Iyabo Ajagunna (Substituted for Tawakalitu Wuraola Fabunmi (Deceased)) V. Moses Amusan (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiff now respondent in this appeal sued originally as defendant Tawakalitu Wurola Fabunmi Ile-Ife High Court of Osun State wherein there were exchanges and deliveries of pleadings which were amended with the result that the trial was concluded on amended statement of claim, amended statement of defence and reply to amended statement of defence.

As it is trite law that the particulars of claim set out in the statement of claim supersedes the particulars of claim set out in the writ of summons the claims of plaintiff/respondent are discernible in paragraph 34 of the amended statement of claim thus:-

“34. Where of the plaintiff claims against the defendant a declaration that he (the plaintiff) is entitled to be granted the customary right of occupancy of the farmland situate, lying and being at Ebe Okuta, Kola village via Modakeke Oramiyan (now He North) Local Government Area, Oyo State five thousand Naira (N5,000,00) general damages for trespass and injunction perpetually restraining the defendant, her agents, servants and/or privies from further committing any act of trespass on the said farmland.”

To substantiate his claim plaintiff/respondent called 4 witnesses apart from himself and through a licensed surveyor a survey plan of the disputed land admitted in evidence and marked exhibit A. The area in dispute was verged blue in exhibit A.

The gist or fulcrum of plaintiff’s case was as averred in paragraphs 5a and b amended statement of claim as follows:-

“(5a) Adekunle, the ancestor of the plaintiff was the first man to settle on the land in dispute for the purpose of hunting and farming about 100 years ago.

(5b) The plaintiff had been the lawful owner of the farm-land in dispute long before the promulgation of the Land Use Act of 1978.”

Plaintiff traced his genealogy from Adekunle his progenitor and ancestors who acquired the land by settlement and undisturbed long possession that covered a period of over 100 years and that the land did not belong to the defendant, nor her vendor through purchase of her land from her vendor Lawani Omidoyin and plaintiff denied vehemently that he was a customary tenant of the said Lawani Omidoyin. Plaintiff/respondent that since his ancestor settled on the land more than 100 years ago no member of his family and himself ever paid any Ishakole or tribute to any person in respect of the disputed land.

The defendant apart from herself also called 4 other witnesses through him exhibit B which was a survey plan of the disputed land in suit HIF/22/86 between Madam Wuraola Fabunmi as plaintiff therein but defendant in the judgment that gave rise to this appeal and Awawu Abike, Moses Amusan and Festus Adeyeye Williams as 1st, 2nd and 3rd defendants respectively.

The defendant in this appeal tendered in Ile-Ife High Court her land purchase agreement made on 4th day of February, 1974 between Mr. Lawani Glori and defendant in respect of piece or parcel of land described in the land purchase agreement admitted in evidence and marked exhibit C as follows:-

“The vendor is seized of a piece of land situate, lying and being of Kola Famia Road, Modakeke, Ile-Ife,

Western State of Nigeria measuring ten acres or thereabout bounded on all the four sides by the vendors’ land and having guaranteed his unencumbered title thereto hereby agrees to sell and does (sic) sell and the purchaser hereby agrees to buy and does (sic) buy the aforesaid piece of land for the sum ofN200.00 (two hundred Naira) the receipt whereof the vendor hereby acknowledges. The vendor in consideration of the above hereby undertakes to execute normal conveyance of the said piece of land whenever purchaser shall call upon him to do so.

The vendor hereby vouchsafes that the sale is an absolute sale of piece of land which he is the absolute owner and in possession and further agrees to save harmless and keep indemnified the said purchaser against all losses, costs, charges, damages and expenses which the said purchaser may sustain, pay or be put to by reason of or as a direct or indirect results of any adverse claims made by any person or persons in respect of the said piece or parcel of land covered by these presents.”