CHIEF ADEFIOYE ADEDEJI (RISAWE OF ILESA) v. OLADIRAN ESO
(2011)LCN/4885(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of November, 2011
CA/I/110/2008
RATIO
STOOL LAND: WHETHER A STOOL LAND CAN BE SOLD OR ALIENATED TO DIVEST THE STOOL OF TITLE TO IT
The order made by the trial judge was not a grant of ownership but mere possessory right which does not derogate from the status of the land as stool land. The learned judge had observed: “Further from the authorities, stool land shall forever remain stool land. It cannot be sold or alienated to divest the stool of title to it – Apoeso v. Awodiya (1964) 1 All NLR 48: Olusesi v. Oyewusi (1986) 3 NWLR (Pt. 31) 634.” PER IYIZOBA, J.C.A.
INJUNCTION: WHETHER THE GRANT OR REFUSAL OF AN APPLICATION FOR INJUNCTIVE RELIEF DEPENDS ON THE CIRCUMSTANCE OF EACH CASE
An injunctive order is an equitable relief. Whether to grant or refuse a relief for an injunction depends on the circumstances of each case. PER ADUMEIN, J.C.A.
INJUNCTION: MEANING OF AN INJUNCTION
In its simplest meaning, an injunction mandates or forbids the doing of a specified act and the whole essence of the remedy is to ensure that justice is done to parties in a law suit. PER ADUMEIN, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
CHIEF ADEFIOYE ADEDEJI (RISAWE OF ILESA) – Appellant(s)
AND
OLADIRAN ESO
(For and on behalf of himself and all other descendants of Ogunfulubi) – Respondent(s)
IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal by the plaintiff/appellant against the judgment of O. A. Ojo J. of the High Court of Osun State sitting at Ilesa delivered on the 7th day of March, 2007 in suit No. HIL/100/91. In his 3rd amended statement of claim the plaintiff/appellant claimed as follows:-
1. A declaration that the plaintiff by virtue of his office as the Risawe of Ilesa is under Ijesa Native Law and Custom and the Chiefs Law of Oyo State (Now applicable in Osun State) the only person entitled to a Right of Occupancy in respect of a piece or parcel of land situate, lying and being at Isida Quarter Ilesa known as Risawe Chieftaincy Compound and bounded on:
(a)The first side by the road from Ereja Round-about to Odo-Esira now numbered ‘A’ Line
(b) The second side by Total Petrol Station facing Ereja Square now numbered ‘B’ Line;
(c)The third side by the road from Ereja Round about to Egbeidi Street now numbered ‘D’ Line;
(d) The fourth side by another road linking the road from Round-About to Egbe-Idi Street with parallel road from Round-About to Odo-Esira and which is also numbered ‘D’ Line
2. A declaration that the defendant’s building numbered A4 at Isida Quarter is within the plaintiff’s official residence called Risawe Compound or Akodi.
3. A declaration that the letting out as shops or otherwise by the defendant of the whole or any part of the building numbered A4 Isida Quarter, Ilesa, without the consent or authority of the plaintiff is null and void.
4. An account verified by affidavit of all rents paid or payable since 1/5/85 up to the final determination of this suit and payment of same to the plaintiff
5. Perpetual injunction restraining the defendant, his agents, servants or privies from letting or continuing to let the whole or any part of the building at No. A4 Isida Quarter Ilesa or exercising any act of ownership or absolute control thereon which are inconsistent with the rights of the Plaintiff.
Pleadings were filed and exchanged, viz 3rd amended statement of claim dated 26/5/04 and amended reply to the defendant’s amended statement of defence dated 20/1/94. Further amended statement of defence dated 1/12/06. The appellant’s’ case at the lower court as can be deduced from his pleadings at pages 4 – 10 of the record is that Risawe Chieftaincy compound or ‘Akodi’ which is stool land and the official residence of any Risawe Chieftaincy title holder was vested some 600 years ago in Chief Olubikin Ganfiran, the first Risawe of Ilesa by his junior brother Owa Uyiarere and has since remained in the exclusive and undisturbed possession of all past Risawe title holders so far. When Omole Adedeji was installed Risawe of Ilesa in 1899, he brought several of his brothers, sisters and other relations to stay with him in his Chieftaincy compound at Ilesa. That was how the defendant’s great grandmother Ogunfulubi came to reside with her brother in the chieftaincy compound. Ogunfulubi lived all her life in her dwelling place within Risawe chieftaincy Compound Ilesa and raised all her children there. In time the children and grandchildren of Ogunfulubi started claiming that her apartment was exclusive to her and no longer part of the Risawe Chieftaincy compound. The appellant averred that at no time did any of the reigning Risawes partition the Risawe chieftaincy compound among members of the Risawe Chieftaincy family and that all that the members enjoy is a right of occupation and use and no more. Risawe Omole Adedeji allotted portions of the chieftaincy compound to his brothers, sisters, relations and even non relations for living purposes only. The portion allotted to the defendant’s great grandmother Ogunfulubi is now numbered A4, Isida Quarter, Ilesa and was later fenced round by the late defendant, Iyiola Bewaji despite family protests. Several tenants were put in possession of the premises and constituted a nuisance to the rest of the occupants of the Chieftaincy compound. When the plaintiff tried to warn the late defendant about putting in tenants without authorization by the Risawe and the general condition of the premises, the late defendant became temperamental and told the plaintiff that the situation in the defendant’s enclosed apartment and the letting of any part thereof to tenants were no concern of the plaintiff as the apartment was no more part of the plaintiffs chieftaincy compound. When the plaintiff got no positive response from the defendant in spite of a letter written to him, he instituted this action claiming the reliefs set out above.
The defendant/respondent in his further amended statement of defence and counter claim at pages 11 – 17 of the record refuted the claim of the plaintiff and asserted that Risawe land is not Chieftaincy or stool land but family land of all descendants of Ganfiram, the first Risawe of Ilesa out of which outright grants have been made to members of the family. The defendant contended that the land in dispute was an outright grant to his great grandmother by the appellant’s grandfather and that she and her descendants have been in possession ever since. He counterclaimed as follows:
(i) Declaration that the defendant as descendant of Chief Ogunfulubi, the great grandmother of the defendant, and ipso facto, a member of Risawe chieftaincy family of Ilesa, is a joint owner of Risawe of Ilesa Chieftaincy land.
(ii) Declaration that as a member of Risawe Chieftaincy family, the plaintiff cannot be granted any declaration in respect of Risawe Chieftaincy family land against the defendant who is a co-owner of the Chieftaincy family land.
(iii) Declaration that in view of the Land Tenure System in Ilesa of 6th December, 1945, to the effect: ‘A piece of land once given to somebody by a Chief must not be reclaimed by the Chief’s successor’
(iv) An order of perpetual injunction, restraining the plaintiff, his servants, agents and/or privies, how-so-ever called from ejecting or attempt to eject the defendant and members of his family from occupying or continuing to occupy his premises at plot A4 Isida Street, Ilesa.
The plaintiff gave evidence in line with his pleadings and called one other witness, & surveyor. The defendant gave evidence and called no other witness. Several documents including court judgments declaring the property to be chieftaincy land were tendered in evidence as exhibits. In a reserved judgment delivered on 7/3/2007 the learned trial judge granted the plaintiffs reliefs 1, 2, and 3. He also granted the defendant’s relief (iv) in his counterclaim in the following terms: ‘the defendant shall continue to hold the land and the building on it as an allottee of the Risawe, for their personal use and shall refrain from letting or continuing to let the whole or any part of the building or exercise any right of exclusive possession thereto, without the consent of the plaintiff.
The plaintiff/appellant being dissatisfied with this last order filed a notice of appeal on 5/6/07 containing four grounds of appeal. Out of the four grounds, he formulated two issues for determination viz:
1. Having dismissed the defendant’s counter-claim whether the learned trial judge has exercised his discretion judicially and judiciously in granting the defendant’s ancillary relief of perpetual injunction against the plaintiff.
2. Considering the status of the land in dispute as a stool land, whether the learned trial judge was right in granting the defendant’s injunction against the plaintiff thus derogating from the status of the land.
In his brief, learned counsel for the respondent also identified two issues for determination, viz:
1. Whether or not Olori Ogunfulubi and her descendants have been in occupation of the land since the grant of it to her?
2. Whether or not the learned trial judge was wrong to allow Ogunfulubi’s descendants to continue to occupy the land in dispute?
The respondent’s issue 1 is not in contention in this case. From the parties’ pleadings and evidence, both sides are ad idem that the descendants of Ogunfulubi have been in occupation of the land in dispute since it was allotted to her by Omole Adedeji who was installed Risawe of Ilesa in 1899. See paragraph 6-10 of the 3rd amended statement of claim at page 5 of the record and the evidence of the appellant at page 28 of the record. The respondent’s issue 2 is more or less same as the appellant’s issue 2. I will therefore adopt the appellant’s two issues in the determination of this appeal.
ISSUE 1:
Having dismissed the defendant’s counter-claim, whether the learned trial judge has exercised his discretion judicially and judiciously in granting the defendant’s ancillary relief of perpetual injunction against the plaintiff.
Learned counsel for the appellant in his brief submitted that the learned trial judge dismissed claims (i), (ii) and (iii) of the respondent’s counter claim on the ground that the respondent was unable to prove that an absolute grant was made to his ancestors. Having dismissed the respondent’s counter claim, learned counsel contended that there were no more materials placed before the court to be considered in granting the injunction sought by the respondent whose prayer for the relief ought to have been dismissed as well. Counsel argued that the grant of the injunction against the appellant amounted to a naked and arbitrary exercise of judicial discretion as the grant does not flow naturally and logically from the findings of the court. In urging the court to set aside the injunction, counsel relied on the case of Oyeyemi & Ors v. Irewole Local Government Ikire & Ors (1993) 1 NWLR (Pt.270) 462.
Learned counsel for the respondent in reply submitted that the appellant is challenging the relief granted him by the lower court that he can continue in occupation of the disputed property and wondered why the appellant is challenging the court’s decision when in his pleadings and in his evidence in court he conceded that the property was allotted to the defendant’s great grandmother Ogunfulubi and that they have been in possession since the allotment even in defiance of the judgment in Exhibit P5. Learned counsel further submitted that even if he did not counterclaim for injunction to restrain the appellant from ejecting them from the land, the refusal of the lower court to grant the appellant’s injunction to eject them from the land meant they could remain on the land. It appears learned counsel misinterpreted the judgment of the lower court. The appellant did not pray for injunction to eject the respondent from the disputed property and so the lower court did not refuse any such injunction. What the appellant prayed for which was granted by the court was “injunction restraining the defendant, from letting or continuing to let the whole or any part of the building or exercising any right of exclusive possession thereto, without the consent of the plaintiff”.
The appellant in his pleading and evidence in court never asked that the defendant be ejected from the premises. On the contrary he seemed to recognize and respect his right to remain in personal occupation of the premises. With all due respect to learned counsel for the appellant, relief (iv) of the respondent’s counterclaim is not ancillary relief to reliefs (i), (ii), and (iii). Each of the reliefs is independent of the other. The refusal of the first three reliefs cannot therefore in my view affect the grant of the fourth relief. The 4th relief is praying for an injunction to restrain the appellant from ejecting the defendant and members of his family from the disputed property. The fact that the trial judge refused to grant: (1) the declaration that the defendant is a joint owner of Ilesa Chieftaincy land; (2) declaration that as a member of Risawe Chieftaincy family, the plaintiff cannot be granted any declaration in respect of Risawe Chieftaincy family land against the defendant who is a co-owner of the Chieftaincy family land; (3) declaration that in view of the Land Tenure System in Ilesa of 6th December, 1945, to the effect: ‘A piece of land once given to somebody by a Chief must not be reclaimed by the Chiefs successor’, cannot stop the court from granting relief (iv) in a modified version that would tally with the evidence as presented to the court. There was evidence that the defendant and members of his family had been in possession pursuant to allotment of the property to their great grandmother. The learned trial judge merely ordered that they should continue in occupation. Learned counsel for the respondent is right that the case of Oyeyemi & Ors v. Irewole Local Government Ikire & Ors (1993) 1 NWLR (Pt.270) 462 has no relevance in this case. It was a chieftaincy matter concluded at the High Court. Appeal was lodged in the court of appeal where issue of stay of execution and injunction came up. The Supreme Court held that the res was not going to be destroyed and that it was wrong for the Court of Appeal to have granted an injunction.
Learned counsel misconceived the issues in contending that there was no material placed before the court to justify the grant of the injunction. The lower court had ordered “that the defendant shall continue to hold the land and the building on it as an allottee of the Risawe, for their personal use, and shall refrain from letting or continuing to let the whole or any part of the building or exercise any right of exclusive possession thereto, without the consent of the plaintiff.” The underlined section shows that this order is partly an injunction against the respondents and in favour of the appellant and is supported by the evidence led by the parties. The fact that the land was allotted to the defendant’s ancestors is not in dispute. The fact that the defendant and his people have been in possession of the land for a very long time is not in dispute. At page 28 of the record, while giving evidence, the appellant said:
“The building in dispute does not belong to the defend ant’s ancestors exclusively because Ogunfulubi and her children and grandchildren lived there.”
It is obvious then that the right of the respondent to be in the disputed property is not in doubt. The appellant never challenged their right to be in occupation of the building personally. What bothered him was their claim to exclusive possession of the disputed property. The appellant wanted to be recognized as the one entitled to the right of occupancy over the entire land in his official capacity. He wanted a declaration that the land is part of Risawe Chieftaincy compound. He wanted to stop the respondent from giving out the premises to tenants.
All these he got in the judgment. No issue arose at all in the pleadings and evidence led as to the right of the respondent to continue in occupation of the premises personally. It was taken for granted. Throughout his pleadings, the appellant referred to the building on the land as the ‘defendant’s building’. There is no reason therefore for the appellant to complain about the order made by the learned judge that the defendant shall continue to hold the land and the building on it as an allottee of Risawe for their personal use. The order even barred the defendant from exercising any right of exclusive possession thereto without the consent of the plaintiff. This certainly debunks the claim of the appellant that the trial judge conferred title to the defendant in perpetuity and restrained him from interfering in his enjoyment of the land. The respondent’s right of personal use and occupation of the building is clearly limited by the overall right of the Risawe in whose office resides the right of occupancy over the land as part of Risawe Chieftaincy Compound. The learned trial judge clearly exercised his discretion judicially and judiciously based on the evidence presented before him in granting the order that the respondent should continue to hold the land and the building on it as an allottee of the Risawe. This means that the holding should be subject to all limitations and conditions to which an allottee of the Risawe is generally subject to. It does not confer on the respondent any title in perpetuity. If the respondent fails to comply with the order of the court restraining him from putting tenants in the building or if he exercises any right of exclusive possession without the consent of the appellant, the appellant has the right as Risawe to take the necessary steps to stop the respondent. This order in all the circumstances of the case is equitable. I see no basis for the appellant’s complaint. If he had wanted the respondent out of the building, he should have asked for possession but he did not. Further, the appellant did not in his reply to the defendant’s amended statement of defence react to the respondent’s counterclaim for injunction restraining the appellant from ejecting him from the premises. That particular counterclaim is as it were, consequently unchallenged and in view of the evidence led in the case of undisputed possession by the respondent; the learned trial judge cannot be faulted for granting that particular order. Issue 1 is resolved against the appellant.
Issue 2:
“Considering the status of the land in dispute as stool land, whether the learned trial judge was right in granting the defendant injunction against the plaintiff thus derogating from the status of the land.”
The above issue has already been resolved by the points raised under issue 1. The order of the lower court restated the right of the respondents to remain in possession of the property but restrained them from exercising right of exclusive possession without the consent of the appellant thereby recognizing the status of the land as stool land. The learned trial judge held, and rightly in my view that the respondent failed to discharge the onus of proving absolute grant of the building in dispute to his ancestors. While the respondent failed in proving ownership, his possessory right was not in dispute. The order made by the trial judge was not a grant of ownership but mere possessory right which does not derogate from the status of the land as stool land. The learned judge had observed:
“Further from the authorities, stool land shall forever remain stool land. It cannot be sold or alienated to divest the stool of title to it – Apoeso v. Awodiya (1964) 1 All NLR 48: Olusesi v. Oyewusi (1986) 3 NWLR (Pt. 31) 634.”
The learned trial judge was consistent in granting the respondent possessory right only to the property in dispute made subject to the right of the Risawe as the custodian of the stool land which means that title remained in the Risawe. Learned counsel for the appellant was wrong in saying that the learned trial judge ought not to have done a somersault by rendering the principle (of stool land) nugatory by the grant of the injunction against the plaintiff. The order of the trial judge merely confirmed the evidence presented by both sides that the defendant’s possessory right was by virtue of an allotment by a previous Risawe to his ancestors and ordered that they should continue to hold the property as such allottee and the order further confirmed the supreme authority of the appellant by restraining the respondent from letting or continuing to let the whole or any part of the building or exercising any right of exclusive possession without the consent of the appellant. The order of the lower court did not derogate in any way from the status of the land as “stool land”. On the contrary, it preserved it. Issue 2 is also resolved against the appellant. Having resolved the two issues against the appellant, I hold that this appeal lacks merit and it is accordingly dismissed with N20,000 costs in favour of the respondent.
KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Iyizoba, JCA just delivered. I agree entirely with His Lordship’s reasoning and the conclusion that the appeal lacks merit and should be dismissed.
This appeal appears to have arisen out of a misconception of the judgment of the lower court.
The claims of the appellant and the counter-claim of the respondent have been fully set out in the lead judgment. Of significance to this appeal are the appellant’s relief (iii) in his 3rd Amended Statement of Claim and the respondent’s relief (iv) in his Counter-Claim. I reproduce them hereunder:
Paragraph 27(3) of the 3rd Amended Statement of Claim reads:
(3) “A declaration that the letting out as shops or otherwise by the defendant of the whole or any part of the building numbered A4 ISIDA Quarter, Ilesa without the consent or authority of the plaintiff is null and void.” (Emphasis mine) Paragraph (iv) of the Counter Claim:
(iv) “An order of perpetual injunction, restraining the plaintiff, his servants, agents and/or privies how-so-ever called from ejecting or attempt to eject the defendant and members of his family from occupying or continue(sic) to occupy his premises at Plot A4, Isida Street, Ilesa.”
After a careful review of the evidence before the court, the learned trial Judge held at page 86 lines 7 – 25 as follows:
“Having found that the land is stool land, I also find that the defendant being an allottee only have a right of use for their own benefit. The land cannot be further let out to tenants without the consent and permission of the owner – Risawe presently the plaintiff. To do so will be an infringement on that right of the stool. However being an allottee, under native law and custom the defendant is entitled to hold and enjoy the land in perpetuity subject to good behavior. On this I hold that there is merit in both the Claims (iii) of the plaintiff’s claim and Claim (iii) of the defendant’s Counter-Claim. The plaintiff is entitled to the protection of the stool land from being let out and the defendant is entitled to a guarantee of their continued stay on the land subject to good behavior.
On these two claims, I order that the defendant shall continue to hold the land and the building built on it for their personal use and however be restrained from letting or continuing to let the whole or any part of the building at No. 44, Isida Quarters, Ilesa or exercising right of exclusive possession thereto.” (Emphasis mine)
No, 44, Isida Quarters, Ilesa or exercising right of exclusive possession thereto.” (Emphasis mine)
It seems to me that the appellant was carried away by the use of the term “perpetual injunction” in paragraph (iv) of the Counter Claim. A dispassionate examination of the order of the learned trial Judge shows that in fact the appellant got exactly what he asked for. Prayer (iv) of the respondent’s counter claim is a logical corollary to the appellant’s relief (iii). Indeed it could have been granted as a consequential order naturally flowing from the grant of the appellant’s prayers. The grant of the respondent’s relief confers no additional advantage on him.
As the appellant did not seek the ejection of the respondent from the property in dispute, it does not lie in his mouth to complain about an order which essentially granted his prayers. For these and the fuller reasons contained in the lead judgment, I also dismiss the appeal with N20, 000 costs in favour of the respondent.
ADUMEIN, J.C.A.: I read in draft the judgment of my learned brother IYIZOBA, JCA just delivered. The issues in this appeal were comprehensively resolved in the lead judgment.
An injunctive order is an equitable relief. Whether to grant or refuse a relief for an injunction depends on the circumstances of each case. In its simplest meaning, an injunction mandates or forbids the doing of a specified act and the whole essence of the remedy is to ensure that justice is done to parties in a law suit.
In the present case, having regard to the totality of facts and circumstances, the remedy of injunction was rightly granted by the lower court in the overriding interest of justice.
For these and the very comprehensive reasons in the lead judgment, I too dismiss this appeal.
I abide by the consequential orders in the lead judgment.
Appearances
ADENIYI OGUNKOLA ESQ. For Appellant
AND
E. ABIODUN ESQ. For Respondent
