Samuel Adu Oluwatuyi & Anor V. Deaconess R. O. Owojuyigbe & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision delivered on 03/02/2005 by the High Court of Ondo State, Akure Judicial Division, Ondo State (hereinafter simply referred to as the “lower court” presided over by Hon. Justice O. O. Akeredolu (hereinafter simply referred to as “the learned trial Judge) wherein His lordship entered judgment in favour of the Plaintiffs/Respondents against the Defendants/Appellants, granting all reliefs sought except the last relief.

SUMMARY OF FACTS

The parties at the lower court filed and exchanged their respective pleadings.

The Plaintiffs (hereinafter referred to as the Respondents) case at the lower court is that they (1st and 2nd Respondents) share same parentage with the 1st Appellant. Their deceased parents are Pa Daniel Oluwatuyi and Madam Elizabeth Ademolarin Oluwatuyi. Pa Daniel had four (4) wives, including their mother and died intestate on the 28th July, 1955. In August 1959, the properties of Pa Daniel Oluwatuyi was shared under Yoruba native law and custom (idi-ige) applicable in Akure which tied the devolution of inherited property to individual wives of the deceased husband.

The house situated at No. 24, Oba Adesida Road, Akure was given to the children of Madam Elizabeth Ademolarin Oluwatuyi. The Respondents had it that it was the entire land comprising of No. 24, Oba Adesida Road, Akure that was jointly inherited by them and that no vacant land behind it was given to Chief Kole Oluwatuyi.

And that the demolition exercise that took place subsequently only affected a small portion of the inherited house on the said land and that the remnant was later developed. The house was let out to tenants jointly, only for the 1st Appellant to unilaterally sell the house to 2nd Appellant which they only became aware of when steps were taken to eject the tenants.

On the part of the Defendants hereinafter referred to as the Appellants, the 1st Appellant shares same parentage with the 1st and 2nd Respondent. According to him, the house jointly inherited by them is No. 24A, Oba Adesida Road, Akure which was demolished to give room for extension of the road in 1996 – 1977.

The house on No. 24B, Oba Adesida Road, according to him was the house he built single handedly and he contended that the land on which the said house sat was a vacant land given to him by his half brother in person of Chief J. B. Kola Oluwatuyi, vide a Deed of Conveyance registered as No. 16 at page 16 in volume 1585 in the Lands Registry office, Ibadan.

At the close of hearing at the lower court, wherein the Appellants had called four (4) witnesses and the Respondents, four (4) witnesses, learned counsel on both sides filed and exchanged written addresses as required by the rules of the trial court. In a considered judgment delivered 3rd February, 2005, judgment was entered in favour of the Respondents. Aggrieved by the said judgment, the Appellants are now on appeal before this court.

The Appellants on 28th March, 2013 filed an Amended Notice of Appeal containing four (4) grounds of appeal. At the hearing of the appeal by this court on 7th April, 2014, the Appellants’ Amended Brief of Argument dated 22nd March, 2013 and filed 15th April, 2013, as well as the Appellants’ Reply brief dated 18th February, 2014 but deemed properly filed on 7th April, 2014 and settled respectively by OSO ADETUNJI, ESQ. were adopted by the said counsel as the Appellants’ argument in this appeal.

The Respondents Amended Brief of Argument dated 2nd December, 2013 incorporated a Notice of Preliminary Objection and was filed 4th December, 2013, was adopted as their argument in the appeal and settled by A. A. OJOPAGOGO, ESQ.

Learned counsel for the Appellants donated four (4) issues for the determination of the appeal and the issues are:

i. Whether the writ with which the action was instituted strictly complied with the provisions of rules of court applicable in Ondo State which prescribed the mode in which a competent action should be initiated.