Emmanuel Muyiwa Opawumi & Anor. V. Mrs. Adebola Oni (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI, SYLVESTER NGWUTA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the Judgment of Akomolafe J of the Ondo State High Court of Justice Akure Judicial Division, delivered on 18th July, 2005 in Suit No. AK/291/97. The appellants and Respondent were plaintiffs and defendant respectively before the Court below.

1st Appellant claimed he bought a house, described as a duplex bungalow, situate at, and known as Plot 181 Block XV also known as No.3 Ikogosi street, ljapo Estate Akure, Ondo state, from one Mrs. Grace Ajayi, the deceased mother of the Respondent. 1st appellant said he paid the agreed sum of N70,000.00 for the property in two instalments of N10,500.00 and N59,500 by cheques and got receipt for each payment. Before she could obtain the transfer document from the Ondo State Housing Corporation who leased the property to her Mrs. Grace Ajayi died. The attempt of Mrs. Ajayi’s daughter, the Respondent to collect rent in respect of the property from the 1st appellant or re-possess the property as the administratrix of her mother’s property led the appellant to institute the action leading to this appeal.

In the amended writ of summons issued on 22/7/99 the 1st appellant made the following claims against the respondent as defendant in respect of the disputed property.

(1) Declaration of Ownership in favour of the appellants

(2) Order for specific performance to perfect title of the property in favour of the appellants. In the alternative the sum of N2m as damages for breach of contract “in lieu of and in addition to specific performance against the defendant”

(3) N2m as aggravated damages for libel.

(4) Perpetual injunction to restrain “the defendant and/or her agents, privies, assigns and any person howsoever taking through her or on behalf of the defendant from tampering with the property or disturbing plaintiffs possession/ownership and quiet enjoyment of the property or do anything against the interest of plaintiffs qua the property in dispute.”

(5) “Perpetual injunction restraining the defendant and her agents and assigns from further writing, printing or circulating or cause to be written, printed or circulated or otherwise publish anything concerning the 1st plaintiff or any similar libel” See pages 2 to 3 of the records.

On service of the writ and amended statement of claim on her the defendant (now respondent) filed a 47 paragraph statement of defence and counter-claimed as follows:

“a. A declaration that the defendant and or the administrators of the estate of Mrs. G. A. Ajayi are the persons entitled to the sublease of Plot 181 block XV at Ijapo Housing Estate.

b. Possession of the house situate, lying and being at No. 3 Ikogosi Street, Ijapo Estate Akure and more particularly described as plot No 181 Block XV Ijapo Estate, Akure.

c. For the sum of N102,000.00 being the arrears of rent from January 1993 to March 1997 at the rate of N24,000.00 per annum and mesne profit until possession is delivered by the plaintiff to the defendant” See page 18 of the records.

At the trial the 1st appellant testified and called two other witnesses. The respondent testified as PW1 but abandoned the proceedings half way into her testimony.