Alhaji Adetoro Lawal V. Bello Salami & Anor (2001)

LawGlobal-Hub Lead Judgment Report

MORONKEJI OMOTAYO ONALAJA, J.C.A.

The plaintiffs originally instituted the action at OSHOGBO HIGH COURT in a representative capacity for themselves and other members of GBENA FAMILY OF OFATEDO. In the course of trial, pleadings filed, delivered and exchanged were amended by both parties several times. After the closure of trial with the case adjourned for addresses of learned counsel to the parties, the plaintiffs brought an application to further amend the plaintiffs’ amended statement of claim and the survey plan of the land in dispute admitted as Exhibit A by deleting the words GBENA FAMILY OF OFATEDO from the writ of summons, and the amended statement of claim with the words “EESO’s FAMlLY OF OFATEDO” as recorded at page 33 lines 11 to 16 of the record of appeal. The defendant through his learned counsel opposed the further amendment at the stage of proceedings. The learned trial Judge gave his ruling as follows:

“Court ruling in this application will be delivered along with the judgment in the substantive suit.”

I have looked but in vain in the judgment of the learned trial Judge which judgment covered pages 43 to 63 of the record of proceedings. At page 45 of the record of appeal in reviewing the evidence of 2nd Plaintiff reads thus at line 36 as follows:

“Under cross examination by Chief Akande the 2nd plaintiff denied knowing one Salawu Ajayi or Monisola Ajayi. He however admitted knowing Awero Ajayi. He also did not know ONIDA Family in Ofatedo. He confirmed knowing Bello Ojo who is also known as Bello Salami (the 1st plaintiff). He also knew Lamidi Asumo. He claimed that BELLO OJO, LAMIDI ASUMO and himself (the 2nd plaintiff) belong to Eeso’s family and not GBENA FAMILY.”

Apart from the above, there was no comment in the judgment about grant or refusal by the learned trial Judge the reserved ruling supra about deleting GBENA FAMILY for EESO FAMILY. The plaintiffs’ claims against the defendant were as set out in paragraph 30 of the amended statement of claim as follows:

“(i) A DECLARATION that the Plaintiffs are the persons entitled to a Statutory Right of occupancy to the piece or parcel of land consisting of an area approximately 9.865 Hectares verged BLUE and shown on Plan NO. OMS/OSMISC/08/91 drawn by E. O. OMISOLA AND ASSOCIATES, Licensed Surveyor and bounded as follows:

(a) On the front or Northern side by Osogbo to Iwo Road.

(b) On the Eastern side by ADEGOKE FAMILY landed property.

(c) On the Southern side by ONIFADE Family land.

(d) On the Western Side by YEMOJA Stream.

(ii) FIVE THOUSAND NAIRA (N5,000.00) general damages for trespass committed by the defendant on plaintiff Family Land at YEMOJA.

(iii) PERPETUAL INJUNCTION RESTRAINING the defendant, his servants, agents or privies from committing any further acts of trespass on the said piece or parcel of land.”

The 2nd plaintiff and four other witnesses testified for the plaintiffs whilst the defendant and four other witnesses testified for the defendant.