Salisu Bada Irawo-osan & Anor. V. Chief J. O. Folarin (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The Appellants as Plaintiffs instituted an action at the High Court, Abeokuta, Ogun State, wherein they claimed – a Declaration that they are the Customary Owners and are entitled to a Statutory Right of Occupancy of the two plots of land situate and being at Ganiyu Lamina Street, Pejuola, Idi Aba, Abeokuta”;

Perpetual Injunction; and N50,000.00 as damages for trespass Committed. The Appellants traced their ownership of the land in dispute to Pa Amodu Ejalonibu, who had only one daughter – Madam Rukuyat, and they averred as follows in paragraph 7 – 9 of their Statement of Claim dated 24th March 1998-

7. Upon the death of Pa Amodu Ejalonibu, the ownership of the large expanse of land – – including the two plots passed to Madam Rukayatu –
8. Madam Rukayatu Ejalonibu on her first marriage, married Pa Bosobo of Ikopa Village and begat John Bosobo.
9. Madam Rukayatu later divorced Pa 8osobo and married Pa Koleoso of Bada Compound, Isale Itoko, Abeokuta and begat Yusuf Irawo-Osan.

The Defendant (Respondent herein) filed an original “Statement of Defence and Counter-Claim” dated 10th September 1998 wherein it was averred that-

6. The Defendant denies paragraphs 8 – 10 of the Statement of Claim and states that Madam Rukuyat contracted only one marriage throughout her lifetime.
7. That further to paragraph 6 above, the Defendant states that Madam Rukuyat was married only to Pa Bosobo of Ikopa, Abeokuta to whom she begat John Bosabo.
8. That Madam Rukuyat never married Pa Koleoso nor gave birth to Yusuf Irawo-Osan. (Italics mine).

The Respondent repeated the same averments in paragraphs 6 – 8 of his Amended Statement of Defence and Counter-Claim dated 23rd October 1998. The Appellants then amended their pleadings and the Appellants again averred in paragraph 7 of the Amended Statement of Claim dated the 7th of October 1998 that Madam Rukayatu’s first marriage was to Pa Sosobo of Ikopa Village, and they further averred as follows in paragraph 8 thereof-

“The Plaintiffs aver and confirm that contrary to the averment of the Defendant, Madam Rukayat after she had begotten John for Pa Bosobo – – entered into a second marriage with Pa Koleoso…”. (Italics mine).

The Respondent dropped his Counter-claim, and in the “Second Amended Statement of Defence” dated 10th January 2000, it was averred as follows-_

6. The Defendant contrary to paragraphs 8 and 9 of the Amended Statement of Claim states that Madam Rukuyat did not contract any marriage with Pa Koleoso neither did Madam Rukayat begat Yusuf Dada Irawo-Osan and Olubo nor was she buried at Bada Compound, Isale- Itoko, Abeokuta.
7. The Defendant states that Pa John Bosobo during his lifetime did not stay at Isale-Itoko or Bada Compound with Pa Koleoso and Madam Rukuyat or anyone whatsoever at Isale-Itoko.
8. That Madam Rukayat during her lifetime was married only to Pa Bosobo of Ikopa and begat John Bosobo (Italics mine).

At the trial that ensued, four witnesses testified for the Appellants, including the 2nd Appellant, who testified as PW1 on the 10th of April 2000, and said-

“Madam Rukayatu divorced- – and she married one Pa Bosobo. She begat one issue namely John Bosobo. Pa Bosobo died and Madam Rukuyat returned to Chief Koleoso’s house with John Bosobo. Yusuf Irawo-Osan, Olubo and John Bosobo are of the same mother. Madam Rukayat died at Chief Koleoso’s house – – and she was buried there.”.

The matter was adjourned to the 25th of April 2000 for his cross-examination.

Before that date, the Appellants filed a “Reply to Amended Statement of Defence” dated 18th April 2000 wherein it was averred as follows-

7. Madam Rukayat on her first marriage married Chief Koleaso at Isale Itoko, Abeokuta and begat Yusuf Bada Irawo-Osan and Olubo.
8. The Plaintiffs aver that after Madam Rukayat had begotten Yusuf Bada Irawo-Osan and Olubo for Chief Koleoso, she divorced and entered into a second marriage with Pa Bosobo at Ikopa and there begat John.
9. The Plaintiffs say further that both Yusuf Bada and Olubo were two senior brothers to John.
10. It was an established fact that after the death of Bosobo, Madam Rukayat again went back to settle with her first husband, Chief Koleoso.

11.The Plaintiffs aver further that Madam Rukayat while going back to settle with her first husband, Chief Koleoso, she took John Bosobo along with her, thus making John an adopted son of Pa Koleoso. (italics mine).

Under cross-examination on the 25th of April 2000, the 2nd Appellant replied-

“I did not tell my lawyer that Madam Rukuyat first married Bosobo, reference paragraph 8 of the Statement of Claim filed on 26/3/98 (sic). I did not tell my lawyer as stated In paragraph 7 of the Amended Statement of Claim filed on the 8th October 1998 that Madam Rukuyat first married Bosobo”.