Jimoh Atanda V. Memudu Iliasu (2012)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The plaintiff’s claim at the trial High Court of Kwara State was for a declaration of title on a piece of land situate at Budo Isale Olooru village. The claims as stated in both the writ of summons and at paragraph 28 (1)-(5) of the Statement of Claim are as follows:-

“28 (1) A declaration that the plaintiff as the head of Abosede family has the customary right to sue for and on behalf of other members of the family.

(2) A declaration that the land situate at Budo Isale in Olooru village measuring 10.804 hectares belong to the Abosede family.

(3) An order of this court directing the defendant to pay the compensation of N200,000.00 to the plaintiff for the damages caused to the plaintiff’s land.

(4) An order directing the defendant, agents, servants and privies to vacate the land situate at Budo Isale Oloom village.

(5) An order of perpetual injunction restraining the defendants, agents, servants and privies acting or purporting to act in any manner as the customary owner of the land situate at Budo Isale Olooru village measuring 10.804 hectares.”

In response to the plaintiff’s claims, the defendant also filed their defence and Counter Claimed that:-

“they are the traditional owners of the land at Ehinkule/Budo Isale the subject matter of this litigation.

An order of perpetual injunction restraining the plaintiff’s family, agents, or privies from committing further act of trespass in the land in dispute. An order nullifying the customary right of occupancy purportedly issued by the Moro Local Government in favour of the plaintiff over the land in dispute.”

The brief facts of the plaintiff’s case are that he is of a direct lineage to one Mallam Abosede who founded Abosede in Olooru and who was the customary owner of a land measuring 10.804 hectares situate at Abosede area, Olooru village. He claimed that it was his forefather who was the 1st settler and that the Olooru village met his father already on the land. That Abosede is not within Olooru, but near Olooru. That the families known as Olooru are Tambaya, Ile-Alagbe, Ile Ojude and Ile Oju-Oja. That the defendants in this case are Tambaya and Ile alagbe families. That Abdullahi was a muslim, while the fore-father or the plaintiff was a traditionalist who worshipped Orisa-nla and that because of the difference in religions, Abdullahi gave Abosede the present place where his descendant (plaintiff’s family) now live called Budo Isale. It is in the evidence of the defendant in particular DW4 in chief that Budo-Isale Abosede and Ehinkule are one and the same place. The plaintiff alleged that the defendant trespassed onto their land measuring 10.804 hectares. The defendants on their part claimed that a parcel of land given to one Baba Olodo by the Abosede family falls within their land at Ehinkule Ile-Alagbe and deny liability.

In summary the defence case is that when the forefather of the plaintiff came, he met the defendant’s forefather called Abdullahi who founded Olooru, with his four children. That the plaintiff’s forefather was a guest of Abdullahi.

The plaintiff/appellant called six witnesses to substantiate their case, and also testified as PW7. On behalf of the defence, five witnesses were also called inclusive of the defendant. Relevant to state that the parties prosecuted the case in representative capacities. At page 50 of the record, the learned trial judge in a reserved judgment held thus and said:-

“Failure to identify the distinct area covered by this 10.804 hectares is vital to the case of the plaintiff and an injunction cannot be granted on an indefinite portion of land, the area must be distinct. For this reason the claims of the plaintiff at paragraph 28(2), (3), (4) and (5) must fail and it is hereby dismissed.”