Mr. Ajani Oyediran Oyeniyi V. Mrs. Ruth Adeleke & Anor. (2008)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J. C. A.

This is an appeal against the judgment of Hosn. Justice P. O. Aderemi, (as he then was) a decision of the Ogbomoso Division of the Oyo State High Court in Suit No. HOG/61/88 delivered on the 14th June, 1990.

The original Appellant in this appeal, Ajani Oyediran Oyeniyi had as Plaintiff claimed against the Respondents, the Defendants at the court below, per paragraph 24 of the former’s statement of claim as follows:-

“(1) Declaration that the Plaintiff is entitled to right of Occupancy to that piece or parcel of land situate, lying and being at Ajani Oyediran Oyeniyi family land at Isoko Area, Ogbomoso, verged Yellow in Plan NO.OB692A dated 25th day of January, 1989 and drawn by Bamigbose Licensed Surveyor;

(2) Two Thousand Naira (N2,000) damage jointly and severally against the defendants for trespass committed by the defendants on various occasions in September 1988 by going on the Plaintiffs piece or parcel of land situate at AJani Oyediran Family land at Isoko Area, Ogbomoso, by molding cement blocks thereon and erecting or constructing a building foundation thereon.

The trespass still continues;

(3) Injunction restraining the defendants, their agents, servants, privies, assigns and or any one claiming through them from committing any further acts of trespass on the said land”.

Pleadings were ordered, filed and exchanged. The Plaintiff gave evidence and called two other formal witnesses in proof of his case. These were Pw1, the Surveyor and Pw2, a Principal Registrar of the Ogbomoso Customary Court. The 2nd defendant testified personally. The defendants also called two other witnesses in opposition to plaintiff’s case. At the end of trial, Counsel on both sides addressed the court. In a well considered judgment, the trial court in dismissing plaintiff’s entire claims concluded thus:-

“In the present case, there is no shred of evidence that the Oyeniyi’s family has parted with its corporate ownership of the land in dispute in favour of the Plaintiff. It will therefore be a wrong exercise of the court’s discretion, having regard to the state of the pleadings and evidence to grant the first leg of the claims which is hereby dismissed.

“As to the second leg of the claims there is no evidence that the Plaintiff is or has been in physical possession of the land in dispute in the exercise of his right only as a joint owner of the land nor is there any evidence that he was allotted the land in dispute by the family; he has therefore not satisfied the requirements which will enable me enter judgment in his favour on that second leg.

As an order for injunction is only a necessary instrument to prevent repetition of a wrong complained of and since I have not found any wrong committed to warrant my acceding to the prayer contained in the second leg, there is no basis for granting an order of injunction.

In the final analysis, the plaintiff having failed to proved his case as formulated in his statement of claim deserved no other treatment than a dismissal of his claims and therefore the claims are dismissed in their entirety”.

The original plaintiff being dissatisfied with the foregoing decision of the trial court appealed against same on an amended notice containing six grounds. On the death of the original Appellant and following the order of this court dated 15th October 1997, he was submitted by the present Appellant, Sunday Oluatunde Oyeniyi. The plaintiff as substituted and the Defendant, the parties at the lower court, will for this appeal be referred to as Appellant and Respondent respectively.

Briefs have, in keeping with the rules of this court, been filed and exchanged. Parties have adopted and relied on these briefs as their arguments. They proffered no further oral arguments at the hearing of the appeal.