Madam Abiose Abegbe & Ors. V. Fasasi Kobiowu & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

By a motion on Notice dated the 22nd January 2001 and supported by a 17 paragraph affidavit., the present Respondents as Plaintiffs sought from the High Court of Justice sitting at Ibadan, Nigeria, the following orders .-

“An Order of Interlocutory Injunction restraining the defendants, their servants, agents and privies from digging the land for building purposes, commencing and continuing building operations on the land, digging the land for extraction of sand, leasing and alienating any part of the land in dispute pending the final determination of the substantive suit in this case and for such, further order or other orders as this Honourable court may deem fit to make in the circumstances.

The Appellants as defendants in the court below filed an 18 paragraph counter affidavit on the 26th March 2001. The motion went on to be argued by both Counsel for the parties and in a considered ruling delivered by Jimoh J. on the 19th June 2001, the Court ruled in favour of the plaintiffs and granted the orders sought by them. It is this ruling that is being appealed against by the defendants now Appellants.

The Plaintiffs’ affidavit in support of their motion reads as follows –

I, Alhaji Sadiku Kobiowu, Male, Carpenter, Nigerian of S2/81 Kobiowu’s Compound, Oranyan Ibadan, make oath and state as follows: –

1. That, I am the second plaintiff/Applicant in this Motion.
2. That I have the authority of the other Plaintiff and members of my family to swear to this affidavit.
3. That our, claims against the Defendants in this case are:
4. A declaration that the plaintiffs’ family, are entitled to a Statutory Right of Occupancy in respect of the Land in dispute Situate, lying and known, as, Osunseni Village, near the New Airport about 8 Kilometers to Mapo Hall, bounded by Ikuogbolekun, Sarumi and Apata family lands.
5. A, declaration that Osunseni family represented by the first and second Defendants have incurred forfeiture, under native law and custom of the land in dispute, which they occupy as plaintiffs’ family’s Customary tenants at Osunseni, by reason of misconduct by denying the title of the Plaintiffs’ family to the land, refusing to pay Ishakole, and selling portions of the land to others.
6. As against the third to eight Defendants

N1,000 damages against each of the 3rd, 4th, 6th 7th and 8th Defendants for continuing trespass committed on the land in dispute.

4. An order that the Defendants do deliver up possession of the said land, to the plaintiff.
5. Injunction restraining the Defendants their servants, agents, privies and, those claiming through them from further coming to the land in dispute.
6. That between Osunseni Village and Sarumi family land there is L shaped wall fence which demarcated two sides of osunseni village from Sarumi Village; that between Ikuogbolekun and Apata family land and Osunseni village there is a stream called Osun which runs through the remaining two sides of Osunseni-Village.
7. That sometime it December 2000, I visited Osunseni Village in company of Lasisi Kobiowu, my Cousin.
8. That we observed that about five structures which were on D. P. C. level and stopped when we sued the Defendants to court had been built up to level and, are now ready to be roofed.
9. That we also observed that sand is extracted in an area close to the wall fences demarcating Osunseni to Sarumi’s land.
10. That as we did not authorise any one to extract sand we queried those met on site, they explained that someone in the Village authorized them to extract the sand.
11. That unless restrained the workers will dig the Soil to a fault whereby any development of the area will cause much more money than is necessary.
12. That the whole Village is about 10 acres in area and that if, we allow houses to spring up here and there in the Village, the space there will soon get exhausted.
13. That our compound at Oranyan have been developed to its, full capacity, that the family may not find it easy to direct members of our family to land in dispute to make use of part thereof, unless the Respondent are restrained from further building on the land in dispute.
14. That it was the sale of part of our land at Osunseni by inmate of the village that some of the grandchildren of Osunseni are selling lands to others.
15. That it was the sale of part our land at Osunseni land by the inmates that started trouble amongst them whereby our attention at Kobiowu Compound was directed to the place.
16. That it was thereafter that went to the village and saw that about two houses had been completed and that about five others are in various stages of development.
17. That when I visited the site last week, the number of completed houses had increased to six while the uncompleted had increased to about twenty.
18. That we are ready to enter into recognisance to pay, damages to the Respondents if it turns out that the Respondents should not have been restrained.
19. That I make this oath in good faith believing same to be true.

The defendants/counter affidavit at page 26 of the Record of appeal reads as follows:

I, Taru Agboola, Male, Businessman, and Nigerian, of Osunseni Village do make oath and say as follows:-

1. That I am the second Defendant in this suit.
2. That I have the authority of all the Defendants to swear to this affidavit.
3. That I have seen the affidavit in support of the motion on notice dated 22-01-2001 and say paragraph 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 & 17 are UNTRUE.
4. That the 1st & 3rd Defendants being the owners of the lands in Osunseni Village have continued to exercise various act of ownership on the land.
5. That in furtherance of Paragraph 4 above, we have built many houses on the land prior to the time we are taken to courts and some of our members also sold their interest in the lands.
6. That when we were taken to court our lawyer told us that our members building on the land should stop and we complied.
7. That the writ of summons of the Plaintiffs were dated 8-09-99 but when they were unable to effect personal service they did not file a motion for substituted service until 19-1-2000 which was granted on 9-2-2000.
8. That the enrolment of order for substituted service and writs of summons were served on 2-3-2000.
9. That since 27-3-2000 the Plaintiffs only filed their statement of claim on 16-10-2000 (a time lag of 7 months and 19 days instead of 60 days given to them by law).
10. That the plaintiffs did not file their statement of claim until the Defendant filed and served a motion on notice dated 10-10-2000 praying for the striking out of the Plaintiffs’ case for wants of diligent prosecution. The said motion is still before this Honourable court.
11. That the Plaintiffs’ Counsel fail (sic) to appear in court on 16-10-2000 when the case was still before Honourable Justice Adeniji and consequently they did not regularize their statement of claim which was later regularized on 7-3-2001.
12. That with specific reference to paragraph 6 of the affidavit in support of the motion, it was after some of our family members, notice (sic) that, the Plaintiffs are not interested in prosecuting their case that they resumed the building of their houses which they had earlier stopped and since this motion was served on us we have been told to stop by our lawyer, we have complied.
13. That in plaintiffs know that they do not have a good case this is why it took them over one year to file and regularise their statement of claim.
14. That with specific reference to paragraphs 7 & 8 of the affidavit in support of the motion, some of our members are earning their living on the said land and should they be restrained they will be jobless and have no means of livelihood.
15. That if this Honourable court to grant us expeditious hearing of this case.
16. That we want this Honourable court to grant us expeditious hearing of this case.
17. That damages cannot compensate for the loses (sic) we are going to incur if this Honourable court should grant plaintiff’s prayer.
18. That I swear to this affidavit in good faith.

Arguments of counsel were in line with the affidavit evidence and the averments in the respective pleadings. The Learned trial Judge made a restraining order of interlocutory injunction against the defendants from digging the land for building purposes, commencing and continuing building operation on the land; digging the land for excavation of sand, leasing and alienating any part of the land in dispute pending the final determination of this case.

The defendants as Appellants filed a Notice of Appeal contained at pages 46-50 of the Record of appeal. The said Notice of Appeal consists of eight grounds listed hereunder:-

(1) The learned trial judge misdirected himself when he failed and/or neglected to pronounce on the Defendants’ counsel’s application urging him to strike out paragraph 12 of affidavit in support of the motion on notice dated 22/01/2001 and filed on 23/01/2001.

(2) The learned trial judge erred in law when he held that the plaintiffs have legal right to the land in dispute.

(3) The learned, trial judge erred in law when he held that the Defendants by their paragraphs 12 and 14 of their counter affidavit admitted, some of the averments in the affidavit in support of Motion on Notice.