BASHIRU DAVIES v. NOSIRU AYINLA RAHMAN-DAVIES & ANOR
(2018)LCN/12344(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/L/668/2007
RATIO
EVIDENCE: WHERE ORAL EVIDENCE OF GIFT IS RENDERED INADMISSIBLE
“Having rejected the letter of gift in evidence, oral evidence of the gift given for the appellant was rendered inadmissible and worthless vide Nigeria Ports Plc v. Beecham Pharmaceutical PTE Ltd. and Anor. (2012) 18 NWLR (pt. 1333) 454 following U.B.N. v. Ozigi (1994) 3 NWLR (pt. 333) 385, A.C.B. Ltd. v. Gwagwada (1994) 5 NWLR (pt. 342) 25. Besides, there was no clear-cut evidence that the alleged gift of the property was made in the presence of witnesses to make it a good/perfect and valid gift vide the cases of Ayinke v. Ibidunni (1959) SCNLR 666 at 669, Orido v. Akinlolu(2012) 9 NWLR (pt. 1305) 370 at 387 to the effect that to prove a gift of property inter-vivos there must be evidence of actual handing over of the land or property or declaration of the gift by the owner of the property and its acceptance thereof in the presence of witnesses.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
BASHIRU DAVIES Appellant(s)
AND
1. NOSIRU AYINLA RAHMAN-DAVIES
2. SURAJUDEE RAHMAN-DAVIES Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the judgment of the High Court of Justice of Lagos State (the Court below) whereby it entered judgment in favour of the respondents against the appellant to the effect that the respondents, as the offspring of the deceased Alhaji Muibi Davies, are the rightful persons entitled to inherit under Yoruba native law and custom the premises located at Block 39 Flat 2, Lagos State Development Property Corporation (L.S.D.P.C.) housing estate, Ogba, Lagos State; the award of possession of the said property; and an order that the appellant should return forthwith the original copies of the documents relating to the said property to the respondents.
The case of the respondents, as the claimants at the Court below, was that their late father died intestate and left the property in dispute which by Yoruba custom they are entitled to inherit. On the other hand, the appellant?s case was that the late father of the respondents made a gift of the landed property to him in his life time or inter-vivos.
The Court below accepted the version of the respondents and entered judgment for the respondents in the terms stated (supra) in the opening part of the discussion.
The appellant was unhappy with the judgment and filed the present appeal against it. The appellant filed a brief of argument on 13.10.08, which was deemed as duly filed on 19.10.09.
The appellant contended in the brief that the Court below having found that by clauses 3 and 4 in the letter of allocation, Exhibit DWA, forbidding the alienation of the property on pain of automatic forfeiture of the property, the respondents? late father could not have alienated the property to the appellant, therefore the appellant?s claim that the property was alienated to him by the late father of the respondents in his life-time did not hold water, as by parity of reasoning, the respondent?s late father could not have been the owner of the property in his life-time for it to be inherited by the respondents, his offspring, as the property was offered for sale by Exhibit DWE, on 27.06.86, and the appellant paid for it evidenced by three (3) receipts, Exhibits DWH, DWH1, DWH2 dated 16.10.90, 25.06.91 and 09.07.91, respectively, vide page 38 of the record of appeal (the record); and that had the court below given consideration to the purchase receipts in question it should have invoked Section 146 of the Evidence Act Cap.E14 for the respondents to prove they own the property as the appellant was shown to be in possession of the property.
The appellant contended in the brief that had the Court below considered his unchallenged evidence that he was in possession of the property and was paying rents until he bought the property together with the evidence of the appellant?s third witness in page 45 of the record and PW1’s admission in page 23 of the record, the Court below would not have held that the appellant did not have equitable interest in the property citing in support the cases of I.B.W.A. Ltd. v. Imano (Nigeria) Ltd. (2001) F.W.L.R. (pt. 44) at 443, Saipen SPA v. India Tefa (2001) F.W.L.R. (pt. 74) 377; and paid for the property in three (3) instalments in 1990 – 1992, did not produce in evidence receipts showing the payments and should be held to have withheld evidence contrary to Section 149(d) of the Evidence Act Cap.E.14.
The appellant contended that the only interest the late father of the respondents had in the land in dispute was that of a monthly tenant and the transfer of such interest did not require registration was wrongly held by the Court below in page 83 of the record, therefore the Court below should not have rejected the letter written by the late father of the respondents transferring his interest in the land to the appellant.
The appellant therefore urged that the letter be admitted in evidence citing in support Section 123 of the Evidence Act and the case ofUzoegwu v. Ifekandu (2001) F.W.L.R. (pt. 72) 1950 at 1965, as the said letter is not a registrable instrument vide Sections 2 and 15 of the Lands Instruments Registration Law of Lagos State; and that based on these submissions the appeal should be allowed and the decision of the Court below set aside and judgment be entered dismissing the respondents case at the Court below.
The respondents’ brief was filed on 28.09.10, but deemed as properly filed on 26.10.18. The respondents submitted that as the appellant’s three issues for determination are not tied to any of the four grounds of appeal the said issues are incompetent and should be discountenanced by the Court citing in support the case of Momah v. VAB Petroleum Inc. (2002) 2 S.C. 142 at 161.
The respondents referred to the evidence of the first witness for the respondents in page 19 lines 17 – 18 of the record where the witness testified that L.S.D.P.C. gave his late father the property in 1976 and the evidence of DW1, the appellant in page 34 lines 17 – 18 that the property in December, 1976 and further that LSDPC gave the late father of the respondents the property in replacement for the one demolished in Lagos; that the tenancy was terminated; that the late father of the respondents told him to come and purchase the property and he informed his own father who was then the head of the family and Dr. Babatunde Davies of the intention to purchase the property and they told him to go ahead and purchase it and he moved into the house in 1976 without disturbance until 1999 when the 1st respondent started to disturb him.
The respondents also referred to the evidence of the appellant where he also stated that he is a Yoruba man and in Yoruba land the children of a deceased father are entitled to inherit the property of the deceased after his death; that the father of the respondent died in 1984 without a will and left the respondents as some of his children; and that the respondents were alive at the time he was making the payment of N1,500.
The respondents also referred to the evidence of DW2, Mufutau Davies, in page 43 of the record that according to the family, the father of the respondents is the owner of the property; that the property does not belong to the appellant; that he paid for the father of the appellant who owned the house.
The respondents then submitted that the appellant’s contention that their late father was not the owner of the property as at the time of his death in 1984, overlooked the fact that the respondents’ father was the allottee of L.S.D.P.C. vide Exhibit A, the file of the respondent’s father with the L.S.D.P.C., and that as between the respondents’ father and the appellant, the latter was estopped from denying the title of the former in virtue of Section 152 of the Evidence Act.
The respondents further contended that the documents in Exhibit A do not bear the name of the appellant, nor do the other Exhibits in the case, so the issue that the appellant used to pay the rents from the date he was let into possession until the death of the respondents’ father did not convey title of the property in question to the appellant before 21.07.84 when the respondents’ father died and that the sitting tenant of the property as per Exhibit A and the other Exhibits was at all material times the respondents’ father, not the appellant which findings were not appealed against and stand admitted and undisputed citing in support of the submission the case of Ilona v. Idakwo and Anor. (2003) 11 NWLR (pt. 830) 53 at 83.
The respondents contended that the letter purporting to transfer the property to the appellant is a registrable instrument in that the author declared his intention by the act of giving to confer or transfer interest in the property to the appellant and should have been registered and not having been registered the court below rightly rejected it in evidence vide Sections 2 and 15 of the Lands Instrument Registration Law of Lagos State read with the case of Eso and Ors. v. Adeyemi and Anor. (1994) 4 NWLR (pt.340) 558 at 573; and that whether the author of the letter had the capacity to give the property to the appellant is a question of weight to be attached to the document which is different from the issue of admissibility; therefore the appeal should be dismissed for lacking in merit.
The fact that the issues for determination were not expressly tied to the grounds of appeal by the appellant did not mislead the parties especially the respondents who filed and exchanged their joint brief in which they canvassed their own side of the contest without let or hindrance. The irregularity was not therefore shown to have led to a miscarriage of justice as to defeat the appeal which is expected to be fought in an atmosphere of substantial justice vide KLM Royal Dutch Airlines v. Jamilat Aloma (2018) 1 NWLR (pt. 1601) 473.
The evidence by the parties are on the same footing that the late father of the respondents was allocated the property in dispute by the L.S.D.P.C. The Court below so found with which I agree as the finding is amply supported by the oral and documentary evidence; especially Exhibit A, the file of the L.S.D.P.C., documenting the allocation of the property to and in the name of the respondents’ late father.
I also agree with the Court below that the parties who are of Yoruba extraction were on common ground that when a Yoruba person dies intestate, title to his property devolves on all his surviving children in equal shares and the eldest son (Dawodu) assumes the position of head of family and manager of the estate for and on behalf of the other siblings vide Lewis v. Bankole (1909) 1 NLR 82 and Kareem v. Ogunde (1972) 1 ANLR (pt. 1) 73.
The area of disagreement between the parties is whether the respondents? late father divested himself of the property in favour of the appellant before his demise in 1984. The respondents as claimants at the Court below maintained that there was no transfer of the property to the appellant by their late father in his life-time.
On the other hand, the appellant maintained that the deceased father of the respondents made a gift of the property to him before his death in 1984 and that he used to pay all the rents for the property after he was put in possession of it by the deceased father of the respondents and later purchased the property from the L.S.D.P.C.
The Court below accepted the version of the respondents and rejected that of the appellant on the premises that the clauses 3 and 4 of the letter of allocation of the property by the L.S.D.P.C. to the deceased father of the respondents forbade the alienation of the property to a third party and made such alienation bad and of no effect.
It is not in dispute that clauses 3 and 4 of the letter of allocation in question state so. It follows that there could have been no such alienation and that even if there was one it was null and void and passed nothing to the appellant. I do not find the holding perverse as it is supported by what clauses 3 and 4 of the letter of allocation stated; consequently, the Court below was justified on the evidence in making the said finding. I would endorse the holding/finding accordingly.
The appellant relied on a letter of gift of the property to him by the deceased father of the respondents. The letter was tendered but rejected in evidence on the ground that it purported to pass an interest in land to the appellant and was thus a registrable instrument and having not registered it, the appellant could not tender it in evidence as an Exhibit.
It is not the form but the contents of the purported letter to the appellant by the deceased father of the respondents that will determine whether it is a registrable instrument.
The letter in question stated thus –
“I ALHAJI MOIBI DAVIES, the Oloriomokewu of Lagos Central Mosque give my property of two bedrooms, which is situated at block 39, Rooms 1 & 2 Oluwole Ogba, Ikeja and the documents related to the said property for ever, to my junior Brother’s son MR. BASHIRU DAVIES this 27th of November, 1976. Based on what is Father and his Senior Brother DR. TUNDE DAVIES did to me, by taking care of my life and heath (sic) health from time to time. So I use this gesture to appreciate my thanks.”
The contents of the letter (supra) indicated that the late father of the respondents gave the property to the appellant, meaning he transferred his interest or right in the property to and/or in favour of the appellant, showing the letter is a registrable instrument and having not registered it the Court below was right in rejecting it in evidence vide Sections 2 and 15 of the Lands Instrument Registration Law of Lagos State read with the cases of Ogunleye v. Safejo (2010) All FWLR (pt. 523) 1889 at 1908, Ogunameh v. Adebayo (2009) All FWLR (pt. 467) 188 at 200 per Augie, J.C.A. (now J.S.C.), Giwa v. Yarbun (2011) All FWLR (pt. 565) 254, Ogbimi v. Niger Construction Ltd. (2006) All FWLR (pt. 317) 390 at 400, per Onnoghen, J.S.C., (now C.J.N.), Akinduro v. Alaya (2007) All FWLR (pt. 381) 1653.
Had the letter of gift (supra) not sought to transfer the right or interest of the late father of the respondents in the property to the appellant, but was only evidence of some transaction future or past (memorandum), then it would not be a registrable instrument.
In the light of the finding/holding of the Court below in its judgment in page 83 of the record that the respondents? late father was a sitting tenant of the property in question as per Exhibit A read with the other documentary Exhibits, not the appellant, which was not appealed against and is thus conclusive and binding on the parties the appellant?s reliance on equitable title collapsed as equitable title can only vest in a person who, upon purchase or grant, entered into possession of the land vide Ilona v. Idakwo (supra) following Adejumo v. Ayantegbe (1989) 3 NWLR (pt.110) 417, Okuoja v. Ishola (1982) 7 S.C. 314, Awote v. Owodunni (1985) 5 NWLR (pt. 46) 941, Atoyebi v. Governor, Oyo State (1994) 5 NWLR (pt. 344) 290 to the effect that findings of fact/holding not appealed against is conclusive, final and binding on the parties.
Having rejected the letter of gift in evidence, oral evidence of the gift given for the appellant was rendered inadmissible and worthless vide Nigeria Ports Plc v. Beecham Pharmaceutical PTE Ltd. and Anor. (2012) 18 NWLR (pt. 1333) 454 following U.B.N. v. Ozigi (1994) 3 NWLR (pt. 333) 385, A.C.B. Ltd. v. Gwagwada (1994) 5 NWLR (pt. 342) 25.
Besides, there was no clear-cut evidence that the alleged gift of the property was made in the presence of witnesses to make it a good/perfect and valid gift vide the cases of Ayinke v. Ibidunni (1959) SCNLR 666 at 669, Orido v. Akinlolu(2012) 9 NWLR (pt. 1305) 370 at 387 to the effect that to prove a gift of property inter-vivos there must be evidence of actual handing over of the land or property or declaration of the gift by the owner of the property and its acceptance thereof in the presence of witnesses.
In addition, all the documents tendered by the appellant and the respondents with respect to the property bore the name of the respondents’ late father showing it was doubtful any transfer of the right and interest in the property was made by the late father of the respondents to the appellant before his death.
The presumption raised by the withholding of evidence under Section 149(d) (now Section 167(d)) of the Evidence Act arises only where the party accused of withholding evidence was served notice or subpoena to produce the piece of evidence in his possession but failed to do so, which was not the case here as the respondents were not served any notice or subpoena to produce evidence in their possession and failed or neglected to do so vide Aremu v. The State (1991) 7 NWLR (pt. 201) 1, Adisa v. The State (2015) 4 NWLR (pt. 1450) 475.
Given the respondents might not have assisted or catered for the welfare of their late father during his lifetime as suggested by the appellant, a father with a large and forgiving spirit or heart might put the past behind him or bury the hatchet, so to speak, and decline to punish his offspring by denying them an inheritance unless expressly done otherwise in words or deed before his death, which does not appear to be the case here, as there is no compelling evidence indicating that the late father of the respondents disinherited them of his property before his death.
It is based on the discussion (supra) that I see no merit in the appeal and hereby dismiss it and affirm the decision of the Court below, (Oshodi, J.). Parties to bear their costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I am in entire agreement with, and do not desire to add to the conclusions expressed by my learned brother, Joseph Shagbaor lkyegh, JCA, in the judgment just delivered.
For those reasons I concur in holding that the appeal lacks merit and ought to be dismissed. The judgment of the lower Court is hereby affirmed. I abide by the order as to costs.
Appeal dismissed.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA.
I agree with the said judgment because, it is an elementary proposition of law, that any transaction relating to landed property is required to be in writing.
The lower Court having rejected the letter purportedly written by the Respondents’ late father by which conveyed the property at Block 39, Flat 2, Lagos State Development Property Corporation, LSPDC Housing Estate in Ogba, Lagos to the Appellant, there was no any other admissible evidence on the record by which the evidence of conveyance of the said property to the Appellant would have been proved.
I agree that the appeal lacks merit and it is hereby dismissed. I abide with the consequential order in the lead judgment of my learned brother, Joseph Shagbaor lkyegh, JCA.
Appearances:
Mr. I. A. KokumoFor Appellant(s)
Chief A. F. OkunugaFor Respondent(s)
