Olayemi Olowu V. Richard Amayo & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEI, JCA (Delivering the leading Judgment)

This is an appeal against the judgment of Edo State High Court, Benin Judicial Division, delivered on 23rd April, 1993 in suit No. B/451/87.

For the present Appellant Mr. Olayemi Olowu, it was his mother who started it all. She was the Plaintiff at the lower Court and the original Appellant in this Court until when she died on 26th November, 2004. Upon her death an application dated 29-04-2005 brought pursuant to order 3 r. 30 (2) of the Court of Appeal Rules 2002 was granted on 04/05/05 wherefor Mr. Olowu was substituted for his deceased mother.

For the 1st Respondent, Mr. Richard Amayo, it was also his mother who was sued as the 1st Defendant. She was Mrs. A Egbon. Mrs. Egbon defended the suit of Mrs. Olowu and filed a counter-claim. However, after the conclusion of the final addresses of respective learned counsel on 21-05-92 and judgment was fixed for 26/6/92. While the judgment was still being awaited, Mrs. Grace Egbon died on 20th July, 1992. Upon an application dated 29/07/92, Mr. Amayo was substituted as the 1st Defendant also in place of his deceased mother.

The 2nd Respondent/cross Appellant was the 2nd Defendant before the lower Court. He is a brother of the full blood to Mrs. Olowu. Because of the chequered history and intriguing issues in this appeal, I would, for both clarity and convenience, or expedience, use the names of these parties in the course of this judgment. However, where the con or circumstance allow, I would use their respective positions as parties in this appeal.

This is a dispute over a house located at No. 60, Igun Street, Benin City. It was built on a land measuring about 100 feet by 100 feet. In an amended statement of claim dated 9/11/89 but filed on 10/11/89 the appellant sought for the following reliefs:-

i. As against the two Defendants a declaration that the Plaintiff is entitled to the grant of a statutory right occupancy to the house and premises known and called No. 50. Igun Street, Benin City.

ii. N5, 000.00 damages against the 1st Defendant for trespass, forcible entry and malicious damage: and

iii. Perpetual injunction against the 1st Defendant only restraining her and all her servants, agents, privies etc from further acts of trespass on the said No. 60, Igun Street, Benin City.

In a statement of defence and counter-claim dated 31/03/88 but filed on 8/04/88, the 1st Defendant/1st Respondent denied the claim of the Plaintiff/Appellant and proceeded to counter-claim as follows:

i. The 1st Defendant as the eldest surviving child of late Aigbogun Obasogun who died intestate sometime in May, 1947 without a male child at No. 60, Igun Street, Benin-City, claims for a declaration that she is entitled to the grant of the statutory right of occupancy to the grant of statutory right of occupancy to the house and premises known and called No. 60, Igun Street, Benin City;

ii. Possession of the said house from the plaintiff and 2nd Defendant and/or their agents, servants or privies;

iii. An order of perpetual injunction restraining the plaintiff, 2nd Defendant and their agents, servants or privies from occupying the said house and premises and doing anything whosoever within the house and

iv. The annual value of the house rent in the sum of N100.00 (One Hundred Naira).