Taoridi A. Sufianu & Ors. V. Wahab Abass Animashaun & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
The Respondents were the plaintiffs in suit NO. LD/19/77 at the Lagos High Court, and had claimed against the 1st to 3rd Appellants as the defendants for the following reliefs:
“1. …A declaration that the plaintiffs are entitled to statutory or customary right of occupancy or interest in all that piece or parcel of land situate, lying and being at Animashaun Village, Abebe, off Babs Animashaun Road, Surulere which with its dimensions and abuttals is more particularly described and delienated on Plan No.HU/LA/3419 of 29th November, 1986 filed in this suit.
- And/or a declaration that as relations of the customary tenants (deceased) under native law and custom the defendants, as representatives of Sufianu Muse and Sule families have forfeited for misconduct all rights and/or interests, if any, in the said piece or parcel of land.
- Recovery of possession of the said land.
- An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from entering the said piece of land or in any manner however, interfering with the plaintiffs’ ownership and/or possession of the same.”
In the usual manner, the parties filed and exchanged pleadings which each amended a number of times. The suit was subsequently heard by Akinsanya J. The plaintiffs called five witnesses and the defendants six. On 30 May, 1997, the learned trial Judge in her judgment upheld the claims of the plaintiffs and gave judgment as claimed. Dissatisfied with the said judgment, the defendants have brought this appeal on seven grounds of appeal. In their notice of appeal, the defendants prayed that the judgment in favour of the plaintiffs be set aside and the case of the plaintiffs dismissed with costs. Before this Court, the 4th appellant applied for and was granted the leave to appeal as an interested person. The result is that I have for consideration in this judgment two appeals – one by the defendants before the lower Court and the other by the party joined by this court as an interested party.
In the appellants’ brief filed, the issues for determination were identified as the following:
“(i) Issue – 1
whether the trial Court exercised its discretion judicially and judiciously in the circumstances of this case in refusing to grant the defendants/appellants’ application for further amendment of their 3rd amended statement of defence and whether they were thereby denied their right to fair hearing?.
If the refusal is correct in law, whether the principle in Bello v. Eweka (1981) 1 S.C. 101 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) page 90 preventing the use of admissions in pleadings (here, statement of defence) to grant a declaratory judgment applies and that failure to observe the same is a miscarriage of justice for which the judgment should be set aside.
(ii) Issue – 2
whether on the facts found in the evidence before the Court the land in dispute could be said to have vested in late Sunmonu Animashaun either by native law and custom or by grant and whether the land in dispute is part of the estate of Sunmonu Animashaun and inherited by plaintiffs/respondents. If it is part of the said estate, whether the plaintiffs/respondents have locus standi to prosecute this suit?.
(iii) Issue – 3
whether the defendants are the customary tenants of the plaintiffs?.
Issue – 4
(Iv) whether the learned trial Judge correctly and sufficiently examined the evidence tendered before the court by both sides and whether under the facts and circumstances in this case, appellants are not entitled to judgment in their favour?.”
The Respondents in their brief formulated three issues for determination and the said issues fall within the ambit of the appellants’ issues.
The 4th appellant, arising from his own appeal, formulated the issues for determination thus:
“(1) whether any estate customary or otherwise vested in Sunmonu Animashaun deceased as claimed by the plaintiffs?.
(ii) Are the defendants customary tenants of the plaintiffs?
(iii) Are plaintiffs entitled by law to bring this action?
The issues raised by the 4th appellant which I have reproduced above all fall within the ambit of the 1st to 3rd appellants issues. All the issues for determination detail into each other and I intend in this judgment to take them together. But before I commence a discussion of issues, I shall consider closely the pleadings of the parties before the lower Court.
The plaintiffs’ case was that, an expanse of land at Abebe which originally belonged to the Oloto Chieftaincy Family was granted to their grandfather Sunmonu Animashaun about 150 years ago. The said Sunmonu Animashaun died testate in 1895. He was survived by 42 children including the grandfathers and great grandfathers of the plaintiffs. Sunmonu Animashaun farmed on the land using his wards, servants, agents and customary tenants. After his death, the trustees of his estate continued to farm the land in the same manner. The wards, servants, agents and customary tenants of Sunmonu Animashaun were allowed to take a part of the crops harvested from the land for their subsistence. In 1930, the trustees caused the land to be surveyed and in 1934, a conveyance was executed in favour of the trustees. The farm workers were allowed to remain on the land on the condition that they worked diligently and loyally.
In 1964, the Lagos Executive Development Board acquired a portion of the land. The plaintiffs’ family received compensation as the owner whilst the defendants and their family were allowed as farm workers to receive compensation for their crops on the land. Following the acquisition, the defendants who claimed they were the descendants or relations of the plaintiffs’ customary tenants were moved to another portion of the land which was not acquired by L.E.D.B. The defendants were also allowed to build temporary structures on the land.
At about 1967, there emerged an intra-family dispute within the plaintiffs family which led to a litigation in suit No. LD/188/67. It was disposed of in 1972. It was observed about this time that the defendants had erected more structures on the land than was authorised by the plaintiffs’ family. Later, it was discovered that the defendants had been selling portions of the land to some persons and executing deeds of conveyance in their favour.
In reaction, the plaintiffs brought their suit claiming as earlier stated in this judgment.
The defendants in their 3rd amended statement of defence pleaded that a large piece of land which included the land in dispute was originally claimed by Oloto Chieftaincy Family. The defendants later found that the land did not belong to the Oloto Chieftaincy Family but to Itire Family. The Itire family granted the land absolutely to the ancestor of the defendants. The defendants were not the wards, servants, farm workers, licences or customary tenants to the ancestor of the plaintiffs. The ancestors of the defendants were customary tenants to the Oloto Chieftaincy Family. They later became absolute owners as a result of the grant to them by Itire Family. The defendants agreed that the plaintiffs’ ancestor acquired land from the Oloto Chieftaincy Family. Thy contended however that the land of the plaintiffs was not the one in dispute. It was pleaded by the defendants that by a coincidence their ancestor bore the same name Animashaun. The ancestor of the defendants was Sunmonu Animashaun Olode. The land of the plaintiffs’ ancestor was acquired by L.E.D.B. The defendants pleaded that they had laid their own land into building plots and sold some of them to diverse persons.
It was on this state of pleadings that the case proceeded to trial. It is necessary that I make a few preliminary observations on the pleadings of the parties. Whereas the plaintiffs traced their title to the land in dispute to the Oloto Chieftaincy Family, the defendants for their part also agreed that they had accepted the Oloto Chieftaincy Family as the owner of the land until that family in a land dispute with Onitire Family lost title to the land. The defendants then accepted the Itire Family as their overlords. It was therefore an important issue at the trial to determine whether the land remained vested in the Oloto Chieftaincy Family or had been extinguished in favour of Itire family. It is also noteworthy that whereas the plaintiffs claimed that their ancestor was Sunmonu Animashaun, the defendants pleaded that their own ancestor was Sunmonu Animashaun Olode.
Before the lower Court on 17/2/97, the defendants after their counsel Chief Dele Awoniyi had on 11/12/96 concluded his address sought the leave of the lower Court to amend their pleadings. The Court notes for 17-2-97 indicated the nature of the amendment which the defendants wanted to make thus:
“Chief Dele Awoniyi
Our motion dated 20th December, 1996 is to further amend the 3rd amended statement of defence by deleting paragraphs 5, 6(vi), 6(vii), 6(viii), 6(xii), 6(xv), 7(iii), 8(6)C, 13 and 15 of the 3rd amended statement of defence.”
The plaintiffs’ Counsel objected. In a part of his objection plaintiffs’ Counsel, Mr. B. A. M. Fashanu said:
“The reasons given are untenable – I submit that it is too late in the day to know who in the family of the defendants can adequately brief lawyer on correct facts since 1977 – when those averments sought to be deleted amounted to admissions which the plaintiffs have relied upon in their own cases.”
The lower Court refused to grant the defendants the leave to amend their 3rd amended statement of defence in a rather short ruling delivered on 6-3-99. Order 25 Rule 1 of the High Court of Lagos State Civil Procedure Rules, 1972, applicable to this case enables either party to a suit to amend his pleadings in such manner and on such terms as may be just and all such amendments are to be made for the purpose of determining the real questions in controversy between the parties. It is also the general principle governing pleadings that the power to amend be liberally exercised. In Bello Adeleke v. Awoliyi & Anor. (1962) 1 All NLR 260 at 262, Ademola, C.J.F said:
“It is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action, the court is to award costs against the delinquent party rather than dismiss or strike out a case for a fault in the proceeding prior to hearing of the case.”
And often quoted and followed by the Nigerian Courts is the dictum in Copper v. Smith (1884) 26 CH.D 710 that:
“It is a well established principle that the object of the court is to decide the rights of the parties and not to punish them for the mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights – I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct if, it can be done without injustice to the other party.” See A. U. Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 2) 409; Shoe Machinery Co. v. Cutlans (1896) 1 CH.D. 108 at 112.
In Akinkuowo v. Fafimoju (1965) NMLR 349, the Supreme Court upheld the exercise of discretion by the trial to grant an amendment even when evidence had been taken. Similarly, in Oguntimehin v. Gubere & Ors. (1964) 1 All NLR 176, the Supreme Court upheld the granting of an amendment during final address. See also Okafor v. Ikeanyi (1979) 3 – 4 SC.99 at 106; Chief Ojah v. Chief Eyo Ogboni (1976) 4 S.C. 69.
Since however the grant of an amendment of pleadings is discretionary, each case must depend on its own facts.
An amendment would not be granted where it would occasion undue delay in the hearing of the suit or unfairly prejudice either party. See Dominion Flour Mills Ltd. v. Abimbola George (1960) LLR 53. In determining whether or not to exercise its discretion to grant an amendment the court would consider (1) the attitude of the parties (2) the nature of the amendment sought in relation to the suit. (3) the question in controversy (4) the time the application is made. (5) the stage at which it is made and (6) all other relevant circumstances. See Oyegoke v. Hamman (1990) 4 NWLR (Pt.143) 197.
In the instant case, the paragraphs of the 3rd amended statement of defence which the defendants sought to delete were those in which far reaching admissions fundamental to the case before the court had been made by the defendants. The plaintiffs had pleaded that Sunmonu Animashaun was their ancestor; that the land in dispute originally belonged to the Oloto Chieftaincy family, that the defendants’ ancestors were customary tenants on the land in dispute, that the plaintiffs’ family was paid compensation as the owner of the land in which the land in dispute was a part and that the defendants were paid compensation only for the crops on the land as customary tenants.
The defendants had in paragraphs 5, 6(vii), 6(viii), 6(xv), some of which they sought to delete pleaded thus:
“5. The defendants aver that the land in dispute is the absolute property of the ancestor of the defendant by the Oloto Chieftaincy Family as customary tenants and at a later stage the same was granted to the ancestor of the defendants absolutely as owner in accordance with Yoruba native law and custom by the Itire chieftaincy family for valuable consideration.
6(vii) That there was no time when (Animashaun) the ancestor of the plaintiffs took possession of the land sold to him (25 acres) before his death as the same was in physical possession of the defendants and their ancestors up to the year 1964 when the Lagos Executive Development Board compulsorily acquired the same.
6(viii) That at the time of acquiring the land sold by the Oloto Family to the plaintiffs’ ancestor, there were cash crops and economic trees of the defendants family on the land acquired.
“(a) AVM Femi John Femi, the then CAS is not material to this case on the following grounds:
(1) He is not authorize 6(xv) That the parcels of land purchased by the ancestor of the plaintiffs from the Oloto Family was not surveyed in the lifetime of the ancestor of the plaintiffs.
6(xv) The defendants acknowledged the ownership of the 25 acres of land forming part of Central Lagos sold by the Oloto Family to the ancestor of the plaintiffs and which land was acquired in its entirety by the Lagos Executive Development Board in 1964…”
From the above extracts of the 3rd defendants’ statement of defence, it is apparent that the defendants had accepted that Sunmonu Animashaun was plaintiffs’ ancestor, that plaintiffs’ ancestor bought or acquired an area of land from the Oloto Family, that the defendants were customary tenants to the Oloto Family before the plaintiffs’ ancestor bought the land. These admissions had the consequence of reducing the areas of conflict. What remained to be determined was whether the land in dispute was part of the land the plaintiffs’ ancestor acquired from the Oloto Family; whether the Oloto family did at some stage lose its overlordship to Itire family if it was determined that the land in dispute fell within the land acquired from Oloto family by the plaintiffs’ ancestor; and whether all the land of the plaintiffs had in fact been acquired by the L.E.D.B. in 1964.
The functions of pleadings in a suit include (a) To ascertain with some certainty the matters actually in dispute between the parties: See Oduka & Ors. v. Kasumu & Anor. (1968) N.M.L.R. 28(b) To define the issues and narrow the scope of controversy between the parties: Odogwu v. Odogwu (1990) 4 NWLR (Pt.143) 224. Pleadings thus eliminate the springing of surprises on the opponent. One of the important consequence of filing pleadings is that there is no issue between the parties in respect of matters expressly admitted on the pleading and therefore no evidence is admissible in reference to those matters: The British India General Insurance Company Nigeria Ltd. v. Thawardes (1978) 3 SC. 143; Chief Okparaeke v. Egbuonu & Ors. (1941) 7 WACA 53 at 55. A party is therefore entitled to rely on the admissions made on the pleadings by his opponent.I observed earlier that the defendants sought to withdraw the admissions they had made on their 3rd amended statement of defence only at the stage when the defence counsel had delivered his final address. It is therefore clear that to have granted the amendment at that stage would gravely prejudice the case of the plaintiffs unless the case were to be opened anew for the plaintiffs to provide substitute evidence to replace the admissions previously made by the defendants.
In other words, the amendment as sought, would if granted prejudice the case of the plaintiffs. The attempt of the defendants by bringing that kind of the application to amend at the stage it was brought was to overreach the plaintiffs.
I could understand applications for amendments of pleadings brought late being granted. Amendment has been granted on the day judgment was to be delivered. See Okafor v. Ikeanyi (supra)
But the approach is to look at the nature of the amendment sought and to fairly assess or gauge its impact or effect on the case of the other party and the opportunity available to the opponent to react to the new matters pleaded. I think that the trial Judge in this case fairly exercised her discretion by refusing the application to amend brought by the defendants at a stage when final addresses were being delivered.
The plaintiffs at the trial tendered as Exhibit A, a conveyance by the Oloto Family in favour of the Trustees of the estate of Sunmonu Animashaun. The evidence was that the land covered by the plan attached to Exhibit ‘A’ had been granted to Sunmonu Animashaun several years before he died in 1895. The nature of the grant was not stated. It was pleaded that Sunmonu Animashaun died testate.
The first reaction one has is that, only the persons to whom Sunmonu Animashaun devised the land by his Will who could sue on it. But that in my view is an internal affair of the family of Sunmonu Animashaun.
The plaintiffs had expressed that they were bringing the suit as the beneficiaries and for the Estate of Sunmonu Animashaun. Before an estate is distributed, it must be garnered in. Every member of a land owning family can bring a suit to protect the property of the family from waste and dissipation. All those whose interest the actual plaintiffs represent will be bound by any judgment or order that may be made in the proceedings. See Opebiyi v. Oshoboja & Ors. (1976) 9-10 Sc. 195.
The defendants/appellants in this case have argued before us that the plaintiffs had not produced the Will of Sunmonu Animashaun and shown how they qualified to be the persons to bring the suit. Another way of putting the argument of the defendants/appellants is that, if, as the plaintiffs pleaded, Sunmonu Animashaun died testate, the land of Sunmonu Animashaun has been divested of the character of a family property and only the devisees or direct beneficiaries under the Will of Sunmonu Animashaun could bring the suit.
But the law is that, a defendant who wishes to question the authority of a plaintiff to sue in a representative capacity should do so at an early stage of the proceedings. See Walter Wiri & Ors. v. Godwin Wuche & Ors. (1980) 1-2 S.C. 1. If an order for leave to sue in a representative capacity was not sought or given, the authority will be presumed as granted if (1) The title and the statement of claim reflect that capacity. (2) The suit was prosecuted to judgment in that capacity; and (3) Judgment was given for or against the plaintiff in that capacity; See Yekini Otapo v. Sunmonu (1987) 2 NWLR (pt.58) 587.
Having said the above by way of a preface, I think that the defendants completely misunderstood and misconceived the nature of the case before the lower Court vis-a-vis the issue of locus standi. The case of the plaintiffs was not about sharing the estate of Sunmonu Animashaun or determining who of the descendants was entitled to a share of his estate. The suit was as to whether or not the land in dispute was comprised in the estate of Sunmonu Animashaun. The question of the proper implementation of the Will or distribution of the estate of Animashaun is an in-house matter for the Animashaun Family. It is not a matter that an outsider can participate in. Whether or not the plaintiffs had the mandate and authority of those entitled to a share in the estate of Sunmonu Animashaun was not the issue before the lower Court. The issue was – Did the land in dispute belong to the estate of Sunmonu Animashaun? See on this point Alhaji Sanni Shaibu v. J. O. Bakare (1984) 12 Sc. 187 at 230 and Ezeudu v. Obiagwu (1986) 2 NWLR (pt.21) 208.
The defendants in their statement of defence admitted in so many paragraphs that Sunmonu Animashaun was plaintiffs’ ancestor and that he Sunmonu was granted a 25 acre land by the Oloto Family. They contended that the land in dispute was not part of the land sold to the trustees of Sunmonu by the Oloto family. However, a representative of the Oloto family who testified as P.W.1 gave evidence that his family sold the land covered by Exhibit ‘A’ to the plaintiffs’ family. Further the composite plan which relates the land in dispute to the land sold vide Exhibit’ A’ was tendered as Exhibit ‘R’ and this shows that a substantial part of the land in dispute falls within the land sold to the plaintiffs’ family vide Exhibit A.
The defendants also admitted that they had been customary tenants to the Oloto Family before the land was sold to the plaintiffs family. The implication of that was that the land conveyed by the Oloto family to plaintiffs’ family would remain subject to the defendants customary tenancy. The defendants and their ancestor before them would therefore become customary tenants of the plaintiffs.
The defendants pleaded and gave evidence that the Oloto family lost their title in the land to the Itire family and that they bought the land absolutely from the Itire family. However, a representative of the Itire family who testified for the defendants as D.W. 3 said that his family did not sell the land in dispute to the defendants. So the defendants lied on the point, more than that however the defendants whereas they had admitted that the land originally belonged to the Oloto family, failed to plead the origin and devolution of the title of Itire. All we had was a bland assertion unsupported by any evidence or traditional history as to the ownership of Itire family. The defendants tendered as Exhibit AA a judgment in which they claimed the land in dispute was adjudged to belong to the Itire family. But no evidence was led to show which area of land was in dispute in the case. Given the fact that it was common ground that the Itire family shared a boundary with the Oloto family not much could be made out of Exhibit AA unless one knew the exact land that was in dispute in the case. The result therefore was that the title of Oloto family which was transmitted to the plaintiffs’ family in respect of the land in dispute remained unassailed.
The defendants/appellants placed reliance on Bello v. Eweka (1981) 1 SC. 101 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90 to argue that admissions in pleadings cannot be relied upon to grant a declaratory relief. Declaratory judgment are discretionary in their nature. It is therefore the accepted practice that the court should not rely on admissions on pleadings alone to grant declaratory reliefs. The plaintiffs in this case called five witnesses in support of their case. They tendered the conveyance Exhibit A made in favour of the trustees to the estate of the late Sunmonu Animashaun. The defendants also called the evidence of six witnesses: The lower Court in its judgment at page 464 of the record observed:
“When the evidence of the plaintiffs’ witnesses are based (sic) on a weighing scale as compared with the testimony of the defence witnesses it is very apparent that the plaintiffs’ witnesses are truthful while the defence witnesses are inconsistent. The D/W3 – 2nd defendant herein and D/W 6 – Alhaji Idowu Sanni gave evidence which contradicted one another. In fact D/W6 said that if the defendants state(d) that they had absolute grant they would be telling lies because they paid tribute to the Onitire as customary tenants. D/W3 indeed told more lies as already explained and also in respect of the survey conducted on the land in 1965 – whereas his family relied on the same plan to claim compensation for crops aforesaid. Based upon the testimony and demeanor of the witnesses – the plaintiffs’ version which is in line with their pleadings is preferred to the fabrications of the defendants regarding many things and especially about their right to hold on to the land in dispute as absolute owners. The defendants dealt with the land as owner in utter disregard to their overlord’s interest. See Exhibit Q. Exhibit F-F3 are various conveyances and leases executed by the defendants. I have carefully examined these documents – while I observe that the defendants change their names with additions and subtraction to suit their grand design to link themselves to Sunmonu Animashaun through Oloto family as originally pleaded yet there is no where in the documents that the parties actually conveyed the interest to others signed as Animashaun Sunmonu Animashaun or Animashaun Olode – they signed in the name of Sufianu, Sule and Muse. The observation of the plaintiffs’ Counsel that it is a recent acquisition in order to create confusion that the defendants have pretentiously added the name of ancestor only to get bye.”
There is no doubt from the solid findings made by the trial Judge above that she had not only relied upon the admissions made by the defendants on the pleadings but had thoroughly scrutinised the evidence called. The defendants showed themselves to be liars and had attempted to sew together various unrelated events to make themselves appear as the owners of the land. They told the story that their ancestor’s name was Sunmonu Animashaun Olode. They had known that the plaintiffs’ ancestor acquired an area of land since about 150 years ago when their ancestor were customary tenants of the Oloto family. Yet when they used plaintiffs’ family plan in 1965 to claim compensation for crops on the land being customary tenants, they did not state that they were claiming by an ancestor whose name was Sunmonu Animashaun Olode. In all the conveyances they executed Exhibits F to F3, they did not trace their own descent from Sunmonu Animashaun Olode. They started by agreeing that their ancestor were first customary tenants to Oloto family but that they later acquired absolute ownership from Itire family. It seems to me that the defendants had gone before the lower Court to weave and fabricate stories in order to make it appear that it was their own Animashaun who had derived interest from Oloto family. They made a recourse later and dishonestly to placing reliance on Itire family.
Discussing the futility of the defendants’ reliance on Exhibit ‘AA’, the trial Judge observed:
“The Chief Justice delivered that the question to be determined in that case is whether the plaintiffs – representatives of Chief Oloto have established their claim that the Iguru land of about 735 acres is part of the stool land of Chief Oloto. He found that the land adjoins on one side land owned by Itire people and on another side land belonging to the Oloto family. It was his finding that the land being claimed had several villages and that the tenants have been paying tributes to Onitire hence the judgment went the way it did in favour of the Onitire. The judgment does not refer to the land in dispute in the present suit – where the land of the Oloto family has been duly acknowledged even in the said judgment. It is to be noted that Exhibit ‘A’ was made in 1930 after that judgmnt.e The defendants have the onus to establish and link the Iguru land to the many plans tendered in this suit. But they did not. Their reliance on Exhibit AA is lifeless and cannot establish their claim to the land in dispute. Iguru Village is outside the boundary of the land conveyed to the plaintiffs in the map attached to Exhibit A”.
The finding of the trial Judge that the land in dispute could not be related to the land adjudicated upon in Exhibit ‘AA’ completely knocks the bottom out of the plaintiffs’ case. At page 445 of the record the trial Judge gave the performance of DW3 under cross-examination thus:
“When cross-examined by the plaintiffs’ Counsel, Mr. Fashanu D/W3 said that the land bought by the plaintiffs’ ancestors was in Abebe village. He admitted that it is the same place – Animashaun village that is called Animashaun Olode Village. In Exhibit F1 signed by D/W3 in 1973 – he admitted that the land therein was described as being in Animashaun village and not Animashaun Olode village. He admitted that he co-executed other leases exhibits F2 and F3 all relating to Animashaun Village. He like other defendants are not related to Animashaun family but are the descendants of Sule Animashaun Olode – but admitted not signing as Animashaun Olode but as Fatayi Sule. On the acquisition of the property by Government, he said that the defendants family was not involved because the land affected by acquisition did not belong to the defendants. He denied that some of their relations were living on the part acquired by government…He did not agree that the land in dispute originally belonged to the Oloto Chieftaincy family. He even denied that they claimed Oloto Chieftaincy Family as their root of title…He agreed that he and others started to execute on the land in dispute after 1970.”
It is seen from the above extract of D/w3’s evidence under cross-examination that the flanks and foundation of the case the defendants made were exposed as not only unreliable but frivolous. Why did D/W3 describe the land which he claimed as his family’s not by his family Animashaun Olode’s name?
It is not the function of an appellate Court to interfere in the assessment of evidence and the weight to be attached to evidence when a trial Judge has satisfactorily performed that task. I cannot in this court substitute my own views of the evidence for those of the Court of trial. See Balogun & Os. v. Agboola (1974) 1 All NLR (Pt. 2) 66. The decision of the trial Judge in the instant case was based substantially on the credibility of witness. I have not had the advantage of hearing and seeing the witnesses testify. I must not be too eager to interfere – Kponugo v. Kodadja (1933) 2 WACA 24 P.C.
I am satisfied that the lower Court came to the right conclusion on the accepted evidence. I discussed earlier the issue whether or not the plaintiffs had the locus standi to have brought the suit. I am satisfied that the suit was brought, fought and defended on the mutual acceptance by the parties of the issue which was whether title originated from Oloto or Otire family, not on whether the plaintiffs had the right to sue as beneficiaries of Sunmonu Animashaun. Admittedly, the description of plaintiffs as beneficiaries at first invokes the belief that they claimed by the force of the Will but it cannot escape notice that they described themselves as suing “for themselves as beneficiaries and on behalf of all beneficiaries of the Estate of the late Sunmonu Animashaun”. That description is both embracive and inclusive such that the plaintiffs ought to be seen as suing simpliciter as representatives of the Animashaun family.
All the issues agitated by the 4th appellant fall within the issues raised by 1st to 3rd appellants which I have discussed. The conclusion I arrive at is that this appeal lacks merit. The plaintiffs’ case deserved to succeed as it did. I uphold the judgment of the Court below and dismiss this appeal with N5,000.00 and N2,000.00 costs against 1st-3rd and 4th appellants respectively in favour of the plaintiffs/respondents.
Other Citations: (2000)LCN/0896(CA)
