A Ola Yesufu V. Robinson Oluseyi Adama (2002)

LawGlobal-Hub Lead Judgment Report

O. ADEREMI, J.C.A. 

T

he action leading to this appeal was commenced on 17th February, 1976 (before coming into force of the Land Use Act 1978).

By the endorsement on the writ of summons, the plaintiff/hereinafter referred to as the respondent) claimed against the defendant (hereinafter referred to as the appellant) the following reliefs:

(1) A 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) N3,490.00 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.

Pleadings were ordered and filed by the parties. With the leave of court, both parties amended their respective pleadings.

The final pleadings filed and exchanged between the parties and upon which the case was fought and defended are the amended statement of claim and the amended statement of defence. The case proceeded to hearing before A.L.A.L. Balogun J. sitting at High Court of Lagos State, Ikeja Judicial Division upon the conclusion of the case and after taking the addresses of counsel, the learned trial judge, in a reserved judgment delivered on the 6th of January, 1987, found for the plaintiff/respondent and accordingly entered judgment in his favour.

Dissatisfied with the decision the defendant/appellant has appealed to this court upon a Notice of Appeal that carries four grounds. Distilled from the said grounds of appeal by the appellant for determination by this court are two issues which as set out in the body of his brief are as follows:-

(1) Whether the learned trial judge was correct in his application of Section 90 (1) of the Evidence Act and the principles enunciated in Etiko v. Aroyewun (1959)4 FSC 129. If not whether there was sufficient material before the court to justify the learned trial judge’s conclusion that there had been a partition of the land according to native law and custom.

(2) Whether in the light of the material flaws in the evidence adduced for the plaintiff as to damages the learned trial judge was right to have unquestioningly awarded special damages to the plaintiff.

For his part, the respondent through his brief of argument raised two issues for determination; as contained in the brief they are as follows:

(1) Whether having regard to the pleadings and the totality of the evidence, there are enough materials before the trial court to justify the finding that there has been a partition of the family land according to Yoruba Native Law and Custom.