Chief Adefioye Adedeji (Risawe Of Ilesa) V. Oladiran Eso (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the plaintiff/appellant against the judgment of O. A. Ojo J. of the High Court of Osun State sitting at Ilesa delivered on the 7th day of March, 2007 in suit No. HIL/100/91. In his 3rd amended statement of claim the plaintiff/appellant claimed as follows:-

1. A declaration that the plaintiff by virtue of his office as the Risawe of Ilesa is under Ijesa Native Law and Custom and the Chiefs Law of Oyo State (Now applicable in Osun State) the only person entitled to a Right of Occupancy in respect of a piece or parcel of land situate, lying and being at Isida Quarter Ilesa known as Risawe Chieftaincy Compound and bounded on:

(a)The first side by the road from Ereja Round-about to Odo-Esira now numbered ‘A’ Line

(b) The second side by Total Petrol Station facing Ereja Square now numbered ‘B’ Line;

(c)The third side by the road from Ereja Round about to Egbeidi Street now numbered ‘D’ Line;

(d) The fourth side by another road linking the road from Round-About to Egbe-Idi Street with parallel road from Round-About to Odo-Esira and which is also numbered ‘D’ Line

2. A declaration that the defendant’s building numbered A4 at Isida Quarter is within the plaintiff’s official residence called Risawe Compound or Akodi.
3. A declaration that the letting out as shops or otherwise by the defendant of the whole or any part of the building numbered A4 Isida Quarter, Ilesa, without the consent or authority of the plaintiff is null and void.
4. An account verified by affidavit of all rents paid or payable since 1/5/85 up to the final determination of this suit and payment of same to the plaintiff
5. Perpetual injunction restraining the defendant, his agents, servants or privies from letting or continuing to let the whole or any part of the building at No. A4 Isida Quarter Ilesa or exercising any act of ownership or absolute control thereon which are inconsistent with the rights of the Plaintiff.

Pleadings were filed and exchanged, viz 3rd amended statement of claim dated 26/5/04 and amended reply to the defendant’s amended statement of defence dated 20/1/94. Further amended statement of defence dated 1/12/06. The appellant’s’ case at the lower court as can be deduced from his pleadings at pages 4 – 10 of the record is that Risawe Chieftaincy compound or ‘Akodi’ which is stool land and the official residence of any Risawe Chieftaincy title holder was vested some 600 years ago in Chief Olubikin Ganfiran, the first Risawe of Ilesa by his junior brother Owa Uyiarere and has since remained in the exclusive and undisturbed possession of all past Risawe title holders so far. When Omole Adedeji was installed Risawe of Ilesa in 1899, he brought several of his brothers, sisters and other relations to stay with him in his Chieftaincy compound at Ilesa. That was how the defendant’s great grandmother Ogunfulubi came to reside with her brother in the chieftaincy compound. Ogunfulubi lived all her life in her dwelling place within Risawe chieftaincy Compound Ilesa and raised all her children there. In time the children and grandchildren of Ogunfulubi started claiming that her apartment was exclusive to her and no longer part of the Risawe Chieftaincy compound. The appellant averred that at no time did any of the reigning Risawes partition the Risawe chieftaincy compound among members of the Risawe Chieftaincy family and that all that the members enjoy is a right of occupation and use and no more. Risawe Omole Adedeji allotted portions of the chieftaincy compound to his brothers, sisters, relations and even non relations for living purposes only. The portion allotted to the defendant’s great grandmother Ogunfulubi is now numbered A4, Isida Quarter, Ilesa and was later fenced round by the late defendant, Iyiola Bewaji despite family protests. Several tenants were put in possession of the premises and constituted a nuisance to the rest of the occupants of the Chieftaincy compound. When the plaintiff tried to warn the late defendant about putting in tenants without authorization by the Risawe and the general condition of the premises, the late defendant became temperamental and told the plaintiff that the situation in the defendant’s enclosed apartment and the letting of any part thereof to tenants were no concern of the plaintiff as the apartment was no more part of the plaintiffs chieftaincy compound. When the plaintiff got no positive response from the defendant in spite of a letter written to him, he instituted this action claiming the reliefs set out above.

The defendant/respondent in his further amended statement of defence and counter claim at pages 11 – 17 of the record refuted the claim of the plaintiff and asserted that Risawe land is not Chieftaincy or stool land but family land of all descendants of Ganfiram, the first Risawe of Ilesa out of which outright grants have been made to members of the family. The defendant contended that the land in dispute was an outright grant to his great grandmother by the appellant’s grandfather and that she and her descendants have been in possession ever since. He counterclaimed as follows:

(i) Declaration that the defendant as descendant of Chief Ogunfulubi, the great grandmother of the defendant, and ipso facto, a member of Risawe chieftaincy family of Ilesa, is a joint owner of Risawe of Ilesa Chieftaincy land.

(ii) Declaration that as a member of Risawe Chieftaincy family, the plaintiff cannot be granted any declaration in respect of Risawe Chieftaincy family land against the defendant who is a co-owner of the Chieftaincy family land.

(iii) Declaration that in view of the Land Tenure System in Ilesa of 6th December, 1945, to the effect: ‘A piece of land once given to somebody by a Chief must not be reclaimed by the Chief’s successor’

(iv) An order of perpetual injunction, restraining the plaintiff, his servants, agents and/or privies, how-so-ever called from ejecting or attempt to eject the defendant and members of his family from occupying or continuing to occupy his premises at plot A4 Isida Street, Ilesa.

The plaintiff gave evidence in line with his pleadings and called one other witness, & surveyor. The defendant gave evidence and called no other witness. Several documents including court judgments declaring the property to be chieftaincy land were tendered in evidence as exhibits. In a reserved judgment delivered on 7/3/2007 the learned trial judge granted the plaintiffs reliefs 1, 2, and 3. He also granted the defendant’s relief (iv) in his counterclaim in the following terms: ‘the defendant shall continue to hold the land and the building on it as an allottee of the Risawe, for their personal use and shall refrain from letting or continuing to let the whole or any part of the building or exercise any right of exclusive possession thereto, without the consent of the plaintiff.

The plaintiff/appellant being dissatisfied with this last order filed a notice of appeal on 5/6/07 containing four grounds of appeal. Out of the four grounds, he formulated two issues for determination viz: