MR Samuel Onomo Fakoya & Anor V. MR. Kasimu Seidu Ijelu (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State, Ikeja Division, delivered by B. A. Oke – Lawal J. on the 20th day of February 2007 in suit No. ID/3074/94 wherein the claimants claim was dismissed.

The Appellants herein for themselves and on behalf of Otugorishen family in Ikorodu had as claimants in the lower Court, vide an amended writ of summons and statement of claim sought the following reliefs against the defendants (now Respondents);

(1) A Declaration that the plaintiffs are entitled to a grant of Certificate of Occupancy under the Land Use Act in respect of the Land situate at 13 Ipebi lkorodu Lagos State.

(2) N100,000.00 damages for trespass.

(3) Perpetual injunction restraining the defendant from building, constructing any building or committing any further act of trespass on the said land.

(4) An order of forfeiture of the defendants customary tenancy in respect of the plot or parcel of land situate and being at 13 Ipebi Ikorodu Lagos.

The Appellants’ case was that their ancestor, Chief Aafolu migrated from Ile Ife with his brother, Elemono and settled on the Ipebi Land where he built houses and planted Iroko trees. He also allocated the land in dispute to Elemono who upon his demise his children inherited the said land under Yoruba native law and custom.

The Appellants family had continued to exercise various acts of owner on the whole of Ipebi land including the land in dispute over a long period of time and all the houses surrounding the land in dispute (i.e No 13 Ipebi quarters) belong to the children of Aafolu.

The defendant’s father was at a time a customary tenant in the disputed land and upon his death his children continued to reside on it but are now denying the appellants title to the land and asserting ownership of it. They infact broke into and entered the said land on or about 15th November 1994 and attempted to commence building on it and upon a complaint to the police by the appellants they were adviced to resort to peaceful settlement.

The matter was referred to the traditional council which found in favour of the appellants but the respondents persisted in seeking to erect structures on the land hence this suit was instituted.

However, the Respondents as defendants in the lower Court did not file any statement of defence or participate in the trial during which the appellant called one witness and tendered a survey plan. At the conclusion of the trial and adoption of the plaintiffs written address, the learned trial judge in a reserved judgment dismissing the suit, held as follows:-

“Furthermore the claimant must succeed on the strength of his case and not on the weakness of the defendant, I find that the evidence of the claimant is very weak, not cogent, and totally insufficient to succeed on a claim for declaration of title.

I find that the claimant has failed to lead sufficient evidence to establish his claim of title or customary tenancy between them and the defendant since claimants failed to establish his claim the answers to issue 1 and 2 will be in the negative and therefore issue 3 will be inapplicable and irrelevant.