Simeon Adesugba Ogundare & Ors V. Julius Alao (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This is an appeal brought by the defendants against the judgment of Hon. Justice M. A. Agbelusi, J. of the High Court, Ekiti State, holden at Omuo-Ekiti, delivered on 13th December, 2011 in Suit No. HOM/8/2007.

At the trial court, the respondent as plaintiff and in a representative capacity initially instituted the action against the 1st defendant/appellant alone, vide his writ of summons dated 18th July, 2007. Three reliefs were claimed therein. The 1st defendant/appellant’s statement of defence and counter-claim was filed on 29th July, 2008, while the plaintiff/respondent’s reply thereto was filed on 10th September, 2008.

Upon an application dated and filed on 17th February, 2009 and pursuant to an order of the trial court, made on 2nd October, 2009 the 2nd and 3rd defendants/appellants were joined in the suit also in a representative capacity. On 28th July, 2011 the defendants/appellants filed a joint statement of defence and counter-claim. Again, on 2nd August 2011 the plaintiff/respondent filed yet another reply to defendants/appellants further amended statement of defence and defence to counter-claim.

Finally and pursuant to the order made by the trial court on 28th October, 2011 the plaintiff/respondent filed an amended statement of claim on 3rd November, 2011. The reliefs claimed therein are reproduced below:

“WHEREOF Plaintiff claims against the Defendants jointly and severally as follows:-

(i) A Declaration that the Plaintiff with his Okeaye Community is entitled to the Customary Right of Occupancy in respect of the farmland situate lying and being at Okeaye farmland Isinbode-Ekiti.

(ii) One Million Naira (N1,000,000.00) damages for trespass committed and still being committed by the

Defendants upon the said piece or parcel of land which has always been in the lawful, peaceful and exclusive possession of the Plaintiff.

(iii) A Perpetual injunction restraining the Defendants, their servants, privies, agents and/or successors from committing any or further acts of trespass on the said land.

PARTICULARS OF DAMAGES

Special Damages

1. 50 Cocoa Trees at N2,000 each = N100,000
2. 100 Timber Trees at N5,000 each = N500,000
3. 10 Palm Trees at N5,000 each = N 50,000
4. 20 Plantain Stems at N1,000 each = N 20,000

Total = N670,000

General Damages = N330,000