AYENI & ORS. V. SOWEMIMO

• Pages: 104-118

AYENI & ORS. V. SOWEMIMO

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104

UWAIS, J.S.C.: I

have had the advantage of reading in draft the judgment

delivered by my learned brother Sir Udo Udoma, J.S.C. For the reasons contained

in the said judgment I agree that this appeal is devoid of merit. I will therefore

dismiss it with N300.00 costs to the respondent.

5

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Appeal dismissed.

AYENI & ORS. V. SOWEMIMO

10

1.

EMMANUEL TAIWO AYENI

[Substituted for

15



Alhaja Somisi (deceased)]

2.

OYEDELE IGARA ADARALOYE

3.

OMOTAYO IGARA ADARALOYE

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APPELLANTS

4.

PETER AKOGU OGUNBANWO

V

20 WILLIAM ABIODUN SOWEMIMO



RESPONDENT

SUIT NO. SC 66/1981

SUPREME COURT OF NIGERIA

UDOMA,



J.S.C.

SOWEMIMO,



J.S.C.

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

OBASEKI,



J.S.C.

ESO,



J.S.C.

ANIAGOLU,



J.S.C.

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

30



14th May, 1982

Practice and Procedure - Parties - Representative capacity of defendants in absence

of representation order - Claim for partition of family land - Pleadings -

Whether no cause of action disclosed - Plaintiffs membership of family the

35

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substantial issue on pleadings

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Words and phrases - "Partition" of family

land - True meaning and connotation as a legal concept.

ISSUES:

1.

What is the distinction between non-disclosure of a cause of action and the use

40

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of a wrong word in pleadings?

2.

What is the true meaning and connotation of the word "partition" of family land,

as a legal concept?

3.

Whether suing persons in the wrong capacity is fatal to a plaintiff's case.

4.

Whether the Supreme Court can disturb two concurrent findings of fact by lower

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courts in to absence of special circumstances warranting such disturbance.

FACTS:

The plaintiffs brought this action in the High Court against the defendants, claim-

ing an order for partition of landed property in dispute. Both the plaintiffs and de-

fendants descended from a common ancestor and the house and landed property,

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the subject matter of this action, originally belonged to the ancestor. The fact that

the property in dispute was family property, was not raised in the statement of

defence. The defendants however contended that they had been wrongly sued in

their personal capacity. After reviewing the evidence, the trial Judge held that the

plaintiff was entitled to the order sought.