Asani Sogunro & Ors V. Aremu Yeku & Anor (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiffs at the OTTA Judicial Division of High Court of Ogun State, holden at Otta, issued a writ of summons against the defendants, the writ was duly indorsed and served on the defendants. After service of the writ of summons on the defendants, pleadings were ordered, filed, exchanged and amended, the plaintiffs’ case was concluded on further amended statement of claim with the claims of plaintiffs set out in paragraphs 33 and 34 of the further amended statement of claim as follows:-

“(33) The defendants being tenants of the plaintiffs, have by their actions, denied the plaintiffs’ title and have claimed ownership absolutely or through other source.

(34) Whereof the plaintiffs’ claim:-

(a) A declaration of forfeiture of the defendants’ tenure under native law and custom.

(b) Possession of the said land.”

As the particulars of claims supersede the particulars of claims in the writ of summons J.O. Lahan v. Lajoyetan (1972) 6 Sc. 190. Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) Page 314 SC.; Ogun v. Akinyelu (1999) 10 NWLR (Pt.624) page 671 CA., Onyero v. Nwadike (1996) 9 NWLR (Pt.471) page 231 CA; Fasanya v. Adekoya (2000) 15 NWLR (Pt.689) page 22 CA. The claims of the plaintiffs are as set out in paragraphs 33 and 34 in the further amended statement of claim.

To establish the claims, plaintiffs called 7 witnesses with the main plank based on traditional evidence and acts of ownership by plaintiffs in respect of parcel of land occupied by plaintiffs for farming at IBASA in IGANUN village of Ogun State, which land was more particularly described as per the survey of disputed land by the 7th PW licensed surveyor, who surveyed the land, the plan was admitted in evidence as exhibit 2. 7th PW identified the signature of AKINBOGUN, a deceased licensed surveyor, who carried out the survey of the disputed land for the defendants. The disputed land survey for the defendants was admitted as exhibit 3.

The 1st PW testified about ABINU and ADEJONBI, who were his maternal great-grand-parents, who were from Alawe dynasty of Igaun. Their projenitor ABINU MIGRATED FROM ILE-IFE to IJEBU IFE, from where he moved and lived in IGANUN, from there he used to hunt and farm at IBASSA. It was there that the defendants’ ancestors came to plaintiffs’ forefathers ADEJONLU, who granted the land to which the defendants succeeded, to which land they now claimed ownership. 1st PW was granted power of attorney with 5 other persons to institute the action. The power of attorney was admitted without objection as exhibit 1. The defendants like their forefathers paid customary tributes in form of yams, palm product, etc to the plaintiff. The defendants dealt with the land by refusing to pay tributes and laid ownership to the land in dispute. There was no survey plan attached to exhibit 1.

The 1st PW was cross examined and denied that defendants were from Igbein and came to settle on the disputed land.

The 2nd PW principal witness for the plaintiffs testified partly thus:-

“I have heard of a man called ABINU. He is my great-grandfather. He first lived at Ibasha from Ile-Ife. When Abinu left Ife, he went to Ijebu-Ife and then went to Ibasa amidst thick forest, settled at Ibasa and hunting and people, came from Igaun, to partronise him. He asked prospective buyers to meet him, where he slaughtered meats into pieces – That is why the place is called Ibasa. He used Ibasa as working place, after selling his meat then, he would return to Igaun. Later people farming came to meet him at Igaun and begged for farming land, which Abinu granted them.

Adejonlu is my great grandfather. Abinu is the father of Adejonlu. Those who came to ask for farming land from Abinu were Odeyale and Odeleye (They are brothers). They came from Abeokuta and were granted land to farm.

I remember a place called Olowotedo, near Ibasa. That was where Odeyale built his house; and settled at Olowotedo. His brother Odeleye, settled at Abata (bank of a swamp) where Adejonlu was. Another younger brother to Odeleye (called Yeku) came and stayed with Odeleye – he too farmed.