajegun.

The parcel of land given to Esubi Bashua was later registered in the name of Obashua under crown grant dated 19th November 1874. Ayawo Ajegun and her husband Bakare were put in possession of the land including the land in dispute without any challenge from anyone until they died. They were survived by Abdullahi Bakare Osho popularly called lseogbekun and their ownership of the land in dispute was confirmed in the crown grant of one Alli, the owner of an adjourning property No. 12 Bridge Street Lagos. The defendants traced their title to the laud to Chief Obashua. One Madam Suwebatu Adufe the plaintiffs’ mother was collecting the rents of the properly from the tenants therein, but did not account for the rents she collected to the defendants until she died. The defendants denied that the plaintiffs mother was in possession of the property in dispute, but stated that she, was a trespasser on the property. Or the other hand the 4th to 6th defendants admitted that the plaintiffs mother was related to the Ajeguns and that was hew she came to the property, and so their claim to ownership together with 1st – 3rd defendants is liable to forfeiture. The 4th to 6th defendants thus counter-claimed as follows:

“37. (i) A declaration that the Bashua chieftaincy family is the person entitled to statutory Right of Occupancy to the property known as No. 24 Onisemo Street, Lagos,

(ii) A declaration that the Plaintiffs and 1st to 3rd defendants held the properly No. 24 Onisemo Street. Lagos under native law and custom of Lagos and as allottees of Bashua Chieftaincy Family land.

(iii) Forfeiture of the rights and interest of the plaintiffs and 1st to 3rd defendants in respect of 24, Onisemo Street, Lagos, (iv) Possession of die said property No. 24 Onisemo Street, Lagos.’ After the completion of pleadings panics adduced evidence. At a stage of the proceedings, Alhaji M. A Kekere-Ekun Alhaji R. A. Adewale, and Alhaji Rafiu Akinlade sought to be joined as defendants/counter-claimants, and the court granted their order of joinder. This court also granted the orders of substitution of some of the original parties who became deceased. All evidence before the court were evaluated by the learned trial judge who at the end of the day found the claim of the plaintiffs and the counter claim of the 4th – 6th defendans not proved. Consequently he dismissed both the plaintiffs claim and the – 6th defendants counter-claim. Dissatisfied with the decision the plaintiffs appealed to the Court of Appeal, Lagos Division.

The Court of Appeal allowed the appeal in part, and also dismissed it in part as follows:

“In the final analysis, this appeal succeeds in part. To the extent to which it complains against the order of the court below dismissing the first leg of the claim which is for declaration of title, this appeal is dismissed. However, this appeal is allowed in respect of the order made by the court below concerning reliefs 2 and 3. The judgment of the court below affecting these two relicts is hereby set aside. In its place is the judgment entered in favour of the plaintiffs/appellants but against the defendants/respondents on the following terms:

(1) possession of No 24 Onisemo Street, Lagos now in the possession of the defendants shall immediately revert to the plaintiffs/appellants.

(2) the 1st and 3rd defendants/respondents shall render account of all rents and profits collected by them from the tenants on No. 24, Onisemo Street. Lagos from l°7v up to date and same shall be paid over to the plaintiffs inclusive of profit thereon.’