TRIMSKAY NIGERIA LIMITED v. MRS. MUTIAT BANKOLE-OKI (2015)

TRIMSKAY NIGERIA LIMITED v. MRS. MUTIAT BANKOLE-OKI

(2015)LCN/7828(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of March, 2015

CA/L/739/2011

RATIO

APPEAL: ISSUES FOR DETERMINATION; THE COMPETENCE OF ISSUES NOT COVERED BY ANY GROUND OF APPEAL

Now on the competency of issue not covered by any ground of appeal, the general rule is that it has to be struck out by the court. See JOSIEN HOLDINGS LTD vs. LORNAMEAD LTD. (1995) 1 NWLR (PT.371) 254 at 284 – 285. It was held as follows:-
It cannot be over emphasized that an appellate Court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out See: MANAGEMENT ENTERPRISES VS. OTUSANYA (1987) 2 NWLR (Pt.55). 179; ATTORNEY – GENERAL OF ANAMBRA STATE VS. ONUSELOGU ENTERPRISES LTD. (1987) 4 NWLR (PT.86) 547; ONIAH VS. ONYIA (1989) 1 NWLR (Pt.99) 514 at 529; WESTERN STEEL WORKS LTD. VS. IRON STEEL WORKERS UNION OF NIGERIA & ANOR (1987) 1 NWLR (PT.49) 284 and ADELAJA VS. FANOIKI & ANOR (1990) 2 NWLR (Pt.131) 137 at 148. per. SIDI DAUDA BAGE, J.C.A.

LAND LAW: FAMILY PROPERTY; HOW FAMILY PROPERTY CAN BE CREATED

Family property, what it represents is already settled in Law. Family property can be created either by an act of parties or by a declaration to that effect in a will which in modern times is the commonest way of doing it, while in the majority of cases, it is created by operation of Law. This latter form of creation of family Land is wet illustrated in the Leading case of OGUNMEFUN VS. OGUNMEFUN (1931) 10 N.L.R 82, it was held as follows:
Thus, once a parcel of Land has the tag “Family property” attached to it, it is so held in trust for all members of that family including the yet to be born, the head of the family being the trustee. Members of the family have right of possession to the portions of such family land allocated to them. They cannot until partition has been effected dispose off their holdings to outsiders thereby depriving the entire family body of its right to corporate possession. per. SIDI DAUDA BAGE, J.C.A.

LAND LAW: SALE OF FAMILY PROPERTY; HOW TO EFFECT A VALID SALE OF FAMILY PROPERTY

The Law is quite explicit on the sale of family property or family Land. In order to effect a valid sale of family property, the head of the family together with the principal members (majority) must participate in that exercise and where the head of family sells family land in his private capacity or holds himself out as the absolute owner thereof; such a sale is void. Also, a sale or Lease of family Land carried out by the head of the family alone to the exclusion of other principal members is voidable sale of family Land by a member without the consent of the head is invalid. On these settled Law see: SOLOMON & ORS. vs. MOGAJI (1982) 11 S.C. 1 at 10, OLANIKA VS. AKINGBELUE (1993) W.N.L.R 41 at 43; ESAN VS. FARO 12 W.A.C.A 135; EKPENDU VS. ERIKA (1959) 4 F.S.C. 79; AGAMRAN VS. OLUSHI (1907) 1 NLR 66; MOGAJI VS. NUGA (1960) 5 FSC 107; DR F. AKERELE vs. A. J. ATUNRASE (1969) 1 ALL NLR 201; EKPENDU VS. O. SAKA (1994) 2 SCNJ 39. per. SIDI DAUDA BAGE, J.C.A.

LAND LAW: OCCUPATION, POSSESSION AND TITLE TO LAND; THE RELATIONSHIP BETWEEN OCCUPATION, POSSESSION AND TITLE TO LAND ACCORDING TO THE LAND USE ACT

Perhaps the Land Use Act under Sections 36(1) and 36(2) brought out more clearly the Relationship between occupation, possession and Title to Land –
(a) A person who occupies real property does not necessarily assert title or ownership to it. He does not even necessarily assert possession of it.
(b) Possession of Land entails not only physical possession (or right to possess) but also the intention to defend that possession against the whole world, except, sometimes the true owner. Interpretations have been given by various decisions of the supreme court on the clear provisions of section 36 (1) 36 (2) of the Land Use Act on the tripartite relationship, between occupation, possession and title see: ABIOYE vs. YAKUBU (1991) 5 NWLR (Pt.190) 1; OGUNOLA VS. EIYEKOLE (1990) 4 N.W.L.R (PT.146) 632; ARCHIBONG VS. ITA (2004) 1 S.C.N.J. 141 at 183; AKINTOLA VS. OYELADE (1993) 3 S.C.N.J. 20. per. SIDI DAUDA BAGE, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

JAMILU YANMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

TRIMSKAY NIGERIA LIMITED Appellant(s)

AND

MRS. MUTIAT BANKOLE-OKI Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Judgment): The Appellant commenced its action before the trial High Court on May 19, 2005 to recover the property situate at No.54, Ladipo Labinjo Crescent, Surulere, Lagos and filed its originating frontloaded processes in that regard seeking, inter alia, possession of same and mesne profit.

The Respondent as Defendant responded on August 3, 2005 by filing her frontloaded Defence. She later filed an Amended statement of Defence dated February 3, 2006 with a counter-claim. The Respondent further brought an application to amend her Defence and counter-claim and did file a Second Amended Statement of Defence and counter-claim dated May 17, 2007 pursuant to the order of the High Court.

In the said second Amended counter-claim, the Respondent claimed property that the situate and lying at No. 54, Ladipo Labinjo Crescent, Surulere, Lagos is a matrimonial home of the counter-claimant and the 2nd Defendant to the counter-claim in the suit.

To this, the Appellant filed an amended Reply and Defence to Counter-Claim dated April 16, 2009.

Trial commenced on May 8, 2007 and was concluded on January 26, 2010 and on January 13, 2011 parties adopted their written addresses and the matter was adjourned to March 11, 2011 when the trial court delivered its judgment dismissing the claims of the Appellant and granting the counter – claim of the Respondent. The Appellant being dissatisfied with the decision of the trial court, now presents this appeal before this Honourable court for the determination of the following issues:

ISSUES FOR DETERMINATION

The Appellant hereby humbly submits the following issues for determination:

1). Whether the fact that the Appellant purchased the property herein in issue when the vendor had occupiers in the property who have been shown not to have any title or interest whatsoever in the property in occupation can defeat the purchase of the Appellant from the Vendor who rather showed ample evidence of title in the property to the exclusion of all (Grounds 1, 2 and 3 of the Notice of Appeal).

2). Whether the fact of customary marriage between the Respondent and CW2 precludes the Appellant’s right to recovery and changes the status of the Respondent from being a tenant at will/licensee of the Appellant upon purchase and transfer of the property in which the Respondent is merely an occupier. (Grounds 4, 5, 6, 7 and 8 of the Notice of Appeal)

3). Whether the principle of lis pendente lite is applicable to the already concluded contract of sale before the suit by the Defendant/Respondent was filed as to preclude the Appellant from perfecting its property during the suit (Grounds 9 and 10 of the Notice of Appeal).

4). Whether a customary marriage with a vendor of a property can create a matrimonial home in such property bought by the vendor 13 years after such marriage as to vest the children to the marriage with right to inherit same after the owner and vendor had transferred same inter vivos. (Grounds 11 and 13 of the Notice of Appeal).

5). Whether the trial court was right in imposing on CW2 an intention to create a permanent interest in the res litigiosa in favour of the Respondents children by his acts when he personally disposed of the property for valuable consideration to the Appellant (Distilled from Ground 12 of the Notice of Appeal).

6). Whether the trial court was not misdirected when it based its judgment on the first Amended Statement of Defence of the Respondent and the document annexed thereto but which were neither tendered in evidence by the Respondent at trial nor relied upon in final address and held in favour of the Respondent that the property aforesaid could not be otherwise known short of a family home for the Defendant and her two sons. (Distilled from Ground 14 of the Notice of Appeal).

On the other hand, the Respondent formulated the following nine (9) issues for determination of the appeal vis:

(1) Whether a relationship of husband and wife had existed between the Respondent and CHIEF T. A. BANKOLE – OKI (SAN) (deceased) during his lifetime.

(2) Whether the Respondent had proved the existence of the marriage between herself and CHIEF T. A. BANKOLE – OKI (SAN) (deceased) under Native Law and Custom.

(3) Whether incident of marriage under customary law is not recognized by the law of this country and enforceable in the circumstances.

(4) Whether CHIEF T. A. BANKOLE – OKI (SAN) (deceased) had not evinced an intention to designate No. 54, Ladipo Labinjo Crescent Surulere, Lagos as a matrimonial/family home for the benefit of his children, the Respondent and himself, CHIEF T. A. BANKOLE – OKI (SAN) (deceased).

(5) Whether an equitable interest and in the alternative a resulting trust had not been created by the conduct of CHIEF T. A. BANKOLE – OKI (SAN) (deceased) in favour of his children and the Respondent in respect of No.54, Ladipo Labinjo Crescent, Surulere, Lagos.

(6) Whether by the doctrine of estoppels, CHIEF T. A. BANKOLE-OKI (SAN) (deceased) is not restrained from denying his intention to make the said residence as a matrimonial home for the benefit of his chrlldren, the Respondent and himself.

(7) Whether CHIEF T. A. BANKOLE-OKI (SAN) (deceased) can unilaterally alienate the interest in said property without infringing in the rights of his children and the Respondent.

(8) Whether the doctrine of lis pendens is applicable to the extent that it had deprived the Appellant a valid title to the demised premises, same having been perfected during the pendency of this matter at the trial court, in spite of caveat served on the Lagos State Government through the Lagos Lands Registry.

(9) Whether the findings of fact that the Respondent is entitled to the use and occupation and possession of the property lying and situate at 54, Ladipo Labinjo Crescent Surulere, Lagos can be overturned on appeal when the Appellant had not established special circumstances for this relief.

After a careful perusal at the six (6) issues formulated by the Appellant, and the nine (9) of the Respondent the six (6) issues of the Appellant has adequately captured all the nine (9) issues propose by the Respondent.

In that regard therefore, I tend to be guided by the six (6) issues propose by the Appellant in the determination of this appeal.

ARGUMENTS

ISSUE NO. 1 OF THE APPELLANT, EQUIVALENT OF ISSUES 1, 2, & 3 OF THE RESPONDENT

Whether the fact that the Appellant purchased the property therein in issue when the vendor had occupiers in the property who have been shown not to have any title or interest whatsoever in the property in occupation can defeat the purchase of the Appellant from the Vendor who rather showed ample evidence of title in the property to the exclusion of all (Grounds 1, 2, and 3 of the Notice of Appeal).

Learned counsel to the Appellant submitted that there is nothing in Law that says that an intending purchaser can only buy a house that is vacant or mandates an average purchaser to reject the sale of a property occupied by any person other than the seller but who has been shown by the seller not to have any title in respect thereto. There is no evidence before the court that shows that the Respondent is a joint owner of the property in issue with the Appellant’s predecessor in title as to warrant the kind of caution being recommended by the trial judge. The case of IMANA vs. ROBINSON (1979 – 81) 12 NSCC page 1 at 9 cited by the trial judge does not support the stance of the trial court.
It is trite Law that a purchaser of a property occupied by another who is not the owner merely steps into the shoes of the former owner vis – a-vis the person actually in possession. See: UDE VS. NWARA (1993) 2 NWLR (Pt.278) 638 at 663 – 664. The Respondent in this appeal having refused to accept another accommodation provided by the owner of the property the owner, the reversioner in this case, sold his reversionary subject to her tenancy at will or license which shoes the Appellant herein validly stepped into. The fact that a woman is married to a man does not operate as a restriction on the man’s right to dispose of his property more so when the property in issue is shown to be a personal property of the man. Marriage under the customary law does not ipso facto lead to a creation of matrimonial property as sought to be raid down by the trial court in the judgment under appeal. See: OLOKO VS. GIWA (1931 – 40) 15 N.L.R. Pg.31.

In reply to the submissions above, learned counsel to the Respondent submitted that’ the issue of customary marriage between Chief T. A. Bankole – Oki (SAN) (deceased) and the Respondent had been proved strictly by evidence in the trial court. See: LAWAL VS. YOUNAN (1961) 1 ANLR 245; Section 14 of the Evidence Act. Chief T. A. Bankole – Oki (SAN) (deceased) had produced a document during the course of proceeding at the trial court to the effect that he was married to another by name Chief Mrs. Mutorani Oki. He confirmed to the Court that it was the only marriage he contracted. The existence of one customary marriage and the contracting of another Legal marriage under the ordinance is illegal. See: AGBEJA vs. AGBEJA (1985) 3 NWLR Pt.11. Under the provision of the Constitution of the Federal Republic of Nigeria and more particularly under the provision of Section 14 of the Evidence Law, Customary Law is given recognition and is being enforceable if is not repugnant to natural justice and decency and if proven, courts are enjoined to give judicial notice. Consequently, the concept of a matrimonial home even under native Law and custom is accepted as a norm, in as much as it promotes family ties, security and values which are essential for the growth and development of the children and the family as a whole; albeit a Polygamous Union.

Learned counsel to the Appellant in his reply brief dated and filed 17/4/14 submitted that, the Respondent’s issue 1., 2, 3 and4 are not predicated or tied to any ground of the appeal. It is trite that issues formulated must arise from and tied to grounds of appeal. See: TAHIR VS. KAPITAL INSURANCE CO. LTD. (2007) ALL (PT.370) 1482 at 1495 para. B; AKERE vs. GOVERNOR OF OYOS STATE (2012) 12 NWLR (Pt 1314) 240 at 267 para. G. It is clear that issues 1, 2, 3 formulated by the Respondent do not arise from the grounds of appeal contained in the Notice of Appeal filed by the Appellant. The Appellant’s Grounds of Appeal do not challenge the issue of whether there is a customary marriage between the Respondent and CW2, Chief Bankole-Oki (SAN). The contention of the Appellant is that fact of existence of customary marriage between the Respondent and CW2 does not create a matrimonial property for the learned trial judge to have awarded the subject matter of this suit to the Respondent.
This court is urge to strike out the Respondents issues 1, 2, and3 for being incompetent and discountenanced the arguments canvassed with respect thereto.

The Court will decide on the issue of the validity of issues 1, 2, 3 being challenged. The Appellant in his reply challenges that those issues do not relate or cannot be tied to his grounds of appeal. Before going to issues which arises from, briefly the rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The Appellant who files a Notice of Appeal shall set forth concisely the grounds which he intends to rely upon in the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant and consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies purpose that should not be struck out, notwithstanding that it did not conform to a particular form. See NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt.87) 718; MIL.GOV. OF IMO STATE VS. NWAUWA (1997) 2 NWLR (Pt.490) 675; AKANIWON Vs. NSIRIM (1997) 9 NWLR (PT.520) 255; LOKE VS. INSPECTOR (1998) 1 NWLR (PT.534) 481; AKANBI VS. RAJI (1998) 12 NWLR (Pt.578) 360.

In the instant appeal, this court has examined the three issues 1, 2, 3 complained of vis-a-vis the contention of the Appellant on the fact of existence of customary marriage between the Respondent and CW2, does not ipso facto create a matrimonial property for the learned trial judge to have awarded the subject matter of this suit to the Respondent. In the opinion of this court, there is nexus between the Respondents efforts in the issues raised to establish the existence of the customary marriage first between her and the CW2, which is sine quonon to whether or not that relationship had created a matrimonial property allegedly awarded the Respondent by the trial court. The existence of the customary marriage serves as the foundation which cannot be separated from the contention of the Appellant. The rule in couching an issue is its wordings relates directly or from the surrounding circumstances it can be linked to the ground or grounds of appeal. Issues 1, 2, 3, of the Respondent, can be linked to Ground 1 of the Amended Notice of appeal dated & filed 31/10/12 deemed filed 2B/2/13. Ground 1 deals with the claimant having notice of the fact that the sellers family live in the property. Ground 2 deals with the claimant not exercising enough restraints on the said purchase i.e. Securing Vacant possession of the Premises Ground 3 Defendant who lived therein as his Licensee was sufficient notice to dissuade the claimant from purchasing the property. All the three (3) Grounds oscillates around the existence of a customary marriage between the Respondent and CW2. Issues 1, 2, 3, of the Respondent are therefore traceable to Grounds 1, 2, 3 of the Notice of Appeal. The issues are valid and survives the appeal. That aspect of the Appellant’s complaint in their reply brief is therefore discountenanced.

Let us now return to issue No.1.which deals with either the title or interest of the Respondent in occupation of the purchased premises that will defeat the purchase made by the Appellant from the vendor. At this point it is quite apposite to repeat what the trial Court said in its judgment:

At page 455 of the Record of Appeal the learned trial judge held as follows:

The above evidence of the Claimants (sic) clearly indicates that the Claimant had notice of the fact that the seller’s family live in the property. This fact is apparent in the evidence of the Claimant before this Court. The law is that the buyer must beware of any item on sale to which she is called to purchase. The Latin maxim “caveat emptor” is apt in this regard. The point is the buyer must beware of any Greek sale. In my opinion the house proposed to the Claimant was not vacant his (sic) family members live there. For a very courteous buyer, these indications are enough discouragement to the Claimant. However, the Claimant proceeded to buy a house without exercising a caution. I refer to the case of IMANA VS. ROBINSON (1979) 3 & 4 SC 1.

Also at the same page as above, the learned trial judge held as follows:

It is my view that the Claimant did not exercise enough restraints on the said purchase i.e. securing vacant possession of the premises, or the period between which the vacant possession would be given no evidence of any meeting between the occupants of the house the seller and the proposed buyer (claimant) was given. This lacuna is fatal to the case of the Claimant.

From the above quoted passage of the judgment the concern of the learned judge trial was that, the premises in question was occupied or that it was not vacant, and the purchaser for value, should have warned himself, before going into purchase i.e. Securing vacant possession of the premises. Perhaps what might have persuaded the trial court taking that position, was the second amended counter claim of the Respondent. In the Amendment the Respondent had claimed that the property situate and lying at No.54 Ladipo crescent, Surulere, Lagos is a matrimonial home of the counter claimant and 2nd Defendant to the counter – claim in the suit. The marriage between the Respondent and the vendor, or CW2 who had all title documents to the said house was said to have been a customary marriage. The fundamental question which the trial court itself did not carefully look at is, the right of a vendor of the property who has a wife or children to whom he owes duty to provide accommodation, will that alone constitute an encumbrance on his property or limit his power to dispose of his property to his benefit. Having also regard to what the learned judge held in the said judgment appealed against at page 470 of the Record of appeal. “From the facts and evidence adduced herein, I cannot find any evidence of co-ownership.” Having found that there is no evidence of ownership or co-ownership from the Respondent, the sword held by the trial judge was that the family live in, or are in occupation of the disputed house the learned trial judge in her judgment, did not go further, to define what is meant by family living in there. The fact of living or occupation has it made it into a family house, or a family property. Family property, what it represents is already settled in Law. Family property can be created either by an act of parties or by a declaration to that effect in a will which in modern times is the commonest way of doing it, while in the majority of cases, it is created by operation of Law. This latter form of creation of family Land is wet illustrated in the Leading case of OGUNMEFUN VS. OGUNMEFUN (1931) 10 N.L.R 82, it was held as follows:
Thus, once a parcel of Land has the tag “Family property” attached to it, it is so held in trust for all members of that family including the yet to be born, the head of the family being the trustee. Members of the family have right of possession to the portions of such family land allocated to them. They cannot until partition has been effected dispose off their holdings to outsiders thereby depriving the entire family body of its right to corporate possession.

I have gone into this debt to show that from the settled Law on what family property stands for, the property situate and lying at No.54 Ladipo Labinjo Crescent Surulere, Lagos, the subject of this suit is not a family property. The fact that the Respondent and her children Live in that house as held by the trial court in its judgment, has not elevated that to the status of a family property in Law. It is difficult therefore to see how the Living in the house by Respondent and children has created an encumbrance to the Vendor to transact on the said property.

From the above therefore, it was wrong on the part of the trial court to have decided that, the Appellant can be denied the purchase of the property he made, when the vendor had occupiers in the property, and even when it is shown clearly that the said occupiers have not been able to show any title or interest whatsoever apart from occupation. The property has not even been shown to be a family property within the definition of family property in Law. Issue No. 1 of the Appellants brief of argument which is equivalent to the Respondents issues 1, 2, and 3, is resolved in favour of the Appellant and against the Respondent.

ISSUE NO.2

Whether the fact of Customary marriage between the Respondent and CW2 precludes the Appellants right to recovery and changes the status of the Respondent from being a tenant at will/Licensee of the Appellant upon purchase and transfer of the property in which the Respondent is merely an occupier (Grounds 4, 5, 6, 7 and 8 of the Notice of Appeal) Equivalent to issue No. 4 of the Respondent brief of argument.

ARGUMENTS

Learned counsel submitted that the learned trial judge held at page 459 of the Record of Appeal that:

Equally the validity of the Defendant’s status has not changed from that of a wife to the 2nd Claimant witness along with her 2 children. As such they are supposed to have shelter, (sic) and be catered for by their father and husband Chief T. A. Bankole-Oki. (sic) who (sic) had unequivocally accepted throughout the trial that they are his children born by the Defendant.

The above holding constitutes ground 4 of the Appellants appeal herein. The learned trial judge further held at pages 459 – 460 of the Record of Appeal that:

If this had been done by Chief T. A Bankole-Oki, in his life time, would it be right for this court to send his children now on the Street? (sic) whether the marriage was strained towards the last end of his life or not which was culminated in the purported sale. I find this task extremely hard to execute. At best the Claimant herself recognized that the children and their mother lived there, and she went ahead with her eyes opened to conclude the transaction, which is an exercise in futility. The promise of relocation could not have been relied on by the Claimant she and her counsel ought to have insisted on vacant possession not being achieved then, in my view, cannot be achieved now.

The above constitutes ground 5 of the Appellant’s appeal and it is upon the above that the learned trial judge held that the Respondent is not a licensee or tenant at will. His Lordship further defined a licensee at page 460 of the Record of Appeal and concluded as follows:

The fact that there are children of the marriage, and as I have said in this judgment that the Claimant had notice of these fact (s). The Claimant could not adequately describe the Defendant as a licensee or a tenant Before this Court, no tenancy agreement was tendered by the Claimant throughout the trial of this suit. If the tenant was at Will (sic) then, the job would be for Chief Bankole-Oki to eject the so called (sic) tenant. In fact and truth the Defendant is none of these. In my opinion she is the wife of the owner of the property and she deserves to be protected as a Nigerian whose marriage is equally recognized under the Constitution of the Federal Republic of Nigeria with lawful children about to be thrown in the Street, because of their father’s inordinate ambition.

Learned counsel submitted further that, the Respondent is a licensee or tenant at will of Appellant Respondent had the privilege to enter the Land, but which privilege was later withdrawn by the sale to the Claimant/Appellant by Chief Bankole SAN (CW2) Oki, subsequent holding over by the Respondent of the property for her own purpose and not that of CW2. The fact that there are children of a marriage could not stand as encumbrance to this valid transaction. See M. A. OLOKO vs. BURAIMOH GIWA Vol. XV NLR page 31 at 32 – 33; MADAM HELEN OBULOR VS. LINUS WESO OBORO (2001) 8 NWLR (PT.714) 25 at 32 paras E – F; ISITOR VS. FAKOREDE (2007) (VOL. 27) WRN 129 at 157 LINES 15 – 20; KANO ILES PLC VS. G & H NIG. LTD (2002) 2 NWLR (PT.751) 420; EZUGO VS. OHANYERE (1978) 6 – 7 SC 171; ONIAH VS. ONYIA (1989) 1 NWLR (Pt.99) 514; OMOLE & SONS LTD vs. ADEYEMO (1994) 4 NWLR (Pt.336) 48; UDOSEN VS. THE STATE (2007) 4 NWLR (Pt.1023) 125 at 137 para D.

Learned counsel to the Respondent in reply to the submissions above, argued that the status of 54, Ladipo Labinjo Crescent, Surulere, Lagos is to be ascertained and evinced from the intention of Chief T. A. Bankole – Oki (SAN) when he purchased the property and had put in possession his two sons and their mother the Respondent. The house was intended as residence to provide a home where all the family can meet live together and enjoy family values. In the thinking of Chief T. A. Bankole-Oki (SAN) (deceased) and from his testimony, the Respondent was only a licensee in respect of the demised premises. The Licensee that bore him two sons who could be disinherited and evicted at will. The said preposition is preposterous.

In further reply learned counsel to the Appellant submitted that, it is the Law that existence of customary marriage does not automatically create a matrimonial property where there is no evidence of joint contribution between the husband and wife. See AMADI VS. NWOSU (1992) 5 NWLR (Pt.241) 273; NWANYA VS. NWANYA (1987) 3 NWLR (Pt.62) 697.

On the part of the court the submissions above are carefully examined. The learned trial judge in her judgment at page 460, said the Respondent could not be described in the circumstances of this case either as a licensee or a tenant of the claimant and or the CW2, what then is a Licensee under the Law. The Blacks Law Dictionary Eights Edition defines a Licensee as:
(1) One to whom a licence is granted
(2) One who has permission to enter or use another’s premises but only for one’s own purposes and not for the occupiers benefit. The occupier has a duty to warn the Licensee of any dangerous conditions known to the occupier but unknown to the Licensee. An example of a Licensee is a social guest.

The definition of a Licensee above aptly capture the position of the Respondent in this appeal. She was allowed to enter the premises in question with permission for the purposes of that customary marriage with CW2. The purpose of that marriage is more to the benefit of CW2. She is in Law a Licensee. In our resolution to issue No. 1 it is already agreed that the Respondent in evidence has not shown joint ownership of the premises in dispute with CW2. She the Respondent has not shown title to the said premises, she has not shown the house in dispute is a family house no evidence in court that she is a tenant with a full agreement governing her occupation of the disputed premises, with consideration passing bye. Going by the definition of a Licensee and for all the intent and purpose of her occupation to 54 Ladipo Labinjo Crescent Surulere, Lagos, she is a Licensee to claimant/CW2. Issue No.2 of Appellants’ brief of argument which is equivalent of issue No. 4 of the Respondents’ brief of argument is resolved in favour of the Appellant and against the Respondent.

ISSUE NO.3

Whether the principle of Lis pendent lite is applicable to the already concluded contract of sale before the suit by Defendant/ Respondent was filed as to preclude Appellant from perfecting its property during the suit (Grounds 9 and 10 of the Notice of Appeal).

ARGUMENTS

Learned counsel to the Appellant submitted that on page 461 of the Record of Appeal, the learned trial judge held as follows:

On the issue of lis pendens, I am of the view that the Claimant ought to have waited for the Courts (sic) final decision. Rather they engaged in shortcut by the perfection of the title. Even at that they are being caught up with the principles (sic) of “lis pendens (sic) would apply. The doctrine operates to prevent the effective transfer of any property in dispute during the pendency of that dispute. I refer to paragraph 7, (sic) and 15 showing different suits before the conclusion of the transaction. It is quite irrelevant whether the purchaser has notice – actual or constructive. The doctrine is really designed to prevent the vendor from transferring any effective title to the purchaser by depriving him (the vendor) of any rights over the property during the currency of the litigation or the pendency of the suit. That being so, any sale or transfer of such property made during the currency of the litigation is void and so be it based on the cases under-listed;-
1) OSAGIE VS. OYEYINKA (1987) 3 NWLR (Pt.59) 144 at 156 S.C.
2.) UMOH VS. TITA (1999) 12 NWLR (Pt 631) 427 at 435 – 436.
does not support the conclusion of His lordship and the application of the doctrine of lis pendens to the present suit. Furthermore, which decision forms ground 10 of the Appellant’s Notice of Appeal the learned trial judge further held as follows:

I therefore hold that the document purportedly perfected by the original owner and the claimant is facing the same calamity in this instance because it was executed during the pendent life (sic) and therefore is a nullity and I so hold.

Learned counsel further submitted that the principle of Lis pendes does not apply in this case to displace the title acquired by Claimant/Appellant simply because he chose to perfect his title in the property by obtaining governors consent to the transaction after it instituted this suit. The principle of Lis pendens only applies to a contract of sale which was carried out during the pendency of a suit challenging the ownership of the property subject matter of sale. See: BUA VS. DAUDA (2003) 13 NWLR (Pt.838) 657 at 686 para A – C; SAVANNAH BANK VS. AJILO (1989) 1 NWLR (Pt.97) 305; CALABAR CENTRAL COOPERATIVE THRIFT AND CREDIT SOCIETY LTD VS. BASSEY EBONG EKPO (2008) 6 NWLR (Pt.1083) 362; OLORI MOTORS COMPANY LTD VS. UNION BANK OF NIG. PLC (2006) ALL FWLR (Pt.318) 732 at 753 para G -H.

The Respondent replied with issue No. 8 of the Respondent brief of argument and submitted that, the trial judge had ruled that the transaction between the Appellant and Justice WAIDI OSHODI (Rtd); the former registered owner for alienation was still continuous up to the time that deed were submitted to the Lagos State Government for processing Governors Consent and subsequent registration at the Lagos Land Registry, Alausa Ikeja. This process is a continuum and cannot be severed. The interest of Appellant was not properly registered, since the sale was not perfected before the commencement of this suit at the trial Court.

On the part of this Court the submission above are carefully examined. This court has carefully examined the Record before it. Nowhere in the Record or a particular reference made by the learned trial judge, that any suit was pending before any court when the claimant paid CW2, Chief Bankole – Oki for the sale of the property, and even when Justice Wahid Oshodi executed the sale agreement. What the record beared was the title of CW2 yet to be perfected before the commencement of this suit. The doctrine of Lis pendis affects a purchaser, who buys property the subject matter of litigation during the pendency of such litigation, not because the purchaser is caught by the equitable doctrine of notice but because the Law does not allow the Litigant parties, and give them pending the litigation, rights in the property in dispute so as to prejudice the other party. See: EBUEKU vs. AMOLA (1988) 1 N.S.C.C. 582 (1988) 2 NWLR (Pt.75) 128; BAMGBOYE, VS. OLUSOGA (1996) 4 NWLR (Pt.444) 520 at 542; BARCLAYS BANK OF NIG. LTD VS. ALH. ASHIRU AND ORS. (1978) 6 & 7 SC 99 at 123 – 125, 128 – 129; OLUGBODE VS. SANGODEYI (1996) 4 NWLR (pt. 444) 500 at 518; N.N.B. LTD VS. BAZUMU (1998) 11 NWLR (Pt.575) 645 at 654; MAJEKODUNMI VS. COOP. BANK LTD (1997) 10 NWLR (Pt.524) 198 at 219; UMOH VS. TILA (1999) 12 NWLR (Pt.631) 427 at 435 – 436.

In the absence of any evidence to the contrary, the suit was not caught up by the doctrine of Lis pendis at Lower Court. Let me add here for the records that throughout the Land Use Act, no provision associating the certificate with title. A Certificate of Occupancy only gives the right to use and occupy the Land. It neither confers nor is it necessary an evidence of title. It is only a prima facie evidence which raises a presumption that the holder is in exclusive possession and has a right of occupancy over the Land in dispute. However, like all other presumption, it is always rebuttable and the onus of disproving this right is on the person who asserts the contrary. See OGUNLEYE VS. ONI (1990) 2 NWLR (Pt.135) 745; ADESOYE VS. OLOWOLAGBA (1996) 12 S. C. N. J. 95; AUTA VS. IBE (2003) 7 S.C.N.J. 159 at 169. The Doctrine of Lis Pendes does not apply at the stage of obtaining a Certificate of Occupancy as, was the case in this suit. Issue No. 3 of the Appellant’s brief of argument which is equivalent of issue No. 8 of the Respondents, brief of argument is resolved in favour of the Appellant and against the Respondent.

ISSUE NO.4

Whether a Customary marriage with a Vendor of a property can create a matrimonial home in such property bought by the Vendor 13 years after such marriage as to vest the children to the marriage with right to inherit same after the owner and Vendor transferred same inter vivos. (Grounds 11 and 13 of the Notice of Appeal).

ARGUMENTS

Learned counsel submitted that the Respondent and her children cannot claim an automatic right to inherit the res litigiosa simply on account of an alleged customary marriage between CW2 and the Respondent coupled with filial love shown by CW2 to his children when the res was already vested in the Claimant/Appellant by virtue of a sale agreement preceding this suit. See: M. A. OLOKO VS. BURANMOH GIWA Vol. XV NLR Page 31 at 32 – 33.

The Respondent in issue No. 6 which is the reply submitted that, by the acts of marriage between Chief Bankole – Oki (SAN) (deceased), purchase and the provision of an accommodation to the Respondent and children, the Respondent had been made to rely on the following acts that she would live there with her children for the rest of her natural life and same be inherited by her sons after demise. See section 151 of the Evidence Law. Under this circumstances it will not be acceptable for Chief Oki (deceased) to deny the following facts:

(i) His relationship with the Respondent as husband and wife

(ii) The irreversible nature of the property at 54, Ladipo Labinjo Crescent Surulere, Lagos.

On the part of the Court submissions above are carefully examined. It is an undisputed fact from the records before this court, that the marriage between the Respondent, and Chief Bankole – Oki (SAN) (deceased) was contracted customarily, i.e. under the customary Law. It is a well-established principle of Law that native Law and Custom is a matter of evidence to be decided on the facts presented before the Court in each particular case, unless it is of such notoriety and has been so frequently followed by courts that judicial notice would be taken of it without evidence required in proof. See LARINDE VS. AFKO (1940) 6 WACA 108; AGBAI VS. OKOGBUE (1991) 9 – 10 S.C.N.J. 49 at 80 – 81; TAIWO VS. DOSUNMU (1966) N.M.L.R 94; OYEWUNMI VS. OGUNESAN (1990) 3 NWLR (Pt.137) 182 at 207; GIWA vs. ERINMILOKUN (1961) 1 ALL NLR 294 at 296; ADEGBOYEGA & ORS. VS. IGBINOSUN & 2 ORS. (1969) 1 N.M.L.R. 9 at 15.

From the authorities cited above, the burden rested on the shoulder of the Respondent as the person who asserted irreversible nature of property at 54, Ladipo Labinjo Crescent, Surulere, Lagos based on the customary marriage that had existed between the parties. The record has not shown whether such evidence was laid at the Lower Court. To be able to succeed there must be evidence in proof of the claim. The Record has not shown to this court such evidence. In the absence of any, issue No. 4 is resolved in favour of the Appellant and against the Respondent.

ISSUE NO. 5

Whether the trial Court was right in imposing on CW2 an intention to create a permanent interest in the res litigiosa in favour of the Respondents children by his acts when he personally disposed of the property for valuable consideration to the Appellant (Distilled from Ground 12 of the Notice of Appeal).

ARGUMENTS

Learned Counsel submitted that the trial court held at page 469 of the Record as follows:

“It can be deduced from correspondent between Chief Bankole-Oki and his children and wives, (sic) that he meant the property to be for his children, but later derailed in this intention.”

Learned Counsel submitted further that Chief Bankole-Oki did not purchase the property in the name of anybody but himself. He did not purchase the property to either benefit the Respondent or her two sons. Even in 2nd Amended statement of Defence under the counter claim at page 248 of the Record of Appeal the Respondent admitted that the property was bought in the name of Chief Bankole-Oki and a deed of assignment was prepared and executed between the two parties and that Chief Bankole-Oki was described as beneficial owner of the property. The only ground upon which the Respondent wanted to rely to establish joint ownership between CW2 and her children was upon the allegation that CW2 later wrote a letter dated 1st September, 1998 confirming to the Claimant that the said property is jointly owned by himself, Respondent and their children. The allegation was not supported by tendering the said letter, and CW2 denied the existence of that letter.

Learned counsel submitted further that where a man intends to create a trust in favour of his children but thereafter expressly revokes the trust, the Law does not foist on him his earlier intention to which he has later shown no interest be subjected.
See: PETTITT VS. PETTITT (1970) AC 777.

In reply learned counsel to the Respondent submitted that Chief Bankole-Oki (SAN) (deceased) during his life time did nor possess unfettered right and authority over No. 54 Ladipo Labinjo Crescent, Surulere, Lagos at any given time on account of various incidents having been created in this regard. Consequently he cannot alienate what he does not possess nemo dat quod non habet.

The resolution to issue No.5 is quite simple, if the Respondent and her children had claim, any equitable interest in this property it must be by document. Any interest acquired independent of a document cannot stand. See: COKER vs. OGUNYE (1939) 15 N.L.R. 57 at 59 – 60.

The issue No.5 is resolved in favour of the Appellant and against the Respondent.

ISSUE NO.6

Whether the trial Court was not misdirected when it based its judgment on the first Amended Statement of Defence of the Respondent and the documents annexed thereto but which were neither tendered in evidence by the Respondent that the property afore said could not be otherwise known short of a family home for the Defendant and her two sons (Distilled from Ground 14 of the Notice of Appeal).

ARGUMENTS

Learned Counsel to the Appellant submitted that the learned trial judge held at pages 461 – 462 of the Record of Appeal as follows:

Flowing from all what I have said in this judgment that Chief Bankole – Oki indeed married the Defendant under native Law (sic) and custom, paragraph 18 of the first Amendment Statement of Defence filed by the Defendant, the document attached to the said Amended Statement of Defence include:

(i) Letters written by Chief Bankole-Oki, to his wife Mutiat Bankole-Oki, (in which he referred to her as ‘MT’) and (ii) excerpts of letters written to Chief Mrs. Motolani Bankole-Oki and, (iii) a letter written by his son to Chief Bankole-Oki and the attachments to them, (iv) a letter written by Chief Bankole-Oki to his wife Mutiat Bankole-Oki addressing her by her maiden name Miss M. W. Oshodi Exhibit “ABC 1.”

Learned Counsel submitted that the trial High Court proceeded to consider each of the Letters mentioned above and came to the conclusion that CW2 actually intended the property to be for the Respondent’s children. It is the Law that a Court must rely on all extant processes before it but not processes that have been amended and must take account of all exhibits tendered in evidence and not mere documents mentioned in pleadings in coming to its judgment. It is on record that the Respondent had subsequently amended the said first Amended statement of Defence Via the 2nd Amended Statement of Defence amended pursuant to an order of Court made on 5th day of December, 2007, yet the trial Court relied on the pleadings in the first Amended Statement of Defence which was already superseded by the 2nd Amended Statement of Defence See: ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS. RAYMOND EKWENEM (2009) 13 NWLR (Pt.1158) 410 at 435 – 436 para H-G.

Learned Counsel submitted further that, all correspondences referred to by the trial court and copiously quoted and relied upon to justify the decision of the Court were not tendered in evidence and were never available for Cross-examination of any witness before the Court.
It is trite Law that Court does not speculate on the contents of a document not produced before it. See: AMGBARE VS. SILVA (2009) 1 NWLR (PT. 1121) 1 at 85 para F – G; GBAJOR VS. OGUNBUREGUI (1961) 1 ALL NLR 853; MERCHANTILE BANK OF NIG. PLC. & ANOR VS. LINUS NWOBODO (2003) 3 NWLR (PT. 648) 297 at 319; ABUBAKAR VS. WAZIRI (2008) ALL FWLR (PT 436) 2025; NEWBREED ORG. LTD VS. ERHOMONSELE (2006) 5 NWLR (Pt. 974) 499 At 527, BURAMMOH VS. BAMGBOSE (1989) 3 NWLR (PT. 109) 352.

Learned Counsel to the Respondent in reply submitted that, the Learned trial judge after considering the totality of the evidence before her came to the conclusion that the Respondent is entitled to the use and occupation of the property situate, lying and being at 54, Ladipo Labinjo Crescent, Surulere, Lagos and it has been decided by this Court and the Apex Court that finding of facts will not be overturned on appeal except special circumstances are adduced by the Appellant.

On the part of the Court, the submissions made are carefully examined.
The issue of the effective date of amendment is already settled by the Supreme Court. See:
OGUMA ASSOCIATED COMPANIES (NIG) WEST AFRICA LTD VS. INTERN. BANK FOR WEST AFRICAN LTD (1988) 3 SCNJ Part 1, 13 at 26, the apex Court stated as follows:
An amendment duly made takes effect no doubt not from the date the amendment is made but from the date of original document which it amends. Thus when an amendment is made to the writ the amendment dates back the date of the original issue of the writ. The writ as amended becomes the origin of the claim and the claim endorsed on it is substitute for the claim originally endorsed. See: SNEADE VS. WORTHERTON etc. (1904) 1 K B. at 297.
See also the Supreme Court’s decision in ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS. RAYMOND EKWENEM (supra):
Once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried before the Court. This, however, is as far as that proposition of the law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an order of Court ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law, established, is that such original pleading which has been duly amended is no longer material before the court in the sense that it no longer determines the live issues to be tried before the court. Not that it no longer exists. It does certainly exist and is before the court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. Thus, it cannot be considered as the basis of one’s case in any action. Nor may a Court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings. See SALAMI VS. OKE (1987) 4 NWLR (Pt.63) 1 @ 9 and 12; and AGBAISE & ORS. VS. EBIKOREFE & ORS. (1997) 4 NWLR (Pt.502) 630 @ 647 – 649.
The contention of the Appellant in this issue is that the Respondent amended her first Amended Statement of Defence via the 2nd Amended Statement of Defence amended pursuant to an order of court made 5th day of December, 2007, yet the court relied on the pleadings in the first amended statement of defence which was already superseded by the 2nd Amended Statement of Defence. The Respondent in her brief of argument did not react or respond to this assertion. The silence on the part of the Respondent, is tantamount to an admission of this fact. On the part of the trial Court itself, going by the decision of the Supreme Court in ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS. RAYMOND EKWENEM (supra) is very apt on this point. Once pleadings are duly amended by the order of Court. In the instant case there was an order made to amend the first Amended Statement of Defence via the 2nd Amended statement of Defence made by the trial court itself on the 5th of December, 2007. Yet after making its order, the same trial court relied on the pleadings in the first Amended statement of Defence which was already superseded by the 2nd Amended statement of Defence. The State of the Law is that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before that Court and no longer denies the issue to be tried before the Court.
I find the ANAMBRA SANITATION AUTHORITY’S case (supra) on all fours with the instant appeal. All averments contained in the first Amended Statement of Defence of the present respondent had no life again, after the order made by the trial court, for the 2nd Amended Statement of defence on 5/12/2007. For the same trial court to go back and determined issues as contained in the 1st Amended Statement of Defence, is like putting something on nothing, it will not stay. It will surely collapse. See MACFOY vs. U.A.C. LTD (1962) AC 152 at 160. Therefore, with respect to the instant appeal, all the issues considered by the trial Court, in the judgment which is the subject of this appeal, based on the Respondent’s first Amended Statement of Defence are all discountenanced. I do agree with the Appellant’s submission that all decisions reached based on the 1st Amended Statement of Defence is at best perverse. As to the meaning of a perverse decision, is a decision of the court, when it ignores the facts of Evidence before it and when considered as a whole amounts to miscarriage of justice. In such a case, an Appellate Court is bound to interfere with such a decision and set it aside. See: N.E.P.A. VS. OSOSANYA (2004) 1 SC (Pt.1) 159; NEWBREED ORG. LTD VS. ERHOMONSELE (2006) 5 NWLR (Pt.974) 499 at 527; BURAMMOH VS. BAMGBOSE (1989) 3 NWLR (Pt.109) 352. I resolve issue No.6 in favour of the Appellant and against the Respondent.

On the whole therefore, having resolved all the six (6) issues in this appeal in favour of the Appellant and against the Respondent, this appeal is meritorious, and it is hereby allowed.
(1) The Judgment of Hon. Justice T. A. O. OYEKAN ABDULLAI in suit No.ID/833/05 of the High Court of Lagos State, Lagos Judicial Division delivered on the 11th day of March, 2011, is hereby set aside by this court.
(2) The Order made in consequence, that the Defendant (now Respondent in this court) to remain in possession and occupation of the said property is equally set aside by this court.
(3) Parties to bear their own costs.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, SIDI DAUDA BAGE JCA. I am in full agreement with the reasons given and the conclusions reached in the judgment. I also allow the appeal. I abide by all the conclusions and consequential orders of my learned brother in the lead judgment.

JAMILU YANMAMA TUKUR, J.C.A.: I had the privilege of reading before today the lead judgment just delivered by my learned brother Sidi Dauda Bage JCA.

I agree with the reasoning and conclusion in the judgment. I too allow the appeal and abide by the consequential orders made therein.

Appearances

Dr. Bamire, T. Odutola, A. B. Munirudeen, A. Bamire (Miss)For Appellant

AND

King WilsonFor Respondent