Raimi Akande & Ors V. Busari Alagbe & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiffs issued a writ against four defendants individually whilst plaintiffs sued for themselves and on behalf of Orukotan family there by in a representative capacity at the High Court of Oyo State holden at Oyo High Court in Oyo Judicial Division of Oyo State. The writs were served on the four defendants personally and individually. After services on defendants pleadings were filed, delivered, exchanged and amended with the result that the trial was concluded on amended pleadings. In the process of exchange of pleadings, the four defendants retained joint legal representation and applied High Court of Oyo State Civil Procedure rules to set up a counter-claim against the plaintiffs.

The amended pleadings are simply referred to as statement of claim, to be found at pages 10 to 13 of the record of appeal. The statement of defence and counter claim are at pages 14 to 17 of the record of appeal whilst the reply to the statement of defence and counterclaim covers pages 18 and 19 of the record of appeal.

As it is now settled law in our civil jurisprudence that the claim in the statement of claim supersedes the particulars of claim endorsed in the writ of summons. Plaintiffs’ claims are as pleaded in the statement of claim in particular in the following paragraphs of the statement of claim:

The 1st plaintiff is the head of Orukotan Family of Oyo.

2. All the plaintiffs are principal members of Orukotan family and they have the authority and consent of all the other members of Orukotan family to institute this action in a representative capacity for themselves and on behalf of all the other members of Orukotan family.
3. The 1st defendant is a trader of Ojutaiye village near Oyo, Oyo state.
4. The 2nd defendant is a petrol dealer of Egba Compound Isale Oyo, Oyo State of Nigeria.
5. The 3rd defendant is a farmer of Are Compound Oke Ona, Sango, Oyo, Oyo State of Nigeria.
6. The 4th defendant is a farmer of Legudu Compound Oyo, Oyo State of Nigeria.
7. The land in dispute is situate, lying and being at Kajola Lagbe along Odo Ogun River, Oyo, Oyo State of Nigeria and the same is more particularly described and edged ‘red’ on the attached plan No. APAT/OY/123/1987 drawn by Mr. A.B. Apatira Junior Licensed Surveyor. The plaintiffs shall rely on the said plan at the hearing of this action.
8. The land in dispute forms part of a vast area of land originally settled upon by one Orukotan who came from Oyo Ile to settle at the place now known and called Oyo Town.
9. The plaintiffs say that the said Orukotan was hunting on the land and later he started to farm on the land together with his children and other relations without let or hindrance and became owners of the same in accordance with Yoruba Native Law and Custom.
10. The said Orukotan died many years ago and was survived by many children and grandchildren including the plaintiffs herein now known and called members of Orukotan family upon whom the land devolved by way of inheritance in accordance with Yoruba Native law and Custom.
11. The plaintiffs say that the said Orukotan begat (1) Taiye (2) Agidanjobi (3) Fashola (4) Ojo Laba (5) Leke (6) Lanihun (7) Aina (8) Olaegbeode, (9) Titilola (10) Omolonu and (11) Opayemi.
12. Orukotan begat Laniwun who begat Arilomo who begat Aiyelagbe who begat Samuel Aiyelagbe who is the 1st plaintiff in this action.
13. Orukotan begat Arinola who begat Agidanjobi who begat Alagbe who begat Busari Alagbe who is the 2nd plaintiff herein.
14. Orukotan begat Olaegbede who begat Opayemi who begat Olaegbe who begat Amos who is the 3rd plaintiff herein.
15. Whereupon the plaintiffs claim against the defendants jointly and severally as follows;-

(1) A declaration that the plaintiffs are entitled to a customary right of occupancy over all that piece or parcel of land situate lying and being at Kajola Lagbe along Ogun River in Oyo State of Nigeria more particularly described and edged ‘red’ on composite plan No. APT/OY/123/1987 made by Mr. A.B. Apatira junior licensed surveyor.

(2) The sum of twenty thousand Naira (N20,000.00) being general and special damages for the acts of trespass committed by the defendants themselves, their agents and servants on the land verged ‘blue’ and ‘green’ in the attached plan No.APT/OY/123/1987.

(3) Perpetual injunction restraining the defendants by themselves, their agents and servants from committing further acts of trespass on the land in dispute verged blue and green and on the plaintiffs’ land verged ‘red’ in plan No.APT/OY/123/1987 aforesaid.”

The defendants pleaded to the statement of claim in their defence to the statement of claim and counterclaim in some paragraphs set out below:-

“2. With reference to paragraph 3 of the amended statement of claim the 1st defendant is a farmer at Kajola Ojutaiye village, Oyo.

3. With reference to paragraph 4 of the amended statement of claim the 2nd defendant is a contractor.
4. With reference to paragraph 5 of the amended statement of claim the 3rd defendant is a farmer at Kajola, Ojutaiye village, Oyo.
5. With reference to paragraph 6 of the amended statement of claim, the 4th defendant is a farmer at Kajola Ojutaiye village, Oyo.
6. With reference to paragraph 7 of the amended statement of claim, the land in dispute is situate, lying at Kajola, Ojutaiye along Odo Ogun River, Oyo and the 1st defendant’s land is verged red in plan No. GCS/160/OY89 on which the defendants will rely at the trial.
7. The land in dispute was granted to the father of the 1st defendant by Alaafin Ladigbolu of Oyo under Oyo native law and custom.
8. The father of the 1st defendant in his lifetime carried out extensive farming on the land and he planted some economic trees on the land.
9. The 1st defendant and his father have been in possession of the land for many years and their possession has never been challenged by the plaintiffs.
10. The father of the 1st defendant was in occupation of the land at the time of birth of the 1st defendant and the 1st defendant alone started to farm on the land when his father became old.
11. The father of the 1st defendant had customary tenants on the land in dispute in his lifetime and on his death the 1st defendant and his brother inherited the land.
12. When the 1st defendant’s title was challenged by one Mogaji Alabi, the 1st defendant sued the said Mogaji Alabi in the Customary Court, Akeesan, Oyo.
13. The 1st defendant was adjudged the owner of the land by the said Customary Court. The 1st defendant will rely on the records of proceedings and judgment of the said customary court.
14. Being dissatisfied with the court’s decision, Mogaji Alabi took the dispute to the then Alaafin of Oyo, Oba Adeyemi III who also decided in favour of the 1st defendant.
15. The 1st plaintiff’s father Aiyelagbe gave evidence in favour of the 1st defendant before the Alaafin and he (1st plaintiff’s father) duly attested a document to this effect together with the Alaafin, and others. The defendants will rely on this document at the trial.
16. The cash crops of the 1st defendant on the land were set ablaze by the plaintiffs.
17. With reference to paragraph 18 of the amended statement of claim, the father of the 3rd defendant (Alimi Adio) was granted some parcel of land at Kajola, Ojutaiye, Oyo by the grandfather of the present Alaafin of Oyo, Oba Adeyemi I.
18. With reference to paragraph 19 of the amended statement of claim the plaintiffs set fire on the houses of the tenants of the 3rd defendant, the 4th defendant and the crops of the 1st defendant, consequently, a report of the malicious damages of the property of the defendants was made to the Police.
19. The defendants will at the trial of the suit rely on the doctrine of laches, acquiescence and standing by.
20. The defendants aver that the title of the plaintiffs to the land, if any had been extinguished under the Limitation Law of Oyo State and the right of the plaintiffs to recover the land is statute barred under the limitation law of Oyo State.
21. Whereof the defendants say that all the plaintiffs’ claims are vexatious, speculative, misconceived and should be dismissed with substantial costs.

Counter claim.

46. The defendants aver paragraphs 1.45 of the further amended statement of defence.
47. Whereof the 1st defendant’s claim against the plaintiffs is for a declaration that the 1st defendant is the owner and entitled to a customary right of occupancy over all that piece or parcel of land situate lying and being at Kajola Ojutaiye, Oyo, Oyo State of and more particularly described and verged red in plan No. GCS/160/OY89.”

The plaintiffs replied to the statement of defence and counterclaim in their reply in the undermentioned paragraphs as follows:-

“1. The plaintiffs joined issues with the defendants on all paragraphs of the counter claims and put the defendants’ counter claimants to proof of all the averment contained in the statement of defence and counterclaims.

2. In answer to paragraph 7 of the statement of defence, the plaintiffs say as follows:-

(a) That the Alaafin Ladigbolu of Oyo has no power under Oyo native law and custom to grant the land in dispute to the father of the 1st defendant’s ancestors.