IN THE HIGH COURT OF OGUN STATE

IN THE ABEOKUTA JUDICIAL DIVISION

HOLDEN AT ABEOKUTA
SUIT NO: AB/629/2023
BETWEEN
MR. OLUWATOYIN SUNDAY SAMUEL ------ CLAIMANT
AND
MR. MARTINS AKINFENWA ADETUNJI ------ DEFENDANT
(Sued as Persons Unknown)

CONDITIONAL MEMORANDUM OF APEARANCE

Please enter conditional appearance for Mr. Martin Akinfenwa Adetunji sued as
Unknown Persons in this action.

Dated this ……… day of February 2024

Olaolu IDOWU-AGIDA, Esq.

Charity ADALOMO (Mrs.)
O. H. OLORUNSOGO (Ms.)
Defendant's Counsel
Royal Wig Advocates
No. 3 Adeyemi Street
Near Kaslat Ventures
Oke Lantoro, Abeokuta
Ogun State.
0803-335-4221
olaolu91@yahoo.com
FOR SERVICE ON:
The Claimant
C/o his counsel
O.A. OGUNDOWO, Esq.
Olapade Awowole & Co.
Km 37, Asakun House
Lagos/Abeokuta Expressway
Sango
Ogun State
08023193841
 IN THE HIGH COURT OF OGUN STATE
IN THE ABEOKUTA JUDICIAL DIVISION
HOLDEN AT ABEOKUTA
SUIT NO: AB/629/2023
BETWEEN
MR. OLUWATOYIN SUNDAY SAMUEL -- CLAIMANT/RESPONDENT
AND
MR. MARTINS AKINFENWA ADETUNJI -- DEFENDANT/APPLICANT
(Sued as Persons Unknown)

NOTICE OF PRELIMINARY OBJECTION

BROUGHT PURSUANT TO ORDER 5 RULES 1 & 2 OF THE HIGH COURT
OF OGUN STATE (CIVIL PROCEDURE) RULES 2014 AND UNDER THE
INHERENT JURISDICTION OF THE HONOURABLE COURT

TAKE NOTICE that at the hearing of this suit, the Defendant/Applicant shall by way
of preliminary objection be challenging the jurisdiction of this Honourable Court to
entertain this suit and shall be heard, praying this Honourable Court for an order
striking out this suit for lack of jurisdiction.
AND TAKE FURTHER NOTICE that the grounds of the objection are as follows:-
i. Non-compliance with the Rules of the court which is not a mere irregularity but a
fundamental defect.
ii. Failure of the Claimant/Respondent to bring before the Honourable Court the
details of the facts of the suit for proper adjudication.
iii. The facts of the case are contentious and should not be brought by way of
originating summons.

Dated this………. day February 2024

Olaolu IDOWU-AGIDA, Esq.

Charity ADALOMO (Mrs.)
O. H. OLORUNSOGO (Ms.)
Defendant's Counsel
Royal Wig Advocates
No. 3 Adeyemi Street
Near Kaslat Ventures
Oke Lantoro, Abeokuta
 Ogun State.
0803-335-4221
olaolu91@yahoo.com
FOR SERVICE ON:
The Claimant
C/o his counsel
O.A. OGUNDOWO, Esq.
Olapade Awowole & Co.
Km 37, Asakun House
Lagos/Abeokuta Expressway
Sango
Ogun State
08023193841
 IN THE HIGH COURT OF OGUN STATE
IN THE ABEOKUTA JUDICIAL DIVISION
HOLDEN AT ABEOKUTA
SUIT NO: AB/629/2023
BETWEEN
MR. OLUWATOYIN SUNDAY SAMUEL -- CLAIMANT/RESPONDENT
AND
MR. MARTINS AKINFENWA ADETUNJI -- DEFENDANT/APPLICANT
(Sued as Persons Unknown)

AFFIDAVIT IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION

I, Mr. Martin Akinfenwa Adetunji, male, Christian, Nigerian citizen residing at 28B,
Adeola Street, Madina Estate, Gbagada, Lagos do hereby make oath and state as
follows;
1. That I am the Defendant/Applicant in this suit and by virtue of which I am
conversant with the facts deposed herein.
2. That sometimes in January 2024, I went to my property located at Ofada town,
Obafemi Owode Local Government area of Ogun State and saw a court process
left on the land, the Originating Summons for Possession of this instant suit
AB/629/2023.
3. That I have read through the originating summons and the Affidavit in support, in
response, I state as follows:
i. That I am the owner of the parcel of land measuring approximately 8951.615
Square metres situated along Owode Road, opposite Trinity International
College, Ofada town, Obafemi Owode Local Government area, Ogun State
Nigeria, which is more particularly shown in survey plan number
OG/1567/2007/009 prepared by surveyor Qlaniyan K. Adejare, dated
28/11/2007. The said survey plan is attached and marked Exhibit A.

ii. That I was introduced to the land by one Mr. Shodimu alias “Baba Taju”,
who is now deceased.
iii. That upon showing interest in the land, I was introduced to the Baale of
Ofada town and his Chiefs as the vendors of the land. That I paid the sum of
N3, 000, 000 (Three Million Naira) to the Baale and the Chiefs in
consideration for the land. After paying the sum, I was issued a receipt
evidencing the sum N3, 000, 000 (Three Million Naira) paid and a Land Sale
Agreement was executed on my behalf in proof of the land purchase. The
 receipt for the sum of N3, 000, 000 (Three Million Naira) dated 04 – 12 –
2007 and the Land Sale Agreement dated 4th day of December, 2007 between
Chief Rabiu Adewunmi and two others and Mr. Martin Akinfenwa Adetunji
is attached and marked Exhibit B and Exhibit C respectively.
iv. After paying N3, 000, 000 (Three Million Naira) to the Baale and the Chiefs,
I came upon information that the land is originally belonged to the Flecher
family, the Fletcher family only commissioned the Baale and the Chiefs to
sell on their behalf and not as owners of the land.
v. That upon this discovery, I paid an additional sum of N2, 000, 000 (Two
Million Naira) to the Fletcher family, after which a Land Sale Agreement was
executed between us. The Land Sale Agreement made between The Fletcher
family representatives and I is marked and attached and as Exhibit D.
vi. That after the purchase from the Fletcher family, I was put in full possession
of the land and cultivated yam on the land year after year and my presence on
the land was known to the community dwellers, and they know me as the
owner of the land since I purchased it. I also erected a fence to secure the land
in the year 2007.
vii. That sometimes in 2019, I was accosted by the some community
representatives that I had to get rectification from them for me to freely use
my land. That paid the sum of N1, 200, 000 (One Million, Two Hundred
Thousand Naira) to the community for the rectification of the land. The
photocopy of the cheque received by the community leaders is attached and
marked Exhibit E.
viii. That after the community leaders received the cheque of N1, 200, 000 (One
Million, Two Hundred Thousand Naira), a Deed of conveyance signed by the
Executive Committee Memebers of Ofada Community was issued to me. The
Deed of conveyance issued to me by the Ofada Community Committee on
Land and Development issued to me is attached and marked as Exhibit F.
ix. That after I purchased the land in 2007 I have been in possession of the land,
paying frequent personal visits to my land and cultivating yam on the land
year after year till date. I have even erected a fence on the land since 2007.
x. That some developments have been made on the land since I purchased the
land. I have dug borehole on the land. There is an uncompleted structure of
three rooms on the land built for farm storage purposes. That I also have on
the land, a row of shops yet to be completed.
xi. That during the Governor Amosun’s Government, road construction was
carried out in the Ofada Community. The road construction ate into part of
 my fence, which destroyed part of my fence. This gave opportunity to the
Claimant/Respondent who possesses the adjourning land to trespass into my
land by two plots for the purpose of erecting his gate.
4. I state further that the Claimant/Respondent is not the owner of the parcel of land
measuring approximately 8951.615 Square meters situated along Owode Road,
opposite Trinity International College, Ofada town, Obafemi Owode Local
Government area, Ogun State and he has no right whatsoever over the land. I have
been in active possession of the land since 2007 and the Claimant’s/Respondent’s
claim of having purchased the land and been in possession since 2010 is false.
There is no activity of the Claimant/Respondent on the land to support his claim.

5. That It will be a gross miscarriage of justice if the Claimant’s/Respondent’s

application is granted.
6. That the Claimant’s/Respondent’s Originating Summons for Possession be struck
out for being inappropriate and lacking merit.
7. That I do solemnly and sincerely make this affidavit in good faith, believing its
content to be true and correct and in accordance with the Oaths Act of Ogun State.

----------------------
DEPONENT

Sworn to at the High Court Registry Abeokuta

Dated this………..day of…………………2024

BEFORE ME

COMMISSIONER FOR OATHS

 IN THE HIGH COURT OF OGUN STATE
IN THE ABEOKUTA JUDICIAL DIVISION
HOLDEN AT ABEOKUTA
SUIT NO: AB/629/2023
BETWEEN
MR. OLUWATOYIN SUNDAY SAMUEL -- CLAIMANT/RESPONDENT
AND
MR. MARTINS AKINFENWA ADETUNJI -- DEFENDANT/APPLICANT
(Sued as Persons Unknown)

WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY

OBJECTION

1.0. INTRODUCTION
1.1. The Claimant/Respondent brought this suit by way of Originating Summons
dated the 1st day of September 2023, applying for recovery of possession of land
at along Ofada Owode Road, Ofada town, Obafemi Owode Local Government
area of Ogun State on the ground that he is entitled to possession over the land.
The Claimant’s/Respondent’s Application is supported by a 26 paragraph
Affidavit, 6 Exhibits and a Written Address.
1.2. The Defendant/Applicant in response brings this Preliminary Objection
challenging the competence of this suit and prays the Court for an order striking
out the Application of the Claimant/Respondent for want of Jurisdiction. The
Preliminary Objection is supported by a 7 paragraphed Affidavit and this Written
Address.
2.0. ISSUES FOR DETERMINATION
2.1. My Noble Lord, the lone issue formulated for determination is-
Whether in the circumstance of the case the Honourable Court can entertain and
grant the Application of the Claimant/Respondent.
3.0. LEGAL ARGUMENT
3.1. The Claimant brought the action under order 53 of the High Court of Ogun State
(Civil Procedure) Rules 2014 which is a special summary procedure for
possession of landed property occupied by squatters or without the owner’s
consent. It is used in cases for the recovery of possession of land where the title
of the Claimant to the land, the size and identity of the land is not in dispute. It
should be used only where no serious disputes as to facts arises. It cannot be
 brought against a person who claims adverse ownership or right of interest. m/s
OMIDISU G. LTD v. ODUYEMI & ORS 2012 O.G.S L.R. 316. Originating
Summons should only be applicable in circumstances where there is no dispute
on questions of facts or even the likelihood of such dispute. UNILAG V. M.I.
AIGORO (1991) 3 NWLR (Pt. 170) 3 at 76; NATIONAL BANK OF
NIGERIA V. LADY AYODELE ALAKIJA & ANOR. (1978) 9 & 10 S.C. 59;
(1978) 2 LRN 75.
3.2. My Lord, this is not the case in the instant suit. We put forward that from the
affidavit attached to the Originating Summons of the Claimant /Respondent, the
Claimant /Respondent claims title to the land, which is very contentious. In the
Affidavit in support of Notice of Preliminary Objection of the
Defendant/Applicant, it is obvious that the Defendant/Applicant also claims title
to the land. This indicates a dispute in the facts averred to by the
Claimant/Respondent. As it is a well settled principle of law that civil suit should
not be commenced by Originating Summons where there is dispute or likelihood
of dispute on the facts, Originating Summons is in no way the proper way to
institute the action. Originating Summons are only applicable where there are no
disputes on question of facts. CHUKU V. TOLHEI (2018) LPE LR-45951
(CA) pages 20-21
3.3. For the title of the parties to be proved my Lord, oral evidence needs to be given
in order to determine who owns title to the land. It has been decided by the court
that where there are conflicts in the facts contained in the affidavit and counter-
affidavit, it is the law that in such situation oral evidence shall be given to resolve
the conflict. See C. U. MBOJI & SONS LTD V. A. I. AHUMANYA (2000) 6
NWLR (Pt. 669) 498; EZE V. A.G. RIVERS STATE (1999) 9 NWLR (Pt.
619) 430; FALOBI V. FALOBI (1976) 9 & 10 S.C. 1
3.4. We submit that where it is evident from the affidavit evidence before the Court
that there would be an air of friction in the proceedings, an originating summons
is no longer appropriate. The appropriate way to institute hostile proceedings
where facts are in dispute is by way of Writ of Summons.
3.5. Furthermore my lord, it is our position that for the Court to determine whether a
Court has jurisdiction to entertain a matter, it is the processes filed before it (in
this case the Originating Summons, Affidavit in Support) that a Court is enjoined
to look at. Jurisdiction is defined as the authority which a Court has to decide
matters that are litigated before it or take cognizance of matters presented in a
formal way acceptable for its decision. See MADUKOLU V. NKEMDLIM
(1962) 2 SCNLR page 341; BRAITHWAITE V. GRASSROOT
DEMOCRATIC PARTY (1998) 7 NWLR (Pt. 557) 307 at 377.
4.0. CONCLUSION
4.1. In conclusion, we humbly submit that this Honourable Court lacks Jurisdiction to
entertain this matter going by the mode of its commencement. The matter being
highly contentious should not be commenced by way of Originating Summons
but by way of Writ of Summons.
4.2. We humbly urge my Lord to strike out the Claimant’s/Respondent’s Application
on the premise of the arguments put forward by the Defendant/Applicant.
4.3. May it please my Noble Lord.

Dated this………. day February 2024

Olaolu IDOWU-AGIDA, Esq.

Charity ADALOMO (Mrs.)
O. H. OLORUNSOGO (Ms.)
Defendant's Counsel
Royal Wig Advocates
No. 3 Adeyemi Street
Near Kaslat Ventures
Oke Lantoro, Abeokuta
Ogun State.
0803-335-4221
olaolu91@yahoo.com
FOR SERVICE ON:
The Claimant
C/o his counsel
O.A. OGUNDOWO, Esq.
Olapade Awowole & Co.
Km 37, Asakun House
Lagos/Abeokuta Expressway
Sango
Ogun State
08023193841