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  • Amusan v. Olawuni
  • 118
  • 2002-09-02
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Amusan v. Olawuni

ADEMOYEGUN AMUSAN

OYERONKE OBELAWORO

V

RUFUS OLAWUNI

( Suing for himself and other children of Agoremilekun )

COURT OF APPEAL

( IBADAN DIVISION )

DALHATU ADAMU, JCA (Presided)

FRANCIS FEDODE TABAI, JCA ( Read the Lead Judgment )

OLUFUNLOLA OYELOLA ADEKEYE, JCA

CA/14/94

TUESDAY 27TH NOVEMBER 2001

APPEAL - Fresh issue - When raised on appeal without leave - Effect

APPEAL - Record of appeal - Contents of - Presumption of correctness of

CONSTITUTIONAL LAW - Right given by the Constitution - Whether may be interfered with or abrogated by any other legislation

COURT - State High Court - Jurisdiction of in land matters - Whether extends to  land in non-urban areas

COURT - State High Court - Unlimited jurisdiction thereof as provided under section 236(1) 1979 constitution - Whether ousted by section 41  of the Land Use Act

CUSTOMARY LAW - Inheritance under Yoruba customary law - Whether females are excluded from inheriting the property of their parents Right of a female to be family head under Yoruba customary law

CUSTOMARY LAW - Inheritance under Yoruba native law and custom Principles governing inheritance of a person who died intestate without children

EVIDENCE - Burden of proof of the identity of land in dispute - When exists - When not

EVIDENCE - Presumption of correctness of contents of record of appeal

LAND LAW - Burden of proof of the identity of land in dispute - When exists - When not

LAND USE ACT - Section 41 therein - Effect of on the unlimited jurisdiction of state High Court as provided by section 236(1) 1979 constitution -  Whether ousted by it

LAND USE ACT - State High Court  - Jurisdiction of in land matters Whether extends to land in non-urban areas

PLEADINGS - Statement of claim - Statement of claim which does not state the reliefs claimed in the writ of summons, but merely claims as per writ of summons -Whether supersedes the writ - Attitude of court thereto

STATUTE - Constitution - Rights vested therein - Whether can be interfered with by any statute - Effect of so interfering

Issues:

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.

2.            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.

3.            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.

4.            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.

5.            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.

6.            Which of the two parties to this appeal was entitled to judgment having regard to the weight of evidence?

7.            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.

Facts:

The respondent as plaintiff in the lower court suing in a representative capacity filed a writ claiming against the appellants as defendants 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, kola nut farmlands situate lying and being at Oloworeju and Fakile area of Wakajaiye Town.

2.            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.

3.            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, it was averred as follows:-

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

After conclusion of evidence and address of counsel, the learned trial Judge granted all the reliefs endorsed in the writ of summons.

The appellants being dissatisfied with the judgment of the trial court appealed to the Court of Appeal.