AJAYI & ORS. V. PABIEKUN & OPS.

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NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

Proceedings against applicant

before High Court Warri, stayed

pending determination of appeal.

AJAYI & ORS. V. PABIEKUN & ORS.

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GBADAMOSI AJAYI AND ORS.

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APPELLANTS

V

GABRIEL FOLAJIN PABIEKUN & 0 RS.

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RESPONDENTS

SUIT NO. SC 29/1967

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

3rd April, 1970

Land Law - Declaration - Title to land - Family land - Plaintiffs alleging that

land still part of family land - Defendants alleging that there had been a

partition, their own branch taking land in dispute absolutely - Burden of

proving partition of defendants - Defendants calling no evidence - Evidence

Act s.136.

ISSUE:

1. Does the burden of proving a partition of family land lie on the persons who

allege the partition?

FACTS:

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The plaintiffs (Lukugba family) claim against the Defendants (Pabiekun sub-

branch) is for a declaration of title to a piece of land and the sum of £2,000 as

lshakole. The trial Judge found in favour of the plaintiff as a result of which the de-

fendants appealed to the Supreme Court alleging that the family land had been

partitioned and that their own branch had previously taken the land absolutely.

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HELD:

1. The respondents said that the land was still family land. The appellants alleged

that there was a partition as a result of which they took the land in dispute

absolutely. The burden of proving this partition was squarely on them - that is

he who alleges must prove. As the appellants called no evidence, the Judge

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was entitled to find as he did that the ownership of the land in dispute still

remained in the Lukugba family which of course included the Pabiekun

sub-branch. Consequently, the Judge came to the correct conclusion on the

facts given in evidence before him.

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CASE REFERRED TO IN JUDGMENT:

1.

Folajin Pabiekun and Ors v. Gbadamosi Ajayi

S.C. 612/64 of 29th June,

1966.

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Chief Williams,

for the Appellants

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Chief Fajemisi

(with him

Fadugba),

for the Respondents