Alhaja Sabiriyu Shittu & Ors V. Otunba Oyewole Fashawe (2005)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In his amended statement of claim, in suit No. LD/3396/95 at Lagos Judicial Division of the High Court of Lagos State, the plaintiff claimed against the defendant as follows:-

“(1) A declaration that the plaintiff is the person entitled to the statutory right of occupancy and/or certificate of occupancy of all that piece or parcel of land together with the storey building consisting of six flats thereon situate, lying and being No. 19, Oluwasanmi Close, Mafoluku, Oshodi, Lagos State and more particularly described and delineated in the survey plan No. FL502 of 29/9/72 drawn by A. O. Adebogun, licensed surveyor.

(2) Possession of the said property and N 100,000.00 (One hundred thousand Naira) only, being accrued rents in respect of the said property. The defendants, their servants, agents and/or privies on the property in dispute.

(3) A declaration that the defendants have incurred forfeiture of their tenancy in respect of the said storey building subject matter of this suit.

(4) A perpetual injunction restraining the defendant by themselves, their servants, agents and/or privies howsoever called from occupying the said house as tenants or otherwise.”

After the delivery and exchange of pleadings, the matter went to trial. The plaintiff did not give evidence but called two witnesses. The 1st defendant, a tenant in the premises testified for himself and denied the claims of the plaintiff. The 2nd – 5th defendants called 3 witnesses.

At the conclusion of the taking of oral evidence the parties submitted written addresses. In his judgment delivered on 5th December, 1996 the learned trial Judge found for the plaintiff and entered judgment in terms of the amended statement of claim recited above. The 2nd – 5th defendants felt aggrieved with the judgment and appealed to the court of Appeal. In its decision delivered on the 21st day of June, 2000, the Court of Appeal, Lagos Division, dismissed the appeal of 2nd to 5th defendants and this is a further appeal with leave to this court. The notice of appeal contains the following grounds of appeal:-

“1. Misdirection of fact

The learned Justices of the Court of Appeal misdirected themselves on the facts when they gave a wrong appraisal of the evidence given and the documents tendered by the 1st and 2nd plaintiff’s witnesses and came to an erroneous conclusion that:-

‘On the preponderance of evidence the respondent’s case was more acceptable than that of the appellant. Ref. Mogaji v. Odofin (1978) 4 SC 91 at 93.”

Thereby occasioning miscarriage of justice.

Particulars of misdirection

(a) The documentary evidence relied by plaintiff both at the lower courts to prove his entitlement to 19 Oluwasanmi Close, Mafoluku, Oshodi, Lagos State are:-