Vidososi Kuwakanu & Ors V. Dada Ogabi & Ors (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ogun State Sagamu delivered by M.A. Dipeolu J. on the 24th day of February, 2011.

The Respondents who were Plaintiffs in the lower Court instituted this suit in a representative capacity for themselves and on behalf of Osuo Family of Ipokia. In their Further Amended Statement of Claim, they claimed against the Appellants as Defendants as follows:

1. Declaration that the plaintiffs are entitled to the Customary Right of Occupancy of the piece of land situate, lying and being at Obanigbe Village via Ipokia in Ogun State which land is particularly described and edged blue in Survey Plan No. BOG045/98 drawn by Bunmi A. Odunuga Licensed Surveyor.
2. Declaration that all the Defendants are tenants of the plaintiffs on the land in dispute.
3. Forfeiture of the Defendants holding on the land in dispute for their refusal to pay Ishakole and their outright challenge of the plaintiffs title to the land in dispute.
4. Declaration that the plaintiffs are now entitled to the

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possession of the land in dispute, the Defendants having forfeited their right on the land.

5. Injunction restraining the Defendants their servants/agents from trespassing on the land in dispute.

The Defendants counterclaimed against the Plaintiffs as follows:

(1). Declaration that the Defendants are entitled to the Customary Right of Occupancy of the land and farmland at Obanigbe village near Ipokia, Ogun State which is particularly delineated and described and edged red in the Survey Plan No. MISC/OJ/2/99 drawn by O.A. Oje Esq. Licensed Surveyor and dated 6/5/99

(2). An injunction restraining the plaintiffs, their servants, agents or privies from trespassing on the land or interfering with the Defendants ownership and possession thereof.

(3). An order for relief against forfeiture.

After several adjournments and interlocutory applications, the Plaintiffs opened their case on 9/5/06 and called 8 witnesses (pages 344 to 364 of the Record). The Defendants thereafter opened their case on 5/12/07 and called 14 witnesses (pages 377 to 405 of the record). Written addresses were filed by the parties and were duly

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adopted. The trial judge delivered judgment on the 24th day of February, 2011 granting relief 1 of the Plaintiffs claims that they are the persons entitled to customary right of occupancy over the land in dispute and dismissing reliefs 3, 4 and 5. (The judgment of the lower Court is at pages 410 to 447 of the record). Dissatisfied with the judgment the Defendants (now Appellants) appealed by Notice of Appeal dated and filed on 17th May, 2011 (pages 448 to 452 of the record). From the grounds of appeal in the Notice, the Appellants distilled the following issues for determination:

1. Whether from the preponderance of evidence before the trial Court, the plaintiffs (now the Respondents) have established a better title to the land in dispute than the Defendants (now Appellants) as to be entitled to judgment in respect of the declaration sought for right of Occupancy over the said land.
2. Whether the Plaintiffs (now Respondents) have led any credible evidence to show that the Defendants (now Appellants) are customary tenants on the land in dispute.

The Respondents in their brief distilled the following issues for determination:

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