Tiamiyu Shitiu & Ors. V. Jimoh Aremu Olaegbe (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Oyo State delivered on 23rd day of May, 1999. The appellants were the plaintiffs at the lower court and their claims as contained in the writ of summons dated the 2nd day of March 1992 read as follows:

“(i) Declaration that the tract of land known and called ILOGBO compound situate lying and being at ILOGBO Akeetan Oyo Town in the Oyo Local Government Area of Oyo State has been and still in the customary possession and occupation of the plaintiffs’ family and the plaintiffs’ are hereby entitled to a Statutory Right of Occupancy to the said tract of land.

(ii) Sum of Twenty-five Thousand Naira (N25,000.00) being damages suffered by the plaintiffs’ land and erected illegal structures (building foundation thereon).

(iii) Order of perpetual injunction restraining the Defendant by himself, his servant’s agent’s privies and or any person claiming under and/or through them from committing any further acts of trespass on the said plaintiffs’ land.

The annual Rental value of the said land is N500.00.”

The brief facts of this case as related by the appellants were that they were the plaintiffs at the lower court and are members of Ilogbo family. Their ancestor Aro Ilogbo migrated to the present Oyo from Ahoro Akeetan Idiya with other chiefs, during the reign of Alaafin Atiba. The head chief with whom the plaintiffs’ ancestor came to Oyo was Baale Oyeleye. The other chiefs that accompanied him to Oyo were (1) Jagun of Akeetan (2) The Onsa (3) The Aro (4) The Odofin (5) The Sagunna(6) The Ejemo.

That Baale Oyeleye was the first Baale of Akeetan. The Alafin Atiba settled Baale Oyeleye on a vast area of land. That Baale Oyeleye later allocated plots of land to his chiefs including Aro of Ilogbo compound with a view to settling their people. These allocations resulted in the following compounds coming into being viz (i) Oke Onsa Nla compound with Chief Ejemo as its Head (ii) Odofin Compound with Chief Odofin as Head (iii) Igbo Compound with Chief Aro as its Head (iv) Jagun compound with Chief Jagun as the Head (v) The Onsa compound with Chief Onsa as the Head (vi) The Sagunna compound with Chief Sagunnaas the Head and (vii) Oke Ose Kekere compound with Akaparo as the Head. That the plots of land allocated to Chief Aro became known and called Ilogbo compound. That Chief Aro erected a big and strong entrance door leading to I1ogbo compound and the land in dispute which door was used as a cover by Night guards for many years before it was destroyed. Those Ilogbo members exercised acts of ownership on the plots of land including the land in dispute by erecting buildings on the land and that they are clearly shown on survey plan No. A1/MISC/OY/002/92 of 22nd June, 1992 verged ‘RED’.

Further description of the land is that it is verged “Green” on the survey plan No. A1/MISC/OY/002/92 of 22nd June 1992 tendered and marked Exhibit “A”. That the Defendant trespassed on the land but the Plaintiffs resisted. That they were subsequently arrested by the police and arraigned before the Magistrate Court, but were accordingly discharged and acquitted, vide Exhibit B. That the land in dispute is surrounded by the buildings erected by the plaintiffs and other members of Ilogbo family.

On the part of the defendant/Respondent however the facts were that he is a member of Onsa family. That Alaafin Atiba granted a portion of the land on which he settled the Baale Onijamo, one of the followers of Alaafin Atiba. That Baale Onijamo granted a parcel of land to Onsa including the land in dispute. That Onsa Otunla granted a parcel of land to Arekujo, his in-law who hailed from Ilogbo compound.

That grants were made to others, including Sangodiran of Ilogbo compound. That when Sangodiran died without an issue Tafa Ajao inherited it. That when the family members of the plaintiffs/appellants prevented him from doing anything on the land, he instituted action against them in the customary court. The judgment is tendered and marked as Exhibit ‘C’. That Certified True Copy of the judgment on appeal is tendered and marked Exhibit ‘E’. That the land in dispute in Exhibits ‘C’ and ‘E’ is on Onsa Compound. That Busari Aremu is not a party to Exhibit ‘C’.

At page 42 of the judgment the learned trial judge at the end of its evaluation held thus and said:

“Having gone through the pleadings and evidence of the parties in the present suit HOY/16/92 and having come to the conclusion that this present case is being used as a process to harass, irritate or annoy the defendant and to interfere with the administration of justice, I hereby order that the plaintiffs’ claim be dismissed in its entirety as being frivolous, speculative and an abuse of court process and as being res judicata.”

Being dissatisfied with the judgment of the trial court, the appellants filed a notice of appeal dated 24th March, 1999 and filed the same day wherein three grounds of appeal were raised. The appellants’ brief of argument was dated and filed 5th September, 2001. By an order of court made 25th February ’08 pursuant to an application on notice dated 19th and filed 29th March, 2007, the appeal was fixed for hearing on the appellants’ brief alone and in the absence of any brief filed by the respondent. The appeal was accordingly heard on the 4th May, 2009 wherein the learned counsel Chief A. O. Bada representing the appellants adopted and relied on their foregoing brief and urged that the appeal be allowed.