ADEBANJO V. OLOWOSOGA

• Pages: 503-518

ADEBANJO V. OLOWOSOGA

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503

per, for, the law is no respecter of persons and it will always be made to take its

course.

It was for the above reasons and for the fuller reasons set out in the lead judg-

ment of my learned brother Obaseki, Ag. C.J.N. that I agreed on 30th June, 1988

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that the appeal lacks merit.

The appeal accordingly fails and it is dismissed. The judgment of Ononuju, J. as

affirmed by that of the Court of Appeal is hereby confirmed.

Appeal dismissed.

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ADEBANJO V. OLOWOSOGA

15

ALHAJI AMUDA I. ADEBANJO

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& ORS.



APPELLANT

V

ALHAJI L. D. OLOWOSOGA &

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ORS.



RESPONDENT

SUIT NO. SC 134/1986

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SUPREME COURT OF NIGERIA

OBASEKI



Ag.C.J.N.

UWAIS,



J.S.C.

KARIBI-WHYTE,



J.S.C.

KAWU,



J.S.C.

25





BELGORE,



J.S.C.

29th September, 1988

Practice and Procedure - Legal Capacity - Locus Standi, - Right of Third parties to sue

where not included in the deed of conveyance.

Evidence - Declaration of Title - Onus of proof - Section 135 of Evidence Act - Rejection

of Evidence by trial court - Section 226(2) Evidence Act.

Customary Law - Family land - Partition - Grant to individual family members - Joint

ownership.

Land Law - Family land - Partition - Ceazes to be family land - Joint ownership - Grantees

deriving title - Locus standi to bring action.

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Interpretation and Construction - Words and Phrases - "Children and grandchildren"

meaning of

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ISSUES:

1. Whether a plaintiff has

locus

-

Stand/

to maintain an action claiming a declaration

of title to land where the plaintiff was riot a named party to the deed of conveyance.

2 Where does the burden of proof lie in an action for a declaration of title to land.

3.

Under what circumstances can a member of a family be competent to institute

an action in a representative capacity to protect the family property.

4.

What must the court bear in mind when interpreting the contents of a deed of

conveyance.

5.

Whether an appellate court can interfere with the decision of the lower court,

where the lower court disbelieved the evidence of a witness.

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504

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NIGERIAN SUPREME COURT CASES

[19881 2 N.S.C.C.

FACTS:

The Respondents instituted an action at the High Court claiming a declaration

that they were entitled to the right of occupancy of the land in dispute, possession

and an injunction restraining the appellant, his agents and servants from repeating

or continuous acts of Trespass to the said land. The land in dispute was formerly

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part of a family land owned by Mr. Aige. who died intestate and the land devolved

on his children as family property. The land was later partitioned and the part in dis-

pute was alloted to a Chief Dada, on his death, the family conveyed by Deed of grant

the said land to the appellant as grantees. The Deed of grant was tendered as Ex-

hibit A. The land was subsequently sold by the children of Chief Dada. From the

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evidence tendered by the respondents, the trial judge found that there were other

children and grandchildren of Chief Dada who were not mentioned as grantees. The

judge therefore found that since they were not mentioned in the Deed of grant, they

have no interest in the land granted. The trial judge dismissed the claims on the

grounds that the respondents had no

locus standi

to prosecute the action because

none of them was named as grantee in the deed of conveyance. The trial court also

disregarded the evidence of the two defence witnesses holding their evidence to be

unreliable.

The respondents appealed to the Court of Appeal and their appeal was allowed,

thus granting them a declaration of entitlement to a statutory right of occupancy.

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2(

The Court of Appeal reversed the decision of the trial court on the grounds that:-

1.

the learned trial judge misdirected himself in law to have held that the deed

of grant relied upon by the respondent did not confer any interest in them.

2.

That the trial judge erred in law in holding that only the first respondent

averred that he is the son of a grantee and that the others did not establish

their relationship to the grantees mentioned in the Deed of Grant.

3.

That the trial judge was wrong to hold that the witnesses called by the de-

fendants were not witnesses of both merely because they did not support

the case of the defendant.

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3(

The appellants having lost at the Court of Appeal appealed to the Supreme Court on

the grounds that the appeal judges erred in law when they held that the first

plaintiff/respondent alone was competent to prosecute the claim without the other

members of the family, that none of the respondents were proper parties to sue for

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title.

HELD:

1.

That only parties to a Deed or persons deriving benefit under the claim can sue

in respect of a deed. In the Instant appeal, the plaintiffs were not such parties

and could not therefore institute an action in respect of the land.

2.

That the onus of proving title is on the party claiming ownership, until the onus

is proved the burden does not shift to the other party. In this case, the plaintiffs

did not plead their title to the land, therefore, failed to establish their link with the

land in dispute. The burden of proof remained with them.

3.

That a member of a family is competent to bring an action to protect the interest

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of the family, only if the land in dispute is a family property. This will also be the

case even if such person has no authority of the family to bring the action.

However, this principle does not apply in the instant appeal because the land is

not a family land but a land vested in the named grantees.

4.

In interpreting a Deed of conveyance, the clear and unambiguous operative part

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must be given full expression and effect. In this appeal, the recital tendered as

Exhibit "A' shows clearly that the words "children and grandchildren refers only

to the grantees and not the whole family. The words are incapable of creating

family land in respect of the grant to the named grantees since there was no