Chief Oloshe & Anor. V. Chief Joseph Ogunbode (2001)

LawGlobal-Hub Lead Judgment Report

BA’ ABA, J.C.A. 

This is an appeal against the judgment of the Ondo State High Court, sitting at Owo Judicial Division, in suit No. HOW/19/87, delivered on the 5th of July, 1994. The respondent, who was the plaintiff in the trial court commenced an action by a writ of summons, issued on 21/8/87 and claim against the defendants now appellants as per paragraphs 29 of the amended statement of claim, as follows:-

“29. Whereof the plaintiff claims against the respondents as follows:-

(a) A declaration that the plaintiff is entitled to the customary right of occupancy in accordance with the native law and custom to the piece or parcel of farmland situated and being at Oke-Oge Ugbo Ujeu camp, Ipele.

(b) N5,000 general damages for trespass committed and still being committed on the said farmland.

(c) An injunction restraining the defendants by their servants, agents and/or privies from committing any further acts of trespass on the said land.”

Pleadings were ordered, filed and exchanged. The case went to trial on the amended statement of claim dated 10/10/88, filed on 18/10/88 and amended statements of defence dated 11/11/88, filed the same date.

The plaintiff gave evidence and called two other witnesses while 1st and 2nd defendants gave evidence and called one witness. At the conclusion of the evidence of the parties, counsel for the parties addressed the court. In a reserved judgment, delivered on 5/7/94, the learned trial Judge inter-alia held:

“In summary, the plaintiff’s case succeeds and judgment is entered in his favour against the defendants.”

The learned trial Judge, granted all the reliefs claimed by the respondent as plaintiff.

Being dissatisfied with the judgment, the appellants, appealed to this court by a notice of appeal, containing four grounds of appeal at pages 154-157 of the record.

Briefs of argument were filed and exchanged by parties in accordance with rules of practice and procedure of this court.

The appellants formulated the following issues for determination in this appeal:

“(i) Whether the identity of the area of land in dispute over which order of trespass and injunction was given against the defendants certain and ascertainable to the court and the parties.