AMOS v. IRABOR & ORS (2021)

AMOS v. IRABOR & ORS

(2021)LCN/15166(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/301/2018

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. MICHAEL EFOSA AMOS (SUBSTITUTED FOR MRS ROSELINE OYEGUE (DECEASED) BY ORDER OF COURT MADE ON 20/03/2018) APPELANT(S)

And

1. ITOHAN O. IRABOR 2. OSARIEMEN O. IRABOR 3. JOSHUA O. IRABOR 4. EMMANUEL O. IRABOR 5. MR ANTHONY. O IRABOR 6. MRS ELIZABETH IRABOR RESPONDENT(S)

RATIO

WHETHER OR NOT AN ADMINISTRATOR BENEFITS FROM THE ESTATE HE ADMINISTERS

See AYA v NKANU & ANOR (2015) LPELR — 40282 on whether an administrator benefits from the estate he administers,
“One does not become a beneficiary of an estate simply by virtue of the grant of Letters of Administration. Rather, Letters of Administration confer authority on the administrator to deal with the estate property on behalf of the beneficiaries; Ibrahim v. Osunde (2009) 6 NWLR (PT 1137) 382, (2009) LPELR-1411(SC), Olowu v. Olowu (1994) LPELR-14545(CA). The administrator of an Estate may not necessarily be a beneficiary as well. Therefore, as rightly held by the learned trial Judge, ” …the issue of claiming ownership of the building in dispute because of the Letters of Administration does not arise.” per OTISI, J.C.A (P. 17, PARAS. B – E). PER OBASEKI – ADEJUMO, J.C.A.

THE LEGAL MAXIM “NEMO DAT QUOD NON HABET”

A heavy duty is placed on those in whom trust and confidence are reposed to show the righteousness of their transactions with the property entrusted to them. No ownership known to law can ever be conferred on an administrator in respect of the property, subject-matter of that administration. Such an administrator, the like of S. E. Lawal, cannot have possession of such a property which will ever have any legal blessings. So S. E. Lawal cannot in the least, give out the possession of the property which never belonged to him, in law. The saying is that “No one gives who possess not.” The Maxim is “NEMO DAT QUOD NON HABET” Indeed, he gives nothing who has nothing, again the Maxim is NEMO DAT QUOD NON HABET. If S. E. Lawal had taken advantage of his position as an administrator of the estate of A. K. Ibrahim Guobadia, created an impression of legal ownership of any of the property subject matter of the administration in his favour such that his most senior son or any son or member of his family could now take advantage of it after his death, to acquire the property, that would be a serious wrong doing.” PER OBASEKI – ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 31st March, 2013 by Honourable Justice H. A. COURAGE OGBEBOR of the Edo State High Court sitting in Benin. The Plaintiffs/Respondent filed a claim at the lower Court for:
1. A DECLRATION that the Plaintiffs and the 2nd Defendant are the persons entitled to statutory certificate of occupancy in respect of No. 123 and 127, Ikpoba Slope, Benin City.
2. A Declaration that the purported sale of the properties known as No. 123 and 127, Ikoba Slope, Benin City to which the Plaintiffs are entitled by inheritance, by the 2nd Defendant to the 1st is void, unlawful and of no effect in that it is without authority of the beneficiaries of the estate of Isoken O. Irabor —deceased and contrary to the Benin native law and custom and the Land Use Act 1978
3. An order that the defendant renders account of all rents collected from the properties since the 2nd defendant trickishly took over the administration of the Estates.
4. An ORDER setting aside the purported sale of the said property by the

2nd Defendant to the 1st Defendants.
5. Perpetual Injunction restraining the Defendants, or by other persons claiming through them in whatever manner, their assigns, servants and agents from laying claim to or interfering with the Plaintiff’s right or intermeddling with the Plaintiff’s tenants now or in future to be on the properties.

The 1st Defendant/Appellant counterclaimed as follows;
The 1st Defendant avers that the payment of N150,000 (one hundred and fifty thousand naira) which was shared among ALL the Plaintiffs by PA AIGBEKAN was to pay once and for all any burial expenses of the late IRABOR, father to the Plaintiffs.
The 1st Defendant’s Counter claim as follows; A Declaration that the 1st defendant is the person entitled to a declaration of statutory right of occupancy in respect of the properties in dispute

The lower Court upheld the claims of the Plaintiffs and entered judgment on their behalf. The Appellants dissatisfied thereof appealed via a Notice of Appeal on 23rd day of April, 2013.

The Appellant filed his Amended brief on 9th April, 2018 and deemed on 19th June, 2019 which was settled by Uwa Okoh Esq. of DAN

OSE OKOH, S.A.N & SOLICITORS wherein he settled two issues thus;
1. Whether from the pleadings and evidence on record the learned trial Judge was wrong when he held that NOS. 123 and 127 Ikpoba Slope, Benin city are family property and thus rendered the deed of transfer dated 14th December, 1994 null and void and set aside the sale.
2. Whether the incompetence of a claim before the lower Court did not rub it of its jurisdiction

The 1st – 4th Respondents filed a joint brief dated 1st July 2019 and filed same date settled by E. F. Osifo Esq of EGHOBAMIEN & CO and also distilled 2 issues thus;
1. Whether having regard to both oral and documentary evidence adduced at the trial, the learned trial Judge was right when he held that no. 123, Ikpoba Slope Benin city was family property and that no. 127 Ikpoba Slope Benin city was not shared to anyone.
2. Whether the 5th and 6th Respondent could validly sell and transfer the properties without the prior knowledge and consent of the Irabor family including 1st – 4th Respondent who are beneficiaries of the estate.

The 5th and 6th Respondents did not file any process and did not appear at the hearing despite being served the processes and hearing notice on 11th February, 2021.

A brief summary of the facts of this case is that one Pa Sunday Ogohogho Irabor owned the properties at Nos 123 & 127 Ikpoba Slope, Benin city among others, and died intestate in 1973, his properties were shared amongst his children by his family. His first son; Isoken was given No. 123 Ikpoba Slope being the 1st son and the said Isoken was directed by the family to use the proceeds from the rent/lease of No. 127 Ikpoba slope (having been given to Texaco Plc on lease by their father) for the education of some of the children and the annual celebration of the anniversary of the death of their father.

Isoken died intestate in 1972 without an issue as he was not married. In 1979, the family made the 2nd and 3rd Defendants; the younger brother and mother of Isoken managers of the properties and mandated them to obtain letters of administration thereby becoming administrator and administratrix of the two properties by virtue of the letter of administration obtained from the Probate Department of the High Court.

In 1994, the 2nd Defendant/5th Respondent sold the properties to the Appellant for about 1 million Naira.

The Plaintiffs / 1st – 4th Respondents who are the children of Sunday O. Irabor then came to Court to challenge the sale. 1st Defendant/ 5th Respondent on his part, is saying the Plaintiffs are estopped from bringing the suit having collected and shared the sum of N150,000. 00 as their share of the proceeds of the sale.

APPELLANT’S ARGUMENTS
The Appellant submits in his issue 1 that the lower Court was wrong to have held that No. 127 is a family property and thus rendered the deed of transfer dated 14th December, 1994 null and void and set aside the sale.

The Appellant stated the principle that the Plaintiff must succeed on the strength of his case and not on the weakness of the Defendants’ case. He cited ELEMA v. AKENZUA (2000) NWLR PT. 683 95; IMADE v. OTABOR (1998) 6157 LRCN 3116 AT 11; ABDULLAHI v. HEDINA (2011) ALL FWLR (546) PG 125 AT 130; OMOREGIE v OMIGIE (1990) 2 NWLR (PT 130) 29.

He opined that based on the lower Court’s reasoning which misconceived the three issues to be settled by the lower Court and that the property was shared by virtue of Exhibit P1;

the sharing formulae by family in spite of duties/ instruction assigned was contrary to the interpretation given by the Court that the property was shared to the first son – ISOKEN

He argued that the Court ought to have known that it is the 2nd Defendant —younger brother who will perform the burial of Isoken, and that the question is whether the property would have reverted to the family if he-(lsoken) had a son and that the lower Court wrongly accepted the evidence of Mr. Job Obanor PW 3 as the position of the customary law as regard the Bini man. He cited OVENSERI v. OSAGIEDE (1998) 61 LRCN 4584; AG BENDEL STATE v. UBA LTD (1986) 4 NWLR (PT 337) 547 AT 563; GUFFANTI (NIG) PLC v. PIDRELLA INSTALT VADUZ (2012) 1 LPELR 8027 CA; NECO v. TOKODE (2011) 5 NWLR (PT 1239) 45; IFEGWU v UBN (2011) 16 NWLR (PT 1274) 555 for the notion that there were contradictions in pleadings of the Plaintiff regarding the management of the property by 2nd & 3rd Defendants.

The Appellants contended that the property has been shared or partitioned, therefore, the considerations by the lower Court did not apply. He cited ALAFIA & ORS v. GBODE VENTURES (NIG) LTD & ORS (2016) LPELR –

26065 SC; NZEKWU v. NZEKWU (1989) LPELR – 2139(SC); BALOGUN v BALOGUN; OLORUNFEMI v ASHO (2000) 2 NWLR (643) 143.

That the lower Court failed to take into consideration the Benin customary law on Igiogbe and the legal effect of sharing family property. The Appellant submitted on the strength of UWAIFO v. UWAIFO (2013) 10 NWLR (PT 1361) 185; AGBI v. OGBE (2006) 11 NWLR (PT 990) 65.

Appellant contends that the Respondents admitted that the ownership of No. 123 is not disputed therefore all facts finding go to no issue and the claim ought to be abandoned. Appellant further submitted that the lower Court failed to find the ratification of the sale by Respondents as per Exhibit P 2 which was corroborated by PW4. That the sale was in the head of the family’s house where, N150,000 was shared equally to compensate them for the sale of Texaco petrol station.

Counsel relied on AWURE v. ILEDU (2007) LPELR- 3719 (CA); NSIEGBE v. MGBEMENA (2007) 12 NWLR (PT 1042); KACHALLA v. BANKI (2006) 8 NWLR (PT 982) 364.

ISSUE 2
The Appellant queried the competence of the claim before the lower Court, whether it robbed it of its jurisdiction. He referred to the first

declaration that the Plaintiffs and the 2nd Defendant are persons entitled to the certificate of occupancy in respect of No. 123 and 127 Ikpoba Slope, Benin City.

Appellant in submission argued that the claim was incongruous and rendered the writ incompetent, he cited OVENSERI v OSAGIEDE SUPRA to the effect that the 1st – 4th Respondent have no interest in the property sold to the Appellant, more so as they have no right of inheritance, he urged that the issue be resolved in their favour.

1ST – 4TH RESPONDENTS’ ARGUMENTS
ISSUE 1
1st – 4th Respondents’ Counsel submitted on the issue whether the properties at Nos. 123 & 127 were shared to anyone, herein referred to the claim of Plaintiffs in paragraphs 6, 7, 8 – 11 & 16 – 17 of the 2nd amended statement of claim at pages 16 – 17 of the record, which are averments that the family shared Irabors’ property by Okaegbe after the death of their late father. The Igiogbe which is No. 123 was given exclusively to the eldest son Isoken O. Irabor in accordance with Benin customary law but not No. 127 Ikpoba Slope was not shared to anybody but to be used by Isoken for maintenance and

the education of his brothers and sisters and for annual celebration of their late father’s death anniversary which Isoken performed in his life time. This was the wish of their father concerning No. 127 which was committed for this purpose. That paragraphs 7, 8 & 9 of the defence confirmed this.

The Respondents submitted that the said N150,000 was not for payment made by the Appellant but was said to be for payments of rent from lease of Texaco to enable each child celebrate the death anniversary of their father and that therefore from the state of the pleadings the Appellant cannot contend that the Respondents have no interest in No. 127 Ikpoba Slope.

Respondents’ Counsel submitted that the lower Court was correct in her findings based on exhibits and evidence of the PW 2, PW 1 & DW1 that the petrol station was under lease and was not given absolutely to Isoken but for him to manage for certain purpose. He relied on EBOADE v ATOMESIN (1997) 5 NWLR (PT 506) 490; KAYDEE VENTURES LTD v. MIN FCT (2010) 7 NWLR (PT 1192) 171; EGHAREVBA v ORUONGHAE (2001) 11 NWLR (PT 724) 318 AT 324; IMADE v. OTABOR (SUPRA); ABUDU v EGUAKUN (2003) 14 NWLR (PT 840) 311.

That no final burial of Isoken has been done hence there cannot be inheritance of lgiogbe therefore the arguments of the Appellant are fallacious, and the submission that instructions in Exhibit P1 were surplusage is not correct. He relied on GUINNESS NIGERIA PLC v NWOKE (2000) 15 NWLR (PT 689) 135 @ 148; OKOYE v NWANKWO (2014) 15 NWLR (PT 1429) 93; ABUDU v EGUAKUN (2003) 14 NWLR (PT 840) 311 to the effect that it is when 2nd final burial has been performed before there can be inheritance, the first was merely interment.

He stated that based on the cases of OWIE v IGHIWI (2005) 5 NWLR (PT 917) 184; AIYEOLA v PEDRO (2014) 13 NWLR (PT 1424) 409; YAKUBU v JAUROYEL (2014) 11 NWLR (PT 1418) 2005 @ 248. The said conflict or contradiction is not material enough to occasion a miscarriage.

The Respondents submitted that all cases on partitioning does not apply to the case at hand and goes to no issue and agreed that by custom, the property at No. 127 cannot be inherited by all the children of S. O. Irabor but till it is decided, the property falls into residue by the family but does not automatically devolve on Anthony for keeps.

On the question of ratification, the Respondents’ Counsel submitted that the N150,000 shared by the Plaintiffs was said to be part of Texaco rents and was to be used for individual performance at the anniversary of their late father, it was pleaded in the 1st Defendant’s amended reply to the defence in paragraphs 2, 6, 7, 8 & 9. This was also stated under cross examination by the 1st – 4th Respondents. The question of sale of any property was not mentioned hence, they all signed, therefore the sale could not have been ratified by the attempt of the 5th Respondent in collusion with the 1st Appellant when wrong facts were laid before them.

ISSUE 2
The Respondents submit that the 5th & 6th Respondents were in the capacity and absolutely administrator/administratrix respectively, but the 5th Respondent solely transferred same as seen in the deed, exhibit D1 and the 5th Respondent’s name was a witness. Nowhere was the Exhibit D1 and D2 referred to, instead the recital stated that the 5th Respondent inherited it whereas, he was just an administrator of Isoken’s estate, he cited ODUSOGA v RICKETTS (1997) 7 NWLR (PT 511) 1 AT 14 which states that any deed executed by an administrator of

an estate other than in that capacity of an administrator is valueless. That the Appellant misconstrued the evidence of 3rd Respondent in saying he is not challenging ownership, but that No. 123 is Igiogbe and was S. O. Irabors’ property and would not devolve on him but that it has not been shared to any. The 5th Respondent sold the property as his own hence the challenge, he cited OJOH v KAMALU (2005) 18 NWLR (PT 980) 523; OLOWU v OLOWU (1994) 4 NWLR (PT 336) 90; IBRAHIM v OSUNDE (2009) 6 NWLR (PT 1137) 832 AT 403.

The learned counsel argued that by Section 13 of the Administration of Estate Law Cap 2 Laws of Bendel State applicable to Edo State, Administrators are subject to limitations contained in the grant, and are accountable in like manner as if he were the executor of the deceased. And therefore the above makes the deed of transfer null and void and was rightly set aside.

He referred to the argument that issue 2 is not predicated on any ground, he cited SOCIETY BIC S.A. v CHARZIN INDUSTRIES LTD (2014) 4 NWLR (PT 398) 497 532 PAR B; AIYEOLA v PEDRO (2014) 13 NWLR PT (1424) 409 @ 447; COPORATE IDEAL INSURANCE LTD v AJAOKUTA STEEL COMPANY LIMITED (2014) 7 NWLR (PT. 1405) 165 @ 188.

He submitted secondly that the Appellant did not seek leave to raise the issue and it is incompetent and that thirdly, the relief in the counter claim is incompetent and shows the relief for both the Plaintiffs and the 2nd Defendant in paragraph 29 of the 2nd Amended statement of defence. He cited MOBIL PRODUCING NIG. UNLIMITED v LASEPA (2002); EZE v OKECHUKWU (2002) 18 NWLR (PT 799) 348; IBATOR v BARAKURO (2007) 9 NWLR (PT 1040) 475; IPINLAIYE II v OLUKOTUN (1996) 6 NWLR (PT 453) IKINE v EDJERODE (2001) 18 NWLR (PT 745) 466; INYANG v EBONG (2002) 2 NWLR (PT 751); GREEN v GREEN (1987) 3 NWLR (PT 61) 481.

He finally submitted that the case of OVENSERI v OSAGIEDE SUPRA is inapposite and urged the Court to discountenance same.

RESOLUTION
The first two issues for determination of both briefs are similar while the second issues of each brief are different but would be addressed in the resolution. I shall therefore resolve the issues together.

ISSUES 1
The 2nd Further Amended Statement of claim at page 16 in 1, 4, 5 – 17 and amended reply to the 1st Defendant’s statement of defence in paragraphs 1, 2, 3 4,

5, 6 – 9 & 11 and the 2nd & 3rd Defendants’ statement of defence 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 & 18 together with the Exhibits tendered.

The point to begin is the status of the two properties involved that is Nos. 123 & 127. It is not disputed that the father S. O. Irabor owned these properties and upon his death and final burial, the family led by the Okaegbe; R. OREREAVBIERE AGBGHAE and DEACON JOSHUA who was the secretary of the sharing committee which produced Exhibit P1 in 1977. They gave No. 123 to Isoken who was the first son as the Igiogbe which is by native law and custom given to the eldest son after he has performed the final burial of the father.

It is also not disputed that he was given No. 127 which is on lease to Texaco Petrol Station and houses a petrol station to manage; that is, to use the rent proceeds to maintain himself, his brothers and sisters still in school and also used to celebrate the death anniversary of their father on a yearly basis.

It is not disputed that Isoken complied with these terms imposed on No. 127. Isoken died intestate and without an heir, it is agreed that the next son in age stands to

take over, provided he meets the terms of the family head under native law and custom of the Bini people before he can assume this position.

Both parties agree that the family called on the next senior son who is Isoken’s full blooded brother Anthony; the 2nd Defendant/5th Respondent and their mother; the 3rd Defendant/6th Respondent to take over administration of both No. 123 & 127 on behalf of the family. See evidence of the Pw2, PW 1, the 1st Plaintiff on one side and the evidence of Pw3 on the other side; that the mother of Isoken and Anthony stated in evidence that the family gave the property to Anthony and she gave consent to him to sell because it belongs to him.

The above are the direct evidence on the issue of how it came to be in the custody of the 5th and 6th Respondents. What is the custom operative here? The evidence of Pw2 is illustrative, he is a junior brother to the late Irabor; father to the Plaintiff and the 5th Defendant/ Respondent, he stated clearly the conditions attached to No. 127 and that the burial ceremony of Isoken was yet to be done till the day of testimony that the family decided that Isoken’s mum and junior

brother should manage the property on behalf of the family until the burial of Isoken, the family will know what to do, the same was the evidence on the sharing. PW 3 Itohan Oghogho Irabor, a child of the S. O. Irabor stated that No. 123 was the Igiogbe given to ISOKEN while No. 127 was a sub — estate property which was managed by Isoken as the eldest son, where proceeds were to be used as directed by the family. On his death, his mum and Anthony were asked to manage it till further notice

From the above testimony, it is clear that the property at No. 123 was the lgiogbe which is given to eldest son of the deceased. While No 127 was not given outright but to be managed by the first son, it is a commercial property, rents are earned and such was to be for education and maintenance of children and the celebration of the anniversary of their father’s death annually.

lgiogbe has been recognized as an inheritance custom of the Bini people as held in UWAIFO v UWAIFO (2013) LPELR – 20389 SC, the apex Court held on the meaning of lgiogbe under the Bini native custom;
“In Bini Native Law and Custom, an Igiogbe is a custom of a general

application and it is judicially noticed as such. See EGHAREVBA V. ORUONGHAE (2001) 11 NWLR (Pt.724) 318; Lawal- Osula V Lawal – Osula (1995) 9 NWLR (Pt. 544) 20, AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (Pt.454) 30 and IMADE V. OTABOR (1998) 4 NWLR (Pt. 544) 20. Notably, the most recent of all cases on the vexed question of Igiogbe is OGBANON V. REGISTERED TRUSTEES CCC. CA (2002) 1 NWLR (Pt. 749) 675; though a decision of the Court of Appeal, it has helped further to throw light on the point. The Court held at page 713 thus: “Under Benin Native Law and Custom, the eldest son of a deceased person or testator is entitled to inherit without question, the house or houses known as “Igiogbe” in which the deceased/testator lived and died…” These plethora of authorities have left no one in doubt that Igiogbe in Benin Customary Law is a principal house where a deceased, Benin man lived and died. This is an ancestral home. It is not vacant land whether or not adjacent.”
per GALADIMA, J.S.C (PP. 16 – 17, PARAS. C – B)
See also IDEHEN v IDEHEN (1991) LPELR – 1416 (SC) ARASE v ARASE (1981) NSCC 101.

Therefore, I hold that No 123 is the Igiogbe while the No 127 is a family property.

As to the status of the property, when the person it was bequeathed to dies without a son under the Bini custom, again from the evidence drawn by the brother and PW3 it is clear that the family had given the property of Isoken to the 5th & 6th Respondent to manage on behalf of the family. It cannot be given like that, it was an Igiogbe and the commercial property of the family, the burial rites of Isoken was yet to be done, the family had not met to hand over finally to the 5th Respondent. Therefore, from the evidence of PW 2 Job Obanor and Itohan, I agree with the lower Court that the property ought to return to the family pending when the rites have been completed, by virtue of the custom and inheritance laws of the custom especially to be used to carry out the Instructions in line with paragraph 26 of the 2nd amended statement of claim.

The Appellant contended that the celebration of death of their father was not intended to be carried on after the death of Isoken as contended in paragraphs 11 & 12 of the defence, should this be the case then what was the purpose of sharing N150.000 amongst the children of S. O Irabor at the

head of family’s house? The siblings signed a document of acceptance of the amount collected and it was clearly written that it was their entitlement of rent of Texaco for individual celebration of the death of their father.

It is pertinent to observe that at this time Isoken had been dead for some years, therefore, I reject the contention of the 2nd & 3rd Defendants. I also reject the that there was nothing to show that the property was not given to Anthony absolutely. I dare state that the onus is on him who asserts that the property was given absolutely to him to prove so. See; NIGERIAN MARITIME SERVICES LTD v AFOLABI (1978) LPELR – 2021; OSAWARU v EZEIRUKA (1978) LPELR – 2791. This the 2nd & 3rd Defendants have failed to discharge.

I hold and agree with the lower Court that the upon the death of a person without child, the estate falls back to the family pending when burial rites have been performed and the family decides to whom it will be given. This means the property of Isoken would have to be shared, it definitely has not been shared and I so hold.

The submission of the Appellant definitely violently deviates from the set down precedent of inheritance law of the Binis.

Another aspect that has to be examined is the fact that the 2nd & 3rd Defendants went further to obtain letters of administration; this is under the probate law of Edo State which imposes obligations on them as regards the estate that is administered. See AYA v NKANU & ANOR (2015) LPELR — 40282 on whether an administrator benefits from the estate he administers,
“One does not become a beneficiary of an estate simply by virtue of the grant of Letters of Administration. Rather, Letters of Administration confer authority on the administrator to deal with the estate property on behalf of the beneficiaries; Ibrahim v. Osunde (2009) 6 NWLR (PT 1137) 382, (2009) LPELR-1411(SC), Olowu v. Olowu (1994) LPELR-14545(CA). The administrator of an Estate may not necessarily be a beneficiary as well. Therefore, as rightly held by the learned trial Judge, ” …the issue of claiming ownership of the building in dispute because of the Letters of Administration does not arise.”
per OTISI, J.C.A (P. 17, PARAS. B – E).

In line with the above can the 5th & 2nd Defendants claim ownership of what they are to administer? see also; OTUDOR v OTUDOR (2011) LPELR – 4085; where the Court held that even if you are the only child and an administrator you cannot claim as an administrator but as a child.

The other anomaly is the content of Exhibit P3, the 5th Defendant entered into the sale as the owner (Personal Capacity) of the property even the co – administrator who was issued as a joint administrator was a witness.
EYIBOH v MUJADDADI (2013) LPELR – 20187, the apex Court held on the duties of the administrator(s) of an estate:
“…The property in issue was vested in the three Administrators jointly as a whole, by law, and they must operate together. In IBRAHIM VS. OJOMO (Supra) at 115 -116 the Supreme Court per Katsina-Alu JSC, as he then was, held in similar circumstances, that “…..the right and interest of the administrators/administratrixes of any estate is joint in the estate. They must operate together and the giving out of such right or interest by some of them to anyone does not bind the others who did not give their consent hereto.” Hon. Justice Uwaifo JSC, added his voice in the above mentioned case at pages

117 -118 when he held – ” ….. The representation of the estate is joint; that is to say, executors or administrators must agree in their representation of the estate. It follows therefore, that for the 1st -3rd Respondents to sell the property in question to the Appellant or to anyone, they must all agree to do so. One or two of them cannot pretend to do so, without the concurrence of the other, otherwise, he will not be bound.”
per YAHAYA, J.C.A (P. 12, PARAS. A – F).
Therefore. the sale in the name of the only administrator when there are two indicates a lack of agreement, even if the 6th signed as a witness, the capacity in which the property is being sold is relevant information for the assignment.
In IBRAHIM v OSUNDE (2009) LPELR – 4411 on the question whether the administrator of an estate can appropriate the property under the estate which he administers for his own benefit;
Whether or not the Court below came to the right conclusion on the interpretation of the applicable law. “It is wrong, in law, for an administrator of an estate or anybody claiming through him, to assimilate that property to his own. Equity will not even

permit that under any guise. To say the least, it is gross abuse of office. Administrators or executors are trustees of the property placed in their care, so to say, on trust to the beneficiaries. A heavy duty is placed on those in whom trust and confidence are reposed to show the righteousness of their transactions with the property entrusted to them. No ownership known to law can ever be conferred on an administrator in respect of the property, subject-matter of that administration. Such an administrator, the like of S. E. Lawal, cannot have possession of such a property which will ever have any legal blessings. So S. E. Lawal cannot in the least, give out the possession of the property which never belonged to him, in law. The saying is that “No one gives who possess not.” The Maxim is “NEMO DAT QUOD NON HABET” Indeed, he gives nothing who has nothing, again the Maxim is NEMO DAT QUOD NON HABET. If S. E. Lawal had taken advantage of his position as an administrator of the estate of A. K. Ibrahim Guobadia, created an impression of legal ownership of any of the property subject matter of the administration in his favour such that his most senior son or any

son or member of his family could now take advantage of it after his death, to acquire the property, that would be a serious wrong doing.”
per ADEREMI, J.S.C (PP. 28-29, PARA. A)
The 5th Respondent entered into a deed of sale as the owner and not an administrator neither did he mention his capacity, he did not acknowledge that he was dealing with the property of ISOKEN, nor that he was a joint administrator with his mum, he transacted as a sole owner of the property, ownership of which has not been conferred him. Therefore, the and 6th Respondents breached their duties and have abused the office.

In line with the analysis, either way the issue is viewed, the effect and legal implication of the letters of administration is that the deed of transfer to the Appellant is wrongful void and a nullity.

The Appellant admitted and tendered the title documents handed over to them as proof of ownership among which is the letters of administration this puts them on notice that there was more to the capacity the supposed owner was sitting on and their lawyer ought to have conducted a search, if he was satisfied that customarily it was

likely to be his but what about the legal entanglement of the letters of administration, it certainly was not for fun they failed to conduct due diligence. The Appellant bought nothing and cannot now cry wolf.

The Appellant in his defence in paragraph 16 thereof raised ratification by the head of family and members of family, and the Respondents were estopped from contending the sale.
ln CHUKWUMA v IFELOYE (2008) LPELR – 862 SC, the Court held on the essentials of estoppel by conduct;
“There are five essential elements i.e. “(1) that there was a false representation or concealment of material facts, (2) that the representation must have been known to be false by the party making it or the party must have been negligent in not knowing its falsify. (3) that it was believed to be true by the person to whom it was made. (4) that the party making the representation must have intended that it be acted on or the person acting on it must have been justified in assuming this Intent, and (5) that the party asserting estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds.”

per OGBUAGU, J.S.C (P, 37, PARAS. A – D).
The facts of the sale were concealed from the Plaintiffs’ family, the monies shared was said to be proceeds of rent from Texaco petrol station which was on lease. The beneficiaries being children of late S. O. Irabor were summoned before the head of family at his house and they each signed on the premise that it was in paragraphs 6, 7, 8 & 9 of the Plaintiffs’ reply to 1st Defendant’s defence. See Exhibit P2 at Page 126 of the record reproduced in the judgment at page 29 therein contents thereof cannot be varied or denied and I so hold. See also the reply to the 2nd and 3rd Defendant’s defence see pages 22 a, 23 and 32 – 34 of the records.
Throughout the Plaintiffs’ evidence it was denied that the purpose was for settlement. Can estoppel be pleaded by conduct for an undisclosed purpose or where the representation is fraudulent? Estoppel does not lie on Imagination but on a set of proven facts upon which it was acted.
Upon the circumstances of the events that transpired with the active connivance of the head of family, there could not have been an acceptance without an

acknowledgement of the peculiar facts. It was asset that would not fly, same was tainted with fraud, and the notion of estoppel will backfire and hereby fails.

I resolve issue 1 against the Appellant.

On the issue of competence of the claim, the declaration is respect of all the children of the father, S. O Irabor including the 2nd Defendant who is also a child and makes them all beneficiaries. Under the circumstances of this case, the family, made up of all children or siblings of Isoken including the 2nd Defendant are entitled to the Certificate of occupancy.

Having been tied to the maintenance and education of children of their late father and celebration of the annual anniversary of the death of their father, the Plaintiffs, in fact all children have interest in the property especially as it now forms residue of the estate of their father until a decision is taken.

This leads to resolve the second issue of the Respondents in the foregoing resolution. The 5th & 6th Respondents cannot sell or transfer the properties without the prior knowledge and consent of IRABOR family including 1st – 4th Respondent who are beneficiaries of

the estate. The evaluation of the lower Court cannot therefore be faulted. I have no reason to interfere with the judgment.

The appeal lacks merit and fails. It is hereby dismissed. The judgment of the Edo state High Court coram H. A. COURAGE -OGBEBOR, J is hereby affirmed. Cost of N350, 000 is awarded against the Appellant.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Obaseki-Adejumo, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal lacks merit. I adopt the same in dismissing the appeal. I abide by the consequential orders made in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read in draft the judgment prepared by my learned brother, A. O. Obaseki – Adejumo, JCA that has just been delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I too dismiss the appeal. I abide by the order of cost made therein.

Appearances:

EHINON OKON For Appellant(s)

F. OSIFO with him, S. OGBE For Respondent(s)