Madam Lantoun Ojebode & Ors V. Akeem Akano & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment)

The respondents, who were the Plaintiffs in this appeal instituted this suit at the High Court of Justice Ibadan claiming against the appellants as follows :-

(i) “Declaration that the plaintiffs and other members of Idowu Akinbiyi family of Akinbiyi Arijo family compound of NW1/68A, Agbeni, Ibadan are the joint owners of the land/house containing rooms and shops situate, lying and being at NW1/68A, Agbeni, Ibadan to the exclusion of the Defendants and other members of Aribiyan/Olupiya family compound, Oke Eleta, Ibadan.

(ii) Injunction restraining the Defendants and all other members of the Aribiyan/Olupiya family, their servants, agents and privies from claiming any rights over the said land/house containing rooms and shop situate, lying and being at NW1/684 Agbeni, Ibadan.

The appellants who were defendants filed a statement of defence and counter-claim. By their 2nd Further Amended statement of Defence and counter-claim filed on 10th November, 2000, they counter-claimed against the respondents as follows:-

(1) Declaration that the title of the house in dispute is vested in the defendants/counter-claimants as family property.

(2) A declaration that the Defendants/Counter-Claimants are entitled to the right of Occupancy in respect of the land in dispute situate at NW1/68A Agbeni Street, Ibadan more particularly described.

(3) A declaration that the breaking of the glass inscription on the house in dispute referred to in paragraph 2, above by the 1st plaintiff is wrongful.

(4) A perpetual injunction restraining the plaintiffs their servants, agents or howsoever called from further interfering with the defendants title to the land in dispute whether by harassing their tenants or wrongful collecting or attempting to called any rents from the said tenants:

The case of the plaintiffs/respondents was that the property in dispute which was and is still within Akinbiyi Arijo compound devolved on the respondents under native law and customs, having been built by one of the sons of Akinbiyi Arijo, the founder of the compound from whom the respondents descended, The aforesaid Akinbiyi, one of the sons of Akinbiyi Arijo, the founder of the compound several years ago had three children, namely, Taiwo, Kehinde and Idowu. It was this Idowu who built the house in dispute, It was common ground between the parties that this Idowu Akinbiyi went to Aribiyan/Olupiya family of Oke-Eleta, Ibadan to which the Appellants belonged to marry one Madam Osunfunke. The brother of Osunfunke called Ologunde had only one child called Ojebode from Elekunde, his wife. This Ojebode was only six (6) months old when Ologunde died, Elekunde, died and Ojebode had to be brought to live with Osunfunke, the wife of Idowu Akinbiyi in this house now in Akinbiyi Arijo’s compound where Ojebode grew up.

Osunfunke had a child for Idowu Akinbiyi called Oyalade. Osunfunke persuaded this Oyalade to marry the mother of Ojebode called Elekunde who had Abegunde and Abegunrin for Oyalade. Abegunde died without issue while Abegunrin beget Olatunji Akano, the father of the plaintiffs upon whom the property now in dispute devolved after the death of Akano. These facts were pleaded by the respondents in paragraphs 2, 5, 10, 11 and 12 of the statement of claim which the appellants admitted.

The appellants’ case on the other hand was that Agbeni Area where the land in dispute is situated was founded by a great warrior one Taiwo Agbeni who first settled on the land. It is the case of the appellants that Agbeni granted part of the land to several people including Bankole Olubode, Ikolaba, Lemomu, Olosu, Akinbiyi Arijo and Pa Dairo Ojebode.

The appellants also alleged that one Idowu Akinbiyi married Osunfunke daughter of Ologunde Obagade from Aribiyan Olupiya family Ibadan. The said Osunfunke and Ologunde were born of the same mother and father. When Ologunde died, he left his wife Elekunde and a child named Ojebode. Following the death of Ologunde, Osunfunke brought Elekunde and Ojebode to Idowu Akinbiyi compound and ensured that her son Oyelade later married Elekunde while Ojebode grew up in Idowu Akinbiyi’s compound. The appellants alleged that the land in dispute was granted to Pa Ojebode by Taiwo Agbeni and that it was Fatokun, who was the head of Idowu family who led Ojebode to Agbeni for the grant of the land in dispute. The said Pa Ojebode presented on request by Agbeni, a bottle of “Gin” and after which Agbeni led Ojebode and Fatokun to the land in dispute and gave it to Pa Ojebode. Pa Ojebode erected a house on the land. The house was not properly roofed. Dairo Ojebode, the son of the late Pa Ojebode who became a successful trader pulled down the building in 1935. That the said Dairo fixed a glass at the entrance of the said building with the inscription “DAO Ojebode Awamaridi Ise Olodumare, Inu mimo nigbe ninu Alijona” within it. The appellants also alleged that several of their ancestors were buried on the land in dispute. Sometime in 1992, the respondents went to the land in dispute and destroyed the glass inscription placed on the land/house.

The appellants reported to the police who arrested the father of the 1st respondent and arraigned him in court. The appellant pleaded that in suit No. 1/36/1951, the building in dispute was adjudged to be built by late Pa Ojebode.