A. Ola Yesufu Vs Robinson Oluseyi Adama (2010)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, JSC

The respondent was the Plaintiff at the High Court of Lagos State, Ikeja where in his Amended Statement of Claim dated 2-04-77, he claimed the following reliefs:

“1. Declaration of title in fee simple or alternatively under Yoruba Native Law and Custom to that piece or parcel of land situate at Balogun Street, Ikeja known as Plot 27 Balogun Layout.

2. N2,490.00 (Two thousand, four hundred and ninety Naira) being special and general damages for trespass committed by the defendant and/or his agents.
3. Injunction restraining the defendant, his servants and/or agents from further trespass on the land.”

The parties filed and exchanged pleading after which the case was heard by Balogun J. On 6-01-87, Balogun J. gave judgment in favour of the plaintiff/respondent in line with this claim. The defendant/appellant was dissatisfied with the judgment and brought an appeal against it before the Court of Appeal, Lagos (hereinafter referred to as ‘the court below’). The court below on 10-07-2002 in its judgment affirmed the judgment of the trial court. Still dissatisfied, the defendant has brought a final appeal before this court.

In the appellant’s brief filed on 4/1/04, the issue for determination in this appeal was stated to be thus:

“Whether the reliance by the learned trial judgment as well as the Court of Appeal on the recitals contained in Exhibits P1 is well founded in law. If not, whether there was in any event, sufficient material before the court to justify the conclusion that there had been a partition of the land according to Native Law and Custom.”

The respondent in his brief formulated the issue for determination differently thus:

“Whether having regard to the pleadings and the totality of the evidence adduced in this matter the court of appeal is justified in affirming the finding of the trial court that there has been a partition of the family land according to Yoruba Native Law and Custom.”

In resolving the solitary issue for determination in the appeal, it is necessary to consider the relevant averments in the pleadings of parties and the evidence called in support in order to determine whether or not the plaintiff made a sufficient case on the partition of the land in dispute.

In paragraph 3 to 12 of his Amended Statement of Claim, the plaintiff pleaded the source of his title thus:

“3. The land in dispute is the plaintiff’s land show on plan number PET 343/64 attached to the Plaintiff conveyance registered as number 3 at page 3 in Volume 1281 of the Lands Registry in the office at Lagos – known as plot 27, Balogun Layout.

4. The said piece of land formed a portion of a large area of land which originally belonged in fee simple to one LAWANI BALOGUN Alias Lawani Alagba or Lawani Giwa which interest was confirmed by a Deed of Declaration dated the 28th day of April, 1955 and registered as number 27 at page 27 in Volume 532 of the Lands Registry in the office at Ibadan.
5. The said LAWANI BALOGUN died intestate on the 3rd day of September, 1959 leaving him surviving eight children namely: DENDE BALOGUN, TIAMIYU BALOGUN, SAMOTA, ASHABI BALOGUN, AMUSA BALOGUN, SAWUDATU BALOGUN, DAWUDA BALOGUN, TIJANI BALOGUN, JELILI BALOGUN and many grandchildren, some of which are:- MUDASIKU OFEGE, MUDASIRU OFEGE, TAJUDEEN OFEGE (children of SABITU OFFEGE (deceased) nee BALOGUN] AYUBA AND AWANATU [children of ABUDU BALOGUN (deceased)].
6. The afore-mentioned DENDE BALOGUN was at all material time the head of the LAWANI BALOGUN family.
7. The Plaintiff avers that the said children and grandchildren caused a layout of the large parcel of land to be made and the land now in dispute is known as plot 27, Balogun Layout.
8. On or before about the 1st day of August 1964, at a Family meeting the said LAWANI BALOGUN Family made a general distribution of the landed and personal properties of the deceased LAWANI BALOGUN between the children and the grandchildren.
9. After the said general distribution each member took possession of his or her own share exercising maximum powers of ownership; some selling theirs and others dealing with it as he or she pleases. In support of this averment the Plaintiff will amongst others draw assistance from the following registered documents:

(a). Deed of Conveyance dated 27th July, 1965 and registered as number 35 at page 35 in Volume 854 Ibadan.

(b) Deed of Conveyance dated 24th November, 1965 and registered as number 30 at page 30 in Volume 899 of the land Registry at Ibadan now at Lagos.

(c) Deed of Conveyance dated 24th November, 1965 and registered as number 31 at page 31 in Volume 899 of the land Registry at Ibadan now at Lagos.