➥ CASE SUMMARY OF:
Alhaji Lamidi Daodu Olowosago V. Alhaji Amuda I. Adebanjo (SC.134/86, 29 Sep 1988)
by Branham Chima.
➥ ISSUES RAISED
Locus standi to sue;
Grantees in a deed;
Family property.
➥ CASE FACT/HISTORY
On the 4th July, 1988, I summarily allowed the appeal of the appellants and indicated that the reasons for so doing will be given today. I proceed hereunder to give the reasons. 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 JCA, with which Ademola JCA, and Nnaemeka-Agu JCA (as he then was, but now JSC) concurred, the court set aside the judgment of Desalu, J. of the High Court of Lagos State, sitting at Ikeja and dismissing the claim of the Plaintiffs/Appellants for “1. 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 situate along Lagos Ikorodu Road, Ikorodu Lagos State which land is now particularly shown and delineated by becon No. WN 2722 and WN 2723 respectively same marked RED in plan N.L and 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. 2. Possession of the said land. Perpetual injunction restraining the Defendant his Agent OR Servants and privies from repeating OR continuing the acts of trespass to the said piece OR parcel of land.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the Plaintiffs claim on the pleadings support the decision that the land in dispute vested in the Plaintiffs as family property?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE LAND IS NOT A FAMILY LAND; LAND WAS SPECIFICALLY GIVEN TO THE NAMED GRANTEES
‘However, 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 expression 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 grand child 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 NLR 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.’
EXHIBIT A DID NOT CREATE FAMILY PROPERTY
‘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 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 parties 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.” The learned Judge was therefore right to hold that the Plaintiffs are not entitled to bring the action. The Court of Appeal was wrong to have reversed that holding. Ground one of the grounds of appeal therefore succeeds.’]
.
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II. Whether the Court of Appeal was right in holding that the trial Judge was wrong in saying that DW2 and DW3 were not witnesses of truth?
RESOLUTION: IN APPELLANT’S FAVOUR.
[IT IS WITHIN THE PURVIEW OF THE TRIAL COURT TO DETERMINE WITNESSES OF TRUTH; TRIAL JUDGE WAS RIGHT
‘A careful analysis of the evidence and the trial Judge’s consideration of its worth discloses that the Judge was perfectly correct in the view he held. First, DW2 and DW3 were two of the four signatories to the conveyance of the land in dispute – Exhibit E to Defendant/Appellant. DW2 appeared on subpoena denied any knowledge of the transaction but acknowledged his signature on Exhibit E. He is one of the named grantees in Exhibit A and one of the signatories in Exh. B, which was a conveyance of part of the land in dispute to Ikorodu Trading Company. Also DW3 after considerable evasion appeared on subpoena. He admitted signing Exhibit E but disclaimed knowledge of sale of the land to the Defendant/ Appellant. The learned Judge who had the opportunity of hearing them give evidence and observe their demeanour stated as follows – at p.99 “I had the opportunity of listening to the evidence of the witness Ore Dada and studying his demeanour. I came irresistibly to the conclusion that he is not a witness of truth. He impressed me as one who has no regard for truth or what it stands for.” Of the DW3, he had this to say, “Like his uncle, Idowu Folorunsho Dada appears to me a very untruthful witness. He was deliberately evasive in answering question put to him and is an obvious liar.”’
‘It is trite law that the trial Judge before who 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 NMLR 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 Ogundulu v. Philips and Ors. (1973) NMLR 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 DW2 and DW3 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. Uperi (1974) 1 NMLR 22.’]
.
.
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✓ 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.’
➥ FURTHER DICTA:
⦿ ISSUES MUST FALL WITHIN THE GROUNDS OF APPEAL FILED
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. — A.G. Karibi-Whyte, JSC.
⦿ THE CONCEPT OF FAMILY LAND; CREATION OF FAMILY PROPERTY
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 1 NLR 81. 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 NLR 248. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See Re Edward Forster (1938) NLR 83, George v. Fajore (1939) 15 NLR 1, Shaw v. Kehinde (1947) 18 NLR 129. For the land in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status. — A.G. Karibi-Whyte, JSC.
⦿ FAMILY LAND CEASES WHERE THERE IS A PARTITION
In the first place family land ceases to be such land on partition, – See Balogun v. Balogun (1943) 9 WACA 78. Thus if 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 granted. — A.G. Karibi-Whyte, JSC.
⦿ CLEAR 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 IRC v. Raphael (1935) AC 96, 135 Dawes v. Tredwell (1881) 18 Ch.D 354, 388-9. — A.G. Karibi-Whyte, JSC.
⦿ MEMBER OF FAMILY CAN BRING ACTION TO PROTECT FAMILY PROPERTY
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 Ors. v. Akerele and Ors. (1967) NMLR 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 Ors. v. Akerele and Ors. is not applicable. — A.G. Karibi-Whyte, JSC.
⦿ WHERE THERE IS VARIANCE IN PLEADINGS AND THE EVIDENCE, THE ACTION IS BOUND TO FAIL
It is clear from the foregoing that the claim of the plaintiffs as disclosed in the writ of summons and statement of claim was not supported by the evidence of the trial. It is well settled law that parties are bound by their pleadings. Where there is variance between the claim the pleadings and evidence, the action is bound to fail- See Ogiamen v. Ogiamen (1967) NMLR. 245. — A.G. Karibi-Whyte, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
A.G. Karibi-Whyte, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Professor Kasunmu, SAN.
⦿ FOR THE RESPONDENT(S)
Mr. Talabi.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
