Chief Aderibigbe Jeoba V. Osho Owonifari (1974)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

In this case, the plaintiff’s claim in the Akure High Court against Chief Oniran of Orin reads-

“(1) Declaration of title to the piece or parcel of farmland situate and being at Ese ltaoloke in Ode Ekiti and more particularly described on the plan to be filed later;

(2) 50 pounds general damages for trespass committed by the defendant, his servants and/or agents on the said land;

(3) Injunction restraining the defendant, his servants, agents, and all those deriving title through him from committing further acts of trespass.”

At the hearing on 27th April, 1964, both the plaintiff and the defendant were present and were both duly represented by counsel. Pleadings were ordered and were duly delivered. Paragraph 2 of the plaintiff’s statement of claim reads

“2. The defendant is the head of the Orin Quarter of Ikole- Ekiti and is being sued as representing the said Orin Quarter of Ikole-Ekiti.”

This paragraph was admitted by the defendant in his statement of defence in which he averred further in paragraph 15 as follows:

“15. The defendant has exercised dominion over the land by placing tenants on the land for over 15 years and these tenants planted cocoa, kolanut trees and cash crops. All other averments in paragraph 16 are denied.”

On three occasions between 13th November, 1967, and 7th May, 1968, when the case was listed before the court for mention, Mr. Ajibade of counsel appeared for the defendant. At the hearing on 4th December, 1968, the court was informed that the defendant was ill. On 15th May, 1969, the court was told by learned counsel that he had died. Consequently, at the hearing on 3rd November, 1969, learned counsel for the defendant observed as follows:

“This action is taken in a representative capacity but the Oniran of Orin is dead. The person in court is only one of them. Mr. Ojuolape promised to bring someone before the court, against whom they can proceed. He said this about five months ago and nothing has been done. It appears the plaintiffs are not willing to proceed with their case. If Mr. Ojuolape had been here I would have applied for the case to be struck out.”

However, on 21st September, 1970, the plaintiffs applied to the court to substitute one Osho Owonifari (the present defendant) for the deceased defendant. Paragraphs 7 and 9 of the affidavit filed in support of the application read

“7. That I made enquiries as to the successors in title of the deceased defendant and I was informed and I verily believed that Osho Owonifari is the successor in title

9. That from his activities on the land I verily believe that he intends to confirm the defendant’s claim to the land and to continue the acts of trespass previously commenced by the defendant”

The application was granted on 19th April, 1971. When the hearing started on 20th April, 1971, the plaintiff testified as follows: