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  • 2004-08-09
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Fafunmi v. Onilude

YINKA FAFUNMI

SOLOMON OGUNFUNMI

( For themselves and on behalf of Olufi family )

V

MR. EZEKIEL S. ONILUDE

COURT OF APPEAL

(IBADAN DIVISION)

MURITALA AREMU OKUNOLA, JCA ( Presided )

SAKA ADEYEMI IBIYEYE, JCA (Read the Lead Judgment)

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

CA/I/145/95

WEDNESDAY, 17TH DECEMBER, 2003

ACTION - Counter-claim - Defendant whose counter-claim is for declaratory reliefs - Duty on to satisfy court of entitlement to

ACTION - Counter-claim - Meaning and purport of

ACTION - Representative action - Principle or rule as to - Nature of and how treated

ACTION - Representative action - When party can bring action in representative capacity - Order 8 rule 9, Ogun State High Court ( Civil Procedure) Rules, 1981, considered

APPEAL - Grounds of appeal - Ground on which no issue is formulated -  Effect of

ESTOPPEL - Estoppel per rem judicatam - Meaning of - Need to specifically plead

ESTOPPEL - Res judicata - Plea of - Conditions for successful plea of EVIDENCE - Land disputes - boundaries to the land in dispute - Oral evidence of - Failure to give - Effect

JUDGMENT AND ORDERS - Judgment or decision in personam - On whom binding

LAND LAW - Boundaries to the land in dispute - Oral evidence of Failure to give - Effect

LOCUS STANDI - Representative action - Plaintiff ’s locus standi to bring - Determination of

PRACTICE AND PROCEDURE - Counter-claim - Defendant whose counter-claim is for declaratory reliefs - Duty on

PRACTICE AND PROCEDURE - Pleadings - Statement of claim - Status of vis-a-vis writ of summons - Relief claimed in writ of summons but not claimed in statement of claim - Effect of

STATUTE - Ogun State High Court (Civil Procedure) Rules 1981, Order 8 rule 9 - Representative action - When party can bring WORDS AND PHRASES - Counter-claim - Meaning and Purport of

Issues:

1 Whether the learned trial Judge was right in holding that the plaintiffs lacked capacity to sue for themselves and on behalf of Olufi family because they failed to produce and prove authority from all the branches of Olufi family to initiate the action.

2.              Whether the learned trial Judge was right in coming to the conclusion that exhibits E-E7, F-F5 and G-G8 tendered in this suit offer no guide or help in discovering the owner of the land in dispute.

3.              Whether the learned trial Judge was right in giving judgment for the defendant on his counter-claim as he did.

4.              Whether the judgment of the trial court can be supported by the totality of the evidence led at the trial.

Facts:

The appellants herein as plaintiffs instituted an action in the Ogun State High Court of Justice claiming against the respondent declaration that they are entitled to a statutory right of occupancy in respect of the piece of land situate at Orita Pahayi, Omofe Quarters, Ilaro, Ogun State and injunction restraining the respondent from dealing with the said land in whatever form without appellants’ consent. The respondent equally counter-claimed for statutory right of occupancy to the said land in dispute.

At the trial, it was the appellants’ case that the large tract of land on their plan No. OGE410/85 (exhibit A2) was originally settled upon by Olufi, the progenitor of both the plaintiffs and the defendants. Olufi who migrated from Oyo and settled in Ilaro several years before, settled on the entire parcel of land and took effective possession and exercised various acts of ownership over it. On his death, his six surviving children who were Adeyi, Aiyesejo, Akinyemi, Lala, Odunlami and Enite inherited it. The plaintiffs admitted that the defendant and themselves are descendants of the children of Olufi. The Olufi family later adopted Aiyesejo-Olufi as the family name. According to them all the descendants of Olufi including those of Akinyemi, amongst whom were James Ogunfunmi and Joseph Ogunfunmi; the father of the 3rd appellant and grandfather of the respondent continued to occupy and farm on portions of land earlier occupied and cultivated by Akinyemi. That sometime between 1982 and 1984, the appellants’ family got wind of interference on some parts of the land indicated in the survey plan filed. That it was discovered that the defendant who claimed to be the exclusive owner granted permission to outsiders to go into the said land without first seeking the consent of the head of Olufi family. When the respondent refused to heed the warning to desist from making wrongful claims and repeating wrongful acts, the family initiated the action against him.

At the conclusion of the trial, the trial court dismissed the appellants’ claim in its entirety and granted the respondent’s counter-claim.

Dissatisfied, the appellants appealed to the Court of Appeal.