MADAM MEMINOTU IBRAHIM V. DR. LASISI OSUNDE
(2009) LCN/3739(SC)
In the Supreme Court of Nigeria
Friday, February 13, 2009
Case Number: SC. 189/2002
RATIO
APPEAL – CONCURRENT FINDINGS OF FACT: WHEN WILL CONCURRENT FINDINGS BE INTERFERED WITH
“Generally,the law is that concurrent findings of facts cannot ordinarily be disturbed by the appellate court. But, where the findings of the courts below, as in the instant case, have shown that the conclusion reached was patently wrong or perverse, then an appellate court, which this court is, can, in the interest of justice, interfere. … It is therefore, with respect, my view that the findings of the two courts below are very much perverse and I hereby set them aside. The two courts below were wrong, both in law and in equity, in their decisions. Consequently, the two issues formulated by the appellant in her brief of argument are hereby resolved in her favour. While the one issue identified by the 2nd respondent in his brief is hereby resolved against him. This appeal is therefore allowed. The judgment of the two courts below is hereby set aside.” Per ADEREMI, JSC
EVIDENCE : A PERSON CANNOT GAIN FROM HIS WRONG
“The time-honoured principle is that No one can or shall take advantage of his own wrong doing, the Maxim is ‘NULLUM COMMODUM CAPEREPOTESTDE INJURUA SUA PROPRIA” EX TURPI CAUSA NON ORITUR ACTIO’. Lord Widgery puts this proposition in a glowing language when in BUSWELL VS.GODWIN (1971) 1 ALL E.R421, he said and I quote: ‘The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the court would wish to endorse’. Let me say that no polluted hand shall be allowed to touch the pure fountain of justice. One shall not have a right of action when one comes to a court of justice in the unclean manner the 2nd respondent nay, the deceased 1st and 3rd respondents have approached the court with their counter-claims. The facts of this case reveal a clear case of the 2nd respondent taking unconscientiously, advantage of his relationship with the estate.” Per ADEREMI, JSC
EVIDENCE – JUDICIAL NOTICE OF A CUSTOM: CONDITIONS THAT A CUSTOM MUST SATISFY BEFORE IT CAN BE JUDICIALLY NOTICED AND APPLIED BY THE COURT
“The Bini Customary Law, upon which this assumption was predicated is a notorious one which must be judicially noticed. That, I have no doubt of, having regard to the plethora of judicial decisions on this point. But, before the said custom can come into play, certain pre- conditions must have taken place. It must be legally established that the ownership of the house which would be inherited by the 2nd respondent as his father’s Igiogbe was on a firma terra. That the property was legally that of his (2nd respondent) father.” Per Aderemi, JSC.
PROBATE – ADMINISTRATION OF ESTATE: WHETHER AN ADMINISTRATOR OF AN ESTATE OR ANYONE CLAIMING THROUGH HIM CAN ASSIMILATE THE PROPERTY TO HIS OWN OR BENEFIT THEREFROM
“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.” Per ADEREMI JSC.
JUSTICES:
DAHIRU MUSDAPHER, JSC
GEORGE ADESOLA OGUNTADE, JSC
IKECHI FRANCIS OGBUAGU, JSC
PIUS OLAYIWOLA ADEREMI, JSC (Lead Judgment)
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, JSC
BETWEEN
APPELLANTS
MADAM MEMINOTU IBRAHIM
AND
RESPONDENTS
1. DR. LASISI OSUNDE
2. DR. DAPO LAWAL
3. NURENI IBRAHIM
JUDGMENT
O. ADEREMI, JSC (Lead Judgment): This is an appeal against the judgment of the Court of Appeal (Benin Division) in No CA/B/284/97. Madam Meminotu Ibrahim v. DR. Lasisi Osunde & Ors delivered on the 11th of February 2002 dismissing the appellant’s appeal against the judgment of the High Court of Justice holden at Benin-city, Edo state which had earlier dismissed the claims of the plaintiff (the present appellant) in toto but granted all the reliefs claimed by the defendants in each of their respective counter – claims. The judgment of the trial court in respect of the claim and counter – claims was delivered on the 23rd of May, 1995.
With the leave of the trial court, both parties amended their respective pleadings. In her amended statement of claim, the plaintiff/appellant claimed against the defendant/respondents jointly and severally as follows:
“1. A declaration that the plaintiff is the owner by inheritance of all that parcel of land verged RED in plan No. JAA/BD/403/88 of 11th August 1988 filed along with this statement of claim and that she is the only person entitled to be granted a Certificate of Occupancy in respect of the said parcel of land
- An order of perpetual injunction restraining the defendant by themselves servants and/or privies from doing on the land anything inconsistent with rights and interest of the plaintiff.”
Although the 1st – 3rd defendants/respondents filed a joint defence, each of them however filed a separate counter-claim. The final pleadings upon which the trial was predicated are (1) the amended statement of claim deemed to have been properly filed with the leave of court on the 10th of April 1991 and (2) second further amended joint statement of defence and the separate counter – claims of each of the 1st, 2nd and 3rd defendants/respondents deemed to have been filed and amended on the 24th of April 1991.
In his separate counter – claim, the 1st defendant/counter-claimant counter-claimed against the plaintiff, as defendant to the counter – claim, as follows:
“(1) A declaration that he (1st defendant/counter-claimant) is the person entitled to statutory right of occupancy to all that piece or parcel of land verged blue in Plan No OSA/1933/BD88 filed with the statement of defence which is bounded by survey beacons Nos MG.1290, MG 1291, CP7, PC7828, CP8 AND MG 1293.
(2) Damages of N1000.00 against the plaintiff for her trespass unto the 1st defendant’s land.
(3) Perpetual injunction against the plaintiff, her servants, agents and /or privies from further trespass unto the said land.”
For his part, the 2nd defendant/counter – claimant counter – claimed against the plaintiff, as defendant to the counter – claim, as follows:
“(1) A declaration that he(2nd defendant/ counter-claimant) is the person entitled to statutory right of occupancy to all that piece or parcel of land verged yellow in Plan No OSA/1933/BD88 filed with the statement of defence which is bounded by survey beacons Nos MG 1291, CP17, CP4, CP5, CP6 and CP7
(2) An order of perpetual injunction against the plaintiff, her servants, agent and/or privies from entering the said land or doing anything whatsoever on the said land.”
Finally, in respect of the counter – claim, the 3rd defendant/counter-claimant, counter-claimed against the plaintiff, as defendant to the counter – claim, as follows:
“(1) that having succeeded to his childless elder brother, late Jibrila Braimoh (Ibrahim) Guobadia, in accordance with Benin Native law and Custom, is the one entitled to inherit all that parcel of land situate at Mission Road, Benin City within Benin City Judicial Division containing an area of about 1458,646 square metres and verged red in Plan No OSA/1933/BD88 filed by the defendants in this suit and he is therefore the person that is entitled to statutory right of occupancy in respect of the said parcel of land.
(2) An order for the plaintiff to render an account to the 3rd defendant in respect of the monies, rent and profits collected or received or to be collected by the plaintiff and/or her agents from the part of the land verged red in survey plan No OSA/1933/BD88 filed herewith.
(3) Perpetual injunction restraining the plaintiff and/or agents, servants or privies from trespassing or doing anything whatsoever into the said land which is the portion verged red in Plan No OSA/1933/BD88 filed herewith until after the determination of this suit.”
Both parties called evidence in proof of the respective averments in their pleadings. After taking the oral addresses of their respective counsel, the learned trial judge, in his judgment delivered on the 23rd of May 1995 dismissed the plaintiff/appellant’s case in toto and allowed the counter -claim of each of the 1st, 2nd and 3rd defendants/respondents/counter – claimants. In so doing the learned trial judge held inter alia:
“In this case there are conflicting evidence and submission on the issue whether senior brother can inherit the property of a deceased junior brother who dies without issue and another view is that a senior brother cannot inherit the property of a junior brother but a junior brother can …………….
From the foregoing it is obvious that the plaintiff and her witness have contradicted themselves in their statements made in this court and previous proceedings in every material particular on the issue of who buries or inherits the property of a deceased junior brother…………..
It is my considered view therefore, that the evidence of the plaintiff on the issue of who buries and/or inherits the property of a junior brother who died childless is contradictory and unreliable. In the circumstance, the authority of benin LAW AND CUSTOM by Jacob U. Egharevba on this issue under consideration cited by the learned counsel for the plaintiff is not supported by any credible evidence and is therefore inapplicable…………
In Benin, final burial ceremony in accordance with Moslem rites which the plaintiff alleged she did is in my view inconsistent with the mode of inheritance under the Bini Customary Law of inheritance. Accordingly, the plaintiff’s case even on this issue alone and from the foregoing, lacks merit and is hereby dismissed.”
ON THE COUNTER – CLAIM:
The learned trial judge held:
“All the parties to this suit, it is agreed, claim their root of title from Exhibit C3 which contains what the late Iman Braimoh Ibrahim Guobadia gave to his children. The 1st defendant has established that he inherited the land in dispute from his mother in accordance with Bini Customary Law. Exhibits K and L show acts of possession and ownership and so is the grave reflected on exhibits J which was by his own consent. All these were acts of ownership and possession which were not seriously challenged. 1 am convinced and satisfied that 1st defendant has proved his counter-claim on balance of probability and I so hold.
The 2nd defendant has also testified that he inherited the land in dispute in his counter – claim through his father who was a grandchild of the late Iman Braimoh Ibrahim Guobadia…..The 2nd defendant has shown by evidence, however, that he is in possession of the land in dispute in his counter – claim and has exercised sufficient acts of ownership over the years to entitle him to his claim. The 2nd defendant has therefore proved his case on balance of probability and I so hold.
The 3rd defendant who is the youngest child of the late Iman Braimoh Ibrahim Guobadia claims his root of title by inheritance per Exhibit C3 from his father…………………..The evidence given by each of the three defendants seems consistent, cogent, reliable and unchallenged. Their version of the evidence of this issue was supported by PW5 supra. I am inclined to believe them that under Bini Customary law it is not right to inherit the property of a junior brother who died childless. However, the 3rd defendant has, in my view established acts of possession and ownership over the years on the land in dispute in his counter – claim and has therefore proved his case on balance of probability as required by law.”
Accordingly, the reliefs claimed by the 1st, 2nd and3rd counter – claimants were granted by the trial court.
Dissatisfied with the entire judgment, the plaintiff/appellant lodged an appeal to the court below. With the leave of court, the original Notice of appeal was amended. After taking all the arguments based on all the issues formulated before it, the court below, in a reserved judgment delivered on the 11th of February, 2002, allowed the appeal against the 1st and 3rd respondents and consequently granted her (the appellant) the statutory right of occupancy in respect of the house No 18B Idahosa Street, Benin-City and the parcel of land on Mission Street where Mobil Oil Nigeria Limited have their offices which is delineated in the Plan No CA 22/48 and bounded by beacons OA806, OA807 and OA809 Registered as No 31 at page 31 in volume 132 of the Lands Registry in the office at Benin. But the appeal against the judgment of the trial court in respect of the counter –claim of the 2nd defendant/respondents/counter – claimant was dismissed; thus affirming the judgment of the trial court on the 2nd defendant/respondent/counter – claimant. In so doing, the court below reasoned:
“I agree with the submission made by learned counsel on behalf of the 2nd respondent namely the PW4’s evidence favoured the 3rd defendant. While house No 18B Idahosa Street belongs to the plaintiff, she cannot claim ownership of the area of land where the 2nd defendant’s father’s grave is located. There is evidence of contiguity in respect of house No 18B Idahosa street, the house of the 2nd defendant and the vacant parcel of land where, the 2nd defendant’s father was buried. Unlike the 2nd defendant, the 1st defendant who was born on the 27th July, 1930 first noticed that his land was being trespassed upon in the late 1950 and all he could do was to complain to the father of 2nd defendant. His counter – claim like that of 3rd defendant ought to fail.
It is therefore safe to conclude that the plaintiff adduced enough evidence showing the house No 18B Idahosa Street belonged to her father, so also the area leased to Mobil Oil Nigeria Plc. However, the plaintiff did not prove that the 2nd defendant trespassed on her land when he buried his father on the vacant plot without protest. The counter – claim of the 2nd defendant against the plaintiff in respect of the area of … land where he buried his father is found proved consequently, judgment shall be entered for the plaintiff in respect of the area of land on Mission road where the Mobil Oil Nigeria Plc is located as well as house No 18B Idahosa Street, Benin City. The appeal against the 1st and 3rd respondents is therefore allowed. The 1st and 3rd defendants’s counter – claim ought to have failed and are accordingly dismissed. The learned trial judge was right in giving judgment to the 2nd defendant on his counter – claim. The appeal against the judgment in favour of the 2nd defendant on the counter – claim fails and is accordingly dismissed.”
Again, being dissatisfied with the judgment of the court below the 1st and 3rd respondents/counter- claimants have appealed to this court in respect of the part of the judgment of the court below that dismissed their counter – claims. Their Notice of Appeal is dated and filed on the 9th of May 2002. Similarly, the plaintiff/appellant has appealed against that part of the judgment of the court below that upheld the counter – claim of the 2nd respondent. Her Notice of Appeal is the one dated and filed on the 30th of May 2002. It is pertinent here to remark that the 1st and 3rd respondents/counter –
claimant/appellants have since died. Suffice it to say that they did not pursue their appeal any longer. The plaintiff/appellant in the appeal lodged against the judgment of the court below which went in favour of the 2nd respondent has identified two issues from the grounds of appeal contained in his Notice of Appeal. The two issues so identified for determination by this court are as follows:
“(1) Whether failure by owner of land to make verbal protest against an act of trespass committed in his presence in his land is enough ground for declaring the trespasser owner of the land.
(2) Whether the 2nd defendant/ respondent made out a case in his counter claim which was capable of being supported by the evidence of the 4th witness called by the plaintiff/appellant.”
The 2nd defendant/respondent for his part has raised only one issue for determination, and as set out in his brief of argument, it is in the following terms:
“Whether, having regard to the state of pleadings and evidence adduced by the parties, the Court of Appeal was right in upholding the judgment of the trial court in favour of the respondent on his counter – claim.”
When this appeal came before us for argument on the 17th of November 2008, the appellant and his counsel, were absent from the court, but from the records, he (the appellant) was served with the hearing notice on the 23rd of April 2008. Counsel for the 2nd defendant/respondent Chief (Sir) Eghobamien, SAN was however present. Since all the briefs of the parties were filed in the court, we, in accordance’ with the rules of this court regarded the appeal as having been argued. The learned senior counsel for the 2nd defendant/respondent therefore, formally referred to, adopted and relied on his client’s brief dated and filed on the 28th of February, 2005 and urged us to dismiss the appeal.
I have carefully examined the two issues in the appellant’s brief of argument along side the one issue identified by the respondent, it is my view that the only issue identified by the respondent dovetails into the two issues, put together, raised by the appellant. I shall therefore, in this judgment take all of them together.
In arguing the two issues raised in her brief the appellant has argued in her brief, that having attained her majority in 1969, one S.E. Lawal (The father of 2nd defendant/respondent) and Joseph Egharevba, the eldest surviving son of that Benin historian – Jacob U. Egharevba handed over, at a ceremony, the estate of her late father (Abdul Karim Ibrahim Guobadia) who had died intestate on the 15th of March 1950. According to her, both S. E Lawal (now deceased) and A. K Ibrahim Guobadia (now deceased) were appointed administrators of the estate of late Abdul Karim Ibrahim Guobadia, as the plaintiff and her half brother one Ganiyu were minors at the time of the death of their father. Because Jacob U. Egharevba had gone blind by the time the plaintiff/appellant attained majority Jacob U. Egharevba had to stand in for his blind father at the handing- over ceremony in 1969. It is perhaps necessary to say here that upon the appointment of Jacob U. Egharevba and S. E. Lawal (both now deceased) the two deceased appointed Joseph Egharevba, who testified as PW5 during the proceedings, as their secretary. The plaintiff/appellant claimed she encountered no problem from the time the estate was handed over to her in 1969 until the death in 1984 of S. E. Lawal one of the two original administrators of the estate and the 2nd defendant/respondent, his eldest son dug a grave on part of the plaintiff’s land, earlier handed over to her in 1969, and buried his said late father there. Simultaneously, the 1st and 3rd defendants began claiming part of the said land and building on another portion of the land respectively. It was what she considered as acts of trespass by the 1st, 2nd and 3rd defendants/respondents that led to this suit and she was the only survivor of those who handed the estate to her. She referred to the evidence of PW5 – Joseph Egharevba which was to the effect that the area of land handed over to her (plaintiff/appellant) was the area verged RED claimed by the plaintiff in Exhibit C her litigation survey Plan. The witness (PW5) having not been cross – examined on this point, his evidence should be believed and acted upon, she submitted adding that the trial court and the court below were wrong in law, to have ignored this all-important evidence. It was also her submission that filing of the present action is a legally recognized way of protesting against the conduct of the 2nd defendant/respondent of burying his father in the part of the land which the plaintiff claimed. Referring to the counter – claim of the 2nd defendant/respondent she submitted that there was no scintilla of evidence on record in support of the reliefs claimed in the counter-claim; even, the documents pleaded in support of the counter-claim were never tendered in evidence by the counter – claimants. That lapse alone she submitted, was fatal to the success of the counter – claim while relying on the decisions in (1) Bon Ltd v. Babatunde (2002) 7 NWLR (Pt.766) 389
(2) Oyediran v. Alebiosu II (1992) 6 NWLR (Pt.249) 550 and Section 149 (D) of the Evidence Act. She also referred to the evidence of PW4 – Stephen Ogbeide-and submitted that there was nothing in that evidence which supported the holding by the courts below that title in the said piece of land was legally established in the 2nd defendant/respondent. She urged that the appeal be allowed.
On the other hand, the 2nd respondent, through his brief of argument, had submitted that the evidence of PW1 – Abdullahi Guobadia – given under cross-examination which is thus:
“I know that the 2nd defendant’s father lived and died in the house opposite Idahosa Street, Benin – City.”
is supportive of the contention of the 2nd defendant/counter – claimant and he inherited , in accordance with the law, his late father’s Igiogbe of which the land where the deceased was buried was part and parcel under the Benin Native Law and Custom, while further relying on Exhibit J tendered during the proceedings, he placed reliance on the decisions in such cases as (1) Igb1noba v. Igbinoba (1995) 1 NWLR (Pt. 371) 375, (2) Arase v. Arase (1981) 5 SC 33 and (3) Oke v. Oke (1974) 3 S. C. 1; adding that the 2nd respondent has, through evidence, shown that he was in possession of the land in dispute in his counter – claim and has exercised sufficient acts of ownership on same over the years to entitle him to the reliefs claimed. He also referred to the judgment of the court below which affirmed the findings of the trial court and concluded that the two findings are concurrent and cannot be faulted by this court while placing reliance on the decision on Nsirim v. Nsirim (2002) 3 NWLR (Pt. 755) 697. It was also his argument that having not protested when the father of the 2nd respondent was being buried on the land in dispute it was too late in the day for the appellant to now complain; placing reliance on the decision Adeyanju v. WAEC (2002) 13 NWLR (Pt. 785) 479.
In concluding, he submitted that his counter – claim was based on inheritance under Benin Native law and Custom as reflected in the pleadings and supported by the evidence he led, the appellant, he further added, has not justified, through her evidence, why judgment should be entered in her favour, he finally added that the decision in Idundun v. Okumagba (1976) 9-10 SC. 277 is inapplicable to his counter – claim while urging that the appeal be dismissed.
At the risk of sounding to be repetitive but for a proper understanding of this judgment, I wish to restate the facts of this case as reflected by the pleadings of the plaintiff/appellant on one side and the defendant/counter -claimants/respondents on the other side. The amended statement of claim, when gleaned, shows that one Abdul Karim Ibrahim Guobadia died intestate on the 15th of March 1950 and while alife he had two landed property. At his death, he was survived by two children both of who were minors then. They were Madam Meminotu Ibrahim (the plaintif/appellant) and her junior half- brother-Ganiyu. For the reason of being minors at the death of their said late father (A. K Ibrahim Guobadia) two people namely: Chief Jacob U. Egharevba and Mr. S. E. Lawal were appointed to administer the deceased’s estate. The two administrators of the estate, on their own, appointed J. A. Egharevba, the son of Jacob U. Egharevba as the secretary to the estate. Ganiyu, the half brother of the plaintiff/appellant, later died l
