Abisoye Ataloye & Ors V. Jumoke (Nee Tapere Jegede) (2016)

LawGlobal-Hub Lead Judgment Report

JAMES SHEHU ABIRIYI, J.C.A.

This appeal is against the judgment delivered on 6th August, 2013 in the High Court of Ondo State sitting at Akure. The Appellants were the Plaintiffs in that Court. The Respondent and one other person now late were the Defendants/Counter-claimants.

The claim of the Appellants in the lower Court was for the following:
A. A declaration that the plaintiffs are entitled to the statutory right of occupancy on the land known as Fajola Eleyoowo land bounded on the top by Oke-Oge. Odofin farmland, at the right by Olojugba farmland.
B. An order of the Court setting aside layout plan in the name of Jegede Abidakun Tapere no Ak N/A.Ur..P.O/173/10 and any survey plan made by any person or group of person (sic) and/or by the defendants.
C. (N5,000,000) General damages for trespass committed against the plaintiffs’ land.
D. A Perpetual Injunction restraining the defendants, their servants, agents or privies from committing any further acts of trespass on the said piece or parcel of plaintiffs’ land,

?The Respondent on his part counterclaimed against the

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Appellants.
Reproduced immediately hereunder is the counterclaim of the Respondent:
(1) A Declaration that the 1st defendant and members of his family are entitle (sic) to the Customary Right of Occupancy in respect of the land at Eleyoowo covered by perimeter survey plan NO OD/1748/2010/009 measuring 4.966 Hectares with an Approval Layout NO: AKW/AURPO/L/173/10
(2) AN ORDER of perpetual injunction restraining the plaintiffs, their privies, agents or any person receiving authority from them trespassing unto the Defendants land located at Eleyoowo in Akure North of Ondo State covered by perimeter survey plan NO: OD/1748/2010/009 measuring 4.966 Hectares with an Approval Layout NO: AKW//AURPO/L/173/10
(3) Cost of the suit to be assessed

?The facts of the case include the following: According to the Appellants their ancestor settled on the land in dispute from time immemorial. Population of the settlers grew later and the land was shared.
They were surprise when in 2010 the Respondent went into the land to carry out survey on a portion of the large expanse of land without the authority of the Appellants. That apart from the portion

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of land given to the 1st Respondent to farm which is now the subject of litigation no other part of Eleyoowo Community land is occupied by any of Jegede’s sons and daughters.

The Appellants tendered various documents (Exhibits P1-P6).

On the contrary, the Respondent stated that the land was founded and disvirgined as thick forest by Jegede Asosonyi the father of the Respondent. The Respondent inherited the land from his father in 1955.
Since then, nobody has challenged him on the land. It was the 2nd Appellant who trespassed into the Respondent’s land and was reported by the Respondent to the police. The Appellants in a ploy proceeded to institute this action to foil possible police investigation and prosecution.

After considering the evidence adduced at the trial and addresses of learned counsel for both parties, the lower Court dismissed the claim of the Appellants and entered judgment in favour of the Respondent.

Miffed by the decision, the Appellants approached this Court by notice of appeal dated 12th September, 2013 and filed the same day. With leave of this Court, the Appellants filed an amended notice of appeal dated 30th

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