Alhaji Sikiru Gborigi Adelakun & Anor V. Ganiyu Muyibi Bakare Iseogbekun & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

This is an appeal against the judgment of the Lagos High Court sitting in Ikeja delivered on 6th February, 1995. The appellants who were plaintiffs in the court below took out a writ of summons against the 1st to 3rd respondents who were the original 1st to 3rd defendants in that court. Pleadings filed and exchanged between the plaintiffs/appellants and the original 1st to 3rd defendants/respondents were later, with the leave of the court, amended. Trial of the case commenced. At a stage in the cause of trial the 4th to the 6th respondents applied to be joined as defendants in the case, on the 11th of April, 1990. Consequently, the parties had to amend their pleadings. The 4th to 6th defendants/respondents also counterclaimed.

The plaintiffs/appellants’ sought per their amended writ of summons, the following reliefs against the defendants/respondents jointly and severally:

(1) A declaration that the hereditaments situate and known as No. 24 Onisemo Street, Lagos is the family property under Yoruba Native Law and Custom of the descendants of Ajegun Bashua (deceased).

(2) Possession of such portion of the said hereditaments as are in the possession or control of the defendants or any of them

(3) And the account of all rents and profits collected by the defendants from tenants on the said hereditaments and payments over of the said rents and profits to the plaintiffs.

The 4th to 6th defendants, by way of counter-claim endorsed in paragraph 37 of their amended statement of defence claim the following reliefs:

(1) A declaration that the Bashua Chieftaincy Family is the person entitled to statutory right of occupancy to the property known as No. 24, Onisemo Street, Lagos.

(2) A declaration that the plaintiffs and the 1st to 3rd defendants held the property No. 24, Onisemo Street,

Lagos under the Native Law and Custom of Lagos and as allottees of Bashua Chieftaincy Family Land.

(3) Forfeiture of the rights and interests of the plaintiffs and the 1st to 3rd defendants in respect of 24, Onisemo Street, Lagos.

(4) Possession of the said property No. 24, Onisemo Street, Lagos.

After the exchange of the final pleadings, the case thereafter proceeded to trial. The plaintiffs/appellants gave evidence in proof of their case so also did the 1st and 3rd defendants/respondents in substantiating the averments in their amended defence. The 4th to 6th defendants/respondents/counter-claimants called evidence to prove the averments in their amended statement of defence and counter-claim. At the end of the trial and after taking addresses of counsel on both sides, the learned trial Judge, in a reserved judgment delivered on the 6th of February, 1995 dismissed the plaintiffs’/appellants’ case in their entirety. Equally, the counter-claim of the 4th to 6th defendants/counter-claimants filed against the plaintiffs/appellants and the 1st, 2nd and 3rd defendants failed. I pause to say that even though the name of the 2nd defendant featured throughout the trial of the case up till now, there is no evidence that any pleadings was filed on her behalf in reaction to the plaintiffs’ /appellants’ claim and the counter-claim of the 4th to 6th defendants/respondents/counter-claimants.

Dissatisfied with the decision of the trial court, the plaintiffs/appellants lodged an appeal against the same to this court. The notice of appeal carries four grounds. Perhaps I should say that there is no evidence that the 4th to the 6th defendants/counter-claimants appealed against the dismissal of their counter-claim. In their brief of argument the plaintiffs/appellants identified three issues for determination; and they are: