Okebayowa Aborode V. Chief Amusa Toriola Afolabi & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Oyo State High Court sitting at Eruwa in the Ibarapa Judicial Division delivered on 24th January 2008 in Suit No. HER/22/06.

In a representative action brought on behalf of themselves and the entire members of Oniki of Iki land, Tapa in Ibarapa North Local Government of Oyo State, the Respondents herein, as the plaintiffs at the lower court, claimed for the following 3 reliefs, against the Appellant as the Defendant. The reliefs are as follows:-

1. “Declaration that the Plaintiffs are the persons entitled to Statutory/Customary Right of Occupancy in respect of the piece or parcel of land situate, lying and being at Abaafin- Odo Iki Omo, Iki, Tapa in Ibarapa North Local Government Area of Oyo State of Nigeria.
2. N10,000.00 being damages for trespass committed by the Defendant on the Plaintiffs’ land at Abaafin-Odo Iki Omo, Iki Area, Tapa.
3. Injunction (perpetual) restraining the Defendant by himself, his agents, privies or however from disturbing the plaintiffs enjoyment of its said land situate, lying and being at Abaafin-Odo Iki Omo, Iki, Tapa in Ibarapa North Local Government Area of Oyo State of Nigeria.”

In a statement of defence dated 4/12/06 but filed on 7/12/06, the Appellant joined issues with the Respondents, denied all the key and material averments in the statement of claim and put them to strictest proof of same, while urging the Court to dismiss the claim for being frivolous, speculative and a gold digging exercise. Issues having been duly joined, the matter went to trial.

At the trial, the Respondents relied on the oral testimonies of the 1st Respondent and one other witness as PW1 and PW2 respectively. Exhibits A and B were tendered and admitted in evidence through these respective witnesses. For the Appellant, 4 witnesses gave oral evidence, including himself as DW4. Exhibit C, a dispute survey plan, was also tendered and admitted in evidence through the Appellant.

At the end of the evidence of the witnesses, respective learned counsel for the parties addressed the Court and made submissions and arguments. In its judgment, the lower Court upheld the claim of the Respondents and made the declaratory order as well the award of damages for trespass and ordered a perpetual injunction in terms and as sought by the Respondents.

The Appellant was dissatisfied with this judgment and appealed to this court in a notice of appeal dated 21/04/08. This notice of appeal contains a single ground of appeal with 2 particulars. The ground and the advertised particulars are as follows:

GROUNDS OF APPEAL

The learned trial Judge erred in law when he gave judgment to the plaintiff to the effect that they are entitled to the Statutory/Customary Right of Occupancy in respect of the land in dispute.

PARTICULARS

(i) The Respondents did not give an accurate traditional evidence as to how they came to own the land.

(ii) More grounds shall be filed upon receipt of the record of proceedings.

To argue the appeal, learned counsel to the Appellant, Mr. O. Uwawah filed a brief of argument dated 10/5/2010 on 11/5/2010 and same was deemed properly filed and served on 28/03/11. In a response, learned counsel Mr. M. O. Achugbue, on behalf of the Respondents, filed a brief of argument dated 22/9/2011 in 26/9/11 and same was deemed properly filed and served on 29/3/12.

From the single ground of appeal, learned counsel Mr. Uwawah formulated and argued a lone issue for the determination of this appeal. It is: