AKAYEPE LASISI AYANRINOLA VS AKAYEPE GANIYU AYANRINOLA

CORAM

N TOBI, JUSTICE SUPREME COURT

G A OGUNTADE, JUSTICE SUPREME COURT

M MOHAMMED, JUSTICE SUPREME COURT

I F OGBUAGU, JUSTICE SUPREME COURT

J O OGEBE, JUSTICE SUPREME COURT

PARTIES

1. LASISI AYANRINOLA AKAYEPE

2. TIYAMIYU AYANRINOLA AKAYEPE

APPELLANTS 

GANIYU AYANRINOLA AKAYEPE

RESPONDENTS 

AREA(S) OF LAW

FAMILY PROPERTY – PARTITION – APPEAL – RES JUDICATA

SUMMARY OF FACTS

The dispute between the parties was the allocation of one shop out of five shops built on the family property to the respondent/plaintiff by the family head, which allocation was resisted by appellant/defendant.

The trial court entered judgment in favor of the plaintiff. The defendant’s appeal to the Court of Appeal was dismissed. He has further appealed

HELD

Appeal dismissed.

ISSUES

1. Whether having regard to the failure of learned Justices of the Court of Appeal to pronounce on propriety of order of injunction granted by the learned trial Judge, their judgment was conclusive as to the right of the parties.?

2. Can any order of injunction be granted against a family property in which he has interest and that has not been partitioned?

3. Whether from the evidence adduced at trial the land upon which the five (5) shops were built belong to Ayanrinola Akayepe family or not.?

4. Whether from the evidence on records, the respondent is not caught by the doctrine of res judicata or issue estoppel from re-contesting the possession of the shop in dispute with the appellants.”?

RATIONES DECIDENDI

REPLY BRIEF-WHEN FILED

A reply brief is filed when an issue of law or argument raised in the respondent’s brief of argument calls for reply. Per MOHAMMED, JSC

ISSUES LEFT UNDETERMINED BY THE COURT OF APPEAL

Where the Court of Appeal in hearing an appeal against the judgment of a trial court failed to determine one or more of the issues places before it by the parities for determination, this court in hearing an appeal from such a failure may in proper cases remit such case back to the court to hear and determine the issue it left undetermined. Per MOHAMMED, JSC

AN ERROR MUST BE SUBSTANTIAL TO MAINTAIN AN APPEAL

It is the law that even where an appellant is able to show that the court below had committed an error, without showing that such error is substantial or material in that it has affected the merits of the case one way or the other or has occasioned a miscarriage of justice, the appeal may stiII be dismissed. Per MOHAMMED, JSC

INGREDIENTS OF RES JUDICATA

It is trite that to sustain a plea of res judicata, the party must satisfy the following conditions:-

(a) that the parties or their privies as the case may be are the same in the present case as in the previous case; and

(b) that the issue and the subject mater are the same in the previous case or suit as in the present suit; and

(c) that the adjudication in the previous case was given by a court of competent jurisdiction; and

(d) that the previous decision finally decided the issues between the parties.

failure to satisfy any of these conditions means failure of the plea in its entirety. Per MOHAMMED, JSC

LEGAL IMCIDENCE OF PARTITION

Where family property is partitioned, the property belongs exclusively to the party as it is no more in the family melting pot. As owners of the partitioned portion, they have acquired all the incidents of ownership in the sense that they can do anything they like with the property. Per TOBI JSC

CASES CITED

1. Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208

2. Adeyemi v. Attorney-General Oyo State (1984) I SCNLR 525.

3. Nkanu v. Onun (1977) 5 Sc. 13; Ikpang v. Edoho (1978) 6-7 SC. 221;

4. Dzungwe v. Gbishe (1985) 2 NWLR (pt. 8) 528;

5. Udo v. Obot (1989) I NWLR (Pt. 95) 59;

6. Afolabi v. Gov., Oshun State (2003) 13 NWLR (Pt. 836) 119 at 130-131

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria

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