ADELEKE V. ADEWUSI

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NIGERIAN SUPREME COURT CASES

[1961] N.S.C.C.

ADELEKE V. ADEWUSI.

5

BELLO ADELEKE

V

BENJAMIN ADEWUSI

APPELLANT

RESPONDENT

SUIT NO. FSC 6

4

/

1

960

10

FEDERAL SUPREME COURT

BRETT,



F.J.

TAYLOR,



F.J.

BAIRMIAN,



F.J.

6th February, 1961.

Civil action - Practice and Procedure - Pleadings, and issue raised thereon -

Plaintiff successful on issue - Judgment based on matter not in issue and on

erroneous view of evidence.

Land Law - Claim for injunction against trespass - Defendant tenant under native

law and custom - No claim for forfeiture - Real Property - Yoruba native

law and custom - Payment of ishakole - Recognition of overlordship.

Evidence- Evidence Ordinance, s. 34 and ss. 48 to 55 - Evidence - Practice and

Procedure - Conditions under which previous proceedings, or parts thereof

may be put in evidence in subsequent suits.

ISSUES:

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1.

Whether a trial judge can dismiss a claim for a grant of title to land on the basis

of a point which was neither raised in the pleadings, nor proved in evidence

by either party.

2.

Whether an injunction can be granted against a tenant under Yoruba native law

and custom, paying

ishakole,

where forfeiture has not been claimed.

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FACTS:

The plaintiff/appellant claimed for a declaration of title to land and an injunc-

tion to restrain the defendant/respondent and his servants from further acts of tres-

pass on the said land. The appellant's case was that his ancestor M begat T, A

and two others. T begat Ai who begat 0 the present Bale of Kuta. Ad begat OL,

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who begat Ad the father of the present appellant. He claimed further that the land

in dispute belonged personally to OL, who never at any time became Bale of Kuta;

that before the Fulani invasion of the 19th century, one D, requested from OL and

was given a grant of farmland, the area in dispute, on payment of

ishakole

which

he paid up till OL's death. This D begat F who begat E the respondent's father.

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The appellant further contended that the respondent's ancestors and the respond

ent paid

ishakole

to the appellant and his ancestors. It was common ground

between the parties that the land in dispute was vacated during the Fulani invasion

when both landlord and tenants fled. It was also common ground that after the

invasion the land was occupied by the Telemu and Ashamu people. To re-possess

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the land the appellant's father on becoming the Bale of Kuta sued the Ashamu

people in Suit No. 25/30 and after the judgment the people placed on the land by

the Ashamu began to pay

ishakole

to the appellant's father, and after his death to

the appellant. The appellant contended that the respondent's ancestors also paid

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