Oladapo Fabusola & Anor V. Adubiaro Fakiyesi & Anor (1998)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

This appeal is against the judgment of the High Court of Justice of the then Ondo State sitting at Ado-Ekiti and delivered by Akintan J, (as he then was) on 29-3-1990. The parties at the lower court are members of the same Egbedi family of ado-Ado, Ado-Ekiti.

The respondents as plaintiffs had instituted the action against the Appellants as defendants and claimed in their paragraph 21 of the Statement of Claim the following two reliefs:-

(a) “A declaration that Egbedi palace at Iro Street, Odo-Ado Quarter, Ado-Ekiti is the Chieftaincy house of Egbedi Family of Ira Street, Odo-Ado Quarter, Ado-Ekiti in which a reigning Egbedi lives.

(b) An order that the defendants who are children of the last Egbedi should leave the said palace to make room for a new Egbedi who is soon to be appointed.”

The case went into hearing after pleadings had been duly filed and exchanged. In the course of the trial, the 2nd plaintiff and 7 other witnesses gave evidence in support of the claims of the plaintiffs while in support of the case of the defendants, 1st defendant and two other witnesses testified.

The case for the plaintiffs was that the house occupied by the defendants belonged to the entire Egbedi family or Odo-Ado, Ado-Ekiti. They contended that every reigning Egbedi lived in that house on installation as an Egbedi. That on the death of an Egbedi, the family of the deceased Egbedi would vacate the chieftaincy house at the end of the funeral of the deceased Egbedi. Evidence was given on the previous Egbedis who had lived in the house and whose families vacated the house after the death of such Egbedis. That the dispute in the present case arose after the death of Egbedi Fabusola, the father of the defendants who refused to vacate the chieftaincy house after the death of their father to make room for the incoming new Egbedi that would be appointed. When several efforts made by the elders to resolve the dispute failed, the plaintiffs instituted this action against the defendants.

For the defendants, it was their contention that the house in question was the personal property of their father which they inherited after his death and that the Egbedi family had no chieftaincy house as such.

The learned trial Judge after reviewing the evidence before him came to the conclusion that the plaintiffs had proved their case against the defendants and consequently granted the reliefs claimed in the action and ordered the defendants to vacate the house. Part of this judgment at page 48 of the record reads:-

“I have no doubt in finding as a fact that the house in dispute is the chieftaincy house of the Egbedi family where all reigning Egbedis lived with their wives and children after installation as an Egbedi. I disbelieve the evidence of the defendants to the effect that the land on which the house was built originally belonged to their grandfather and that their father was responsible for the building of the house. I hold that it was the Egbedi family that rebuilt the house.”

The defendants who were aggrieved by this decision of the lower court have now appealed against it by filling their notice of appeal containing 3 grounds of appeal. In the brief of argument filed on their behalf by their learned counsel, the defendants who are now the appellants in this court had abandoned ground 3 of their grounds of appeal which was said to have been overtaken by events which resulted in their expulsion from the house in dispute while this appeal was pending. Ground 3 is accordingly hereby struck out. From the remaining 2 grounds of appeal, the mowing 3 issues were identified in the appellants’ brief.

“1. Whether from the evidence led in support of the plaintiffs’ claim, the learned trial judge was right in identifying the house in dispute as the plaintiffs’ chieftaincy house.

2. Whether the learned trial Judge gave any proper appraisal to the evidence before him before reaching the conclusion which he reached by giving judgment in favour of the plaintiffs.
3. Whether the learned trial Judge was right in holding in his judgment that he found as a fact that the house in dispute was the chieftaincy house of the Egbedi family without giving reason for the finding and whether the description of the house as the Egbedi chieftaincy house in the evidence of DW 1 was enough admission against the defendants to preclude the learned trial judge from examining that evidence as to the proper identity of the house in dispute before basing his judgment on the evidence of admission of DW1 against the interest of the defendants.”

The plaintiffs who are now the respondents have also filed their brief of argument in which only one issue was formulated for the determination of the appeal. The lone issue reads:-

“Whether in view of the evidence led, the house in dispute is a chieftaincy one for the whole family or the personal house of the father of the defendants.”