Chief Abiodun Fasuyi & Anor V. Amodu Omolafe (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A. ( Delivering the Leading Judgment)

This is an Appeal against the judgment delivered on 28th November 2013 in the High Court of Ondo State Akure Judicial Division wherein the Appellants were Plaintiffs and the Respondent was Defendant.

The claim of the Appellants against the Respondent contained in a Further Amended Statement of the claim was for the following:

(i) A declaration that the plaintiffs and members of their family, Asae family of Igoba Community are entitled to the right of customary occupancy of a piece of land lying and situate at Igoba via Akure, Ondo State which is bounded as follows: 1st side by Odofin family’s land, 2nd side by Abusoro community’s land, 3rd side by Sao’s family land and 4th side by Olasunmade family’s land.

(ii) N500,000.00 being the general damages for various act (sic) trespass committed by the defendant on the said land.

(iii) Perpetual injunction restraining the defendant, his family members, his agents, privies or anybody claiming through him from committing further acts of trespass on the said land.

In

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a resume, the case of the Appellants at the lower Court was that the land they claim was founded over hundred (500) years ago by Osadugba Asae, their ancestor. After the death of Osadugba, Adabiri Asae became the head of the family. He was succeeded as head of the family by Asae Agidigbi. 1st Appellant is the present head of the family. Throughout the reign of Osadugba to Asae Ologun nobody challenged the Appellants over the land until the father of the Respondent who had been granted part of land died.

Then the Respondent built a shrine there and started selling the land.

On his own part, the Respondent stated that his own land is different from that claimed by the Appellants while the land claimed by the Appellants is at Igboyeye; his own is at Okedan. Ajagun together with Odofin first founded the Respondent’s family. After the death of Ajagun, Fasae became the head of the family. He was succeeded as head of family by Olugbogi. Then Afere and Fulani Agbodunlari.

It was during the reign of Fulani Agbogunleri that the Respondent’s father’s land was shared among his children by Fulani Agbofunleri, Pa Awofate, Pa Lusi, Pa Akinola and Pa Ariku, DW3

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who is still alive.