Bisiriyu Agbomeji V. Liadi Bakare & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The claims of the plaintiff who is the appellant in this court against the defendants (herein respondents) as endorsed on his amended writ of summons filed on 12th October, 1977 are as follows:

“1. Declaration that all the entire property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom.

2. Partition of the said land into four parts amongst the four branches of the family namely: Ogeye Longe (ii) Otubose (iii) Otuberu and (iv) Otuboni.
3. N6,000,00 being both special and general damages for trespass to the plaintiff’s building on the land in dispute.”

Particulars

Special Damages

Cost of structure destroyed by the defendant

………………… N5,000,00

General Damages N1,000.00

N6.000.00″

A statement of claim was filed on behalf of the appellant on 14th June, 1976 and to it a composite plan was attached. After the learned trial Judge had fixed the case for trial on 27th and 28th September, 1977, the appellant sought and obtained leave to amend the statement of claim. The amended statement of claim was further amended by court order dated 12th February, 1979. The respondents, on the other hand, made several applications filed on their behalf to amend the statement of defence. The final amended statement of defence was filed on 12th June, 1981. The appellant, in response thereto, filed a reply on 3rd July, 1981. The facts of the case are not in dispute and I do not propose to set them out here.

The case went to trial after the exchange of pleadings and following the addresses of counsel, the learned trial Judge, Agoro, J, held that the case succeeded in part. For his claims for partition of family land and also for N6,000,00 special and general damages, these were dismissed. The learned trial Judge, however, ruled that the appellant was entitled to a declaration that the entire landed property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom.

Aggrieved by this decision, the appellant appealed to the Court of Appeal, Lagos Division (Coram: Nnaemeka-Agu and Kutigi J.J.C.A. as they were then as well as Kolawole, J.C.A who wrote the leading judgment) and dismissed the appeal with costs to the respondents.

The further appeal to this court is against the judgment of the Court of Appeal (hereinafter referred to as the court below) premised on the five grounds of appeal contained in a notice of appeal dated 10th November, 1992. The parties subsequently filed and exchanged briefs of arguments in accordance with the rules of this court. The appellant identified four issues which is pith and substance are identical to the four the respondents formulated for our determination. For the disposal of this appeal, I deem it necessary to stick to the four issues argued in the appellant’s brief (the four issues proffered by the respondents though differently worded are subsumed therein). They state:

“1. Whether the learned Justices of the Court of Appeal were right In affirming the finding of the learned trial Judge that the plaintiff/appellant did not prove any allocation of land to him by the head and principal members of the family.