Chief Abiodun Oniru & Anor V. Raimi Fagbemi (1972)

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B. A. COKER, J.S.C.

The applicants herein were the respondents in an appeal which was heard by this court and dismissed on the 2nd February, 1972. The substantive action was concerned with an Order of Possession against the present respondents who were the defendants to the action. As plaintiffs the present applicants claimed that the defendants, now respondents, were their customary tenants and that as they had denied the title of their landlords they had, inter alia, forfeited all rights of occupation of the lands concerned.

They therefore claimed or sought and obtained an order for possession of the lands and premises. After the determination of the case by the High Court, Lagos, in favour of the plaintiffs, the defendants appealed to this court and whilst their appeal was pending in this Court they applied for an order for stay of execution of the Order of Possession until the determination of their appeal to this Court. Their application for a stay of execution was heard on the 9th November, 1971, and the following notes were recorded by this Court at the hearing of that Motion:-

“COURT: It appears that rent is about 500 Pounds – 600 Pounds a month.

Chief D.O. Coker for respondent: Justice of the case will be met if all tenants pay into Court. No tenant would like to be thrown out as it as a good business centre. The court now has an official receiver. The applicants have not paid rents to the respondent for more than 20 years, and yet now he wants to continue to collect rents.

The Court intervenes and after due negotiation, it was finally agreed, and by consent the following Orders are made:-

(1) That the applicant Raimi Fagbemi deposit in this Court not later than 5th December, 1971, a sum of 1,000 pounds as a deposit against rents collected or to be collected by him while the appeal is heard.

(2) That the 2nd applicant Ashiatu Akinwumi for her part deposit a sum of 500 pounds as deposit against rent collected or to be collected by her, also on or before 5th December, 1971.

(3) That the appeal be fixed for hearing during the week beginning January 24th, 1972.

(4) That if records of appeal are not ready before the date fixed for hearing the Court will have to reconsider the matter with a view to asking for more deposits from the applicants.

(5) That stay of execution be granted subject to the above. 10 guineas costs to the respondent.”

This was the order made by the Court on the 9th November, 1971, and as we have stated before the substantive appeal was disposed of in this Court on the 2nd February, 1972, some three months after the date of the order for the payments into Court by way of deposit of 1,000 pounds by the first respondent and 500 pounds by the second respondent.

The present application was filed in this Court on the 3rd May, 1972, and seeks an order:-

“To release and pay over to the plaintiffs/respondents all the sums of money paid into Court by the defendants/appellants as per Court Order dated the 9th November, 1971.”