Oba Yekini Elegushi V. Sarata Oseni (2005)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

The first and only plaintiff in this case, initially sued as representative of Elegushi Royal Family, the five defendants representing the Maiyegun Family. He (plaintiff) later obtained an order to join other members of his family herein they jointly claimed for:

“(a) Forfeiture of the properties held by the defendants under customary law as customary tenants of the plaintiff on the area marked blue on Plan No. BAASS/073/LAG/94.

(b) Possession of the said village forfeited from defendants shown as Maiyegun village and marked blue on Plan No. BAASS/073/LAG/174 drawn by a Licensed surveyor A. Akinyemi.

(c) Perpetual Injunction restraining the defendants by themselves, their privies, servants and agents from selling or alienating the portion of land shown on plan No. AASS/073/LAG/94 edged yellow on the said plan.

(d) Perpetual Injunction restraining the defendants by themselves, their servants and privies from further trespassing on the portion of land edged green and yellow except the area verged blue.”

The lower court, by an order entered on 15th November, 1993 struck out the original 1st, 3rd, 6th,9th, 10th, 11th and 12th defendants from the suit and renumbered or reconstituted the remaining defendants as the 1st to 5th defendants to defend the suit on behalf of themselves and Maiyegun Family.

The plaintiff thereafter filed an amended writ of summons and also a statement of claim.

The defendants, with the leave of court, filed their statement of defence dated 17th November, 1994 and the plaintiff filed a reply dated 9th January, 1995. The suit, upon a summons for directions, was then set down for trial on 23rd May 1995.

Five witnesses, including the original plaintiff himself, testified for the plaintiff. All the witnesses were cross examined by the defendants’ counsel. Five witnesses also testified for the defendants, including the 4th defendant and they were cross-examined by the plaintiff’s counsel.

In the course of the trial, the then sole plaintiff’s counsel applied to join the 2nd – 5th plaintiffs as co-plaintiffs, and upon the grant of the application, the plaintiffs filed a further amended writ of summons and amended statement of claim earlier referred to. At the close of the case, both the plaintiffs’ and defendants’ counsel filed written addresses at the trial and also addressed the court orally in support thereof.

At the conclusion of the plaintiffs’ address, the defendants’ counsel applied to file a reply on points of law to the written submissions filed by the plaintiffs’ counsel. The plaintiffs’ counsel raised a preliminary objection to the application, and in the trial court’s ruling contained in the final judgment, the defendants’ counsel’s application to file a reply was refused. The learned trial Judge delivered his judgment on 26th November, 1996 in favour of the plaintiffs. Dissatisfied with the said decision, the defendants appealed to the Court of Appeal, Lagos Division which in a unanimous decision allowed their appeal by setting aside the judgment of the trial court and dismissing the plaintiffs’ suit.

Aggrieved by the said decision of the Court of Appeal, the plaintiffs/appellants filed a Notice of appeal dated 4th December, 2000 containing eleven grounds in this Court.

From the eleven grounds of appeal the plaintiffs filed, they submitted four issues as arising for the determination of the Supreme Court, namely: