Home » Nigerian Cases » Court of Appeal » Ademoyegun Amusan & Anor. V. Rufus Olawuni (2001) LLJR-CA

Ademoyegun Amusan & Anor. V. Rufus Olawuni (2001) LLJR-CA

Ademoyegun Amusan & Anor. V. Rufus Olawuni (2001)

LawGlobal-Hub Lead Judgment Report

F. TABAI, J.C.A.

In the Writ of Summons issued on the 21/10/92 at the Ife Judicial Division then of the High Court of Oyo State, the Plaintiff/Respondent, suing for himself and other children of AGOREMILEKUN, except Afolabi, claimed against the Defendants/Appellants jointly and severally as follows:-

“1. Declaration that the Plaintiffs are entitled to the grant of customary right of occupancy over and upon those three portions of palm trees, cocoa, kolanut farmlands situate lying and being at OLOWOREJU and FAKILE areas of WAKAJAIYE Town.

  1. N1,000.00 being general damages suffered by the Plaintiff when the Defendants unlawfully seized and trespassed upon the palm trees, on the farms and reaping them without plaintiff’s authority or consent.
  2. Injunction restraining the Defendants, their agents, servants and privies from further acts of trespass upon the farms.”

And in paragraph 52 of the Statement of Claim filed on the same day it was averred as follows:-

“Whereof the Plaintiff claims as per writ of summons.”

Apparently due to political/administrative changes affecting the situs of the properties in dispute, the case proceeded to trial under the Iwo Judicial Division of the High Court of Osun State. The trial itself involved the testimony of three witnesses for the Plaintiff, five for the defence and the address of counsel for the parties. And in the judgment on the 28/7/93 the learned trial judge A. O. Aderemi, J. granted all the reliefs endorsed in the writ of summons.

This appeal is against that judgment. In the original notice of appeal filed on the 13/10/93 4 grounds of appeal were raised. With the leave of this Court 12 additional grounds were filed. The 12th ground is the omnibus ground which was the 4th ground in the original notice of appeal. In all therefore there were 15 grounds of appeal. The parties through their counsel filed and exchanged their briefs of arguments. The amended appellants’ brief of argument prepared by Chief A. O. Fadugba was filed on the 2/7/99 while the Respondent’s brief prepared by L. Adebisi Adedeji was filed on the 28/9/99. In the Appellants’ Brief of Argument, Chief Fadugba formulated the following issues for determination:-

“1. Whether or not the Iwo High Court has jurisdiction to entertain and adjudicate over the farmlands in dispute being in non-urban town of Wakajaiye near Gbongan when there was and there is still an Aiyedade Customary Court at Wakajaiye and the neighbouring town of Gbongan the head quarters of Aiyedade Local Government Council.

  1. Whether or not the lower court was right to give judgment for the Respondent when the reliefs claimed in the writ of summons were not stated in the statement of claim.
  2. Whether or not the lower court was right to give judgment to the Respondent for three farmlands instead of two claimed in the writ of summons and when he did not prove his case to any of the farmlands according to law.
  3. Whether or not the Respondent a distant member of Sangoseyitan family can lawfully be declared absolute owner of the three farmlands forming part of Sangoseyitan farmland in the absence of partition or absolute grant.
  4. Whether or not the Respondent has established and proved his right to inherit the farmlands in dispute under Yoruba native law and custom of inheritance which he relied upon for the success of his case.
  5. Which of the two parties to this appeal was entitled to judgment having regard to the weight of evidence?
  6. Whether or not the Respondent proved the civil wrong of trespass to entitle him to an award of damages when he was not in possession.”

In the Respondent’s Brief of Argument Adebisi Adedeji raised the following three issues:-

“1. Whether or not the non-stating of the reliefs in the Statement of Claim was sufficient to defeat the claim of the Respondent.

  1. Whether or not the lower court was right to have given judgment to the Respondent.
  2. Whether or not the High Court has jurisdiction to try the case.”

Respondent’s issue 3 raises the issue of jurisdiction and is the same as appellants’ issue 1 while Respondent’s issue 1 relates to the issue of the reliefs claimed and is the same as Appellants’ issue 2. And Respondent’s issue 2 raised the general question of burden and standard of proof which is covered by Appellants’ issues 3, 4, 5, 6 and 7. I would therefore adopt the issues as formulated in the Appellants’ Brief of Argument.

With respect to issue 1 the substance of the arguments of the Appellants as contained in pages 5 and 6 of their brief is that by virtue of the provisions of section 41(a) of the Land Use Act and cases decided thereon like SADIKWU V. DALORI (1996) 4 SCNJ 209 at 217-220; OGUNSINA V. OGUNLEYE (1994) 5 NWLR (Part. 346) 625; OYEDIRAN V. EGBETOLA (1997) 5 NWLR (Part 504) 122 and OGIGIE V. OBIYAN (1997) 10 NWLR (Part 524) 179, the Iwo High Court has no jurisdiction and that the court which has jurisdiction is either the customary court at Wakajaiye or that at Gbongan.

On the 2nd issue the appellants referred to paragraph 51 of the Statement of Claim wherein the claim is stated to be “as per writ of summons” and submitted that that amounted to an abandonment of reliefs claimed in the writ of summons. Learned counsel for the appellant relied on Order 25 Rule 12(2) of Oyo State High Court (Civil Procedure) Rules also applicable in Osun State and cases like ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE CO. (1994) SCNJ (Part 11) 168; LAHAN V. LAJOYELAN (1972) 6SC 190; UBA V. EUROPHARM LTD. (1990) 6 NWLR (Part 155) 239 and TELLA V AKERE (1988) WNLR 26.

On the 3rd issue it was the contention of appellants’ counsel that for a plaintiff to succeed on a claim for declaration, he must prove the boundaries and thus identity of the land and that notwithstanding whether the identity had been admitted by the defendant since plaintiff succeeds only on the strength of his own case and not on the admission of the defendant. It was contended that in this case the plaintiff/respondent failed to so prove. He relied on EKWEALOR V. OBASI (1990) 2 NWLR (Part 131) 231; FABUMI V. AGBE (1985) 1 NWLR (Part 2) 299. It was contended further that while the Respondent claimed only the farmlands at Oloworeju and Fakile, the lower court granted an additional but unclaimed farmland at Olota and submitted that the judgment was for that reason invalid. He relied on ODUKWE V. OGUNBIYI (1998) 8 NWLR (Part 561) 329 and OHANAKA V. ACHUGWO (1998) 9 NWLR (Part 563). It was also contended that the Respondent claimed for palm trees and not the land and that it was therefore wrong for the lower court to grant a declaration over land. To buttress this argument about the claim over palm trees only, learned counsel referred to paragraph 37 of the Statement of Claim. It was also contended that the evidence was contrary to the reliefs claimed. Another contention of learned counsel for the appellants is that there was no proof of title of Jacob Makinde and that it was not enough to prove that the said Jacob Makinde was the first to cultivate the land.

With respect to issue 4 the contention of learned counsel for the Appellants is that the three farmlands are proved to be within Wakajaiye land founded by Sangoseyitan the ancestor of the Appellants and Respondent and having regard to the fact that there was no partition the same cannot be held to be exclusively owned by the Respondent. It was his further contention that the fact that Orebiyi or his son first cultivated the land did not confer exclusive title on them. He argued that Jacob Makinde’s root of title was not proved and for which therefore the claim failed.

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The substance of the argument of the Appellants on the 5th issue is that the Respondent who pleaded and relied on the native law and custom of inheritance must prove first that his mother was entitled to inherit the lands of her brother Jacob Makinde who predeceased his own father and who died childless and secondly that he was entitled to inherit same on his mother’s death.

This, he contended, the Respondent failed to do. In support of this contention he relied on AGBABIAKA V. SAIBU (1998) 7 SCNJ 305; MBUKURTAR V. ABBO (1998) 6 NWLR (Part 554) 456; AKINSANYA V. SOYEMI (1998) 8 NWLR (Part 560) 49; OKENE V. ORIANWO (1998) 9 NWLR (Part 560) 408; NBC V. OKWEJIANOR (1998) 8 NWLR (Part 561) 295; NDEKWO V. ACHA (1998) NWLR (Part 552) 25 and EJILEMELE V. OPARA (1998) 9 NWLR (Part 567) 587.

It was his submission that although the Appellants did not plead the custom of inheritance they were nevertheless entitled to adduce evidence of same and argued that the trial court was wrong to expunge that evidence. It was counsel’s contention that the two witnesses for the Respondent knew little or nothing about the lands in dispute and that it was therefore wrong for the trial court to grant the reliefs claimed.

According to learned counsel for the appellants a female cannot under Yoruba Custom inherit land and relied on NIGERIAN LAND LAW AND CUSTOM by Elias, 2nd Edition at pages 224 and 225. He also referred to the evidence of the 1st witness for the Appellants who is a full blooded brother of the Respondent Afolabi. It was further argued that on the death of Agoremilekun the proper person to inherit her property is the first son who is Afolabi and not the Respondent. He relied on FOLAMI V. COLE (1990) 4SCNJ 13 and YUSUF V. DADA (1990) 4 NWLR (Part 146) 647.

The 6th issue relates to the general question of burden of proof. The first argument is that the Respondent did not adduce sufficient evidence in proof of the averments in the Statement of Claim and submitted that the trial court’s findings in his favour were perverse. He referred to paragraph 43 of the Statement of Claim and contended that the Respondent was bound to adduce evidence of the custom of inheritance. He gave various reasons on why he thought the evidence supported the Appellants’ case. He contended that no aspect of the Appellants’ case supported the case of the Respondent.

With respect to the 7th issue the substance of the argument of learned counsel for the appellants is that since the Respondents were not in possession, they cannot claim in trespass. In support of this argument he referred to paragraphs 39 and 40 of the Statement of Claim and paragraph 7 of the Reply, and relied on AKINHANSI V. DANIEL (1977) 6 SC 125 and WOLUCHEM V. GUDI (1981) 5 SC 291 at 320.

The substance of the arguments of learned counsel for the Respondent is as follows.

With respect to the first issue of jurisdiction learned counsel referred to Oyo State Legal Notice No. 13 of 1978 in which Ile-Ife and Ikire were declared urban areas and submitted that the defendants/appellants had the onus of establishing that Wakajaiye town which lies between the two towns lies outside six kilometers from the center of either of them. He submitted that in the absence of such evidence there is nothing on which the issue of jurisdiction can be determined.

On the 2nd issue the submission of learned counsel for the Respondent is that although stating the claims in the Statement of Claim “as per writ of summons” should be discouraged, it is only an irregularity and should be treated as such. He also cited ENIGBOKAN V. AIIC (supra).

As regards the general proof one of the issues raised by the appellants is that of proof of the boundaries and thus the identity of the lands claimed. In this respect the contention of learned counsel for the Respondent is that there was no controversy as to the boundaries and identity of the lands claimed since they were specifically pleaded in paragraphs 21, 22 and 23 of the Statement of Claim and admitted in paragraph 1 of the Statement of Defence.

It was further contended that issues were joined on the ownership of the farmlands and not on the palm trees or other crops planted thereon. Another argument was that although Sangoseyitan the ancestor of both parties founded Wakajaiye, it was a common ground that his children Orebiyi and Atuwonka founded their own distinct and separate lands and cultivated same and relied on paragraph 16 of the Statement of Claim and 6 of the Statement of Defence. He referred further to paragraphs 18 and 20 of the Statement of Claim and contended that while the Respondent claimed through JACOB Makinde the Appellants claimed same through Atuwonka. He referred to paragraph 36 of the Statement of Defence and the evidence of 1st defendant at page 30 lines 32 – 33 and argued that the Appellants conceded the Respondents’ ownership of the land at Olota. With respect to the rights of female inheritance learned counsel for the Respondent referred to the evidence of the 1st defendant at page 32 lines 11-12, 12-16, 1st DW at page 16 lines 10-11 and 2nd DW at page 37 lines 19-22 and submitted that there was even enough evidence from the Appellants to support female rights of inheritance. With respect to the award of damages for trespass it was submitted that there was enough evidence to justify the trial court’s finding on the issue.

I shall now attempt to resolve the issues starting with that of jurisdiction. Before the decision in ADISA V. OYINWOLA (2000) 10 NWLR (Part 674) 116 it had been held that the High Court of a State had no original jurisdiction in proceedings in respect of/for entitlement to a customary right of occupancy over lands outside urban areas by virtue of the provisions of section 41 of the Land Use Act 1978. This was the decision in OYENIRAN V. EGBETOLA (1997) 5NWLR (Part 504) 122. In the earlier case of SALATI V. SHEHU (1986) 5 NWLR (Part 15) 198, the Supreme Court per Karibi-Whyte. J.S.C. in an obiter, expressed the same opinion of the effect of the said section 41 of the Land Use Act 1978. In other words the provision was, in these cases, construed as having limited the jurisdiction of the High Court of a State. But none of these cases deliberated upon the effect of this limitation so contained under section 41 of the Land Use Act 1978 and the unlimited jurisdiction of same under section 236(1) of the 1979 Constitution. In AKANDE V. ALAGBE (2000 15 NWLR (Part 690) 353 however this Court was constrained to examine section 41 of the Land Use Act 1979 Constitution and relying on the opinion and decision in SALATI V. SHEHU (supra) and OYENIRAN V. EGBETOLA (supra) discussed above and the subordination of the Land Use Act to the Constitution as pronounced in NKWOCHA V. GOVERNOR OF ANAMBRA STATE (1984) 1 SCNLR 634, declared that the said section 41 of the Land Use Act 1978 was inconsistent with section 236(1) of the 1979 Constitution and section 272(1) of the 1999 Constitution and that same was nullified to the extent of that inconsistency. See also IBIDOKUN V. ADAKALODE (2001) 12 NWLR (Part 727) 268 at 300 – 302.

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This controversy as to the jurisdiction of a State High Court in land matters has now been settled in ADISA V. OYINWOLA (supra) wherein the Supreme Court overruled its earlier decision in OYENIRAN V. EGBETOLA (supra) holding that on a proper construction of sections 39(1) and 41 of the Land Use Act 1978 the jurisdiction granted a State High Court in land matters by section 236(1) of the 1979 Constitution is not limited by section 41 of the Act.

The position therefore is that a State High Court has jurisdiction in proceedings over land matters wherever it is located. The result is that the argument of learned counsel for the appellant is no longer tenable and the 1st issue is accordingly resolved against the appellant.

The next issue is the legal effect of claiming in paragraph 51 of the Statement of Claim “as per writ of summons”. The contention of learned counsel for the appellants is that that mode of claim was wrongful and rendered the claim liable either to be dismissed or at best struck out. It is trite that a Statement of Claim which does not state any or some of the reliefs claimed in the writ of summons but merely claims “as per writ of summons” does not supersede the claims endorsed in the writ of summons. And although such a mode of pleading is a lazy one and should be discouraged the claims in the writ of summons specifically referred to in the Statement of Claim remain valid for the purpose of adjudication. See KESHINRO V. BAKARE (1967) 1 All NLR 280 at 284; ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE CO. (NIG.) LTD. (1994) 6 NWLR (Part 348) 1 at 19; COLLEGE OF EDUCATION WARRI V. ODEDE (1999) 1 NWLR (Part 506) 253 at 261 and LAWAL V. OKE (2000) 7 NWLR (Part 711) 88 at 107. For the rule of supersession to apply the statement of claim must itself have one or more of the reliefs in the writ of summons clearly set out and in which case all those left out shall be treated as having been abandoned. On this issue, I hold that although the claim “as per writ of summons” is the mode of pleading that must be discouraged, it nevertheless remains a valid claim.This issue accordingly is resolved in favour of the Respondent.

The next issue is that of proof of boundaries and thus the identity of the lands in dispute. The submission of learned counsel for the Appellants is that although the boundaries of the parcels of land as pleaded in paragraphs 21, 22 and 23 of the Statement of Claim were admitted in paragraph 1 of the Statement of Defence the Respondent still had the duty to prove same since declarations are not granted on admissions. It is settled law that the burden of proof of the boundaries and thus identity of land in dispute would not exist where such is not made an issue. For the purpose of declaration, identity will only be an issue, if, the defendant in his statement of defence made it one. See EZEUDU V. OBIAGWU (1986) 2 NWLR (Part 21) 200 at 210; FATUNDE V. ONWOAMANAM (1990) 2 NWLR (Part 132) 322 at 328 and OLOGUNLEKO V. IKUEMELO (1993) 2 NWLR (Part 273) 16 at 24.

In this case having regard to the pleadings in paragraphs 21, 22 and 23 of the Statement of Claim and paragraph 1 of the Statement of Defence there was no issue as to the identity of the lands in dispute and so the Respondent was relieved of the burden of proof in that respect. This issue is also accordingly resolved in favour of the Respondent.

The next complaint pertains to the declaration granted by the trial court in respect of the land at Olota which it was contended, was not part of the claim of the Respondent. It is true that the claim endorsed in the writ of summons as reproduced at page 2 of the record does not include, Olota and this no doubt gives the impression that the farm land at Olota is not one of the lands claimed. But a thorough examination of the entire record shows that the claim was for three parcels of land “situate lying and being at Oloworeju, Olota, and Fakile areas of Wakajaiye town”. In fact the claim reproduced in (1) the cover page of the record (2) the Registrar’s Statement at page (1) of the record and (3) the judgment of the learned trial judge at page 46 of the record all seek declaration in respect of “three portions of palm trees, cocoa, kola-nut farmlands situate lying am being at Oloworeju, Olota and Fakile areas of Wakajaiye town”.

Further more facts about the claim in respect of the land at Olota were pleaded in paragraphs 20 and 22 of the Statement of Claim. In paragraph 22 in particular the boundaries of the said land were copiously pleaded and same were admitted in paragraph 1 of the Statement of Defence. In fact the Respondent’s claim of title to the piece of land at Olota was expressly conceded and admitted by the Appellants in paragraphs 18, 19, 23, 24, 28, 35, 36, 38, and 44 or the Statement of Defence. It is clear from the above therefore that the claim of the Respondent was for three parcels of land including the one at Olota. It is, in my view, idle in the circumstances to make an issue of the land at Olota.

On this issue it is settled that there is always a presumption of correctness of the contents of a record of appeal unless and until the contrary is proved. For this point see OZIMS V. AMORUO (1991) 3 NWLR (Part 181) 571 at 579; OMOMI & ORS. V. TOM & ORS. (1991) 6 NWLR (Part 195) 93 at 108; SOMMER V. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (Part 219) 548 at 557-558 and ODJE V. OVIEN (1992) 7 NWLR (Part 253) 309.

In this case the appellants have failed to rebut the presumption of correctness. From the totality of the record the presumption is clearly in favour of the claim being for three parcels of land situate lying and being at Oloworeju, Olota and Fakile areas of Wakajaiye town.

Further still this issue of the claim being for only two parcels of land excluding the land at Olota was not raised at the trial court which had all the materials before it and thus in the best position to resolve same. The issue was raised herein for the first time and it is trite that in such circumstances leave of this Court ought to have been obtained before argument on it. For this reason the arguments on this issue was incompetent and should be disregarded. See POPOOLA V. ADEYEMO (1992) 8 NWLR (Part 257) 1 at 22; EDOKPOLO V. SAM-EDO (1989) 4 NWLR (Part 116) 473 and FADIORA V. GBADEBO (1978) 3 SC 219 at 248. For the above reasons I also resolve this issue against the Appellant.

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The next issue concerns female inheritance. It was contended on behalf of the Appellants that a female cannot under Yoruba Custom inherit land. It was further contended that the Respondent failed to prove the custom of female inheritance on which his claim was predicated and for these arguments he relied on FOLAMI V. COLE (1990) 4 SCNJ 13 and YUSUFF V. DADA (1990) 4 NWLR (part 146) 647. On this issue the Respondent pleaded in paragraphs 24 and 41 of the Statement of Claim thus:

“24. On the death of Orebiyi, all the farmlands owned by Orebiyi and Jacob Makinde his son who predeceased him were inherited by Agoremilekun, the only surviving child of Orebiyi and the only uterine Sister of Jacob Makinde.

  1. The farmlands were lawfully inherited by Plaintiff’s mother Agoremilekun after her uterine brother Jacob Makinde died childless.”

And in paragraphs 42 and 43 he pleaded their exclusive right of inheritance both of Orebiyi’s farmland and Jacob Makinde’s farmland. The Appellants reacted to these in paragraphs 14, 15, 23, 24 and 36 of the Statement of Defence. The substance of the averments therein is that Orebiyi had only the farmland at Olota which became abandoned on his death and that it was the children of his brother Atuwonka who took Agoremilekun to the said land. It was also their case that Jacob Makinde had no separate farm of his own to be inherited by either Agoremilekun or anybody else. The question of whether Agoremilekun was not entitled to inherit land by virtue of her being a female was not raised. As a matter of fact they, by implication, acknowledged female right of inheritance under Yoruba Customary Law when in paragraph 36 of the Statement of Defence they pleaded thus:

“26. With reference to paragraph 41 of the Statement of Claim the Defendants aver that only the farm lands at Olota that were inherited by the Plaintiff’s mother, Agoremilekun.”

On this state of the pleadings therefore the Respondent had no duty to tender evidence of Yoruba Custom of inheritance.

And any evidence from the Appellants which sought to establish a custom of the Yoruba’s that females are not entitled to inherit properties of their parents goes to no issue and in fact in conflict with paragraph 36 of the Statement of Defence. It is my view therefore that the learned trial judge was right to expunge the evidence in that respect.

With regard to the custom itself, FOLAMI V. COLE (supra) and YUSUFF V. DADA (supra) relied upon by learned counsel for Appellants, did not, with respect, establish any principle that under Yoruba Customary Law females are precluded from inheriting properties of their parents. FOLAMI V. COLE restated the Yoruba customary law principle that there are circumstances in which a female could also be head of a family. And YUSUFF V. DADA restated the principle that under Yoruba customary law the properties of a Yoruba person who dies intestate devolves on all his surviving children in equal shares. See also AMODU V. ABAYOMI (1992) 5 NWLR (Part 242) 503; OLOGUNLEKO V. IKUEMELU (1993) 2 NWLR (Part 278) 10; RABIU V. ABASI (1996) 7 NWLR (Part 462) 505 and AKINNUBI V. AKINNUBI (1997) 2 NWLR (Part 486) 147. None of these cases established any Yoruba customary principles that excluded female inheritance of family property.On this issue of female entitlement to inherit family property under Yoruba customary law, I agree entirely with the statement of this Court in SANUSI V. MAKINDE (1994) 5 NWLR (Part 343) 214 at 225. Therein this Court per Mukhtar, JCA said:

“It is on record that Adesinyan had two daughters who also begat children and there was nothing to show that as females they and their descendants were not entitled to their ancestors’ property. The position of the law under Yoruba customary law is that all children male and female are entitled to inherit their parents land.”

See also the Supreme Court case of ADESEYE V. TAIWO (1956) NSCC 76 where the 1st Defendant/Respondent, a daughter of the deceased and her children were held entitled to inherit the property of her deceased parent.

For the foregoing considerations I hold that there is no substance in the contention of the Appellants on this issue which is therefore also resolved in favour of the Respondent.

On the general proof another contention of the Appellants’ counsel was that since Sangoseyitan, the ancestor of both the Appellants and Respondents founded the lands in Wakajaiye and there was no evidence of any partitions it was wrong to adjudge the Respondents to be the owners of the lands in dispute to the exclusion of other descendant of Sangoseyitan. This contention, with respect, is a complete departure from their case presented to the court for trial. The case of the Respondent as pleaded in paragraphs 8, 9, 10, 11, 12, 13, 14 and 16 of the Statement of Claim is that Sangoseyitan, the ancestor of the parties was the first to settle on and cultivated the lands in what is today called Wakajaiye town. He had two sons, Orebiyi and Atuwonka each of whom founded his own separate farm lands outside that founded by their father. In like manner Orebiyi’s son Jacob Makinde had his own separate farm land and these were at Olota, Oloworeju and Fakile and on the death of Jacob Makinde and Orebiyi their farmlands were, according to the native law and custom of the people, inherited by Orebiyi’s only surviving child and Jacob Makinde’s only sister Agoremilekun from whom the Respondent and others have inherited.

On this issue the case of the Appellants as pleaded in paragraphs 6 and 42 and other paragraphs of the Statement of Defence is that their grand father, Atunwonka also had his own separate farmlands and that these were at Fakile, Akondu village, Olokiti, Olota and Oloworeju.

It was also their case that Orebiyi had only one separate farmland of his own and that was at Olota and that Jacob Makinde an itinerant preacher had no farmland of his own to be inherited by anybody. It was thus not part of their case that the lands in dispute were those founded by Sangoseyitan in respect of which the Respondents could only claim absolute ownership after a partition. This issue is therefore also resolved in favour of the Respondent.

In the light of my view on the various issues discussed above I hold that this appeal lacks merit and it is accordingly dismissed. The judgment of the lower court be and is hereby affirmed. I assess the costs of this appeal at N6, 000.00 against the Appellants in favour of the Respondent.


Other Citations: (2001)LCN/1051(CA)

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