Sunday Ajayi & Anor V. Joseph Olasupo Ogunwale & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Osun State delivered on the 8th April 2011 in suit No: HOS /9/2003.

The Respondents as Plaintiffs in that Court instituted the suit against the Appellants as Defendants claiming for the following:

1. A declaration that the Plaintiffs are entitled to Statutory Right of Occupancy in respect ALL THAT piece or parcel of land measuring approximately 982.299 square metres with all the building thereon situate, lying and being at Abodua’s compound, Along Mackay Street Opposite All Saint Primary School, Osogbo in Olorunda Local Government Area of Osun State covered by Survey No OSS/0338/200/113 dated 28/7/2001 drawn and signed by G. O. O. Popoola (Licensed Surveyor).
2. An order directing the Defendants to render full account of all rents collected by the Defendants from the Tenants occupying the 5 rooms and 4 shops in the two buildings on part of the said piece or parcel of land from the January, 2000 till the date of judgment and to pay over forthwith to the Plaintiffs all such rents.
3. a (sic) sum of N100,000.00 (One hundred thousand naira) being special and general damages for the trespass committed (sic) and still being committed (sic) by the Defendants, their servants, agents and/or privies on part of the Plaintiffs’ said land and buildings.
4. An order of perpetual injunction to restrain the Defendants, their servants, agent and/or privies howsoever called from further disturbing or collecting rents from the Plaintiffs’ tenants, from tampering with the Plaintiffs’ right of use and control over the house and the 4 shops in dispute and from committing any further act of trespass on the Plaintiffs’ said land with the buildings thereon.

The Appellants counterclaimed for the following:

(a) Declaration for Statutory Right of Occupancy to all the parcels of lands and appurtenances in Abodua area including Abodua Compound, Osogbo which is surrounded by Balogun Agoro Compound, Osogbo, Oje Compound, Osogbo, Olobu Compound, Osogbo, Alabadi Compound, Osogbo, Olobado Compound, Osogbo, Olonkoro Stream, Osogbo and particularly all the houses now occupied by the Plaintiffs and their relatives and relations in the Compound known and called Abodua Compound, Osogbo.

(b) Determination of the customary tenancy of the Plaintiffs and all who claim through them.

(c) Forfeiture of the said customary tenancy of the Plaintiffs, their Agents or any other person or persons claiming through them or occupied by them as customary tenants of the Defendants.

(d) Possession of the said parcel of land and houses now in possession of the Plaintiffs and their respective families.

(e) An Account of rents received, and collected by the Plaintiffs so far from the tenants in the house and shops in dispute to the Defendants.

(f) Any other order or orders justifiable in this case as this honourable court may deem fit to make in the circumstances

(g) Substantial costs against the Plaintiffs, their agents and any person or persons claiming through them to the Defendants.

According to the Respondents they are members of Malomo Aremu Oloba family of Abodua Compound Osogbo, Osun State. The Appellants are members of Egbe Omo Ile Aboduwa’s Compound, Osogbo. That Ayowale, the great ancestor of the Respondents migrated from Oba Oke about 200 years ago to found and settle at Kaa Oba (Oba section) Abodua’s Compound, Osogbo. That the land in dispute forms a small part of the land originally granted to Awoyele and his people.

That the land which was partitioned to Malomo at Abodua’s Compound, Osogbo after Awoyale’s death is approximately 982.299 square metres (excluding part thereof used for Mackay Street) and it is situate, lying and being at along Mackay Street Opposite All Saints Primary School, Abodua’s Compound Osogbo. That Malomo and his descendants including the Respondents have been exercising various acts of ownership on the piece or parcel of land such as farming or building thereon and letting part to tenants without let or hindrance from anybody; including the Appellants from one generation to the other until 2000.

That the Appellants are now laying claim to building consisting of six rooms and a block of four shops on the left hand side of the Respondents’ land facing Mackay Street. That in 2002, the Appellants and some other members of Abodua Compound under the patronage of Egbe Omo Ile Aboduwa ganged up to claim ownership of the four shops. That the Appellants have also directed the tenants in the shops to stop paying their rents to the Respondents and the Appellants have been using force and threats to collect rents from the tenants without rendering any account to the Respondents’ protests.