Alhaji S. F. Balogun V. Z. R. Oshunkoya (1992)

LawGlobal-Hub Lead Judgment Report

OGUNDERE, J.C.A.

Before Ajibola J. at the Ijebu-Ode Judicial Division of Ogun State, the plaintiff, now appellant sought a declaration that he is the owner of, and the person entitled to a Certificate of Occupancy of a moiety of Oshunkoya family house and land situate at No.7 Ebumawe Street, Ibipe Quarter,Ago-Iwoye.

The plaintiff also sought possession of the said property and an injunction to restrain the defendant, his servants and agents from entering upon the land and from undertaking any building construction thereon.

Pleadings were filed and exchanged. In the statement of claim the plaintiff averred that the parties are brothers of the full blood; their father’s name was Oshunbanjo, and the defendant was the elder brother. Oshunbanjo himself had a brother of the full blood called Oshuntoye, both being descendants of Oshunkoya.

The genealogical tree of the parties is as follows:-

Oshunkoya

Oshunbanjo Oshuntoye

Z. A. Oshunkoya S. F. Balogun Juliana Chief S. A.

(Defendant) (Plaintiff) Oshuntoye Oshuntoye

(Head of the family)

When Ago-Iwoye was founded, their Grandfather Oshunkoya settled on a parcel of land at Ibipe quarters and built a mud-wall bungalow thereon.

The said land is a combination of the areas edged Blue and Red on the Survey plan Exh. “A”. On the demise of Oshunkoya, his land was partitioned between his two children Oshunbanjo and Oshuntoye. The parcel of land edged Blue was allotted to Oshuntoye, and that edged Red was allotted to Oshunbanjo. Oshunbanjo had two children Oshunkoya, the defendant, and Balogun the plaintiff who was in town and looked after his father very well. His father Oshunbanjo then persuaded his brother Oshuntoye to release the land edged blue in Exhibit A to the plaintiff. The plaintiff then built his residence on the said land as indicated in the survey plan Exhibit A.

Oshunbanjo later died and his mud house built on the area edged Red was partitioned between his two children parties to this action. The senior brother, the defendant, being poorer than his junior brother was given a substantial portion of their father’s house whilst the portion which had become dilapidated was given to the plaintiff. The plaintiff in 1981 was stopped by the defendant with violence from developing his own portion of his father’s house, which event gave rise to this action.

The case for the defendant was that contrary to the plaintiffs case, their grandfather Oshunkoya had land at Ibipe quarters, Ago-Iwoye and at Orule Ibipe near Ago-Iwoye. In his life time he gave the property at Ibipe quarters to Oshunbanjo and that of Orule Ibipe to Oshuntoye. The land in Exhibit A was therefore the property of their father Oshunbanjo. He admitted that the plaintiff built his house on Plot 1 of the area edged blue in Exhibit A with his, defendant’s consent in 1940, ten years after the death of their father. The two brothers in 1945 shared the land in Exhibit A between themselves without any outside interference. Their father’s ruined house with some walls standing and with a hanging roof now falling and numbered 7 Ebumawe Street went exclusively to the defendant as the senior brother. The vacant land behind the ruined house edged blue in Exhibit P minus the green portion went to the plaintiff. The defendant when he had money built his house on the plot 3 in his portion of land. The Health Authorities in August, 1975 served the defendant notice to abate the nuisance in respect of the hanging roof and the wall ruins on plot 4 within his own land. Another such notice was served on the defendant in August 1980. He thereupon pleaded that the plaintiff’s claim be dismissed.