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 who 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.
The Plaintiff by his statement of claim claimed against the Defendants a declaration of right to statutory right of occupancy in respect of a piece of land lying and being at Odo-Ona, Elewa area of Ibadan, N1,000 damages for continuous trespass committed by the Defendants and their servants and agents on the land and an injunction to restrain the Defendants and their servants agents or prives from further tresspass on the land.
By the Plaintiffs amended statement of claim, it was averred inter alia in paragraphs 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 20, 21 & 22.
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"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.0020/85 prepared by Chief Ogunbiyi, Licensed Surveyor and dated 15/2/85.
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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.
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Akinlade fanned 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.
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On the death of Akinlade, the land became Akinlade family land and was inherited by his children.
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Akinlade begat; (1) Salami Adeoshun, alias Salami Atannagbowo (ii) Lawani Adeleke and (iii) Salawu Okunola-Atannagbowo begat only Morawo, Lawani Adeleke begat Owoola Moriamo, the Plaintiff, Raimi Adeleke, Ganiyu Adeleke and Mrs. Sidikatu Bakare, Salawu Okunola had no issue.
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Salami Atannagbowo, Lawani Adeleke, Salawu Okunola and Moriamo had died,
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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.
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12
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 £3 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.
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In 1975, the Plaintiff caused the land to fee 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.
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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.
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Sometimes 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.
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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.
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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.
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:-
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"With reference to para.4 of the Plaintiff's statement of claim, the Defendant avers that the plan No.0020/85 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.
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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:-
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"With reference to para.4 of the Plaintiffs statement of claim, the Defendant avers that the plan No.0020/85 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.
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With further reference to paragraph 4 of the statement of claim, the Defendant avers that the area within beacons YH6112, AF6110, ZL1906, ZL1912, ZL1906, ZL1911, AU5701, YH2870 and AF6110 on the Plaintiff plan No. OG20/85 of 13/2/85 is part of the Defendant's landed property situate lying and being at Odo Ona Elewe off Lagos Road, Ibadan.
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The Defendant avers that the land referred to in paragraph 3 above forms part of Aleshinlonye family land within the area in dispute and is bounded by Adesina, Olugbesan Adio Enitan, and Adio family lands, it is shown north of the 1" Defendant Plan No.LSAT7Y.70 of 11/12/85"
Defendant also claimed that the land in dispute belonged originally to Okunola Abasi, the grandfather of the Defendant who settled on the land immediately on his return from Ijaiye war where he fought alongside Bashorun Oluyole.
It must be noted in respect of the Statement of Defence filed respectively by the two Defendants, the Plaintiff with the leave of Court filed replies to each of them.
At the conclusion of the hearing, it became manifest following addresses by learned Counsels that the central issue for determination was whether the Plaintiff established his claim for declaration of title to the disputed land. The learned trial judge then resolved the question against the plaintiff thus:-
"It is settled law that where as in this case a Plaintiff predicates his claim for declaration of title on traditional evidence and the traditional evidence fails any evidence of long possession based on the traditional evidence and any claim for trespass and injunction based on it must also collapse with the claim for title. See Ogungbemi v. Asanu (19&39 S NWLR P.161 at 172."
The Claim of the Plaintiff was therefore for the above reasons dismissed. Being dissatisfied with that judgment of the trial Court, he appealed to the Court below. He lost his appeal to that Court, and this is a further appeal to this Court.
