Lasisi Kode V. Alhaji Suara Yussuf (2001)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The appeal herein (a hybrid of a sort) which the appellant designate as a case involving land as well as interlocutory application both rolled into one, had its roots in the High Court of Oyo State holden at Ibadan. There, the two original plaintiffs, Tiamiyu Adeagbo (now deceased) and Alhaji Lamidi Atanda, for and on behalf of Odetunde family sued the defendant (Alhaji Suara Yussut) for title to Statutory Right of Occupancy to Odetunde family land at Oke-Ode in Ibadan on which their ancestor Odetunde settled.

After the commencement of the action, Alhaji Lamidi Atanda, who also eventually died, brought an application for an injunction against the defendant/respondent to restrain the latter from entering or building on the land and in a 32-pargraph affidavit in support thereof, he deposed to the following relevant averments:-

“1. That I am the 2nd plaintiff/respondent/appellant in this appeal.

2. That our claim against the defendant/respondent as per our statement of claim is as follows:

(l) The plaintiffs claim against the defendant a declaration to a statutory or customary right of occupancy to all that piece of land verged red on Plan No. APAT/OY/06/1986

(2) The plaintiffs also claim N10,000.00 damages against the defendant for trespass committed by the defendant, in respect of the said parcel of land sometime in December 1984, which trespass is still continuing.

(3) The plaintiffs also claimed perpetual injunction restraining the defendant, his servants, agents and privies from committing further acts of trespass on the land in dispute.

3. That the land in dispute is situate at Oke-Ode, Agbamu, Ibadan and that before the institution of this action, the plaintiffs/appellants who are descendants of one Odetunde line in Odetunde Compound, Isale Ijebu, Ibadan, where the ancestors of the defendant’s vendors also lived.
4. The said Odetunde had 4 (four) parcels of land at Ibadan and one at Ibuko (Bode) is within Ibadan town, the others are farmland including the one at Agbamu. In 1964 when the descendants of the defendant’s vendor took action in suit 1/122/64 against the defendants of plaintiffs’ ancestor claiming joint ownership of the land at Bode in Ibadan, they were asked to go to Customary Court to settle the question of family status.
5. That the said descendants of defendant’s vendor took action suit CV/5/68 in Ibadan Grade A Customary Court claiming declaration that they are members of the plaintiffs’ family, but their claim was dismissed.
6. That in the said proceedings they admitted that Odetunde had other 3 (three) parcels of land and named the land in dispute at Agbamu as one of them. The proceedings and judgment in suit CV/5/68 were tendered as Exhibit 6 in the High Court.
7. That in 1978 when members of the defendant’s vendors trespassed on portion of the land in dispute and were sued in suit B2/CV/18/78 they changed the name of their ancestor to Odebanbi. The case was not fought to finality because the Customary Courts were wound up.
8. That in 1984 when the defendant trespassed on the land in dispute and after he has been sued, the plaintiffs brought an application for interlocutory injunction against him to restrain him from entering and building on the land in dispute.
9. That the plaintiffs filed an affidavit in support of the motion and deposed to their root of title to the land in dispute as follows:

Paragraph 4 – That the land in dispute was settled upon by Odetunde the ancestor of the plaintiffs many years ago.

Paragraph 5 – That Odetunde has another parcel of land at Ibuko, Ibadan which was granted to him by late Alesinloye.

Copy of the affidavit which is at pages 4 – 6 of the record of appeal is attached as Exhibit ‘A’.

10. That the defendant/appellant/respondent swore to a counter affidavit to which was attached an agreement for sale of land purportedly signed or thumb printed by his vendors as descendants of Oderinde family.
11. That it is the same people who in 1968 claimed to be members of Odetunde family and in 1978 claimed to be members of Odebambi family who now claimed to be members of Oderinde family.
12. That on 3rd February, 1986, counsel for the plaintiff/respondent/appellant filed statement of claim and averred in paragraph 3 as follows:-

“The land in dispute formed part of land settled upon by one Odetunde, the ancestor of the plaintiffs many years ago after grant by Alesinloye during the reign of Maye after the Egbas and Ijebus have (sic) been driven away from the area.”

Copy of the 5 pages of the statement of claim at pages 33 – 37 of the record is attached as Exhibit ‘B’. Copy of statement of defence at pages 54 -57 is attached as Exhibit’B1′.

13. That on 12th February, 1987, the 1st PW gave evidence as follows:

– See page 69 lines 20 – 29: –

“I know the land in dispute … The land is at Oke-Ode, Agbamu Road near Sanyo in Ibadan. The land is 150 acres. My family got on the land during the Ibadan Ijebu war.