MR. Lekan Afolabi V. MR. Stephen Ola (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Osun State presided over by Hon. Justice M. A. Adeigbe in suit No. HIF/33/2005 delivered 26th September, 2012.

The appellant as plaintiff at the lower Court commenced this action by writ of summons accompanied by a statement of claim, both dated 15th September, 2005. Statement of defence and counter claim were filed on the 25th April, 2006 by the Respondent herein.

Plaintiff/Appellant later filed an Amended Statement of claim and a further Amended Statement of claim dated 19th Nov, 2007 and 5th March, 2010 respectively. The claims of the plaintiff/Appellant against the defendant/respondent are as follows:

1. That the plaintiff’s family is entitled to customary right of occupancy in respect of the land situate, lying and being at Gbagobago/Abanda and bounded as follows:-

First side by Samolfa through Elewura -idannu Footpath River Isasa, second side by River Isaasa, Third side by Abojukun/River Isaasa and on the fourth side by old Ibadan- Gbongan Ashipa-Ife Road, excluding the portion sold to Mr. Olatunji

ascribed in certificate of occupancy dated 20th April 1982, and certificate as NO. 37 at page 37 in volume 2443 of the Register of deeds.

2. Declaration that Mr. Oladele Olatunji is entitled to the certificate of occupancy issued to him and dated 20th day of April 1982, and registered as NO. 37 at page 37 in volume 2443, of the Register of Deed sold to him by the plaintiff’s family on 12th day of January 1978.
3. N100.000.00 damages for trespass committed since 17th may 2005 and still being committed by the defendant’s family.
4. Perpetual injunction restraining the defendant’s family privies agent servants, and those claiming through them from dealing in any whatsoever with the rand in dispute.

The respondent on the other hand filed his defence and counter claimed against the appellant as follows:

(a) The Counter – claimant is entitled to certificate of occupancy of the piece and parcel of land which is the subject matter of Suit HIF/33/05.

(b) The sum of N4, 000, 000. 00 (Four Million Naira being damages for the act of trespass committed by the plaintiff in the land in dispute.

(c) Perpetual injunction restraining the

plaintiff’s family, privies, agents and servants from dealing in any way whatsoever with the land in dispute.

SUMMARY OF FACTS:

The appellant’s case is that; the land in dispute in situate, lying and being at Gbagogbago, Agbanda, Ipetumodu and the boundaries are:

First side by:- Samolofa through Elewura or Idano footpath to river Isasa;