Chief Fatai Agbebiyi & Ors V. Chief Sikiru Balogun & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment)

This appeal arose from the judgment of Ogun State High Court delivered on October 24th, 2011 by A.A. Akinyemi, Judge wherein judgment was entered in favour of the claimants herein 1st – 4th respondent as follows:

1. The claimants are declared to be entitled to the right of occupancy in and over all that parcel of land lying being and situate at ljaba, near Osuke village via Ota, verged RED and more particularly described in Exhibit “A” i.e. Survey plan No. KOA/OG 97/DP 13 drawn by Surveyor Apatira dated 13/8/97.
2. The relief of damages for trespass is dismissed.
3. An Order of perpetual injunction is granted restraining the defendants by themselves, their agents, servants or privies from trespassing upon or interfering with the rights of the claimants on and in respect of the said land at Ijaba near Osuke village via Ota, verged RED and more particularly described in Survey plan No….KOA/OG 97/DP 13 by Surveyor Apatira dated 13/S/97.
4. The counter-claims of both sets of defendants are hereby dismissed for lack of merit.
5. Cost of #100,000.00 (One Hundred

Thousand Naira) is awarded against each set of defendants in favour of the claimants

Being dissatisfied, the appellants who were 7th – 10th defendants at the High Court lodged this appeal against the judgment vide Notice of Appeal of January 5, 2012 which shorn of their particulars raise the following nine (9) grounds of appeal. see pages 223 – 228 of the record.

The learned trial judge erred in Law holding that the evidence of the claimants’ witnesses appear to be consistent, conclusive, credible, and therefore probable and without any significant contradictions in the evidence of traditional history of the founding of the land in dispute by llebiyi their said ancestor, and how the land has devolved over the years on Ilebiyi’s descendants.

The learned trial judge erred in Law when he held that a lot of the evidence of the 2nd set of Defendants was at variance with their pleadings, as most of their evidence only show that they have land at lyesi, and not Ijaba as they claim and that by their own showing through their witnesses, they have absolutely no business with ljaba land, to which they are no more than mere boundary men.

The learned

trial judge erred in Law in arriving at the decision that upon the preponderance of evidence he is satisfied that the claimants have established and so find and hold that the land on which the salvation Army School and Church are built at Ijaba Dada Erin was granted by the claimants family rather than any of the defendants, families.

The learned trial judge erred in Law in holding that the Oruku stream, which is a major feature of the case, is and has been propitiated to ages by the Claimants’ family at Ijaba, indicative of the fact that they are the original owners of the land in dispute, as against the assertion to the contrary by the Defendants.

The learned trial judge erred in Law when he held that Taiwo Agbotu was a customary tenant of the Claimants rather than of any of the Defendants at Ijaba Dada Erin.

The learned trial judge erred in Law when he decided that as for the counter-claims of the 2nd sets of Defendants, based on all the evidence proffered, the narration and assessment of which I have done above and which I hereby adopt and rely upon in determining the two counter-claims, I hold that there is no merit whatsoever in them.

The learned Trial Judge erred in Law in declaring that the claimants are entitled to the right of occupancy in and over all that parcel of land lying being and situate at ljaba, near Osuke viilage via ota, verged RED and more particularly described in Exhibit “A” i.e. Survey plan No. KOA/OG 97/DP 13 drawn by Surveyor Apatira dated 13/8/97

The Learned Trial Judge erred in Law in granting an Order of perpetual injunction restraining the Defendants by themselves, their agents, servants or privies from trespassing upon or interfering with the rights of the claimants on and in respect of the said land at Ijaba near Osuke virlage via ota, verged RED and mote particularly described in Survey Plan No. KOA/OG 97/DP 13 by Surveyor Apatira dated 13/8/97 when the claimants have not been able to prove that they are the owners of the land in dispute.

The Learned Trial Judge erred in Law in awarding the cost of #100,000.00 (One Hundred Thousand Naira) against the 2nd set of Defendants in favour of the claimants when same was not claimed by the Claimants.