Chief Dr. A. O. Odeleye & Ors. V. Chief Afolabi Adepegba & Ors (2000)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

This is an appeal against the ruling of the High Court of Justice Oyo State, in the Oyo Judicial Division-Coram Justice T.A.A. Ayorinde in an application for joinder delivered on the 15th of July,1991.

In the writ of summons issued out in the Oyo Judicial Division of the High Court of Oyo State on the 5th of February, 1991. The action in suit No. HOY/11/91 was commenced by Chief Afolabi Ajibade (Baale Ahora Ojomgbodu); David Ajibade Adeniyi; Samuel Oladejo Adeyemo and Olaniyi Adeoye for themselves and on behalf of other members of Ojomgbodu family as plaintiffs, and Chief (Dr.) A. O. Odeleye, Sangomakinde Akanni; Alhaji Lasisi Adejumo; Lajire Oke; Yekini Oyemakin, Iyiola Oyebanji; Madam Ayannihun Ayansola; Chief Inaolaji Aiyelagbe; Tafa Adebayo; and Aborade Alonge as defendants.

A claim of four reliefs was originally endorsed on this writ of summons on 8/2/91. By order of court on 5/3/91, the writ and statement of claim were amended whereupon three reliefs were added. Following the accepted fundamental rule of our civil procedure that averment in the statement of claim supersedes the particulars of the writ of summons, and that the claims of the plaintiffs are discernable from the averments reflected in some paragraphs of the statement of claim. see Lahan v. Lajoyetan (1972) 6 SC 190; Atoyebi v. Bello (1997) 11 NWLR (Pt.52S) page 265; Military Administrator, Delta State v. Olu of Warri (1997) 7 NWLR (Pt.513) page 430; Ajayi v. Military Administrator, Ondo State (1997) 5 NWLR (Pt.504) page 237 SC.

Plaintiffs averred and pleaded in their statement of claim as follows in paragraph 26:-

Paragraph 26. Whereupon the plaintiffs claim against the defendants jointly and severally as follows:

A declaration that 2nd, 3rd, 5th, 9th and 10th defendants are customary tenants of the plaintiffs in respect of their individual holdings within the land settled upon by Adegbayi who was the plaintiffs’ Ancestor at Ojomgbodu settlement Oyo in the Oyo State of Nigeria which land is more particularly described and delineated and edged Red separately in the composite plan to be filed later in this action.

(2) An order of injunction restraining the 2nd, 3rd, 8th, 9th and 10th defendants from going beyond the respective area of land granted to them as customary tenants of the plaintiffs within the land settled upon by Adegbayi at Ojomgbodu Oyo, Oyo State of Nigeria. More particularly described and edged ‘Red’ in a composite plan to be filed later in this action and from trespassing on the area of land belonging to the plaintiffs or granted to other customary tenants of the plaintiffs within the land in dispute.

(3) An order that the 2nd, 8th and 10th defendants as customary tenants of the plaintiffs on the land in dispute should continue to pay their respective customary tolls to the plaintiffs to avoid forfeiture of their customary tenancies.

(4) The sum of One Hundred Thousand Naira (N100,000) being general damages for the breach of the covenants of the defendants as Customary Tenants of the plaintiffs in respect of the area verged red in a plan to be filed in the action.

(5) Forfeiture of the Customary Tenancies of the 3rd and 9th defendants in respect of their holdings as customary tenants of the plaintiffs within the land settled upon by Adegbayi at Ojomgbadu Oyo State of Nigeria which land is more particularly described and edged Green on a composite plan to be filed later in this action.

(6) The sum of Four Hundred Naira (N400) being general damages for the trespass committed by the 1st, 4th, 5th, 6th and 7th defendants on the land settled upon by the ancestors of the plaintiffs at Ojomgbodu, Oyo, Oyo State of Nigeria more particularly described and edged Red on a composite plan to be filed later in this action.

(7) Perpetual injunction restraining the 1st, 4th, 5th, 6th and 7th defendants by themselves, their agents, servants and persons claiming through them from committing any further acts of trespass on the said.”

The defendants before the lower court fall into two categories according to the foregoing claim for the plaintiffs the 2nd, 3rd, 8th, 9th and 10th defendants who were alleged customary tenants of the plaintiffs within the land of the plaintiffs’ family at Ojomgbodu Oyo, and the 1st, 4th, 5th and 6th and 7th defendants who were trespassers on the land belonging to the plaintiffs’ family. The plaintiffs’ case was that their ancestor called Adegbayi settled upon a vast area of land including the land in dispute several years ago. The defendants and members of their families were their customary tenants who refused to pay while the 1st, 4th, 5th, 6th and 7th defendants were trespassers who came on the land through the other defendants as an outcome of a court action. On the 20th day of May, 1991, H.R.H. Alayeluwa Oba Lamidi Olayiwola Adeyemi III (The Alaafin of Oyo) filed an application in this case praying for an order of court to join him in the suit HOY/11/91 as the 11th defendant. The application for joinder was not opposed by the 10th defendant, while the 2nd, 3rd, 8th and 9th defendants were neutral. The 1st, 4th, 5th, 6th and 7th defendants opposed the application along with the plaintiffs on the ground that he was not a necessary party to the proceedings. The application joining Oba Adeyemi as the 11th defendant to the suit before the lower court was granted on the 15th of July, 1991, on the hypothesis that the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th defendants are his customary tenants based on the affidavit evidence before the court.