OWEN ADEBOLA OLUSEGUN COKER v. MR. SHAMUSIDEEN SABA & ORS
(2018)LCN/11860(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/L/720M/2012
RATIO
LAND LAW: FAMILY SALE OF LAND
“However, the sale by the head of the family without the consent of the principal members of the family is only voidable and thus remains valid unless and until it is voided by or at the instance of the principal members. SeeTeriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868; Usiobaifo V. Usiobaifo (2005) All FWLR (Pt. 250) 131; Maya V. Oshuntokun (2001) FWLR (Pt. 81) 1777; Ekpendu V. Erika (1959) 4 FSC 79; Adeleke V. Iyanda (2001) 6 SC 18; Agbloe V. Sapper 12 WACA 87; Balarabe V. Nadabo (2012)All FWLR (Pt. 646) 516.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES:
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
OWEN ADEBOLA OLUSEGUN COKER – Appellant(s)
AND
1. MR. SHAMUSIDEEN SABA
2. MRS. IDAYAT SABA KAREEM
3. MADAM SAMIAT SABA
(The administrators of Estate of Mr. Fasasi Ayodele Saba) – Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Lagos State, Ikeja Judicial Division; Coram: F. O. Atilade J., (as he then was but later CJ) in Suit No. ID/722M/2007: Owen Adebola Olusegun Coker V. Mr. Shamusideen Saba & Ors., delivered on 30/3/2012, in which the claims of the Appellant as Claimant against the Respondents as Defendants were dismissed for lacking in merit.
The Appellant was thoroughly dissatisfied with the said judgment and had pursuant to the order of this Court obtained on 28/5/2013 appealed against it to this Court vide a notice of appeal filed on 7/6/4/2013 on four grounds at pages 146 – 153 of the record of appeal. The record of appeal was transmitted to this Court on 27/6/2014. The Appellant’s brief was filed on 19/7/2016. The Respondents brief was filed on 1/11/2016 but deemed properly filed on 26/4/2017. The Appellant’s reply brief was filed on 15/11/2016 but deemed properly filed on 26/4/2017.
At the hearing of this appeal on 23/5/2018, Taiwo Kupolati Esq., learned senior counsel for the Appellant, appearing with P. O. Okoroafor Esq., adopted the Appellant’s brief and reply brief and urged the Court to allow the appeal and set aside the judgment of the Court below and grant the claims of the Appellant against the Respondents. On his part, K. A. Sofunde Esq., learned counsel for the Respondents adopted the Respondents brief and urged the Court to dismiss the appeal and affirm the judgment of the Court below.
The Appellant had commenced an action as Claimant before the Court below by means of a Writ of Summons filed on 3/4/2008 and by his amended Statement of Claim filed on 2/2/2009, claiming against the Respondents as Defendants the following reliefs, namely:
1. A DECLARATION that the property known and called No. 88, Borno Way (formerly, No. 88. Griffith Street Ebute-Metta in the Lagos State is the property of Samuel Alfred Akinwande family.
2. A DECLARATION that property known as No. 88, Borno Way, Ebute-Metta in the Lagos State was not leased or sold by Samuel Alfred Akinwande.
3. A DECLARATION that the Claimant being a member of the Samuel Alfred Akinwande family is entitled to sue to protect the property at situate at 88, Borno Way. Ebute Metta being Samuel Alfred Akinwande family property.
4. A DECLARATION that the claimant is entitled by virtue of his father’s Will dated 13 July 1972 to administer the estate therein covered or stated particularly the property lying and situate at No. 88, Borno Way (formerly Griffith Street) Ebute-Metta in the Lagos State of Nigeria as per the judgment of the High Court of Lagos State dated 20 May 2004 and the Letters of Administration (Will annexed). (i.e) that the appellant is entitled to administer the portion of the property that accrued to his father being his sole
5. AN ORDER voiding and setting aside the Deed of Lease dated 2 December 1968 through which claim leasehold interest for a term of 75 years effective from 1st July 1968.
6. AN ORDER for possession of the property situate at No. 88, Borno Way (Formerly No. 88 Griffith Street, Ebute-Metta in the Lagos State of Nigeria.
7. AN ORDER of perpetual injunction restraining the defendants, their agents, privies, assigns and representatives from entering upon or interfering with all that property lying and situate at No. 88 Borno Way (formerly No. 88, Griffith Street, Ebute-Metta in the Lagos State of Nigeria. See pages 1 – 2 and 7 – 11 of the record of appeal
BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant as Claimant before the Court below as can be gleaned from his pleadings and the evidence led through him as CW1 was that he is the only surviving child – son – of one Late Samuel Alfred Abayomi Coker, who died in 1980 and was predeceased by his other son and brought the suit in respect of the property situate at No. 88, Borno Way, (formerly Griffith Street) Ebute – Metta, Lagos State. His late father was the youngest child of one Samuel Alfred Akinwande Coker and made a Will in 1972 affecting properties including the property in dispute. As at 1968 the property in dispute remained a family property, when it was purportedly leased to one Mr. Fasasi Ayodele Saba for a period of 75 years by four out of the eight children of his late grandfather excluding the head and principal members of the family and the signature of his father was forged as one of the four persons that executed the Deed of Lease.
The Appellant was declared as sole beneficial owner, under the Will of his late father and was thus entitled to administer the Estate of his late father and by virtue of which he is a co – owner of the property in dispute. However, all efforts at possessing the property in dispute had always been met with resistance from the Respondents occupying the property in dispute purportedly under a lease dated 2/12/1968 even without paying the rents as reserved therein.
The purported lease was executed by persons excluding the head of the family, one Alfred Babatunde Coker, the 1st son of the Appellant’s grandfather and or principal members, the 2nd, 3rd and 5th Children of his grandfather and was thus void coupled with the nonpayment of the reserved rent by the Respondents and which purported lease deprives the Appellant’s entitlement to the portion of benefits accruing to him in the said family property pursuant to the Will of his late father made on 13/7/1972 and the judgment of the High Court of Lagos State entered in his favor on 20/5/2004 and letters of Administration (Will annexed) issued to him pursuant to the said judgment of Court. The suit was to preserve his one – eight portion in the property in dispute and to challenge the validity of the purported lease executed by some members of the family, without the consent or knowledge of the family head and other principal members as well as the falsification of his father’s signature, coupled with the failure of Respondents to pay the rent reserved since the creation of the purported lease. See pages 7 – 11; 12 – 16 and 83 – 86 of the record of appeal.
On the other hand, the gist of the case of the Respondents as Defendants before the Court below as can be gleaned from their pleadings and evidence led through the 2nd Respondent as DW1, was that they are the children and beneficiaries of the Estate of late Mr. Fasasi Ayodele Saba who died intestate on the 18/11/1993 and was the lessee in a Deed of Lease dated 2/12/1968 and registered as No. MO 7935 at the Lands Registry and entered into between their father and the personal representatives of one Samuel Alfred Akinwande Coker, the Appellant’s grandfather, including the Appellant’s father. At the time of the creation and registration of the said Lease there was no objection raised by any member of the Appellant’s grandfather’s family, including the Appellant’s father.
Their late father paid the rent reserved through his Solicitor, one M. A. Bashua to the Estate of the late grandfather of the Appellant and that the Appellant is only entitled to the share or portion of the rent due to his late father in respect of the property in dispute by virtue of the Will of his late father dated 18/7/1972. At any rate, an earlier claim in Suit M/322/2004 for and on behalf of the Coker family in respect of the same property in dispute and which was not even referred to by the Appellant in the instant suit, had since been struck out and thus no other member of the Appellant’s grandfather’s family was aware of the instant suit filed by the Appellant in his personal capacity. See pages 33 – 38; 39 – 44 and 87 – 102 of the record of appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the four grounds of appeal, namely:
1. Whether the appellant, being a member of the Coker family entitled to 1/8th of the property situate at 88, Griffith Street (now Borno Way), Ebute-Metta by his Father’s 1972 Will, the judgment of High Court of Lagos State dated 20 May 2004 and Letters of Administration (Will annexed) can sue to protect the family property of Late Samuel Alfred Akinwande Coker, his grandfather?
2. Whether the purported lease of the property situate at 88, Griffth Street, (Now Borno Way) Ebute-Metta, Lagos purportedly made in favour of the respondents without the consent of the family head and other principal members is valid at law?
3. Whether the appellant is entitled to the grant of reliefs sought?
In the Respondents brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the Lease dated 2nd December, 1968 could be set aside or voided?
2. Whether the Claimant could sue for possession of the property at No. 88, Griffith Street (now 88, Borno Way) Ebute-Metta, Lagos other than to ask for his share of rent in respect of his father, Samuel Alfred Akinwande Coker’s portion of the property at No. 88, Borno Way, Ebute-Metta, Lagos?
Having looked closely at the claims as endorsed on the writ of summons and the averments in the amended statement of claim filed by the Appellant as Claimant, and the statement of defense filed by the Respondents as Defendant and having calmly reviewed the evidence, both oral and documentary as led by the parties as in the printed record and the findings in the judgment of the Court below appealed against in the light of the submissions of counsel in their respective appellate briefs, I am of the firm view that all the combination of five issues, three by the Appellant and two by the Respondents, as distilled in the respective briefs are pertinent but can be harmonized into the following three issues, namely:
1. Whether the Appellant who claims entitlement to one – eight of the property in dispute situate at No. 88, Griffith (now 88, Borno Way) Ebute Metta, Lagos can other than ask for his one – share of the property in dispute or one – eight of the rent accruable thereon to the benefit of his late father, Samuel Alfred Akinwade Coker, can sue for possession of the entire property in dispute? (This issue covers Appellant’s issue one and Respondents issue two)
2. Whether the lease dated 2/12/1968 in respect of the property in dispute and entered into between four of the children of the Mr. Samuel Alfred Akinwade (deceased), including the father of the Appellant, and the father of the Respondents, Mr. Fasasi Ayodele Saba (deceased) is invalid and liable to be set aside? (This issue covers Appellant’s issue two and Respondents issue one)
3. Whether the Appellant is entitled to the grant of any or all of the reliefs claimed by him against the Respondents? (This issue covers Appellant’s issue three)
ISSUE ONE
Whether the Appellant who claims entitlement to one – eight of the property in dispute situate at No. 88, Griffith (now 88, Borno Way) Ebute Metta, Lagos can other than ask for his one – share of the property in dispute or one – eight of the rent accruable thereon to the benefit of his late father, Samuel Alfred Akinwade Coker, can sue for possession of the entire property in dispute? (This issue covers Appellant’s issue one and Respondents issue two)
APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, which was subsumed under issue one for determination in this judgment, learned senior counsel for the Appellant had submitted that though the competence of the Appellant to institute the suit was raised and addressed upon by the parties, the Court below failed to consider the right of the Appellant to sue to protect his interest to one – eighth of the family property without the necessity of joining or seeking the consent of other members of the larger Samuel Alfred Akinwande Coker family but rather misconstrued the case of the Appellant as claiming entitlement to and right of administration of the entire property in dispute and contended that the Court below thus arrived at the perverse decision that the suit will deprive the other beneficiaries of the right to enjoy the benefits accruing to them from the estate of the late Samuel Alfred Akinwande Coker and urged the Court to hold that the Appellant’s personal right to one eighth of the Coker family property is a right cognizable in law and by virtue of which the Appellant protect same by suing to protect the whole property, albeit in his personal capacity. Counsel relied on Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12; Mozie V. Mbamalu (2006) All FWLR (Pt. 341) 1200; Akinyemi V. Ojo (2011) All FWLR (Pt. 588) 984; Sapo V. Sunmonu (2010) All FWLR (Pt. 531) 1408; Sogunle V. Akinrele (1967) NMLR 58; Babayeju V. Ashamu (1998) 9 NWLR (Pt. 567) 546; Olowosago V. Adebanjo (1988) 4 NWLR (Pt. 88)275.
It was further submitted that the Appellant being a member of the late Samuel Alfred Akinwande Coker family, owner of the property in dispute and holding one – eighth interest in the said property, has a right to sue to protect the said family property and that in exercising this right, the knowledge or consent of other family members is absolutely irrelevant and contended that the fact that the Appellant did not bring the action in a representative capacity and that a previous suit over the said property which was struck out had been filed by members of the Coker family against the same Respondents are also immaterial and urged the Court to hold that the previous action which was merely struck out does not constitute res judicata and thus underscores the need for the Appellant to protect the property in dispute unlawfully maintained under the control of the Respondents under invalid or void lease.
It was also submitted that the Court below erred in law when it held that there was no threat to the interest of the Appellant in the property in dispute because it was family property and not the personal property of the Appellant and contended that the fact that the property in dispute is jointly owned by members of the Samuel Alfred Akinwande Coker family and that the Appellant’s father owned a share thereof, was never a subject of controversy between the parties in that the case of the Appellant was that the property in dispute is family property of which the Appellant claims to be a co – owner and which claim was duly established by the Appellant and urged the Court to hold that being a stakeholder in the property in dispute his interest therein is certainly affected by the wrongful lease of the family property to the Respondents, which entitles him to sue to protect the family property in dispute. Counsel relied on Mozie V. Mbamalu (Supra); Akinyemi V. Ojo (Supra); Dadi V. Garba (Supra); Sapo V. Sunmonu (2010) All FWLR (Pt. 531) 1408; Balarabe V. Nadabo (2012) All FWLR (Pt. 646) 516.
It was also further submitted that the Court below by its decision dismissing the claims of the Appellant ended up denying him his judicially established right to one – eighth of his grandfather’s estate under the Letters of Administration on the ground that some members of the Coker family were unaware of his suit and contended that such a decision was plainly a groundless judicial act and erroneous and liable to be set aside and urged the Court to hold that the Appellant unambiguously established by credible evidence, both oral and documentary, his entitlement to one – eighth of the property in dispute and which right was in law capable of being enforced by the Appellant against the Respondents and to allow the appeal and set aside the judgment of the Court below and grant the claims of the Appellant against the Respondents.
RESPONDENTS COUNSEL SUBMISSIONS
On his issue two, which was subsumed under issue one for determination in this judgment, learned counsel for the Respondents had submitted that the evidence as led before the Court below showed that the Appellant had by way of inheritance is not the sole owner of the property in dispute and thus his claim for possession only related to the one – eight portion of his late father’s interest as bequeath to him in his late father’s Will and contended that the Appellant admitted that the Coker family is a large family with other members of the said family also having interest in the property in dispute, who were neither aware of nor consented to the claims by the Appellant to a property on a subsisting valid Lease from which rent were being paid and enjoyed by all the members of the family including the Appellant’s father in his lifetime and urged the Court to hold that what was bequeathed to the Appellant was the one – eight portion of accruable rent on the property in dispute.
It was further submitted that on the pleadings and evidence the Appellant was merely about five years old as at the time the Lease he sought to be voided was created and as such was not even in a good position to give credible evidence as to who was the head of the Coker family and the principal members were as at 2/12/1968 and contended that the Appellant on the evidence led by him failed woefully to prove his case on a balance of probability as required of him by law having led mostly evidence at variance with the case he pleaded and urged the Court to hold that the Court below was right in dismissing the unproved claims of the Appellant and to affirm the judgment of the Court below dismissing the claims of the Appellant. Counsel relied on Raymond D. Ogolo V. Chief Paul D. Fubara (2003) 5 SC 134 @ p. 171; Isaac Gaji & Ors V. Emmanuel D. Paye (2003)5 SC 53 p. 61.
RESOLUTION OF ISSUE ONE
My lords, the real crux of issue one under consideration is threefold, namely: a: whether a member of a land owning family has the right on his own to sue to protect family property against trespassers, and b: whether a member of family entitled to a fraction of family property held in common as co – owners by all the members of the family can sue on his own and for himself to recover possession of the family property, and c: whether in the absence of any wrong or trespass or unlawful alienation of family property, a member of the family can on his own, without the knowledge and or consent of the other members of the family, sue for possession of the family property from person lawfully put in possession by the family? To answer these three pertinent questions, I shall pay close attention to the pleadings, evidence, both oral and documentary as led by the parties in the printed record, and the findings of the Court below on these crucial questions bordering of issue one. This issue relates to reliefs 1, 3, 4, 6 and 7 of the Appellant’s claims against the Respondent, while reliefs 2 and 5 shall be considered under issue two in this judgment.
In the Amended Statement of Claim, the Appellant had averred inter alia as follows:
1. The Claimant is the only surviving son of the late Samuel Alfred Abayomi Coker of 3 (now, No. 5) Ashabi Street, Mushin in the Lagos State of Nigeria.
2. The Defendants are trespassers on the Claimant’s property.
3. The Claimant states that Samuel Alfred Akinwande Coker was his grandfather who had eight children by his one and only wife: – The eight children of Samuel Alfred Akinwande Coker in the order of seniority are: (i) Alfred Babatunde Coker (ii) Winifred Omolara Johnson (Nee Coker) (iii) Ferdinand Akinwande Coker (iv) Alvin Taiwo Coker (v) Albin Kehinde Coker (vi) Richmond Idowu Olawumi Coker (vii) Rogers Alaba Coker (viii) Samuel Alfred Abayomi Coker. The claimant states that his father, Samuel Alfred Abayomi Coker, was the youngest of the siblings.
6. As at 1972, when the Claimant’s father’s Will was made, the landed property in issue situate at No. 88, Borno Way (formerly No. 88, Griffith, Street) Ebute-Metta, in the Lagos State was a family property.
11. The Claimant avers that as at 1968, the landed property known as 88, Griffith Street (now, 88, Borno Way), Ebute Metta, Lagos State belonged to the Estate of Samuel Alfred Akinwande Coker and was therefore a Family Property
12. The Family Head at the time the purported deed of lease was made was Alfred Babatunde Coker and the remaining seven siblings were principal members.
13. The deed of lease purportedly executed in favor of Fasasi Ayodele Saba was said to have been executed by Alvin Taiwo Coker, Richmond Idowu Coker, Rogers Alaba Coker and the Claimant’s father (whose signature on the said deed of lease differs widely from his signature on his Will of 13/7/19721) who were 4th, 6th, 7th and 8th in the order of seniority.
14. The Claimant avers that the claimant’ father’s signature on the aforesaid deed of lease may have been falsely procured as he was not a signatory to the purportedly transfer by lease of the property at 88, Griffith Street or Borno Way, Ebute Metta.
15. The alleged transferors indicated in the lease of 2/12/1968, claimed to have leased the property as sole lessors and beneficiaries, not as executors or trustees or as legal representatives of the Estate of Samuel Alfred Akinwande Coker, and who thereby excluded the Family Head, Alfred Babatunde Coker and four other principal members, i.e the 2nd, the 3rd, the 5th and the 8th siblings who were principal members of the family.
16. The Claimant states that it is untrue to recite as was done in the lease that those three named transferors truly and sufficiently owned” the subject matter of the lease as residuary estate inheritance in the Will of Samuel Alfred Akinwande Coker dated 15/5/1915.
25. The Claimant further avers that by the last Will and testament of his father, Samuel Alfred Abayomi Coker of 3, (now No. 5) Ashabi Street, Mushin and made on 13/7/1972, the landed property situate at No. 88, Bomb Way (formerly No. 88, Griffith Street) Ebute-Metta in the Lagos State was wholly and solely bequeathed to him and his late brother, Alfred Babatunde Olalekan Coker. A copy of the Will will be relied on during the hearing of this case.
26. The Claimant avers that by virtue of his late father’s Will, and particularly being the only surviving child, the co-ownership of the landed property situate at No. 88, Borno Way (formerly, No. 88, Griffith Street) Ebute-Metta in the Lagos State became vested in him.
28. The Claimant further avers that every reasonable attempt to take possession of – the property situate at No. 88 Borno Way (formerly No. 88, Griffith Street) Ebute Metta in the Lagos State of Nigeria as per the Letters of Administration has been met with stiff resistance by persons who have entered into possession of the property without his consent and licence and probably during the pendency of suit No. ID/1455/96.
30. The Claimant states that Defendants who claim to be a lessee have not paid the annual rent since the so-called creation of the lease or as far as record and memory can prove or show, the Coker Family has not received any rental payment for about 40 years.
31. The Claimant shall contend that: (a) Samuel Alfred Abayomi Coker, his father was until his death, the lawful co-owner of all that property situate at No. 88 Bomb Way (formerly No. 88, Griffith Street) Ebute – Metta in the Lagos State of Nigeria; (b) By the last Will and Testament of Samuel Alfred Abayomi Coker made on 13/7/1972, the property situate at No.88 Bomo Way (formerly No. 88, Griffith Street) Ebute – Metta in the Lagos State of Nigeria was validly bequeathed to the claimant; (c) He is in law the valid co-owner of all that property lying at No. 88 Borno Way (formerly No. 88, Griffith Street) Ebute-Metta in the Lagos State of Nigeria. See pages 7 – 11 of the record of appeal.
In their defense, the Respondents had in their pleadings averred inter alia as follows:
5. The Defendants state that by a Deed of Lease dated 2/12/1968 and registered as Title No. MO 7935 at the Lagos Land Registry in the office at Ikeja Lagos, Fasasi Ayodele Saba of No. 1, Aromashodun Lane, Lagos entered into a Lease Agreement with:- (i) Alvin Taiwo Coker of 83 Bamgbose Street, Lagos, (ii.) Richmond Idowu Coker, of 55 Layeni Street, Lagos, (iii) Rogers Alaba Coker of 3, Ashabi Street, Mushin, Lagos and (iv) Samuel Abayomi Coker of 3, Ashabi Street, Mushin, Lagos all being the children and beneficiaries of the Estate of Samuel Alfred Akinwande Coker who died testate on the 20th August, 1917, in respect of his property known as 88, Griffith Street, now known as No. 88, Borno Way, Ebute Metta, Lagos State. The Defendants hereby plead the Title Deed being Land Certificate dated 5/11/1970 and registered as Title No. MO 7935 at the Lagos Land Registry in the office at Ikeja, Lagos.
6. The Defendants further aver that on the death of Samuel Alfred Akinwande Coker, his WILL was proved and the administration of his Estate was granted to David Augustus Taylor, Frederick Germano Martins, James Dawodu and Frederick Ephraim Williams all being the Executors named in the WILL and Testament.
9. The Defendants will lead evidence to show that on the creation of the Lease for Fasasi Ayodele Saba by the aforesaid children of Samuel Alfred Akinwande Coker on the 2/12/1968, there was nobody, persons or group of persons, who opposed or objected to the creation and registration of the Lease by these children as done and as challenged in Suit No. LA/9A/61, when Georgiana Ajatu Coker purported to devise the same said property by her WILL to some of her Nephews and Niece, when indeed she had only a life interest in the property.
10. The Defendants assert that the said Lessors created the Lease for a Term of 75 years commencing from the 1/7/1968 at the annual rent of Three Hundred Pounds ($300) only.
11. Consequently, the Defendants state that the Lease is to run up to and including the year 2043 and Fasasi Ayodele Saba had been in a lawful and an undisturbed possession of the said No. 88, Borno Way, Ebute Metta, Lagos, as far back as the 1/7/1968, long before the Claimant’s father made his purported WILL dated 18/7/1972.
12. Further to the above, the Defendants state that their father Ayodele Fasasi Saba has been paying the rent thereto to the Solicitors to the Estate of Late Samuel Alfred Akinwande Coker. The Defendants plead and shall rely on the African Continental Bank Limited Cheque No. B959861 and a covering letter at the hearing of this suit.
13. The Defendants also forwarded a further rent to the Chambers of Olu A. Coker, Solicitor to the Estate of Late Samuel Alfred Akinwande Coker vide United Bank for Africa Plc Cheque No. 00944937 with a copying letter dated 16/6/2003 and forwarded by DHL World Wide Express after serious discussions on the request made by the larger family. This Cheque was however rejected by the aforesaid Solicitor to the Estate which necessitated their filing Suit No. M/322/2004 at the Lagos High Court.
15. The Defendants aver that the claimant’s father, Samuel Abayomi Coker is one of the Lessors who executed the Lease Agreement along with his other brothers and endorsed the said Lease Agreement as the fourth Signatory to the Lease Agreement as registered.
17. It shall be contended at the trial that, in respect of No. 88, Griffith Street, the Applicant’s father even, during his life time, was not entitled to more than the proceeds from the agreed rent payable by Fasasi Ayodele Saba the lessee to all the Lessors which invariably would reach all the other members of the family. See pages 33 – 38 of the record of appeal
My lords, from the issues as joined in the above pleadings, it seems clear to me and I so hold that the parties are ad idem on the following facts, which are therefore deemed as established, namely: a: that Samuel Alfred Akinwande Coker died testate on the 20th April, 1917; b: that a Lease, purported or not purported, in respect of No. 88, Griffith Street (now No. 88, Borno Way) Ebute-Metta, Lagos dated 2/12/1968 and registered as Title No. MO 7935 was created between the four out of the eight children of late Samuel Alfred Akinwande Coker as lessors and one Mr. Fasasi Ayodele Saba as lessee at a reserved rent of 300 pounds per annum; c: that the Appellant by virtue of being the only surviving son of his father and being beneficiary of the Will of his late father is entitled to one – eight, as his late father’s share, of the property in dispute; d: that the Appellants father in his life time did not contest his signing of the lease of the property in dispute created in 1968 long before his death in 1980; e: that by virtue of the Appellants late father’s Will made on 13/7/1972 he acknowledged that his interest in the property in dispute was limited to his own share of one – eight being the eight and last child of his father, the original owner of the property in dispute; f: there is no averment that the Appellants father at any time in his life time complained of not receiving his own share of one – eight of the reserved and accruable rent from the property in dispute due to the Coker family from the lessee before his death in 1980; g: that the Respondents are the Administrator and Administratrix of the Estate of Fasasi Ayodele Saba by virtue of the Letters of Administration granted by the Probate Registrar, including the Leasehold interest in the property in dispute.
I will therefore, take all the facts as above set out on which all the parties are either ad idem in their pleadings or were not sufficiently traversed with material particulars as admitted and thus duly established in this appeal. See Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769. See also George V. Dominion Flour Mills Ltd. (1963) NLR 74; Emegokwue V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 269) 313, Akere V. Adesanya (1993) 1 NWLR (Pt. 288) 484; Smurfit Ltd. V. MV. Gongola Hope (2002) 22 WRN 30. See also Solano V. Olusanya & Ors. (1975) 1 SC 35; Olubode V. Oyesina & Ors. ( 1977) 2 SC 97.
In law, the parties as well as the Court are bound by the pleadings and are obligated and must conduct their cases within the confines of their pleadings and thus that neither can the parties go out of the averments in their pleadings in the cases they present in evidence nor can the Court go outside of the issues as joined by the parties in their pleadings to make findings on facts not in issue between the parties. See Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769; George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwue V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 269) 313.
Now, on the issues as joined in the pleadings and the evidence led thereon, which of the parties proved by credible evidence what was alleged by the party, since in law the onus is on each party to prove what he alleges. See Section 136 of the Evidence Act 2011. See Nigerian Westminister Dredging and Marine Ltd. V. Smoot & Anor. (2011) LPELR-4619 (CA), where this Court had reiterated inter alia thus:
By virtue of Section 135(1) of the Evidence Act whoever desires any Court to give judgment as to a Legal right or Liability must assert facts upon which same are hinged and prove that those facts exist.”
See also Cardoso v. Daniel & Ors (1986) LPELR-830 (SC), (1986)2 NWLR (Pt. 20) 1; Osuji v. Ekeocha (2009) 52 WRN P.1, Mini Lodge Ltd. V. Ngei (2010) 10 WRN 58; Bunge v. Gov. Rivers State (2006) 6 SC P. 81.
In proof of his case, the Appellant testified for himself as CW1 by adopting his statement on oath as his evidence in chief and tendered the Will of his late father dated 18/7/1972, a judgment delivered on 20/5/2004 and Letters of Administration dated 21/7/2004 in evidence as Exhibits A, A1 & A2 respectively and was thoroughly cross examined. He admitted that the Coker family is a large family and that one Chief Folarin Coker is the head of family at the time he filed his suit and did not obtain the consent of the family to so do. He further admitted that he does not know when his grandfather died but maintained that his father died on the 30/1/1980. He also admitted that he neither knows when the lease agreement was made nor was he in a position to know whether his father executed the lease alongside his other brothers and that his father never complained to the family or the police that he was not a party to the lease agreement or that the signature was forged thereon.
He admitted that his father in his life time enjoyed the benefit accruing from the estate of his late father and that the children of the other siblings of his father are also equally entitled, like him, to the estate of their grandfather. He maintained that he is claiming his father’s portions in the estate of his grandfather as a co – owner of the property in dispute, having inherited the portion on the death of his father pursuant to the Will of his late father coupled with the judgment of the Court and the Letters of Administration duly issued to him. Finally, he admitted that even his father cannot lay claim to sole ownership to the property in dispute but is only entitled as a co – owner.
In their defense, the 2nd Respondent testified on their behalf as DW1 by adopting her written statement on oath as her evidence in chief and tendered about seven documents in evidence as Exhibits and was thoroughly cross examined. She admitted that the late Samuel Alfred Akinwande Coker left eight children, who all and together became the beneficiaries of his estate with equal rights to the estate and to deal with the property equally but that the 1968 lease was signed by only four out of the said eight children, out of which the then head of family, one Alfred Babatunde Coker, was not amongst the signatories to the lease. She maintained that the rent of 300 pounds per annum as reserved was paid regularly by her father until his death in 1993 as evidence by a letter dated 13/7/1993 forwarding the cheque, whose receipt was however not acknowledged by the recipient. She maintained that the cheque was cashed and one Daniel Akinshoto received the cheque from Bashau and that the beneficiaries of the estate acted properly and in accordance with the Will of their late father in granting the lease to the father of the Respondents.
It was on the strength of the above state of pleadings and evidence as led by the parties that the Court below in its judgment had held inter alia thus:
In his Amended Statement of claim alleged that the lease dated 2/12/1968, executed by four out of the eight children of his grandfather not as executors or trustees of the estate of Samuel Alfred Akinwande Coker which excluded the head of family was invalid. He also alleged that the signature of his father on the lease agreement was illegally product of forgery and as such the lease created granting possession of the property in dispute to Defendants was invalid. It is observed that the Claimant in his depositions filed before this Court gave no evidence relating to the issue of the illegality of the lease, but he stated under cross examination that he does not know when the lease agreement was made.
He also stated that his father did no complain either to the police or members of the family that he was not a party to the lease agreement neither did he commence any criminal proceedings against his brothers. He also admitted that his father enjoyed benefits accruing to him from the estate of his late father in respect of the property in dispute. Having so admitted the facts that his father enjoyed benefits accruing from the estate of his grandfather and it is this interest that the Claimants father has bequeathed to the Claimant as his sole surviving child. The question here is does the grant of the lease threaten the Claimant’s interest in the subject matter?…
Having so admitted the fact that there are other interests on the property in dispute, it therefore behold that the property in dispute is Samuel Akinwande Coker family property, therefore, Claimant’s claim to be entitled to solely administer same is unfounded. I observed that the Claimant did not tender any evidence that he was denied the portion of his father’s interest accruing to him from the property in dispute; therefore the issue of whether or not entitlement in the property in dispute is in dispute is answered in affirmative.
On the issue that his father’s signature on lease agreement was procured illegally, as provided by the provisions of Section 1(1) (2) of the Evidence Act, I have had the privilege of comparing the signature on the lease agreement with the signature on Exhibit A1 (the will), I am of the opinion that, the Claimant has not established to my satisfaction the allegation of fraud as a ground, the same person signed both documents as the signatures are one and the same consequently, his claim on the this ground fails. See pages 134 – 144 of the record of appeal.
It is against these findings that on the one hand the Appellant had approached this Court in this appeal contending that these findings were perverse in that the Appellant had by credible evidence proved his entitlement to the reliefs claimed by him against the Respondents and thus the Court below was wrong to have dismissed his claims in its entirety, while on the other hand, the Respondent are contending vehemently that the Appellant failed to prove on the evidence brought forward by him any of the claims against the Respondents and thus the Court below was right to have dismissed his claims in its entirety. It must be pointed out at once that in considering the evidence of the parties as led through their witnesses and the findings of the Court below, I must avert my mind to the position of the law that evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act. See Saipem SPA V. India Tefa (2001) FWLR (Pt. 74) 377 @ p. 394, where this Court had held firmly inter alia thus:
Where evidence of a witness has not been challenged, contradicted or shaken under cross- examination and such evidence is not inadmissible in law, provided the evidence is in line with the facts so pleaded, the evidence must be accepted as the correct version of what was expected to be proved. The Court is not only entitled to but also has no reason not to accept it.
See Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514.
I am also aware and I have borne it in mind that it is the law that in every civil action in which a declaration is sought from the Court, a Claimant who seeks the declaratory relief must succeed on the strength of his own case as made out creditably on the evidence put forward by him in support of his case and not to merely rely on the weakness or even absence of the Defendant’s case. However, where the evidence of the Defendant supports the case of the Claimant, he is perfectly entitled to rely on such evidence and the Court can act on such evidence to make the declaration sought. See Nsirim V. Nsirim (2002) FWLR (Pt. 96) 433 @ p. 441.
I had earlier set out some of the facts on which the parties are ad idem and therefore obviate the need for any further proof by either party, one of which is the fact that the property in dispute is the family property of the late Samuel Alfred Akinwande Coker family and which radical and reversionary title vests in his eight children, or their heirs, as co – owners in equal shares. Now, from judicial authorities, family or communal land is usually traced to an individual founder or owner who first acquired the land or usually through inheritance or descent from a common ancestor acknowledged as founder of the land or community or by conquest.
In Usiobaifo V. Usiobiafo (2000) 14 WRN 70 @ p. 83, it was opined inter alia thus:
“It is instructive to consider how a land or house becomes family land or property. It is settled that the concept of family property is original top our indigenous society and the bedrock of our law of inheritance. The most common circumstance creating family property is death intestate of a landowner whose is governed by customary law. Such land devolves to his heirs in perpetuity as family land.”
And in Ogundairo V. Abeje (1967) LLR 9, it was emphatically pronounced inter alia thus:
The law is settled that family property is property which devolves from father to children and grand children under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole.
See also Olukoya V. Bankole (1909 09) 1 NLR 81; Otun V. Ejide (1933) 11 NLR 124; L. O. Smith, Practical Approach to Laws of Real Property in Nigeria? Ecowatch Publications Limited @ Page 32.
The case of the Appellant on both his pleadings and the evidence led is filled with inconsistencies and afterthought and he so freely approbated and reprobated on several issues of facts. But can he do so in law? I think he cannot. He must, if he must succeed in his claims, be consistent in what he pleads and the evidence he leads in proof of what he pleads! It is only when he is consistent that a Court of law, which is as well a Court of justice, would be able to believe him in order to decree anything in his favor.
He cannot be spinning tales by moonlight and still think he would be believed by the Court. Here is a grandchild who knows and so claims that he is entitled to only one – eight of his grandfather’s estate in the property in dispute by virtue of being the only surviving child of his father, the eight child of his grandfather, turning round to claim to be entitled to possession of the property in dispute and seeking to recover possession of the property in dispute from the Respondents to whose father it was leased in 1968 for 75 years period with reserved rent at 300 pounds per annum.
And what did he say are the grounds or reasons for these claims he is making against the Respondents’ He says the lease was made by only four out of the eight children of his grandfather, which incidentally or is it coincidentally included his own father through whom he claims any entitlement to the property in dispute. Here is a grandchild who admitted that his own father in his life time had not only benefitted from the accrued rents from the property in dispute until his death in 1980 but did not at any time complained either of any forgery of his signature on the lease or his non participation in the execution of the lease.
When the evidence got so mounted and staked against him, the Appellant suddenly remembered that as a member of the family, whether as a grandchild or the last of the grandchildren, he has the right in law to sue to protect the family property even without the knowledge or consent of the co-owners of seven eight portion of the property in dispute and ask the Court to grant him possession of the property in dispute in which he has only but a minute fraction of one – eight portion thereof. So can the Appellant in one breadth claim that the property in dispute is a family property which he can sue to protect on behalf of the family, which by the way is a noble and laudable cause, and turn round in another breadth to claim for possession not for the family that owns the property but for himself as an individual member of the family entitled to his own knowledge to only one – eight portion in the property in dispute? I think not!
See A.G. Rivers State V. A.G. Akwa Ibom (2011) 29 WRN I, where the Supreme Court had opined inter alia thus:
It is the rule of equity that one cannot approbate and reprobate… It is a doctrine of justice and it is inequitable to blow hot and cold, this principle finds expression in Latin maxim Allegans Contraria Non Est Audiendus.
My lords, no Court of law, worth its name would ascribe any iota of probability or credibility to the evidence of the Appellant, who was taken to the cleaners in his cross examinations, where he was made to admit virtually the complete opposite to all he is claiming before the Court below. Perhaps, and I say this with due deference to the Appellant, the only one thing that was truthful in all of his claim was that the property remained a family property and that if trespassed upon by a stranger, of which there was no such evidence from him, he would be entitled in law to sue to protect the family property. However, there is a caveat which his case fails to reckon with and that is that such protection of family land must be to the benefit and interest of the land owning family and not for the sole benefit of the individual member suing to protect the family land, as is so apparent in the claims of the Appellant.
Thus, a family member cannot in law, unless and until the family land is duly partitioned, sue to recover family land for his sole benefit and worse still without the knowledge and or consent of other members of the family.
Such conduct is simply, to my mind, a vaulting ambition to rob the family of its land by an unguarded member. The law will never act in aid of such a person. This is what the Appellant claimed as relief 6 against the Respondent for his own benefit thus:
6. An Order for possession of the property situate at No. 88, Borno Way (formerly No. 88 Griffith Street), Ebute-Metta in the Lagos State of Nigeria.
I therefore, consider it pertinent to observe that a person cannot found a claim on half truths and outrights lies and expect to succeed. This is so because when and if these half truths are exposed in the proceedings either at the trial or on appeal, as they are wont to be, his claims so founded on falsehood would fall like a pack of cards. So it is with most of the claim of the Appellant, save those claims on which there really was not dispute at all as to the declaration of the right of an individual member of a family to sue to protect family land or property against a trespasser for the benefit of the family and the declaration that under the circumstances in which the property in dispute devolved on all the eight children of the original owner it became a family property. Happily and commendably too, the Court below saw through these half truths in both the pleadings and evidence of the Appellant and rightly disbelieved him as it relates to reliefs 4, 6 and 7 as claimed by the Appellant.
However, and very regrettably the Court below gravely erred when it extended its disbelief of the case of the Appellant to reliefs 1 and 3 as claimed by the Appellant, which are reliefs not even in dispute as they are mere declarations of the state of the law on family land and which in effect even where so declared does not confer any single personal exclusive benefit on the Appellant and which ought, in my view, to have been granted as it merely a restatement of the settled position of the law on family land.
In the light of all I have said and found as fact above, both on point of fact and law the Appellant has no legal right or entitlement to the possession of the property in dispute unless and until it is duly partitioned and his one – eight portion is ascertained. Thus, the only right accruable to the Appellant, but which regrettably he did not ask for in hi claims, is for one – eight portion of the rent accruable from the lease of the property in dispute from the Respondents and nothing more. But since Courts of law are not Father Christmases and thus do not award what was not asked for by a party, the Appellant is not entitled to any such relief not asked for.
Interesting, the issue surrounding the property in dispute is not an outright alienation but a lease with the reversionary interest still vested in the Estate of the late grandfather of the Appellant and thus all the plethora of decided cases on alienation of family property are of no avail to the Appellant. The property in dispute still belongs to the Coker family who are entitled to the reversionary interest at the expiration of the term of years granted by the lease. I therefore, see the entire case as it relates to reliefs 4, 6 and 7 of the Appellant as indicative of the vaulting ambition of the Appellant, a grandchild entitled to only one – eight of the property of his grandfather to take over possession of the entire property belonging to the entire family under the instrumentality of the law, which regrettably is not even on his side. No wonder, he had by his relief 6 sought to recover possession of the entire property, since without due partitioning it was impossible in law for the Appellant to recover one – eight of the possession of the property in dispute, without even informing or carrying along the other co-owners entitled with him to equal shares to the property in dispute.
In law, a co – owner of land cannot sue to recover possession of the land for himself without the consent of the co – owner as erroneously and mischievously sought to be done by the Appellant in the instant appeal. Thus, this appeal, once again brings to the fore some of the incidence of co-ownership of land particularly co-tenancy in which unless partitioned none of the co-owner can deal separately with his own portion of the jointly owned land. Admittedly, the incidence of co-ownership is not as rigid as the incidence of joint – tenancy characterized by the four unities, namely: a: unity of time; b: unity of interest; c: unity of title and d: unity of possession.
Thus, in joint tenancy, no member can claim any portion of the property as his own as each member is as much entitled to possession as the other unlike in co-tenancy in which as in the instant appeal, the property in dispute if free from encumbrances or upon the expiration of the lease, if found to be valid, can be duly partitioned into eight equal shares for the eight segments of the land owning family, with each segment taking ownership, control and possession of its portion. See Black’s law Dictionary 6th Edition @ pp. 335; 838 & 1465. See also R.W. James Modern Land Law of Nigeria; University of Ife Press @ p. 125; Chief Numogun Sam Adeyemi V. Emmanuel Opeyori (1976) 9 – 10 SC 31; Adamu & Anor V. Nwokoye (2015) LPELR – 40869 (CA); Osuji V. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Bonny & ors V. Yougha & ors (1969) LPELR – 25524 (SC); Majeologbe V. Solarin (2015) LPELR 25588 (CA).
It is my view therefore, that the Court below carried out its duty of evaluation impeccably by putting both the pleadings and evidence of the parties as led through their witnesses and documents on the imaginary scale to weigh to see where the evidence preponderates in line with the principles of law as enunciated in Mogaji V. Odofin (1978) 4 SC 94 and found and quite rightly too that the claims of the Appellant, reliefs 4, 5, 6 and 7 were not made out and I cannot but affirm such correct findings as it is not the business of appellate Courts to interfere with the correct findings of trial Courts.
I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the Court below and once that Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an Appellate Court will not interfere once the conclusions reached is correct. Thus, an appellate Court will not interfere with to disturb the correct finding of the trial Court.
This is so because an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere…
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
However, in respect of reliefs 1 and 3, as claimed by the Appellant, which are mere declaratory reliefs on admitted fact, facts on which the parties are ad idem and thus requiring no further proof by the Appellant, as I had earlier observed in this judgment and conferring no iota of exclusive personal benefit on the Appellant but merely a reaffirmation of the settled position of the law on family land, I think the decision by the Court below to refuse and dismiss it along with the other reliefs, which were not made out by the Appellant, was wrong and perverse and thus liable to be set aside.
It is thus the law that an Appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the Court below was perverse. In law therefore, an appellate Court will most likely and readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse.
In such a case, the appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ p. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ pp. 1820 -1821; Saeed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ p. 1681.
In the instant appeal, on the pleadings and evidence, particularly on the issue of facts on which the parties are ad idem, in law the Appellant has the indisputable and undoubted right, as a member of the Coker family, to sue to protect the family land against trespasser with or without the consent and or knowledge, though desirable, of other members of the Coker family if and for the benefit of the Coker family. See Sapo V. Sunmonu (2010) All FWLR (Pt. 531) 1408, where the Supreme Court laid this issue to rest when it held that any member of a family may take steps to protect or defend family property or his own interest in it. See also Balarabe V. Nadabo (2012) All FWLR (Pt. 646) 516, where it was held that every member of a family is permitted by law to sue strangers to protect family property against meddlesome interlopers. Indeed, the mere fact that a Claimant is even a younger member of the family is immaterial and irrelevant where he exercises his right to sue to protect the family property against strangers or trespassers for the benefit of the family.
See Mozie v. Mbamalu (2006) All FWLR (Pt. 341) 1200. See also Dadi V. Garba (1995) 8 NWLR (Pt. 411) 12; Akinyemi V. Ojo (2011)All FWLR(Pt. 588) 984; Sogunle V. Akinrele (1967) NMLR 58, Babayeju V. Ashamu (1998) 9 NWLR (Pt. 567) 546, Olowosago V. Adebanjo (1988)4 NWLR (Pt. 88)275; Dadi V. Garba (1995) 5 NWLR (Pt. 411)12.
Consequently, issue one is hereby resolved partly in favor of the Appellant against the Respondent in respect of reliefs 1 and 3, while it is resolved against the Appellant in respect of reliefs 4, 6 and 7 in favour of the Respondents.
ISSUE TWO
Whether the lease dated 2/12/1968 in respect of the property in dispute and entered into between four of the children of Mr. Samuel Alfred Akinwade (deceased), including the father of the Appellant, and the father of the Respondents, Mr. Fasasi Ayodele Saba (deceased) is invalid and liable to be set aside? (This issue covers Appellant’s issue two and Respondents issue one)
APPELLANT’S COUNSEL SUBMISSIONS
On his issue two, learned senior counsel for the Appellant had submitted that in law the sale of family property by the head of the family with the consent of the principal members of the family is valid for all purposes while the sale of family property by members of the family without the consent of the head of family is void ab initio but that sale by the head of the family without the consent of the principal members of the family is only voidable and thus remains valid unless and until it is voided by or at the instance of the principal members and contended that in the instant appeal the Deed of Lease dated 2/12/1968 was executed by four of the eight children of the late Samuel Alfred Akinwande Coker, who purported to be the sole owners, excluding the Alfred Babatunde Coker, the first son and head of the late Samuel Alfred Akinwande Coker family and therefore rendered the lease void ab initio and incapable of conferring any title on the Respondents and urged the Court to set it aside.
Counsel relied on Teriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868; Usiobaifo V. Usiobaifo (2005) All FWLR (Pt. 250) 131; Maya V. Oshuntokun (2001) FWLR (Pt. 81) 1777; Ekpendu V. Erika (1959) 4 FSC 79; Adeleke V. Iyanda (2001) 6 SC 18; Agbloe V. Sapper 12 WACA 87; Balarabe V. Nadabo (2012) All FWLR (Pt. 646) 516; Ojoh V. Kamalu (Supra).
It was further submitted that in law it is only when a vesting assent is made by an executor and, or executrix to a beneficiary that the estate or interest to which the assent relates can vest on such beneficiary and therefore, a beneficiary cannot claim his share in the estate of the deceased testator until the executors have given their assent to the vesting of the property on him and contended that without an assent vesting the property in dispute in the purported lessors, the lessors could not have any personal interest in the property to pass to the Respondents and urged the Court to hold that the property in dispute at best can only be dealt with as family property which requires the consent of the family head and other principal members for its validity. Counsel referred to Unoka V. Agill (2008) All FWLR (Pt. 423)1349; Bosah V. Oji (2002) 6 NWLR (Pt. 762) 140 and laying down only the secondary consideration, which is dependent on the capacity of the lessor to grant the lease.
It was also submitted that notwithstanding that the subjectivity lease bore the essential elements as stated in Bosah V. Oji (Supra), the lack of capacity of the parties to grant interest in a property in dispute coupled with the unimaginable reserved rent of N6,000.00 for a period of 10 years, as stipulated at 300 pounds per annum and the lack of evidence of payment of the reserved rent rendered the lease void and urged the Court to hold that the Court below was wrong when it held that the Appellant failed to adduce sufficient evidence in proof of the allegation of illegality of the lease and set aside such perverse finding and hold that the lease was illegal and void as clearly established in the evidence of the Appellant and to allow the appeal and void the lease for being illegal or forfeited for failure to pay the reserved rent. Counsel relied on Attorney – General, Lagos State V. Sowande (1992) 8 NWLR (Pt. 261) 589.
It was also further submitted that not only did the Court below failed to pronounce on the validity of the lease it also admitted an inadmissible evidence in the form of a letter as proof of payment of rent and contended that in law failure to pay rent reserved amounts to a fundamental breach which disentitles the Respondents from asserting any title under a lease which is no longer extant and urged the Court to set aside the judgment of the Court below and void the lease and grant the reliefs claimed by the Appellants against the Respondents.
RESPONDENTS COUNSEL SUBMISSIONS
On his issue two dealing with the issue of the validity or otherwise of the lease dated 2/1/21968, learned counsel for the Respondents had submitted that the lease in respect of the property in dispute was entered into between four of the co – owners of the property including the father of the Appellant and the father of the Respondents on 2/12/1968, who had joined the other families members on the enjoyment of the accrued rent from 1968 till his death in 1980 without any objection and which portion he bequeathed to the Appellant in his Will made in 1972 and contended that the Appellant whose right to the property in dispute as co-owner accrued from the right of his late father does not and cannot have a better right than his late father, the late Alfred Abayomi Coker and urged the Court to hold that the Appellant cannot now given the nature of a deed of lease made under seal be heard to resile from the obligations created thereby after his father had taken benefits of the lease until his death in 1980. Counsel relied on Oyerogba v. Olaopa (1998) NWLR (Pt. 583) 509; Ude V. Osuji (1998) 13 NWLR (Pt. 580)1.
It was further submitted that the Appellant’s father even if he were to be alive cannot contest the Deed of lease by virtue of the equitable doctrine of estoppel, having taken advantage of an irregularity and had accepted or led the other party to believe he had accepted and had acted or without suffering any harm and contended that the Deed of Lease dated 2/12/1968 is valid and subsisting and if there is irregularity in its creation as raised by the Appellant but which is not conceded, the Appellant, who merely stepped into his late father’s shoe, is estopped from raising any objection because his predecessor in title has accepted it, acted on it and also benefited from it for 12 years before his death and urged the Court to affirm the findings of the Court below that the lease is valid and to dismiss the appeal in order not to allow the Appellant to benefit the wrong of his predecessors in title. Counsel relied on Ezewani V. Onwordi (1986)4 NWLR (Pt 33) 27.
APPELLANT’S COUNSEL REPLY SUBMISSSIONS
In his reply in law, learned senior counsel for the Appellant submitted that there is substantial evidence, both documentary and oral, upon which the lease of 1968 should be voided and or invalidated since the lease has lost its substance owing to the breach of the covenant on payment of rent, which issue the Court below brushed aside despite the avalanche of evidence which sufficiently justified the invalidation of the lease by the failure of a fundamental covenant on payment of annual rent and contended that in law a lease that confers some beneficial interest on a person does not become valid if the fundamental conditions which are imperative to its continued validity and enforceability are non-existent or have wholly failed and urged the Court to void the lease on the grounds earlier enumerated as to the invalidity of the lease and to affirm the right of reentry of the Appellant into the property in dispute for the failure of the lease.
RESOLUTION OF ISSUE TWO
My lords, issue two deals directly with the validity or otherwise of the lease dated 2/12/1968 and entered into by four out of the eight children of the original owner of the property in dispute including the father of the Appellant, who was the eighth and last child. Now, it was the Appellant who alleged that the lease was void and pleaded grounds for his allegations and therefore, the primary or evidential burden of introducing the needed evidence at least on a prima facie basis so that the burden may shift unto the Respondents to prove the contrary was on the Appellant, though not static. I had earlier reproduced in extenso the pleadings of the parties and set out also the evidence led by them through their respective witnesses, namely: CW1 for the Appellant and DW1 for the Respondents and it does appear to be that the contention of the Appellant seems to be that he has made his allegations that the Deed of lease was void or illegal and whether these allegations were sufficiently and creditably substantiated or not, and if I may add even at least on a prima facie basis, it is the business of the Respondents to show that the Deed of lease was valid.
The Court below which saw and heard the witnesses testify had reviewed the evidence as led by the parties on the issue of validity or otherwise of the Deed of lease and considered the grounds for the allegations made by the Appellant and the response by the Respondents and came to the finding that the lease was valid when it held inter alia thus:
On the issue whether or not the lease agreement was valid, the law is as stated in the case of Bosah V Oji (2002)6 NWLR Pt 762, at pg 140. Where it was stated that for a lease to be valid, the terms of the lease as well as the date of commencement must be certain or capable of being ascertained Thus the essential principle for a valid lease is that it must be clear that there was an intention to create a term of years with a beginning and a certain ending thus the essential terms upon which there must be evidence are: a) Who are the parties; b) What is the extent or nature of the property; c) What is the rent to be paid; d) What is the period of the lease; and e) What is the date of commencement. In the instant case I am of the opinion that the lease met all the requirements of a valid lease so the issue of setting aside of the lease does not arise. See pages 143 – 144 of the record of appeal.
My lords, it has been vehemently contended for the Appellant that the Court below brushed aside or side tracked the issue of validity of the lease and thus failed to pronounce upon it but even a cursory look at the excerpts of the judgment of the Court below set out above show that this contention was highly mischievous and incredulous.
The Court below after a due consideration of the evidence found that the Appellant merely mouthed or made the allegation of forgery of his late fathers signature without proving same and at any rate that the signature of his late father on his Will made in 1972 and the lease made in 1968 were the same, a finding of which I have also taken time to look at these two documents as in the printed record and found to be correct, and proceeded to find also that the Appellant who had alleged non payment of rent reserved under the lease failed to prove his allegation while the Respondent proved that the rent reserved has been paid and finally considered the lease in line with the essential requirements of a valid lease and found that the lease met all the stipulated essential elements of a valid lease, a finding I also find to be correct having myself looked carefully at the lease as entered into on 2/12/20968, I cannot but agree with the Court below that on all the grounds alleged against the validity of the lease the Appellant failed to substantiate any or all as would have rendered the lease invalid or illegal or void as he alleged but failed woefully to prove as required of him by law.
I am aware that in civil cases the onus of proof is not static but shift yet a Claimant who makes an allegation which is denied by a Defendant cannot just fold his arms akimbo and expect the Defendant to battle to disprove what he the Claimant had alleged but had not led evidence even on a prima facie basis to substantiate, as was the case with the Appellant in the instant appeal. Here is a Claimant who had made an allegation as grave as forgery of the signature of his late father’s signature against his own larger family members, since the signatures of the other three members of the family who also signed the lease were not being contested, yet what did he produce before the Court below to prove such a grave allegation made against his own famil members, since it was not an allegation made against the Respondents’ He produced in evidence two documents which upon comparism of the signatures of his father were found to be one and the same by the Court below and which finding has already been found by me to be correct.
Next, he alleged none payment of rent for a lease entered into in 1968 when admitted he was only but about five years old and once again folded his arms akimbo waiting on the Respondents to disprove his allegation that their late father was not paying rents from 1968 till his death in 1993 and when they produced evidence of payment of rents by cheque to the estate of his grandfather, he cried foul that the cheque was not shown to have been cashed or any rate that the rent of 300 pounds per annum reserved in 1968 was unimaginable and ridiculous.
When the Respondents pinned him down by the deft art of cross examination to admit that his late father neither in his life time complained about any irregularity nor forgery of his signature on the lease and indeed had his own share of the accruable rents of the lease on the property in dispute, he started a new song that it does not matter whether his late father had the benefit of the rent accruing on the lease on the property in dispute so long as it clear to him that the lease was irregular and illegal. Indeed the finer principles of the law that one cannot lead another by his representation to change his position to his own detriment and then turn round to resile from his obligation and also that a man cannot be allowed to benefit from his own wrong after taking benefit from a contract to turn round to keep the benefits while contending that the contract was illegal, meant nothing to the Appellant. I find that on all the grounds relied upon, the Appellant failed woefully to substantiate any or all of them to show why the lease is void or even voidable.
Indeed, if there be any irregularity, which I could not and did not so find, his late father was impari delicto and by implication so is he the Appellant. He cannot reap from the wrong of his late father while keeping the benefits his late father had in his life time for about 12 long years derived from the rents accruing from the lease before his death in 1980. He cannot eat his cake and still have it. It is immoral, unethical and inequitable to say the least! The lease entered into by the parties, against which none of the eight children of the Appellant’s grandfather, who had the right to, ever complained of any irregularity or illegality, is in my finding valid as found by the Court below having satisfied all the essential requirements of a valid lease and therefore, cannot and would not be voided or set aside by this Court.
In law , the essential requirement for a valid lease is that it must be clear that there was an intention to create a term of years with a beginning and a certain ending and must therefore, show the following, namely; a: The parties, b: The extent or nature of the property, c: The rent payable, d: The period or tenure of the lease, and e: The date of commencement, all of which are present in the lease on the property in dispute entered into on 2/12/1968 between the parties. See Bosah V Oji (2002)6 NWLR (Pt. 762) @ p. 140.
I now come to the issue of capacity of the parties so vehemently canvassed by the Appellant. In law, for an outright alienation of family land held under customary law, a sale of family property by the head of the family with the consent of the principal members of the family is valid for all purposes while the sale of family property by members of the family without the consent of the head of family is void ab initio. However, the sale by the head of the family without the consent of the principal members of the family is only voidable and thus remains valid unless and until it is voided by or at the instance of the principal members. SeeTeriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868; Usiobaifo V. Usiobaifo (2005) All FWLR (Pt. 250) 131; Maya V. Oshuntokun (2001) FWLR (Pt. 81) 1777; Ekpendu V. Erika (1959) 4 FSC 79; Adeleke V. Iyanda (2001) 6 SC 18; Agbloe V. Sapper 12 WACA 87; Balarabe V. Nadabo (2012)All FWLR (Pt. 646) 516.
However, I see a great deal of confusion here as most of the submissions and the decided cases relied upon by the learned senior counsel for the Appellant are, with due deference, inapposite to the facts and circumstances of the instant appeal as they deal mostly with outright alienation of family land and not leases with the reversionary interest still remaining vested in the family upon the expiration of the term of years thereby granted.
Thus, the position of the law dealing with outright alienation of family land held under customary law is, in my humble opinion, not so with land held not under customary law but by virtue of a bequest under a Will. At any rate it is completely inapposite where the issue involved is not one of outright alienation but a lease, which was not even objected to by any of the members of the land owning family and in which all the members of the family had enjoyed the accrued benefits without any dissenting voice and to whom the property in dispute was bequeathed by their father in his Will and in which the radical reversionary interest or title remained vested in the eight segments of the family of the late Samuel Alfred Akinwande Coker, unless and until it is duly partitioned according to law to vest each of the eight segment of the family the right to its own portion or share of the family land as partitioned.
On the pleadings as it stand and the evidence led thereon, even an order for partition of the entire property would not lie since the lease is valid and could only possibly be made upon the expiration or otherwise lawful determination of the lease by the Coker family and then the property can be partitioned and each of the eight segments of the Coker family entitled to its one – eight share. Thus unlike in joint ownership in which all the owners have one and the same interest held in undivided possession and accruing by one and the same instrument, of which the ownership structure of the property in dispute is not, co ownership, as in the property in dispute refers to ownership of a property by two or more person in common and each entitled only to his share or portion of the property which upon partition he could deal personally with, including its alienation or recovery of possession. See Majeologbe V. Solarin (2015) LPELR 25588 (CA).
Consequently, issue two is hereby resolved against the Appellant in favor of the Respondents.
ISSUE THREE
Whether the Appellant is entitled to the grant of any or all of the reliefs claimed by him against the Respondents? (This issue covers Appellants issue three)
My lords, having resolved issues one and two as above, namely: issue one partly in favour of the Appellant as regards reliefs 1 and 3, and in favour of the Respondents as regards reliefs 4, 6, & 7 and issue two against the Appellant as regards reliefs 2 and 5 in favor of the Respondents, I hereby resolve issue three partly in favor of the Appellant and hold firmly that that the Appellant is entitled to his claims in reliefs 1 and 3 against the Respondents, for being meritorious, while he is not entitled to reliefs 2, 4, 5, 6 and 7 against the Respondents, for lacking in merit.
On the whole therefore, since reliefs 1 and 3 as claimed by the Appellant against the Respondents are mere declaratory and the parties are ad idem that in law a family member, such as the Appellant has the right to sue to protect family property against a trespasser but for the benefit of the family and not for just the sole benefit of the individual member, and further that the property in dispute is a family property of the late Samuel Alfred Akinwande Coker, I do not see why those declaration sought in reliefs 1 and 3 on which the parties are ad idem ought not to have been granted by the Court below as having been made out whilst refusing reliefs 2, 4, 5, 6 and 7 not made out by the Appellant than dismissing the claims of the Appellant in its entirety. It is for this reason, I hold that the appeal as it relates to reliefs 1 and 3 has merit and ought to be allowed in part. The Court below thus erred in refusing to grant reliefs 1 and 3, which were not in any dispute and were in fact agreed upon by the parties both in their pleadings and evidence led before the Court below.
Thus, having found that the Appellant, being a member of the Late Samuel Alfred Akinwande Coker family is by law entitled to sue to protect the family property against trespassers for the benefit of the said land owning family and also that the property in dispute is a family property of the late Samuel Alfred Akinwande Coker family, I hold that the Appeal succeeds in part and is hereby so allowed in part.
Consequently, it is hereby ordered as follows:
1. That part of the Judgment of the High Court of Lagos State, Ikeja Judicial Division; Coram: F. O. Atilade J., (as he then was but later CJ) in Suit No. ID/722M/2007: Owen Adebola Olusegun Coker V. Mr. Shamusideen Saba & Ors., delivered on 30/3/2012, in which reliefs 2, 4, 5, 6 and 7 as claimed by the Appellant as Claimant against the Respondents as Defendants were dismissed for lacking in merit is hereby affirmed.
2. That part of the Judgment of the High Court of Lagos State, Ikeja Judicial Division; Coram: F. O. Atilade J., (as he then was but later CJ) in Suit No. ID/722M/2007: Owen Adebola Olusegun Coker V. Mr. Shamusideen Saba & Ors., delivered on 30/3/2012, in which reliefs 1 and 3 as claimed by the Appellant as Claimant against the Respondents as Defendants were dismissed for lacking in merit is hereby set aside.
3. In its stead, reliefs 1 and 3 are hereby granted and it is declared as follows:
A: It is hereby declared that the property known as and called No. 88, Borno Way (formerly, No. 88. Griffith Street) Ebute-Metta in Lagos State is the property of the late Samuel Alfred Akinwande Coker family.
B: It is hereby declared that the Appellant/Claimant being a member of the late Samuel Alfred Akinwande Coker family is entitled to sue to protect the property at situate at 88, Borno Way. Ebute Metta being the late Samuel Alfred Akinwande Coker family property for the benefit of the said late Samuel Alfred Akinwande Coker family.
4. I make no order as to cost.
TIJJANI ABUBAKAR, J.C.A.: I read the lead Judgment rendered in this appeal by my learned brother Biobele Abraham Georgewill JCA. I am in complete agreement, I therefore adopt the Judgment as my own, I have nothing extra to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege of reading before now, the judgment just delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA. I agree with the limpid reasons advanced therein to arrive at the inevitable conclusion that the Appeal succeeds in part.
I also abide by all consequential orders made in the leading judgment.
Appearances:
Taiwo Kupolati, Esq. with him, P. O. Okoroafor, Esq. For Appellant(s)
K. A. Sofunde, Esq. For Respondent(s)
