Chief Abegunde Ogunmilua V. Mr. Afolabi Ashaolu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment)

By a Writ of Summons and a Statement of Claim both filed on the 15th of May, 2007, the Appellant herein as plaintiff at the High Court of Ekiti State sitting at Ado Ekiti, Claimed the following reliefs:-

(A) A declaration that the Plaintiff is entitled to the statutory right of occupancy in respect of the land situated, lying and being at Moriri, along Ilawe Road, Ado-Ekiti.

(B) A perpetual injunction restraining the defendants from trespassing on the land surveying same without the consent of the Plaintiff.

(c) An injunction restraining the Defendant from bringing the second Defendant from trespassing on Moriri land and surveying same without the consent of the Plaintiff.

(D) The sum of N250,000.00 (Two Hundred and Fifty Thousand Naira only) being special damages for trespass on the afore said land by the Defendant.

The 1st Respondent as 1st Defendant filed a twenty (20) paragraphs Statement of Defence on the 8th of October, 2007 in which he counter claimed as follows:

(a) An order of Court to the effect that the 1st Defendant is entitled to the use and enjoyment of his grandfather’s Esiu (previous farmland) without any interference from any person.

(b) A perpetual injunction restraining the Plaintiff, his agents, cronies, representatives etc from interfering with such enjoyments.

(c) A sum of N1,000.000.000 (One Million Naira only).

For damages suffered by the 1st Defendant when the Plaintiff and/or his agents drove away the 2nd Defendant and thereby prevented him from carrying out the surveying of the 1st Defendant’s fathers’ Esiu (previous farmland) which assignment was given to him by the 1st Defendant.

The Appellant filed a reply to the 1st Defendant’s Statement of Defence and Counter-Claim on the 2nd November, 2007. Issues having been joined, the case proceeded to trial. The Appellant testified on the 24th June, 2009 and later called two other witnesses before closing his case on the 22nd of March, 2010, for the defence to commence on the 12th May, 2010.

Briefly the facts of the case as deduced from the pleadings are that the plaintiff/Appellant filed a notice of change of counsel on the 20th November, 2012 after closing his case. New Plaintiff/Appellant’s counsel filed a motion dated 13th November, 2012 on 21st November, 2012, for amendment of pleadings. The application is supported by an affidavit of 12 paragraphs as follows:

AFFIDAVIT IN SUPPORT OF MOTION