Alhaji Emiola Amusa Adeleke Vs Bayo Asani (2002)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C.

This action which has resulted in this appeal was commenced by the plaintiff on his own behalf and the Akinlade family by a writ of summons in Suit No. 1/567/84 against S.A. Aremu. Following the death of S.A. Aremu, Bayo Asani was substituted for him and became the 1st defendant/respondent in this appeal. He defended the action on behalf of himself and the Adesina family. Later in the proceedings, Alhaji Wahabi Abasi was with the leave of the trial court joined as the 2nd defendant and he defended the action on behalf of himself and the Abasi Aleshinloye family.

By paragraph 26 of the plaintiff’s amended statement of claim, his claim read as follows: –

“Wherefore the plaintiff claims against the defendants for

(i) A declaration that the plaintiff’s family, Akinlade family of Popoiyemoja, Ibadan, are entitled to the Statutory Right of Occupancy in respect of the land in dispute, lying and being at Odo-Ona Elewe area, Ibadan bounded on the first side by Olugbesan family land, on the third side by Ojesola family land and on the fifth side by Eniyitan family land.

(ii) N1,000 damages for continuing trespass committed by the defendant and other members of his family (Adesina family), their servants and agents on the said land since February, 1984.

(iii) Injunction to restrain the defendant and members of his family, their servants, agents, privies, and those claiming through them from committing further acts of trespass on the land in dispute.”

The parties who duly filed and exchanged pleadings, also gave evidence through their respective witnesses. In order to appreciate the case of the parties, the relevant portions of their pleadings would be set down. By the plaintiff’s amended statement of claim, it was averred inter alia in paragraphs 4, 5, 6, 7, 8, 9, 10, 12, 13, 14,20, 21 & 22.

“4. The land in dispute is at Odo-Ona Elewe, Ibadan, bounded by Olugbeson, Okulu, Eniyitan or Oniyitan, Ojesola and Olalere Adegoke family lands. It is verged red on plan No. OG20/85 prepared by Chief Ogunbiyi, licensed surveyor and dated 15/2/85.

5. The plaintiff avers that Akinlade was a warrior and a farmer. He acquired the land described above by settlement under the native law and custom about 120 years ago during the reign of Bashorun Ogunmola (1865-1867) and thereby became the absolute owner thereof.
6. Akinlade farmed on his land and planted kolanut, palm trees, orange trees, yams, maize and other crops on the land. His slaves and children helped him also to farm on the land. He also built a village house, which had now gone into ruins on the land. The site is shown on the plaintiff’s plan.
7. On the death of Akinlade, the land became Akinlade family land and was inherited by his children.
8. Akinlade begat: (i) Salami Adeoshun, alias Salami Atannagbowo, (ii) Lawani Adeleke and (iii) Salawu Okunola . Atannagbowo begat only Morawo, Lawani Adeleke begat Owoola Mariamo, the plaintiff, Raimi Adeleke, Ganiyu Adeleke and Mrs. Sidikatu Bakare, Salawu Okunola had no issue.
9. Salami Atannagbowo, Lawani Adeleke, Salawu Okunola and Moriamo had died.
10. Both Salami Atannagbowo and Lawani Adeleke farmed on the land after the death of their father, while Salawu Okunola farmed at Podo, on another farm of Akinlade. They engaged the services of Igbira to help them on the land in dispute; among the Igbira who farmed on the land with their children were Ekun, Sadiku, Onipe, Mathew and Jimoh and others died. When Ekun died he was buried on the land.
11. On the death of Messrs Salami Atannagbowo and Lawani Adeleke about 17 & 13 years ago respectively, the said land was put in charge of Alhaji Ibrahimoh Onipe, an Igbira man, who used to pay a 33 per annum for his use of the land to the plaintiff, who had since the death of Lawani Adeleke became the head of the family.
12. In 1975, the plaintiff caused the land to be surveyed by J.F. Ososami, licensed surveyor who produced plan No. JF 07847 dated 10/1/76. The land was not surveyed up to Seleru stream at that time.
13. Sometime in 1977, the plaintiff sold two plots of the land to Alawi verged ‘yellow’ and marked ‘A’ on the plaintiff’s plan, one plot to Ganiyu Agboola verged ‘blue’ and eight plots to Mr. Omotunde marked ‘C’ and verged ‘orange’ on the plaintiff’s plan. The purchasers had since remained in undisturbed possession of the holdings. The area of the land trespassed upon by the defendants is verged ‘green’ on the plan.
14. Sometime in February 1984, the defendant broke and entered the land in dispute, damaged many of the survey pillars buried to demarcate the plots of the layout, the boundary walls. He also claimed ownership of the land in dispute for his family.
15. The defendant also between April and May 1984 carved out an area measuring about 350ft by 225ft, and built a wall about 5ft high to mark it out on the land. He also caused buildings to be started on the land. The areas of the defendant’s trespass are verged ‘green’ within the land in dispute.
16. The defendant refused to remove the offensive structure on the land inspite of repeated warnings to the defendant verbally and in writing by the plaintiff. The plaintiff then sued the defendant to the court.”

The 1st defendant filed a 33 paragraph statement of defence, the thrust of his defence is that the plaintiff has no claim to the disputed land. Hence by the 1st paragraph of the said statement of defence, all the averments made in the claims of the plaintiff were denied seriatim and in toto, and therefore put the plaintiff to the strictest proof thereof. The defendant further pleaded in paragraphs 4, 5, 6, 7,8 of his statement of claim that the land in dispute belonged originally to Adesina, the grandfather of the defendant, who had acquired the land by settlement under native law and custom during the reign of Oba Oluyole. Defendant further averred that Aiyerina, a brother of Adesina also came from Ogbomosho to settle with him on the disputed land. Defendant also traced the family from Adesina and identified the children of Adesina and Aiyerina who succeeded them as the owners of the disputed land. The defendant identified himself as the son of the first son of Adesina, the founder of the land. Defendant also pleaded the relationship between his family and Salami Atannagbowo in paragraphs 14, 15, 16, 17, 18,19 & 20 of his statement of defence, thus: –

“14. With reference to paras. 10 & 11 of the plaintiff’s statement of claim, the defendant avers that Salami Atannagbowo was a farm labourer who ran away from Podo, his father’s farm, a day previous to the time he was to get married and came to stay with the members of Aleshinloye family whose family land is adjacent to the land in dispute.

15. The defendant says that Salami Atannagbowo who specialised in palm wine tapping was engaged by many people around the land in dispute to help them tap their palm trees.
16. The defendant further states that Salami Atannagbowo who was in the habit of going round the village at night to demand for money owed him by people for whom he tapped wine became known around the villages as Salami “Atannagbowo” (meaning – Salami who demands debt with lighted lamp) instead of Salami Adeosun his original name.
17. The defendant avers that sometime in 1958 Adesina family found Salami Atannagbowo on Adesina family land over which Joseph of Siba’s compound was made a caretaker.
18. The defendant states that when Salami Atannagbowo was challenged by members of Adesina family, he, Atannagbowo informed the family that Joseph, the family’s caretaker pledged the farm to him for a loan of N15.00 (fifteen naira) borrowed by the said Joseph.
19. As a result of the facts stated in para. 18 above, members of Adesina family refunded the sum of N15.00 borrowed from him by Joseph and demanded for a receipt which was given by Salami Atannagbowo to members of Adesina family. The defendant shall found on the said receipt at the hearing of this case.
20. That after members of Adesina family had refunded to Salami Atannagbowo the money owed him by Joseph, and after Adesina family had regained possession of the family land (sic) from Salami Atannagbowo, the family decided to sell a portion of the land.”

As part of his defence, the defendant also challenged the authenticity of the survey plan pleaded by the plaintiff when he averred thus in paragraphs 2 & 4, thus: –

2. With reference to para. 4 of the plaintiff’s statement of claim, the defendant avers that the plan No. OG20/85 dated 13/2/85 prepared by Chief S. Akin Ogunbiyi licensed surveyor is not correct because it does not accurately show the position of the land in dispute viz-a-viz the extent of the defendant’s family land.
3. With reference to para. 13 of the plaintiff’s statement of claim, the defendant says that he does not know anything about the plan said to have been drawn by one J.F. Ososami. At any rate, the said plan is not the same with the plan of the land now in dispute and does not show the land now in dispute in this case.”

The 2nd defendant also filed his statement of defence in which he denied all the averments of the plaintiff seriatim and in toto. He also in the said statement of defence specifically denied paragraph 4 of the plaintiff’s statement of claim and pleaded in paragraphs 2,3 & 4 of his pleadings, thus: –

“2. With reference to paragraphs (sic) 4 of the plaintiffs statement of claim the defendant avers that the plan No. 0020/85 dated 13/2/85 prepared by Chief S.A. Ogunbiyi licenced surveyor, is not correct because it does not accurately show the position of the land in dispute vis-a-vis the extent of the defendant’s family land.