Alhaji Yakubu Alabi Aro V. Saadu Adisa Aro & Anor. (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A. 

The facts of the case are that, the appellant instituted Suit No. KWS/174/91 in the High Court of Kwara State holden at Ilorin claiming for:

1. AN ORDER for partition of the entire Elegi Aro Family Land at Abayomi Area, Ilorin amongst the entitled Elegi’s children namely:

(a) Rufai Elegi Aro;

(b) Momodu Elegi Aro; and

(d) Jinadu Elegi Aro.

2. A declaration that the plaintiff’s branch is entitled to one third of the entire Elegi Aro family land.
3. AN ORDER of perpetual injunction restraining other members of Elegi Aro family, their agents or privies or anybody whatsoever from further disturbing or intermeddling with the plaintiffs use and enjoyment of any allotted portion of the Elegi’s family land.

In his statement of claim the appellant pleaded that the parties in this case are direct descendants of one Elegi Aro, a native of Ilorin and founder of Elegi Aro family. That he is a grandchild of Elegi Aro from Momodu Elegi Aro branch because he is the first son of Momodu Elegi Aro. That the said, Elegi Aro partitioned his land amongst his children during his life time. He also pleaded that he was the family head of Elegi Aro family by appointment vide a letter dated 5/8/71 and that by the customary law of Ilorin people his Elegi Aro branch of the family is entitled to one third of the entire Elegi family land. He also pleaded certain judgments in support of his contention. However, the respondents in their statement of defence denied that Elegi Aro hailed from Ilorin: they say he came from Iseyin in Oyo State. That Elegi Aro had four male children and a number of female ones and that none of the male children bore the name Momodu.

The respondents stated further that the name of the father of the appellant is Gborigi from Onikanhun’s compound in Pakata area of Ilorin. The respondents also denied the alleged partitioning of Elegi Aro’s family land and said that the appellant is not a member of that family. That the appellant was once contracted to prosecute an action against trespassers on Elegi Aro’s family land and was duly paid for his services. That after the respondent won the case; he refused to hand over the family land with the building thereon. Subject matter of that litigation to the family despite the fact that he was given the money by the family with which he bought back the disputed building on the land. This resulted in a law suit that the respondents won. The respondents also denied the existence of any customary law of Ilorin people that entitled the appellant to one third share of the family land of Elegi Aro. The respondents finally pleaded certain judgment given in favour of the respondents.

At the close of pleadings, issues were joined on certain important points to wit:

(a) The origin of Elegi Aro

(b) Elegi Aro’s offspring through direct ancestral line.

(c) Partitioning of the family land by Elegi Aro in his life time.

(d) Recognition of the plaintiff as the head of Elegi Aro family.

(e) Whether the appellant’s claim is known to the customary law of Ilorin people as pleaded.

During the trial, the appellant testified in proof of his claim as follows:

“I know the two defendants. They are my paternal first cousins. I sue them over the estate (land) of our father which I am praying the court to come and share the estate.

I build three houses on my father’s land and one of the houses was demolished by the defendants. I was driven from the house I was living (one of the three in which I was living) by the two defendants who also seize the personal effects that were in the house. I do not want to quarrel with the defendants over the property and that was why I sued the defendants praying the court to come and divide the piece of land belonging to our ancestors. The land has been divided (partitioned) before by our grand-father but the defendants said they do not agree with the partition. I have nothing more to say to the court about the matter.

Under cross examination the appellant admitted that he was not mandated by his three sisters to institute the action. That the three sisters are all living in Ilorin and that on the eve of his testifying in court, they were with him in his house. The appellant then closed his case after the cross examination.

The 1st Respondent testified on behalf of the respondents and tendered Exhibits 1, 2, 3 after which they closed their case.

In a considered judgment by the learned trial Judge, Hon. Justice S.A. Olagunju, delivered on 9/3/95 he dismissed the appellant’s case. Dissatisfied with the judgment the appellant has appealed to this court vide a notice and grounds of Appeal at pages 64 and 65 of the record; in which he complained as follows:

“1.The trial court erred in law by holding that Exhibits 1, 2 and 3 adjudged the plaintiff an intruder in Elegi Aro’s family house and restrained him from further use of the house.

Particulars:

(a) It is clear peradventure in Exhibits 1, 2 and 3 that the house in dispute is Elegi Aro family house.

(b) Exhibits 1, 2, and 3 also held that the Elegi Aro family house consists of families of Rufai Elegi Aro, Momodu Elegi Aro and Jinadu Elegi Aro. The Plaintiff heads the Momodu Elegi Aro while the defendants are members of the other two family branches.

(c) Exhibits 1, 2 and 3 are subsisting in contested judgments of the High Court of Kwara State and a holding that appellant is an intruder in Elegi Aro family is completely alien to Exhibits 1, 2 and 3 and perverse.

2. The trial court erred in law in dismissing the appellant’s claim for partitioning of the Elegi Aro family house, when he gave evidence of willful and persistent denial and deprivation of his right in the use of Elegi Aro family house.

Particulars:

(a) It does not require tones of evidence for a plaintiff seeking partitioning of his family house to succeed.

(b) A plaintiff seeking partition of family house is only required to show willful and persistent mismanagement of the family house or persistent denial of his right in the usage of the family house.

(c) The appellant eminently adduced evidence of his right in Elegi Aro family house, and this ground his claim for partitioning.

3. The judgment is against the weight of evidence before the court.”

These are the three grounds filed by the appellant in this matter.

In his brief of argument dated 25th February, 1997 but deemed filed on 7/5/97 the learned counsel for the appellant distilled one issue out of grounds 1 and 2 of the grounds of appeal for the determination of this appeal. No issue was formulated in respect of ground 3 dealing with weight of evidence. It is trite law that such a ground of appeal from which no issue is formulated is deemed abandoned and I so hold in this matter. In any event, from the evidence of the appellant reproduced earlier in this judgment I am not surprised that learned counsel for the appellant decided to abandon ground 3 of the grounds of appeal.

The issues submitted to this court in the appellant’s brief of argument is as follows and I quote:

“Whether the trial High Court was right in dismissing the plaintiff’s claim as it did, in view of Exhibits 1 and 3 which confirmed that the parties are members of same family i.e. Elegi’s family and joint owners of the property in dispute. Grounds 1 and 2.”

In his arguments viva voce before us learned counsel for the appellant Adegboyega Aremo Esq., adopted the appellant’s brief of argument in which he submitted that Exhibit 3 established that the parties belong to same family i.e. Elegi family and that the property in dispute is jointly owned by the members of the family. That these issues have become res judicata between the parties. That the trial High Court was therefore wrong to have re-opened the issue. For this he cited and relied on the case of Fadiora v. Gbadebo (1978) 3 SC 219 at 241.

That the court lacked the jurisdiction to review or hear matters pertaining to the issues as a court of competent jurisdiction had already decided the issues. Learned counsel relied on the case of Yoye v. Olubode (1974) 10 SC 209 at 223.

He further submitted that, the learned trial Judge ought to have partitioned the property and put an end to litigation among the family members; for this he relied on the case of Owonyin v. Omotosho (1961) 2 SCNLR 51; (1961) All NLR 304 at 308.

Finally, learned counsel submitted that the trial High Court was in error in dismissing the case before it without averting his mind to the legal effect of Exhibits 1 and 3, and therefore came to the wrong conclusion. He then urged the court to allow the appeal.

On the other hand the respondent’s brief is dated 9th April, 1999 but deemed filed on 11/5/99. This was adopted by learned counsel for the Respondent S.M. Abdulbaki Esq., in his arguments of the appeal on 12/10/99.

In the brief of argument learned counsel for the respondent formulated two issues for determination to wit:

“(1) Whether Exhibits 1 and 3 confirmed that the appellant is a member of Elegi family and thus jointly owned the property in issue.

(2) Whether the trial High Court was wrong in dismissing the appellant’s case for lack of sufficient and cogent evidence.”

On issue No.1 learned counsel submitted that the appellant had admitted in Exhibit 1 on 6/1/85 under cross examination at the trial Area Court that he is not a member of Elegi Aro family. That since the appellant had denied belonging to Elegi Aro family on Oath; no institution can make him one. That the substance of the claim of the respondent in Exhibit 1 is to restrain the appellant from using their family house. That evidence show clearly that the appellant was not a member of Elegi Aro family and that the court restrained the appellant from committing to use the house as his personal property.

Learned counsel then submitted that it is the appellant who is estopped from filing a fresh case as he did before the lower High Court on the issue of his family membership and joint ownership of Elegi Aro family property.

In the alternative, learned counsel submitted that the issue of res judicata was not raised before the lower court because the appellant did not make it pan of his case before that court. That he did not plead nor tender Exhibit 3. Learned counsel then submitted that an issue or point of law which was neither canvassed nor relied upon by the parties to a dispute before a trial court cannot constitute a ground for determining the dispute on appeal citing and relying on the case of Juwo v. Ibrahim (1992) 8 NWLR (Pt.258) 129; (1992) 10 SCNJ 26.

Finally, learned counsel submitted that the learned trial Judge was right in following the principles laid down in the case of Ambrose Ekennia v. Benedict Nkpakara (1997) SCNJ 70: (1997) 5 NWLR (Pt.504) 152 by scrutinizing Exhibits 1, 2 and 3 and came to the conclusion that these judgments in effect adjudged the appellant an intruder on the Elegi Aro family and therefore dismissed his claim.

He then urged the court to dismiss the appeal.

From the appellant’s brief of arguments this appeal will either succeed or fail based on the issue of res judicata or estoppel as raised and argued before us; the issue of weight of evidence having been abandoned by the appellant as found earlier in this judgment.

It is the law that equitable defences like laches acquiescence; estoppel etc. must be specifically pleaded with particularity. See the case of Ibenwelu v. Lawal (1971) 1 All NLR 23.

It follows therefore that for a party to avail himself of the plea of res judicata or estoppel he should have pleaded it specifically. If it is not so pleaded it cannot be raised at the trial court or on appeal. See Obanye v. Okwunwa (1930) 10 NLR 8.

The question that now falls to be determined is whether the appellant did plead the issue of estoppel so as to avail himself of same both at the proceedings before the lower court and this court.

For the avoidance of doubt I hereby reproduce, in extenso, the statement of claim filed by the appellant in this mailer which is at pages 3 and 4 of the record as follows:

“1. The plaintiff herein is the grandchild of Elegi Aro whereas the whole land in dispute in this case belonged to Elegi Aro.

2. The plaintiff further avers that the said Elegi Aro hailed from Ilorin and throughout his life time settled at Ilorin here.
3. The Plaintiff avers that the said Elegi Aro had three sons during his life time and they are: (a) Rufai, (b) Momodu and (c) Jinadu.
4. The Plaintiff says that all the said children of Elegi above mentioned are dead and no longer existing to claim any portion or ask for partition of their father’s land.
5. The plaintiff further avers that Rufai Elegi Aro had two children in his life time, namely (a) Hanah and Mariama.
6. The plaintiff says that the said Hanafi and Mariama are also dead and while Hanah begot Saadu Adisa Aro (the first defendant herein) Mariama died without any issue or child at all).
7. The plaintiff says that Mododu Elegi Aro had six children in his life time and the plaintiff in this case is the first born of Momodu Elegi Aro.
8. The Plaintiff further avers that Jinadu Elegi Aro had five children namely: (a) Ajape (deceased) (b) Jimoh Ayinla (c) Awalu (deceased (d) Saka Alabi and (e) Adisa (deceased).
9. The Plaintiff avers that by virtue and under the Ilorin native law and custom, the plaintiff’s branch of the family should been titled to one third of the entire Elegi family land.
10. The Plaintiff herein avers that he is the recognised head of Elegi family as at 5th August, 1971 and thereafter. The plaintiff hereby pleads the letter of authority dated 5th August, 1971 written by the Elegi family members to the Judge of Area court Grade II, Ilorin and he shall be relying on it during trial.
11. The Plaintiff hereby avers that Elegi Aro himself partitioned his land between his children before he died and it was as a result that the plaintiff’s branch through their father got a portion with a bungalow on it. The plaintiff here relies on the judgment of an High Court of Kwara State between Sidiku Amolegbe v. Alhaji Yakubu Alabi delivered on 29th November, 1974 so also the Upper Area Court judgment on it elated 17 March, 1972 and
12. Further to paragraph 11 above, the said act of partition was not registered anywhere and so the boundaries were very much uncertain.
13. The Plaintiff hereby pleads the judgment of Ilorin Area Court II No. 2 ease No. 005/71 by Mallam A.S. Na-Allah to the effect.

(a) That Elegi Aro had 3 children

(b) That Elegi Aro did partition his land and the plaintiff’s branch benefited from it.

14. The plaintiff avers that despite these crucial averments against the family’s interest or defendants herein, they did not appeal against the judgment and/or some of these assertions in the record of proceedings.
15. The plaintiff avers that the defendant has (sic) no defence to this action.”

WHEREUPON the plaintiff claims against the defendants are:

1. An Order for patition (sic) of the entire Elegi Aro family land at Abayawo Area florin amongst (sic) the entitled Elegi’s children namely:

(a) Rufai Elegi Aro;

(b) Momodu Elegi Aro; and

(c) Jinadu Elegi Aro.

2. A declaration that the plaintiff’s branch is entitled to one third 1/3 of the entire Elegi Aro family land.
3. AN ORDER of perpetual injunction restraining other members of Elegi Aro family their agents or privies or anybody whosoever from further disturbing or intermeddling with the plaintiffs use and enjoyment of any allotted portion of the Elegi’s family land.

Dated 12th day of Sept., 1991.

(Sgd.) T.O.S. Gbadeyan Esq.”

From the statement of claim reproduced above it is clear that paragraphs 11, 13 and 14 talk of previous judgments in relation to the subject matter of the dispute between the parties. It is important to note that there is no amended statement of claim in this matter.

The essentials of justice demand that no party will be allowed to spring surprise on its opponent.

One of the objectives of pleadings is therefore to delineate issues between parties and to giving each party a fair notice of its opponent’s case:

Functions of pleadings therefore include:

“A. The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which the court will be called to adjudicate between the parties”. See Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; 4 SC (Pt. 1) 250 at 265 per Coke JSC.

B. In George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 71, Bairamian F.J. stated another function of pleading as follows:

“The fairness of a trial can be tested by the maxim audi alteram. Either party must be given opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met: which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise.” See also A.G. Anambra v. Onuselogu Ent. Ltd. (1987) 4 NWLR (Pt.66) 547.

It is now trite law parties are bound by their pleadings. See Woluchem & Ors. v. Chief Gudi & Ors. (1981) 5 SC 291 at 320 per Nnamani JSC also Okagbue v. Romaine (1982) 5 SC 133.

(c) Pleadings also inform the court that the precise matters in issue between the parties are which matters alone the court may determine since they set the limits of the action. To go beyond or outside the pleadings might well result in a denial of justice to one or the other of the two contesting parties. See African Continental Seaways Ltd. v. Nigeria Dredging Road and General Works Ltd. (1977) 5 SC 235 at 248 per Irikefe JSC: NIPC Ltd. & Anor v. Bank of West Africa (1962) 1 All NLR (Pt. 556) etc.

Therefore, it is not part of the duty or function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.

To do so would be to enter into the realm of speculation. Moreover, in such event, the parties themselves or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party is equivalent to not hearing him at all and may thus be a denial of justice.” See Esso Petroleum Co. Ltd. v. Southport Corporation (1956) Ac 218 at 241.

d. Pleadings constitute permanent record of the issues and question raised in the action and decided therein so as to prevent future litigation upon matters already adjudicated upon, between the parties and their privies. This function is material in the consideration of the plea of res judicata.

The question that follows is whether Exhibits 1 and 3 are the judgments pleaded in paragraphs 11, 13 and 14 of the statement of claim supra.

To begin with, paragraph 11 of the statement of claim does not contain the suit No. of the case pleaded therein. It only talks of the dates the judgments were allegedly delivered. It equally does not state that the parties in those judgments are the same as those involved in the present action or that they are their privies as required by law.

However, I have gone through Exhibits 1, 2 and 3 and have found as a fact that they are not the judgments pleaded in paragraphs 11, 13 and 14 of the statement of claim. The particulars of the Exhibits are as follow:

(a) Exhibit 1. ` (i) S/No. 650/85

C/No. 598/95

Plaintiff: Alhaji Salimonu Kawu of Ile

Kawu Ita Kudimo, Ilorin

v.

Defendant: Yakubu Alabi of Ile Alawo

Pakata, Ilorin.

(ii) Judgment was delivered on 3/12/85

(b) Exhibit 2 (i) Appeal No. CVA 28/85

Appellant: Alhaji Yakubu Alabi

v.

Respondent: Alhaji Salimonu Kawu

(ii) Judgment delivered on 16/5/86

(c) Exhibit 3 (i) Appeal No. KWS/3A/89

Appellant: Alhaji Yakubu Alabi

v.

Respondent: Alhaji Salimonu Kawu

(ii) Judgment was delivered on 25/7/89

From the above data it is clear that none of the exhibits was delivered on 29th November, 1974 or 17th March, 1972 as pleaded in paragraph 11 of the statement claim.

That apart, none of the judgments bear suit No. 953/71 as pleaded in paragraph 13 of the statement of claim.

In short, Exhibits 1, 2 and 3 were never pleaded by the appellant.

That apart, from the record it is clear that Exhibits 1, 2 and 3 were pleaded and tendered by the respondents in this appeal.

From the totality of the above, it is my considered opinion that the appellant not having pleaded estoppel he cannot in law avail himself of that principle in this court. See Obanye v. Okwunwa supra.

That apart, it is the law that a plea of estoppel in reference to a previous judgment should not be made ambiguously. See Oputa v. Ezeani (1963) 1 All NLR 149. In the present case the appellant did not only fail to plead the judgments Exhibits 1, 2 and 3 as constituting estoppel, he also failed woefully in giving specific particulars of the alleged judgments he pleaded in paragraphs 11, 13 and 14 of the statement of claim.

The rule of estoppel per res judicata requires that where a final decision is given by a court of competent jurisdiction the parties cannot be heard to contradict that decision in any subsequent litigation between them respecting the same subject matter. As a plea, the decision operates as a bar to subsequent litigation and as evidence it is conclusive between the parties. See Oloriegbe v. Omotesho (1993) 1 NWLR (Pt. 270) 386 at 411.

It is still good law that the burden of proof of res judicata is on the party relying on it to establish it based upon the rule of law that he who asserts must prove what he asserts.

Therefore to succeed on a plea of res judicata the party relying on it must prove that the parties are the same as in the action in which the plea is raised.

In the present case the totality of the evidence produced by the appellant has been reproduced in extenso earlier in the judgment.

Nowhere did he tell the court that he was relying on res judicata neither did he tender the judgments allegedly constituting res judicata. He did not also testify to the parties being the same nor the issues in controversy.

To sustain a plea of res judicata all the conditions must co-exist and a break in the chain shall render the plea unsustainable. See Madukolu v. Nkemdilim (1962) 2 SCNLR 342. Alase v. Olori-Ilu (1965) NMLR 66, Fadiora v. Gbadebo (1978) 3 SC 219, Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539.

It appears that, learned counsel for the appellant wants us to presume that all the ingredients necessary for successful plea of res judicata are present in this action.

This will clearly be against the principle of burden of proof in civil actions.

The position of the law is that, the argument of counsel to a party however brilliant cannot form or be valued as evidence in favour of a party or take the place of evidence which is lacking in his case. For this principle of law, see the case of: Ishola v. Ajiboye( 1998) 1 NWLR (Pt. 532) 77 at 87. Chukujekwu v. Olalere (1992) 2 NWLR (Pt. 221) 86 at 93; Bello v. N.B.N. Ltd. (1992) 6 NWLR (Pt. 246) 206 at 214 and Ugorji v. Onwu (1991) 3 NWLR (Pt.178) 177.

It is clear that from the exposition of the law and the facts of this case the principles of res judicata are not applicable the same not having been pleaded nor evidence produced at the trial to establish the ingredients required to constitute same.

On the issue of partition, learned counsel has argued that the trial Judge ought to have partitioned the property and put an end to litigation among the family members.

In his submission, learned counsel for the respondent stated that the appellant did not give evidence in support of his averment that he is a grandson of Elegi Aro and a member of that family. That he did not rebut the respondent’s assertion that he belongs to another family. That the appellant did not give evidence to support partitioning of the land by Elegi Aro and no custom of Ilorin was proved. Learned counsel then submitted that the trial court was right in dismissing the appellant’s case.

I have gone through the record of proceedings in this matter, the briefs of argument and the authorities cited by both counsel.

I had earlier in this judgment reproduced in extensor, the evidence of the appellant in proof of the issues joined in the pleadings in this matter. From the totality of the evidence before the court it is my considered view that the appellant failed woefully to prove his case at the trial. He failed to prove the origin of Elegi Aro; Elegi Aro’s offspring through direct ancestral line; partitioning of the family land by Elegi Aro in his life time, recognition of the appellant as the head of Elegi Aro family and whether the appellant’s claim to one third of Elegi Aro’s family land is known to the customary law of Ilorin people. He failed to prove that he is a member of Elegi Aro family as pleaded. On the other hand, the respondents pleaded and testified to the fact that he is not a member of Elegi Aro family neither is he the head of that family. That ‘Momodu’ is not one of the children of Elegi Aro and that Elegi Aro was not a native of Ilorin.

That there is no customary law of Ilorin people that makes it possible for the appellant to be entitled to one third of the family land of Elegi Aro.

It is the law that pleadings are not evidence but statement of material facts by the parties on which evidence must be led to substantiate same except where the other party admits them.

The respondents having joined issues, as earlier stated, the onus is on the appellant to lead evidence on the points which are material to his case but he failed to do so.

Therefore, where facts are pleaded specifically and not canvassed at the hearing no judgment will be given in favour of that party – Shelf B.P. Ltd. v. Jacob Abedi (1974) 1 All NLR (Pt. 1) 1; Lewis Peat (Nig.) Ltd. v. Akhimien (1976) 1 All NLR (Pt. 1) 460 at 465; Aguocha v. Aguocha (1986) 4 NWLR (Pt. 37) 566.

This means in effect that the facts so pleaded but not canvassed at the trial ground to no issue, because they are deemed abandoned. See Uwegba v. A.G. Bendel State (1986) 1 NWLR (Pt. 16) 303.

The question that follows is: What did the learned trial Judge say about the appellant’s case?

In his judgment at pages 56 – 57 of the record of proceedings learned trial Judge states thus:

” … the plaintiff did not plead the fact that he built three houses on the disputed land on which he gave evidence of nor did he plead the fact that one of those houses was demolished by the defendants of the fact that he was driven out of the house in which he was living or that his personal effects were seized by the defendants. They are pieces of evidence led on facts which are not pleaded. They are of no probative worth and I disregard them.

As regards the facts pleaded it is the plaintiff’s story that he is the grandson of Elegi Aro and a member of that family who was appointed or recognised as the head of the family. Not only did he fail to lead evidence on those facts but he also failed to rebut the defendants’ claim that he is not a member of Elegi Aro family and the insinuation that he belongs to the family called Okuta- Agidi in Pakata area or Ilorin and that his father is Gborigi from Onikanhun’s compound in that area.

The plaintiff who claimed that his appointment as the head of Elegi family was in writing failed to produce his letter of appointment which he pleaded. There was also no evidence led on the number of direct children as well as the grand – children of the founder of Elegi Aro family through whom he is claiming right in the property vested in the family. What is more, the defence having challenged the claim that, there was any son of Elegi Aro called “Momodu’ whom the plaintiff claim to be his father the plaintiff did not lead evidence to rebut the defendant’s version of the story.

Similarly, the plaintiff led no evidence to prove the fact which he pleaded that Elegi Aro family land was partitioned by the founder during his life time or produce the two judgments on the earlier litigations on the matter which he pleaded in paragraphs 11 and 13 of his statement of claim … ”

I agree with the findings of fact above stated. It is important to note that the appellant abandoned the ground of appeal dealing with weight of evidence when he failed to formulate any issue for the determination of this court. That being the case, it is my opinion that there is no appeal on the specific findings of facts by the learned trial Judge which findings are very much supported by the evidence on record any way.

The learned trial Judge was absolutely right when he held at page 59 as follows:

“That being the plaintiffs evidence in its entirety there can be no basis for granting any of his prayers as there is no evidence to support an Order of partition of the property of a family to which the plaintiff was unable to prove that he is related by blood nor can a declaration be granted in favour of the plaintiff that he is entitled to one third of the entire property of the defendant’s family where there is no scintilla of evidence of the customary law of the people of Ilorin, governing inheritance all which the plaintiff based his claim … ”

I cannot agree more. This issue is therefore resolved against the appellant.

I therefore have no alternative than to hold that the only issue canvassed by the appellant before us be and is hereby resolved against the appellant.

The judgment of Hon. Justice S.A. Olagunju in Suit No. KWS/174/91 delivered on 9th March, 1995 is unassailable and is hereby affirmed. This appeal is devoid of merit and is consequently dismissed with N3,000:00 cost in favour of the Respondents.

Appeal dismissed.

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Other Citations: (2000)LCN/0652(CA)