➥ CASE SUMMARY OF:
Alhaji Amuda I. Adebanjo v Alhaji L. D. Olowosoga (1988) – SC
by “PipAr” B.C. Chima
➥ COURT:
Supreme Court – SC 134/1986
➥ JUDGEMENT DELIVERED ON:
29th September, 1988
➥ AREA(S) OF LAW
Grant of family property.
Locus standi.
➥ NOTABLE DICTA
⦿ PURPOSE OF ISSUE FORMULATION IN AN APPEAL
It is necessary to emphasise the purpose of formulating issues for determination in briefs. Like pleadings to a litigation between the parties the issues formulated are intended to accentuate the real issues for determination before the Court. The grounds of appeal allege the complaints of errors of law, fact or mixed law and fact against the judgment appealed against. The issues for determination accentuate the issues in the grounds of appeal relevant to the determination of the appeal in the light of the grounds of errors alleged. Hence the issues for determination cannot and should not be at large, but must fall within the purview of the grounds of appeal filed. — Karibe-Whyte, JSC.
⦿ HOW FAMILY LAND CAN BE CREATED
The concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the corner stone of our Indigenous land law. Judicial decisions are replete in the circumstances of the creation of family property. The most common circumstance is death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land – See Lewis v. Bankole (1908) 1 N.L.R. 89; Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family – See Nelson v. Nelson (1913) 13 N.L.R. 248. Family land can be created by the use of the appropriate expression in the will of the owner of such land. – See Re Edward Forster (1938) N.LR. 83 George v. Fajore (1939) 15 N.L.R. 1 Shaw v. Kehinde (1947) 18 N.LR. 129. For the lain in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status. — Karibe-Whyte, JSC.
⦿ FAMILY LAND CEASES TO BE FAMILY LAND ON PARTITION
In the first place family land ceases to be such land on partition, – See Balogun v. Balogun. (1943) 9 W.A.C.A. 78. Thus the Aige family, as in the instant case partitioned its land and granted any portion to any branch of the family, the grant so made ceases to be Aige family land, but is now the land of the person or persons to whom the grant has been made. — Karibe-Whyte, JSC.
⦿ UNAMBIGUOUS OPERATIVE PART CANNOT BE CONTROLLED BY THE RECITAL
I think Professor Kasunmu, S.A.N. counsel for the appellant was right when he submitted that the Court of Appeal relied on the recital to the deed to control the operative clause in Exhibit A. It is well settled that in interpreting a deed, an unambiguous operative part cannot be controlled by the recital. The clear and unambiguous operative part must be given full expression and effect. See I.R.C. v. Raphael (1935) A.C. 96,135 Dawes v. Tredwell (1881) 18 Ch. D. 354,388-9. — Karibe-Whyte, JSC.
⦿ WHETHER PERSON STANDING TO SUE IS THE PROPER PERSON TO REQUEST AN ADJUDICATION
When a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. See Oloriode v. Oyebi (1984) 1 S. C. N. L. R. 390, 392 Senator Adesanya v. President of Nigeria AND ANOTHER {1981) 2 N. C. L. R. 358. Thomas v. Olufosoye (1986) 1 N. W. L. R. (pt. 18) 669. — Obaseki, Ag. CJN.
➥ LEAD JUDGEMENT DELIVERED BY:
Karibi-whyte, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Professor A. B. Kasumu S.A.N.
⦿ FOR THE RESPONDENT
K. Talabi.
➥ CASE HISTORY
This is an appeal against the judgment of the Court of Appeal Division sitting in Lagos. On the 2nd October, 1985, in a unanimous judgment read by Kolawole, J.C.A., with which Ademola, J.C.A. and Nnaemeka-Agu, J.C.A. (as he then was, but now J.S.C.) concurred, the court set aside the judgment of Desalu, J. of the High Court of Lagos State, sitting at Ikeja and dismissed the claim of the Plaintiff/Appellants for, inter alia: A declaration that the plaintiffs are entitled to the Statutory right of occupancy or in the alternative a customary right of occupancy in respect of all piece or parcel of land situated along Lagos Ikorodu Road, Ikorodu, Lagos State which land is now particularly shown and delineated by beacon No. WN 2722 and WN 2723 respectively same marked RED in plan NL & L CB 21 registered with the Deed of grant dated 28th day of December, 1959 and registered as No. 17 page 17 in Volume 358 of the Land Registry, Ibadan.
➥ ISSUE(S) & RESOLUTION
I. Whether the plaintiffs claim on the pleadings support the decision that the land in dispute vested in the plaintiffs’ as family property?
RULING: IN APPELLANT’S FAVOUR.
A. “A careful reading of the recital in Exhibit “A” leads one to the only conclusion that the words ’the children and grand children” referred to therein was merely descriptive of the grantees who lived with and survived Chief T.K. Dada and who remained in undisturbed possession of the land after his death. It is these “children and grand children” who approached the Grantors for the execution of the deed – Exhibit “A”. The grant was made to the persons named in Exhibit “A” who were the surviving children and grand children of Chief T.K. Dada. If there were others besides those specifically named, this should have been included by appropriate express-ion such as to the named grantees “representing the children and grand children of the said Chief T. K. Dada.” It seems to me unarguable that the words used in Exhibit “A” are clearly incapable of creating family land in respect of the grant to the named grantees. This is because each grantee though child or grandchild of Chief T.K. Dada may qualify in the creation of family property. Furthermore, there was no intention to create a family property for the family or Chief T.K. Dada. The effect of the grant therefore was to create a joint ownership of the property in those named. See Caulcrick v. Harding (1926) 7 N.L.R. 48. The Court of Appeal was therefore in error to hold that Exhibit “A” created a family property in respect of the land in dispute.”
B. “Since the grantees rely on Exhibit “A” for their title, only persons named therein, or those properly nominated as successors of persons named therein can bring action on the Deed of grant … It is no doubt correct to say that a member of the family is competent to bring action to protect the interest of the family in respect of family property; even if he has no authority of the family to bring the action, – see Sogunle AND OTHERS v. Akerele AND OTHERS (1967) N.M.L.R. 58, at p.60. This principle however applies to family land. Since the land in dispute in this case is not family property, the principle laid down in Sogunle AND OTHERS v. Akerele AND OTHERS is not applicable … There is no doubt that Exhibit “A” was a grant to the grantees named therein and did not create family property of the land in dispute. Evidence of the plaintiffs did not support the claim. The question arises whether or not being parties to the Deed and not being any of the named grantees, plaintiffs can bring action in respect of Exhibit “A”. It is well settled law that only par-ties to deed or persons deriving benefit thereunder can sue in respect of a deed. Plaintiffs not being such persons, cannot bring action in respect of Exhibit “A”.”
C. “I have already held that the land in dispute not being family land, the proposition relied upon by the Court of Appeal does not arise. Again, it is clear from the averments on the pleadings, the parties agreed that the land in dispute was originally Aige family land. There was no other admission, and indeed it was not pleaded that it was the family land of the plaintiffs. The plaintiffs did not plead any other family in whom title to the land vested. As counsel to the appellants correctly puts it, in his brief, “Even if the Court of Appeal is right that it is family property, the plaintiff must still discharge or show a link or interest before the onus will shift. The onus will not shift unless and until the plaintiff can show a semblance of title ….” In the case be-fore the trial Judge which was a claim for a declaration of title, the onus is on the plaintiffs to prove their title to the land. Until this is done no burden shifts to the defendant who is putting forward a different title of his own. The plaintiffs having failed to establish their link with the land failed to discharge the burden of proof on them. There was accordingly no burden on the defendants – see Awomuti v. Salami (1978) 3 S.C. 105, Eze v. Igiliegbe 15 W.A.C.A.”
.
.
II. Whether the Court of Appeal was right in holding that the trial Judge was wrong in saying that D.W.2 and D. W.3 were not witnesses of truth?
RULING: IN APPELLANT’S FAVOUR.
A. “It is trite that the trial Judge before a witness gives evidence has a better opportunity of assessing its veracity by consideration of such evanescent factors as his reaction to cross-examination and his general attitude to the evidence he was giving. The duty of appraising and evaluating evidence is pre- eminently that of the Judge who heard and saw the witness. The Court of Appeal equipped only with the records and the cold facts of the case as found is only entitled to interfere where the finding is palpably perverse-See Onowan v. Iserhein (1976) 1 N.M.L.R. 263. It is not entitled to interfere and reverse the finding which it had no opportunity to observe merely because it would have come to a different conclusion. See Ogundolu v. Phillips AND OTHERS (1973) N.M.L.R. 267. In this case which is a finding of fact concerning the veracity of witnesses based on the evidence before the trial Judge, the Court of Appeal was wrong to have introduced extraneous matters which could only arise from speculation. Whether the evidence of the D.W.2 and D.W.3 were prejudicial to the case of the defendant/appellant or strengthens that of the plaintiffs/respondents is clearly different from whether they ought to be believed. The Court of Appeal was wrong to usurp the functions of the trial Judge and substitute its own views of the facts for that of the trial Judge – see Egri v. Uped (1974) 1 N. M. L. R. 22.”
.
.
.
✓ DECISION:
“It was for the above reasons, that I allowed the appeal of the appellants and set aside the judgment of the Court of Appeal.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
