MRS. TAIWO SOGBAMU & ORS V. MR. FOLORUNSHO ODUNAIYA & ORS
(2012)LCN/5368(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of May, 2012
CA/L/81/2008
RATIO
PLEADINGS: NATURE OF PLEADINGS
Pleadings are statement of facts that a party relies upon to prove his claim and it is always meant to give sufficient notice to the other party of the case he is being called upon to face. Every pleading must contain a statement of all material facts on which a party bases his claim or defence. It contains only facts and not the evidence by which those facts are to be proved. Each fact in logical sequence will be in numbered paragraph, stating clearly without ambiguity what the allegation is that must be met by the other side. All facts which are material to a party’s case are relevant and must be stated. See Esso West Africa Incorporated vs. L. Otaditi (1968) NMLR 453; Babatunde Adisa Thanni vs. Yaya Lemonu (1977) 2 SC 89 at 177.
The same rule of pleading that is applicable to the parties, applies to the court. The supreme court in the case of African Continental Seaways Ltd. vs. Nigerian Dredging Roads and General works Ltd (1977) 5 SC, 235 at pp 249 – 250 stated:-
“The courts themselves – here the trial court and the Court of Appeal are bound to decide only the case as formulated on the pleadings of the parties. It will be contrary to the proper function of the court to enter upon any inquiry outside the pleadings or to adjudicate on any matter not put in issue by the pleadings. Court decides issues and it is none of their functions to speculate. Any departure from the above will be a violation of some principle of law or procedure.”
The Supreme Court remains emphatic on the role of the courts, to the pleadings of parties, wherein it stated:-
“Where a court formulate its own issues and based its decision thereon even though not raised by the parties on the pleadings such a decision will be set aside. See Adeniji v. Adeniji (1972) 4 SC 10 at 17; Bahir Alade Shitta Bey v. The Federal public Service Commission (1981) 1 SC 40 at 59; Overseas Construction Company (Nig) Ltd v. Creek Enterprises (Nig.) Ltd Anor (1985) 12 SC 158 at 164. PER SIDI DAUDA BAGE, J.C.A.
EVIDENCE: WHAT IS TO BE PLEADED
First of all, it is the law as stated earlier on, what is to be pleaded is facts and not evidence. See : Aboye vs. Ikem Uche Ofili & Anor (1985) 1 SC 231 at 308. PER SIDI DAUDA BAGE, J.C.A.
LAND LAW: EFFECT OF PARTITIONING OF FAMILY LAND
The Supreme Court in the case of Yesufu vs. Adama (supra) at page 542 paras A – D stated:
“Partitioning of family property is one of the methods by which a family property can be determined in favour of the constituent members or family branches. Where the division is among constituent branches of the family, a new family ownership is created in as many places the property is divided, each branch becoming the owner of the portion partitioned to it. Partition must however be brought about by the consensus of all members and branches of the family, or else it is void. See: Balogun vs. Balogun (1943) 9 WACA 78; Majekodunmi vs. Tijani 11 WLR 74; Onisiwo vs. Gbongboye (1941) 7 WACA 69; Olorunfemi vs. Asho (2000) 2 NWLR (pt 649) 143; Mayo vs. Oshuntokun (2001) 11 NWLR (pt 723) 62.” PER SIDI DAUDA BAGE, J.C.A.
RELIEF: WHETHER A COURT CAN GRANT A RELIEF NOT SOUGHT
It is trite that a court is not a Father Christmas and should not grant reliefs not sought. See Nigeria Housing Development Society Ltd. & Anor v. Mumini (1977) 2 SC 57; NDIC v. S.B.N. Plc. (2003) NWLR pt. 801 Pg.311; Osuji v. Ekeocha (2009) 16 NWLR Pt. 1166 Pg.81. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
MRS. TAIWO SOGBAMU & ORS Appellant(s)
AND
MR. FOLORUNSHO ODUNAIYA & ORS Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A.O. Adefope Okogie sitting at the High Court of Lagos State, Lagos Judicial Division, delivered on the 16th day of April, 2007.
The facts that led to this appeal are as follows: The 1st – 7th Respondents on the 30th day of December, 1999 filed against the Appellants a writ of summons and statement of claim. The 8th and 9th Respondents by the order of the court were allowed to join as parties.
Both the Claimants and the Defendants amended their respective writs of summons and statements of claim and the statements of defence to accommodate the joinder of 8th and 9th Appellants/Respondents.
The Plaintiffs’ claim at the lower court is for:-
(1) A DECLARATION that the Defendants are not the landladies and landlords of plaintiffs in respect of the respective apartments the Plaintiffs occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
(2) A DECLARATION that Chief A.O. Lawanson is the landlord of the plaintiffs in respect of the respective apartments the plaintiffs Occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
(3) A DECLARATION that it is fit and proper for the plaintiffs to continue paying their (the plaintiffs) rents to the Estate of Chief A.O. Lawanson and not to the Defendants considering the fact that Chief A.O. Lawanson died intestate on the 2nd day of September, 1998.
(4) AN INJUNCTION restraining the Defendants, their servant(s), Agent(s), Attorney(ies), privy(ies), Executor(s), Personal Representative(s), Successors in title and other person(s) acting on their behalf from furthering acts geared towards the unlawful ejection of the plaintiffs from the plaintiffs respective apartment at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
(5) AN ORDER restraining the defendants, their servant(s), agent(s) Attorney(ies), privy(ies), Executive(s), Personal Representative(s), Successors in title and other person(s) acting on their behalf from further trespassing into the respective apartment of the plaintiffs at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
(6) AND the sum of N2Million (Two Million Naira) being exemplary damages suffered as a result of the infringements rights of enjoyment of quiet and peaceful possession in the respective apartment the plaintiffs occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
Issues were joined by the parties and after a full trial, the trial court resolved the sole issue for determination in favour of the claimants. The following declarations were granted by the court in favour of the claimants:
(1) A declaration that the defendants are not the landladies and landlords of the 1st-7th claimants in respect of the respective apartment the 1st-7th claimants occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State
(2) A declaration that Chief Anthony Olu Lawanson is the landlord of the 1st-7th claimants in respect of the apartments of the 1st – 7th claimants occupy as tenants at No.4, Lawanson Road, Lawanson Mushin, Lagos State
(3) A declaration that it is fit and proper for the 1st – 7th claimants to continue paying their (the claimants) rents to the Estate of Chief Anthony Olu Lawanson and not to the defendants.
(4) An injunction restraining the defendants, their servant(s), agent(s), Attorney(ies), privy(ies), Executor(s), Personal representative(s), Successors in title and other person (s) acting on their behalf from further acts geared towards the ejection of the claimants from the respective apartments at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
(5) An order restraining the defendants, their servant(s), agent(s), Attorney(ies), privy(ies), Executor(s), Personal representative(s), Successors in title and other person(s) acting on their behalf from further trespassing into the apartments of the claimants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
The appellants’ brief dated and filed 28th of March, 2008, and deemed filed on the 2nd November, 2010. Also the appellants’ reply brief dated and filed the 6th of December, 2010.
The respondents’ brief dated 11th of November, 2010 was filed the 19th of November, 2010.
Appellants’ counsel Olusegun Fabunmi Esq., identified two (2) issues for determination as follows:-
(1) Whether the learned trial judge awarded to the respondents as claimants in the lower court what they did not claim.
(2) Whether the court below was right in holding that the Estate of Chief S.B. Lawanson (Deceased) has been partitioned and if the partitioning is valid in law.
On the other hand, the respondents’ counsel, P.I. Nsolo Esq., adopted the two (2) issues formulated by the appellants’ counsel to wit:-
(1) Whether the learned trial judge awarded to the respondents as claimants in the lower court what they did not claim.
(2) Whether the court below was right in holding that the Estate of Chief S. B. Lawanson (Deceased) has been partitioned and if the partitioning is valid in law.
ISSUE ONE
Learned counsel to the appellants submitted that the learned trial judge awarded to the respondents as claimants in the court what they did not claim. The claims of the respondents in the lower court are contained in the amended statement of claim of 56 paragraphs dated 30th day of December, 1994 which is copied on pages 51 to 57 of the record of appeal. The reliefs of the respondents as endorsed in paragraph 56 of the said amended statement of claim are as stated earlier on in this judgment.
Learned counsel submitted further that the learned trial judge in her judgment submitted a sole issue for determination in the case to wit: “Whether it can be said that the estate of Chief S.B. Lawanson has been partitioned and the partitioning is valid in law”. The learned trial judge then went ahead to determine this singular issue as arising from the facts in the pleadings of the parties in the case and came to the conclusion in her judgment that there had been a distribution of estate of Chief S.B. Lawanson by virtue of the letter dated 5th April, 1994 written by Chief A.O. Lawanson (Deceased) tendered and marked as Exhibit P2 in the suit.
Learned counsel further submitted that the judgment awarded in favour of the respondents by the learned trial judge was not claimed in the amended writ of summons and amended statement of claim. I six (6) reliefs claimed by the respondents there was no relief relating to the partitioning of the estate of Chief S.B. Lawanson (Deceased).
Learned counsel further submitted that, the claims of the respondents in the lower court relate to the issue of the defendants not being the landladies and landlords of the plaintiffs in respect of the respective apartments they occupy. What is left to prove before the court is who actually was their landlord? i.e.
(a) Who put the respondents in possession of their respective apartments?
(b) Who has been collecting rents from the respondents since they have been put into possession of their respective apartments?
Learned counsel submitted further that, we are not unmindful of the fact that the 8th and 9th respondents who are the children of Chief A.O. Lawanson (deceased) who was alleged to have distributed the estate of Chief S.B. Lawanson (deceased) as head of the family then, were joined to the action and they gave evidence on the issue of the distribution of the estate of Chief S.B. Lawanson (deceased). The position of the case cannot be different.
Learned counsel submitted further that, the position of the law is, the court will not award to a claimant that which he did not claim. See Etajata vs. Ologbo (2007) 11 MJSC 176 at 196; Udengwu vs. Uzuegbu (2003) 9 MJSC 70 at 83; Joe vs. Co-operative Society (2003) 4 MJSC 171 at 156 – 187; Ekpeyong vs. Nyong (1975) 2 SC 71; Ige vs. Olunloyo (1984) 1 SCNLR 158.
On the other hand, the respondents’ counsel submitted that, starting with Exhibit P2 which is the letter of administration, the trial court in the fourth paragraph of the judgment stated: “It thus appears from the wording of the letter of administration that though Mrs. Vanderpuye was appointed a co-administrator to the estate of S.B. Lawanson with A.O. Lawanson, it is in A.O. Lawanson that power is vested to distribute the estate of the deceased according to the system of Oriojori”. The learned trial judge reviewed Exhibit P2 which she referred to as the document relied upon by the claimants as proof that the property was partitioned to A.O. Lawanson.
Learned counsel submitted further that the court did not grant judgment in favour of the respondents just because the parties to the litigation chose to admit some things, the court declared what it found to be law after proper arguments by both parties to the action as laid down in HELTZER vs. DEPT. OF HEALTH AND SOCIAL WELFARE 1077 3 ALL ER 444 at 451.
Learned counsel further submitted that, it is not a duty of the parties to an action to determine what methods or means the court may use to resolve issues before it, their obligation rather is to provide enough evidence and facts before the court to swing the pendulum of justice in their favour which in the case before the lower court the defendants failed to do so.
Learned counsel further submitted that, the case before the lower court was essentially on facts and the learned trial judge’s finding were not perverse but were supported by the evidence adduced by the parties in the case. see : Bassil vs. Fajebe (2001) 4 SC (Pt. 11) page 125 parag. 15.
In their reply brief learned counsel to the appellants, O. Fabunmi Esq, submitted that it is the pleadings of the parties that determine the issues before the court and not final addresses of the parties. Where therefore the issues formulated for determination in the final addresses of the parties did not arise from the facts contained in the pleadings of the parties, it will be discountenanced by the court. Learned counsel further submitted that in this particular case the issue formulated at the lower court and decided upon by the learned trial judge as regards (a) whether the learned trial judge awarded to the respondents as claimants in the lower court what they did not claim and (b) whether the court below was right in holding that the estate of Chief S.B. Lawanson (deceased) has been partitioned and if the partitioning is valid in law did not arise from the pleadings of the parties.
Learned counsel further submitted that, the issues that will be raised by the parties in their final addresses at the lower court must not only arise from their pleadings and issues joined by them, but arise from the claims before the court. That was not the situation in this case before the lower court. The issues that were raised by the parties did not arise from their pleadings. The parties were indeed under the misapprehension that the admission of Exhibit P1 and particularly Exhibit P2 will take the place of the pleadings of the parties. The learned trial judge was therefore led in error in giving judgment to the respondents as a result of the final addresses of counsel. See Okobia vs. Ajanya (1998) 3 NWLR (Pt 543) 528; Dipcharima & Anor vs. Ali & Anor (1974) All NLR 908; Adebisi vs. Oke (1967) NMLR 64.
The main crux of this matter with issue no. 1 is, to determine whether the trial court, awarded to the respondents (then as claimants) what they did not claim. To give an answer to this simple poser, is to examine the pleadings of the parties before the trial court, upon which the whole matter rests. Before doing that it is pertinent to appreciate what pleadings means.
Pleadings are statement of facts that a party relies upon to prove his claim and it is always meant to give sufficient notice to the other party of the case he is being called upon to face. Every pleading must contain a statement of all material facts on which a party bases his claim or defence. It contains only facts and not the evidence by which those facts are to be proved. Each fact in logical sequence will be in numbered paragraph, stating clearly without ambiguity what the allegation is that must be met by the other side. All facts which are material to a party’s case are relevant and must be stated. See Esso West Africa Incorporated vs. L. Otaditi (1968) NMLR 453; Babatunde Adisa Thanni vs. Yaya Lemonu (1977) 2 SC 89 at 177.
The same rule of pleading that is applicable to the parties, applies to the court. The supreme court in the case of African Continental Seaways Ltd. vs. Nigerian Dredging Roads and General works Ltd (1977) 5 SC, 235 at pp 249 – 250 stated:-
“The courts themselves – here the trial court and the Court of Appeal are bound to decide only the case as formulated on the pleadings of the parties. It will be contrary to the proper function of the court to enter upon any inquiry outside the pleadings or to adjudicate on any matter not put in issue by the pleadings. Court decides issues and it is none of their functions to speculate. Any departure from the above will be a violation of some principle of law or procedure.”
The Supreme Court remains emphatic on the role of the courts, to the pleadings of parties, wherein it stated:-
“Where a court formulate its own issues and based its decision thereon even though not raised by the parties on the pleadings such a decision will be set aside. See Adeniji v. Adeniji (1972) 4 SC 10 at 17; Bahir Alade Shitta Bey v. The Federal public Service Commission (1981) 1 SC 40 at 59; Overseas Construction Company (Nig) Ltd v. Creek Enterprises (Nig.) Ltd Anor (1985) 12 SC 158 at 164.
From the amended statement of claim of the plaintiff (now respondents in this court) amended on the 15th of January, 2001 contained at pages 51, 52,53, 54, 55, 56 and 57 of the records, the plaintiffs (respondents) avers as follows:
“Plaintiffs’ aver that the present 1st – 7th plaintiffs, premises No. 4, Lawanson Road, Mushin Lagos was jointly built by Chief Anthony Olu Lawanson (who contributed 40% of its costs) and Chief Samuel Bamidele Lawanson his father. The property in question was even renovated by Chief Anthony Olu Lawanson at entirely his own expenses.
Paragraph 22: –
“Plaintiff avers that upon the death of Chief Samuel Bamidele Lawanson, by virtue of a letter of administration dated 25/6/84 issued by the probate Registrar of the High Court of Lagos State, Chief Anthony Olu Lawanson together with Mrs. Yetunde Vanderpuye became the administrators of the estate of Chief Samuel Bamidele Lawanson. A copy of the letter of administration dated 25/6/84 is herein pleaded.
Paragraph 23:-
“Plaintiffs aver that the letter of administration specifically empowered Chief Anthony Olu Lawanson as head of the family of Chief Samuel Bamidele Lawanson, to divide the properties of the deceased Chief Samuel Bamidele Lawanson – among all his children.
Paragraph 27:-
“Plaintiffs aver that they shall at trial rely on a copy of the letter dated 8/4/94 written by Chief Anthony Olu Lawanson to all his brothers and sisters by which he communicated to the defendants herein that he has partitioned the estate of his father (i.e. Chief Samuel Bamidele Lawanson). The defendants herein are given notice to produce the original of this same letter. That the other properties in paragraph 20(B) (i) (ii) (iii) (iv) (v) & (vi) were given to the other children of Chief Samuel Bamidele Lawanson whose names are shown against the properties given them.
Paragraph 33:-
“The plaintiffs aver that when Chief A.O. Lawanson (i.e. Chief Anthony Olu Lawanson) was alive the defendants did not challenge the 1st – 7th plaintiffs for paying their rents to Chief A.O. Lawanson.
Paragraph 34:
“The plaintiffs aver that when Chief A.O. Lawanson was alive the defendants did not challenge Chief A.O. Lawanson for collecting rents from the 1st – 7th plaintiffs in respect of No. 4 Lawanson Road, Mushin, Lagos State”.
The contention of the appellants to issue one (1) is that, the claim of partition, not being one of the reliefs claimed by the respondents, the lower court cannot determine that issue or award any judgment in respect of it.
First of all, it is the law as stated earlier on, what is to be pleaded is facts and not evidence. See : Aboye vs. Ikem Uche Ofili & Anor (1985) 1 SC 231 at 308.
The first step in the determination of the contention of appellants to issue one (1) is, to determine what partition of family property means. Then juxtapose it with the claims of the Respondents at the lower court, to see whether it was or it was not part of the reliefs sought by them. Also to see whether the lower court can determine or be precluded from or awarded any judgment in respect of it.
The Supreme Court in the case of A. Ola Yesufu vs. Robinson Oluseye Adama (2010) 5 NWLR (Pt.1188) 522 AT 524 paras D, F – G held on proof of partition of family land as follows:
“What amounts to a partition of family land is a question of fact. Thus there must be averments in the pleadings supported by cogent and positive evidence to buttress such partition”. In this case the respondent established through oral and documentary evidence that the land in dispute was properly partitioned.
In the instant appeal, the first set of respondents then as plaintiffs, 1st – 7th, filed a writ of summons and statement of claim on the 30th of December, 1999 against the appellants (then Defendants). They were Tenants in the Estate of one A.O. Lawanson (deceased). The 8th and 9th Respondents were by order of the lower court allowed to join later by an order of the lower court. The plaintiffs tendered Exhibit P1 which is the letter of administration of estate of Chief S.B. Lawanson, granted by the Probate Registrar of the Lagos High Court.
The learned trial judge in her judgment on page 203 of the record of appeal stated:
“It thus appears from the wording of the letter of administration that though Mrs. Vanderpuye was appointed a co-administrator to the estate of S.B. Lawanson with A.O. Lawanson, that power is vested to distribute the estate of the deceased according to system of Oriojori.”
The learned trial judge therefore granted to the plaintiffs (Respondents) the reliefs sought by them as stated earlier. Going by the decision of the Supreme Court in Yesufu V. Adama (supra) and an examination of the averments in the pleadings of the Respondents (plaintiffs) there is nothing in the entire averments to suggest partition was done by the system of Oriojori as suggested by Exhibit P1. The Supreme Court went further to say that the pleading must be supported by cogent and positive evidence to buttress such partition. The trial court had not shown from the record that there were cogent and positive evidence to buttress such partition that was alleged before it. The trial court went on a frolic of its own to suggest there was partition by the system of Oriojori.
I had earlier on in this judgment on the rule of pleading, cited the Supreme Court decision in African Continental Sea ways Ltd vs. Nigerian Dredging Roads & General works Ltd (supra) at page 250, it states:
“The courts themselves are the trial court and the court of Appeal is bound to decide only the case as formulated on the pleadings of the parties. It will be contrary to the proper function of the Court to enter upon any inquiry outside the pleadings or to adjudicate on any matter not put in issue by the pleadings. Court decides issues and it is none of their functions to speculate. Any departure from the above will be a violation of some Principle of Law or Procedure.”
The Supreme Court remains emphatic on the role of the courts to the pleadings of parties wherein it stated:
“Where a court formulates its own issues and based its decision thereon even though not raised by the parties on the pleadings, such a decision will be set aside see: Adeniji v. Adeniji (1972) 4 SC 10 at 17;
Bashir Alade Shitta-Bey vs. The Federal public service Commission(1981) 1 SC 40 at 59; Overseas Construction Company (Nig) Ltd vs. Great Enterprises (Nig) Ltd & Anor (1985)12 SC 158 at 164.
There was no averment in the pleadings of Respondents (then plaintiffs) at the lower court which was supported by cogent and positive evidence to buttress that the Estate in dispute was actually partitioned. It is thus clear therefore that the lower court awarded to the Respondents (claimants) what they did not claim. Issue No. 1 is resolved in favour of the Appellants and against the Respondents. On issue two (Z1, whether the court below was right in holding that the estate of Chief S.B. Lawanson (deceased) has been partitioned and if the partitioning is valid in law.
Learned counsel to the appellants submitted that, even though we do not agree that this issue forms part of the claims of the respondents before the lower court, we are however raising this issue in the event that this court disagrees with us and uphold the decision of the learned trial judge. We adopt our arguments in paragraphs 32-320 above on the issue that there was no claim of partitioning before the lower court.
Learned counsel submitted further that the learned trial judge was in grave error in arriving at the decision that the estate of Chief S.B. Lawanson (deceased) by virtue of the letter dated 5th April, 1994 by Chief A.O. Lawanson (deceased) tendered and marked as Exhibit P2 in the suit had been partitioned from all stretch of imagination. Exhibit P2 cannot amount to a deed of partition.
Learned counsel submitted further that, to appreciate this point, we reproduce verbatim the said letter dated 5th April, 1994 written by Chief A.O. Lawanson (deceased) tendered and marked as Exhibit P2 in the suit.
“ESTATE OF SAMUEL B. LAWANSON (DEC.)
2-2c LAWANSON STREET
OBELE KOLADE
SURULERE
PHONE 837781, BOX 242
SURULERE
5th APRIL, 1994.
Dear Brother & Sisters,
“After a long silence none communication between us, I am now writing you all again. Subject Papa’s estate which is causing the gulf is deep river between you all and me. Apology to Taiwo and Kehinde.
you all, please pick up my previous letters to you, read it all over again. What should bind us more united has splited us, has turned you all against me. I thank God, that thinking over this subject I have no regret. The account is clear and clean to the best of my human ability.
“Papa”, our father passing out will be 26 years 14th April, 1994. The two storey house, “2” Lawanson Street which from the time we gave it to Akiniola to manage, and I took over few years back 1/3 of the tenants of the apartments continued to Akin, then a year plus Labo and Ayo stormed in again to collect rents.
This you all know even though some of you may not consent to that. I am now telling you my Brothers and sisters of same mother that I have decided to relinquish all the rights of collection of rents from that building and the adjoining shops at Aborishade to you all for life from the end of the 26th Anniversary you all may appoint whosoever pleases you. I will I say I will not collect rents from the tenants therein again. You are free to talk to them, and collect rents from end of April 1994.
2A Lawanson Street where Ebun lived, you all know is the first building papa built 40% assistance from me, occupation of the land, clearing, foundation, bricks molding, construction etc. That was absolutely kept by me and other papas children as was decided by me by virtue of my headship. Let me remind you all that the house was not attended to for 20years until after the 20th Anniversary I single handedly refurbished it. Since no accounts was made to me of money collected by Akin, Labo, Ayo and those who have interrupted my administration, and no kobo shared to me which I am rightly entitled to as all of you, and I have records of all I have shared and paid all of you, and I have from my collection till of date when you came with new ideas.
I still have my own share in the passbook not withdrawn plus its interest in bank. I will in no distant date make out the division table again as usual and make out cheque for those entitle and send to them.
As far as I know, that puts the estate issue to rest. If anyone has dust to raise or more talking to do he or she is welcome to whatever. Apology to Big sister, Taiye and Kehinde.
Genesis 12, 1-9 is just for me.
Thank you all and God bless.
(sgd).
A.O. LAWANSON”
Learned counsel submitted further that, there is no doubt that the learned trial judge herself was in doubt of the fact that Exhibit P2 was indeed a deed of partition. On page 13 of her judgment which is copied on page 205 of the record of appeal in the second paragraph, the learned trial judge held “Even though Exhibit P2 cannot be said to qualify as a Deed of partition …”
Learned counsel submitted further that, the said Exhibit P2 arose as a result of the order of the High Court of Lagos State made on 17/7/75 in suit No. M/24/74 wherein power was invested in Chief Anthony Olu Lawanson as the head of S.B. Lawanson’s family along with Mrs. Yetunde Vanderpuye to distribute the deceased’s properties. Learned counsel submitted further that in distributing the estate of S.B. Lawanson’s family in the system of Oriojori (individual), the properties must be distributed according to individuals and not by Idi – Igi (branches) but Chief Anthony Olu Lawanson in Exhibit P2 distributed the properties by Idi-Igi (branches). This is evidence from exhibit P2 and the testimony of the witnesses.
Learned counsel submitted further that, if the properties had indeed been partitioned, the said A.O. Lawanson would not have appointed the 5th defendant to be collecting rents in respect of the property. The testimony of PW2 before the court was that the 5th defendant collected rents in respect of the property in dispute while the said Anthony Olu Lawanson was alive.
Learned counsel submitted further that, if indeed the properties had been partitioned exhibits P7 (3) and P7 (would not have been in existence. The said A.O. Lawanson himself died on the 2nd day of September, 1998. There is also evidence from the record of appeal that receipts were issued in the name of Pa S.B. Lawanson estate up to 1998 as shown in the receipt attached to the affidavit in support of the motion on notice for joinder copied on pages 46 and 47 of the record of appeal.
Learned counsel submitted finally that this court should hold there was no partition of the estate of Chief S.B. Lawanson (deceased) as exhibit P2 relied upon by the learned trial judge cannot suffice as deed of partition.
On the other hand, the learned counsel to the respondents submitted that exhibit P2 has not at any point in time being tendered as deed of partition; rather it was tendered as proof of the partitioning in equity. Also as proof that A.O. Lawanson relinquished interest in all other properties of S.B. Lawanson and left the appellants to divide the properties as they wished which they did.
Learned counsel submitted further that, the learned trial judge did not state in her judgment that exhibit P2 was a deed of partitioning or qualified as such, she merely used it as one of the factors that led to her judgment. Exhibit P2 was corroborated by the 5th defendant under cross-examination.
Learned counsel further submitted that exhibits P7 (3 & 4) were issued by A.O. Lawanson to his tenants and the rents collected were collected in a personal capacity as landlord and not in a fiduciary capacity.
From a careful examination of the submissions of counsel on both sides pertaining to the partition of the estate of Chief S.B. Lawanson (deceased), the most important document is exhibit P1, the letter of administration, issued in respect thereof, by the High Court of Lagos State. A certified true copy of the said letter dated the 25th day of June, 1984, is attached on page 211 of the record of appeal. The most legible part of the letter states:-
“….Within the jurisdiction of this court were granted by this court to Mrs. Yetunde Vanderpuye and Mr. Anthony Olu Lawanson, two of the children of the said deceased, power being invested upon the said Anthony Olu Lawanson the head of S.B. Lawanson’s family to distribute the deceased’s properties in the system of ORIOJORI by an order of court made on the 17th day of July, 1975 in Suit No. M/24/74.
(J.O. Omole)
Probate Registrar”.
The appellants with respect to this issue challenges the holding of the trial court that the estate of Chief S.B. Lawanson (deceased) has been partitioned and if the partitioning is valid in law. The letter of Administration Exhibit p1 dated 17/7/75 quoted above vested power upon Anthony Olu Lawanson the head of S.B. Lawanson’s family to distribute the deceased properties in the system of Oriojori. The said Anthony Olu Lawanson by his letter which is undated but marked Exhibit P1, seems to suggest the partitioning of Estate of S.B. Lawanson. This was relied upon by the Respondents (as claimants) in the lower court, and duly accepted by the lower court. The very unique feature of Exhibit P2, the letter, it shows one fact clearly that there was no consensus of the family in the system of the partitioning adopted by Anthony (deceased). The Appellants in their argument state that ORIOJORI means individual heads. Simply therefore, on individual basis, each member of the family is allotted his own share.
From the said Exhibit P2, paragraphs 4 and 5 are so germane to the determination of this issue paragraph 4 states:
“This you all know even though some of you may not consent that I am now telling you my brothers and sisters of same mother that I have decided to relinquish all the rights of collection of rents from that building and the adjoining shops at Aborishade to you all for life from the end of the 26th Anniversary you all may appoint whosoever pleases you. I will – I say I will not collect rents from the tenants therein again.
You are free to talk to them and collect rent from the end of April, 1994.”
Paragraph 5:
“27 Lawanson Street where Ebun lived, you all know is the first building Papa built 40% assistance from me, occupation of the land, clearing, foundation, bricks molding, construction etc. That will absolutely be kept by me and other pa’s children as that decided by me by virtue of my headship. Let me remind you all that the house was not attended to for 20 years until after the 20th Anniversary I single handedly refurbished it.”
From the above clearly there was no consensus of the whole family before the system of partitioning was adopted by Anthony in Exhibit P2. There was also no compliance with Exhibit P1, the letter of Administration dated 17/7/75 which ordered the properties be partitioned by the system of Ori-ojori since the two factors have not been satisfied, such partitioning cannot therefore stand. The Supreme Court in the case of Yesufu vs. Adama (supra) at page 542 paras A – D stated:
“Partitioning of family property is one of the methods by which a family property can be determined in favour of the constituent members or family branches. Where the division is among constituent branches of the family, a new family ownership is created in as many places the property is divided, each branch becoming the owner of the portion partitioned to it. Partition must however be brought about by the consensus of all members and branches of the family, or else it is void. See: Balogun vs. Balogun (1943) 9 WACA 78; Majekodunmi vs. Tijani 11 WLR 74; Onisiwo vs. Gbongboye (1941) 7 WACA 69; Olorunfemi vs. Asho (2000) 2 NWLR (pt 649) 143; Mayo vs. Oshuntokun (2001) 11 NWLR (pt 723) 62.”
From the above Exhibit P2 speaks for itself. There was no consensus of the family of S.B. Lawanson to the partitioning it had sought to create by its maker Anthony, and it is therefore void and so declared by this court.
I will only, need to add what the Supreme Court stated on the same page 542 paras F – G in Yesufu vs. Adama supra:
“Partitioning of family property to individual members confers on each individual member an obsolete and exclusive right to deal with his portion of the partitioned land….”
In the instant case Exhibit P2 did not confer such right on the individual members of S.B. Lawanson’s family as ordered by Exhibit p1 and therefore void and of no effect. The lower court was wrong in its holding that the Estate of Chief S.B. Lawanson (deceased) has been partitioned. The partitioning created by Exhibit P2 is declared invalid in law by this court. Issue 2 is resolved in favour of the appellants. Having resolved the two (2 issues in this appeal in favour of the appellants, the appeal is hereby allowed.
The judgment of Adefope Okogie J, of the High Court of Lagos State Judicial Division in Suit No.ID/3469/99 delivered on the 16th of April, 2007 is hereby set aside by this court.
No order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother SIDI DAUDA BAGE JCA. I am in complete agreement with his reasoning and conclusion that the appeal be allowed. I will add a few words. The facts that led to the appeal are as follows:
The Claimants, now Respondents are tenants of No. 4 Lawanson Road, Surulere, the property in dispute. The Defendants, now Appellants are the children of Late Samuel Bamidele Lawanson, the original owner of the property in dispute. The Respondents instituted an action against the Appellant via a writ of summons dated 30th of December, 1999 contending that following the death of S.B. Lawanson, the property in question passed to Chief A.O. Lawanson, (also deceased) one of his sons and they claimed as follows:
1. A DECLARATION that the Defendants are not the landladies and landlords of plaintiffs in respect of the respective apartments the plaintiff occupy as tenants at No. 4, Lawanson Road, Lawanson Road, Lawanson Mushin, Lagos State
2. A DECLARATION that Chief A.O. Lawanson is the landlord of the plaintiffs in respect of the respective apartments the plaintiff occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos state.
3. A DECLARATION that it is fit and proper for the plaintiffs to continue paying their (the plaintiffs’) rents to the Estate of Chief A.O. Lawanson and not to the Defendants considering the fact that Chief A.O. Lawanson died intestate on the 2nd day of September, 1998
4. AN INJUNCTION restraining the Defendants, their servant(s), Agent(s), Attorney(ies), privy(ies), Executor(s), personal Representative(s), successor(s) in title and other person(s) acting on their behalf from furthering acts geared towards the unlawful election of the plaintiffs from the plaintiffs’ respective apartments at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
5. AN ORDER restraining the Defendants, their servant(s), Agent(s), Attorney(ies), privy(ies), Executor(s), personal Representative(s), successor(s) in title and other person(s) acting on their behalf from further trespassing into the respective apartments of the plaintiffs at No. 4, Lawanson Road, Lawanson Mushin Lagos state.
6. AND the sum of N2 Million (Two Million Naira) being exemplary damages suffered as a result of the infringement rights of enjoyment of quiet and peaceful possession in the respective apartment the plaintiffs occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
The Appellants denied the Respondent’s contention and argued that the estate of Late S.B. Lawanson was never distributed by Chief A.O Lawanson despite the fact that he was the head of the family and had been appointed an admistrator alongside with one Mrs. Yetunde Vanderpuye.
Issues were joined at the trial court and thereafter the trial court entered judgment for the Respondents holding that the property in question had been partitioned by the late Chief A.O. Lawanson to himself.
The Appellants were dissatisfied with this decision, hence this appeal.
Appellants’ counsel, Olusegun Fabunmi Esq. distilled two (2) issues for determination as follows:
(1) whether the learned trial judge awarded to the respondents as claimants in the lower court what they did not claim.
(2) whether the court below was right in holding that the Estate of Chief S.B. Lawanson (Deceased) has been partitioned and if the partitioning is valid in law.
Counsel to the Respondents, P.I. Nsolo Esq. adopted verbatim the issues as distilled by the Appellants’ counsel. These issues will be adopted for the determination of this appeal.
ISSUE ONE
The substance of the Appellants’ counsel’s argument in this regard was that there was nothing in the Respondents’ statement of claim and writ of summons at the trial court that related to partitioning of the estate of Chief S.B. Lawanson and that as such the trial court awarded to the respondents what they did not claim.
Counsel argued that what the trial court should have considered in the determination of the Respondents’ claims was who the proper landlord of the Respondents are and not whether there had been partitioning of the estate of the deceased S.B. Lawanson.
Counsel submitted that it is trite that a court is not a Father Christmas and should not award to a claimant that which he did not claim. He cited Etajata v. Ologbo (2007) 11 M.J.S.C 176 at 196; Udengwu v. Uzuegbu (2003) 9 M.J.S.C 70 at 83; Joe v. Co-operative Society (2003) 4 M.J.S.C 171 at 186-187
In response, learned counsel to the Respondent submitted that the trial court was right in treating the issue of partitioning at the lower court. Counsel argued that there was nowhere in the judgment of the trial court where an order as to partitioning was made. He expressed dismay that the Appellants would think so. Counsel argued that all the trial court did was consider all evidence before her based on the issues raised by both parties to arrive at the decision that the estate of S.B. Lawanson has been partitioned or distributed and as such the property in question belonged to A.O. Lawanson.
Counsel pointed out that the issues raised by the Appellants and the Respondents all addresses the issue of partitioning which the trial judge adopted in arriving a its conclusion.
Counsel then reiterated that all the trial court did was consider the issues raised by the parties in arriving at the conclusion that the property in question belongs to the estate of A.O. Lawanson.
Counsel submitted that it is not the duty of the parties to an action to determine what methods or means the court may use to resolve issues before it, their obligation rather is to provide enough evidence and facts before the court to swing the pendulum of justice in their favour. Counsel to the Appellants in his reply brief contended that it is the pleadings of the parties that must determine the issues before the court and not the final addresses of the parties. He argued that the issue formulated by the Respondents and adopted by the trial court did not arise from the pleadings. He claimed that the trial judge was led in error in giving judgment to the Respondents as a result of the final addresses of counsel. He cited Okobia V. Ajanya (1998) 3 NWLR Pt. 543 Pg. 528; Dipcharima & Anor v. Ali & Anor (1974) All NLR 908; Adebisi v. Oke (1967) NMLR 64.
Counsel also argued that the 5th Appellant under cross-examination never admitted to the partitioning of the estate of S.B. Lawanson.
It is trite that a court is not a Father Christmas and should not grant reliefs not sought. See Nigeria Housing Development Society Ltd. & Anor v. Mumini (1977) 2 SC 57; NDIC v. S.B.N. Plc. (2003) NWLR pt. 801 Pg.311; Osuji v. Ekeocha (2009) 16 NWLR Pt. 1166 Pg.81.
Let us examine the reliefs sought by the Respondents at the lower court and those granted by the learned trial judge in her Ladyship’s judgment.The Respondents as Claimants had claimed the following reliefs at the trial court:
1. A DECLARATION that the Defendants are not the landladies and landlords of plaintiffs in respect of the respective apartments the plaintiff occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
2. A DECLARATION that Chief A.O. Lawanson is the landlord of the plaintiffs in respect of the respective apartments the plaintiff occupy as tenants at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
3. A DECLARATION that it is fit and proper for the plaintiffs to continue paying their (the plaintiffs’) rents to the Estate of Chief A.O. Lawanson and not to the Defendants considering the fact that Chief A.O. Lawanson died intestate on the 2nd day of September, 1998.
4. AN INJUNCTION restraining the Defendants, their Servant(s), Agents(s), Attorney(ies), privy(ies), Executors(s), personal Representative(s), successors in title and other person(s) acting on their behalf from furthering acts geared towards the unlawful ejection of the plaintiffs from the plaintiffs respective apartment at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
5. AN ORDER restraining the Defendants, their Servant(s), Agents(s), Attorney(ies), privy(ies), Executors(s), personal Representative(s), successors in title and other person(s) acting on their behalf from further trespassing into the respective apartment of the plaintiffs at No. 4, Lawanson Road, Lawanson Mushin, Lagos State.
6. AND the sum of N2Million (Two Million Naira) being exemplary damages suffered as a result of the infringements rights of enjoyment of quiet and plaintiffs occupy as tenants at No. 4, Lawanson Road Lawanson Mushin, Lagos State.
The orders made by the learned trial judge are as follows:
1. A declaration that the Defendants are not the landladies and landlords of the 1st – 7th claimants in respect of the respective apartment the 1st – 7th claimants occupy as tenants at No. 4 Lawanson Road, Lawanson Mushin, Lagos State.
2. A declaration that Chief Anthony Olu Lawanson is the landlord of the 1st – 7th Claimants in respect of the apartments the 1st -7th claimants occupy as tenants at No. 4 Lawanson Road, Lawanson Mushin, Lagos State.
3. A declaration that it is fit and proper for the 1st – 7th Claimants to continue paying their (the Claimants’) rents to the Estate of Chief Anthony Olu Lawanson and not to the Defendants.
4. An injunction restraining the Defendant, their Servant(s), Agent(s), Attorney(ies), Privy(ies), Executor(s) Personal Representative(s), Successors in Title and other Person(s) acting on their behalf from further acts geared towards the ejection of the claimants from the respective apartments at No. 4 Lawanson Road, Lawanson Mushin, Lagos State.
5. An order restraining the Defendants, their Servant(s), Agent(s), Attorney(ies), Privy(ies), Executor(s), Personal Representative(s), Successors in Title and other Person(s) acting on their behalf from further trespassing into the apartments of the claimants at No. 4 Lawanson Road, Lawanson, Mushin, Lagos State.
It is apparent from the above that all the orders made by the learned trial judge addressed each of the reliefs claimed by the Respondents apart from relief 6. I have considered carefully the arguments of both learned counsel as well as the records of proceedings at the trial court and yet I fail to see how it can be said that the trial court granted relief’s not sought, going by the reading of the bald orders sought and obtained. I do not think that the learned Counsel to the Appellants was on firm ground when he contended that the learned trial judge granted a relief not sought by the Respondents. I agree with Respondent’s counsel that all the trial court did was to consider the issues as raised by the parties. Both parties had identified issues relating to partitioning. The Respondents in their final address at the trial court on page 186 of the records identified a sole issue as follows:
“Whether it can be said that the estate of Chief S.B. Lawanson has been partitioned and if the partitioning is valid in law”
Also, the Appellants in their reply to claimants’ written address on page 191 of the record had identified the fact in issue as whether or not the estate of S.B. Lawanson has been partitioned and whether the partitioning is valid in law.
It is my humble but firm view that the learned trial judge only addressed the issues raised by the parties and granted the reliefs sought for by the Respondents. A court is allowed within limits to determine the methods to use in the resolution of an issue before it. In resolving the dispute in this case, the learned trial judge was presented with a peculiar set of circumstances. The Respondents as claimants were mere interlopers. They were tenants of one of the family members. The dispute was between the children of A.O. Lawanson (who was head of family after his father, S.B. Lawanson died) and the siblings of A.O. Lawanson. The property at No. 4, Lawanson Street is claimed as family property by the surviving children of S.B. Lawanson while the children of A.O. Lawanson claimed that their father had partitioned the house to himself and they were entitled exclusively to the rent thereof from the tenants. Since the tenants as claimants could not claim any rights in law or equity to the property, they could not also claim that there had been partitioning and a declaration of such a fact. However, to determine who was entitled exclusively to the rent accruing from the premises the court first must determine if indeed Chief A.O. Lawanson had the exclusive right to the property. That is the only way prayers 1 & 2 by the Claimants can be answered. To determine that fact, the court must first determine whether there had been partitioning to one party, the said premises in dispute. The learned trial judge cannot have resolved that issue without making a finding on the question of partitioning. In any case, the issue of the court granting reliefs not sought does not even arise. The stark issue of whether the court granted relief not sought is resolved against the Appellants. This leads me to issue 2.
ISSUE TWO
The gravamen of the Appellants’ argument here is that the Exhibit P2, a letter dated 5th April, 1994 written by Late Chief A.O. Lawanson relied upon by the trial court cannot by any stretch of imagination amount to a deed of partition and as such the trial court was wrong in holding that the estate of Chief S.B. Lawanson was partitioned by Late A.O Lawanson in Exhibit P2.
Counsel submitted that a deed of partition must be well spelt out for the beneficiaries to understand what it connotes or means and it must be clear and unambiguous and he argued that the said Exhibit p2 lacks these attributes.
Counsel called this court’s attention to Exhibit P7 (3) and P7 (4) on page 220 of the record and pointed out that the said exhibits reveal that from 18th of May, 1994 to 17th of July, 1995 after exhibit P2 had been written, the rents collected on the property in dispute were collected in respect of S.B. Lawanson’s estate. Counsel argued that this shows that the properties as at 1995 had not been partitioned and Exhibit p2 is a ruse.
Counsel then urged the court to hold that the estate of S.B. Lawanson was never partitioned and as such the property in question could not be part of A.O Lawanson’s estate.
on the other hand, counsel to the Respondents averred that at no point in time was Exhibit P2 tendered as a deed of partition. Counsel argued that it was only tendered as proof of partitioning in equity and proof of the fact that Late A.O. Lawanson had relinquished, before his death, interest in all other property of S.B. Lawanson apart from the property in dispute and left the Appellants to divide the said properties as they wished.
Counsel also averred that the learned trial judge did not state in her judgment that Exhibit P2 was a deed of partitioning. Counsel claimed that she only used it as one of the factors that led to her judgment.
Counsel also pointed out the fact that the 5th Defendant under cross-examination corroborated Exhibit P2, a fact duly noted by the trial judge.
Counsel admitted that the 5th Defendant and some of the other siblings of Late A.O. Lawanson collected rents at some point in time in respect of the property in dispute, but he claimed that all these stopped prior to the time A.O. Lawanson wrote Exhibit P2 to his siblings.
Counsel then urge this court to look at the intent and not the form of the partitioning and regard as done that which ought to be done. Counsel cited Savage vs. Sarrough (1937) 13 NLR 141..
Counsel averred that it was never in contention at any point in time at the lower court that the ownership or distribution of the other properties of the late S.B. Lawanson was in dispute and that there was nothing to show that any account was rendered to A.O. Lawanson during his life time or after his death on those other properties. Counsel argued that this was proof that the estate had actually been divided; while the property at No. 4 Lawanson Road, Mushin belongs to the estate of A.O. Lawanson, the other properties belong to his other siblings.
This issue goes to the root of the substance of this appeal. The finding of the trial judge led to the decision to grant the orders in the judgment. It is thus important to determine whether the learned trial judge arrived at a correct finding of fact which would be a solid foundation for the orders granted. If the finding is found to be perverse then the orders cannot stand. It seems to me that the question to be determined here is whether or not there was a valid partitioning of the estate of late Chief S.B. Lawanson.
Adekeye JSC in Yesufu v. Adama (2010) 5 NWLR pt. 1188 pg. 522 at pg. 542 stated as follows:
“Partition of a family property is one of the methods by which a family property can be determined in favour of the constituent members or family branches. Where the division is among constituent branches of the family, a new family ownership is created in as many places as the property is divided, each branch becoming the owner of the position partitioned to it. Partition must be brought about by the consensus of all members and branches of the family else it is void…Since what amounts to partitioning of a family land is a question of fact, there must be averments in the pleadings, supported by cogent and positive evidence to buttress the partitioning.”
Also, Ayoola J.S.C. in Gbadamosi Sanusi Olorunfemi & Ors v. Chief Rafiu Eyinle Asho & Ors (2000) 2 NWLR pt. 643 pg 143 at pg. 156 – 157 stated as follows:
“There is no doubt that one of the methods by which family property can be determined is partition by
which property which belonged to the family is split up into ownership of the constituent members of the family. The property may be, but is not invariably, divided among individual members of the family so as to vest absolute ownership in individual members. The division may be among constituent branches of the family. Where the division is among constituent branches of the family, a new family ownership is created in as many places as the property is divided, each branch becoming the owner of the portion partitioned to it partition must be by the general consent of the family.
(See Kadiri Balogun v. Tijani Balogun 9 WACA (1943) 78. The head of the family cannot on his own, partition family property without the consent of joint owners of the property joining in the voluntary partition of the property. Although partition could be by deed, in customary law, oral partition is valid: Taiwo v. Taiwo 1 NSCC 46, 50; (1958) SCNLR 244.”
See also Akayepe v. Akayepe (2009) 11 NWLR pt. 1152 pg. 217;
Odibendi v. Okolie (2010) 13 NWLR pt. 1210 pg. 45.
There are a number of factors to be considered in deciding whether family property has been partitioned or not. What is apparent from this line of cases is that partitioning of family property must be made with the consent of all members of the family and for the benefit of all the members.
It follows then that partitioning by the head of the family or some other member of the family without the consent of all those entitled to inherit is void ab initio. It is only when the partition of family property is with the consent of all members of the family that such partition confers upon each member an absolute right to his partitioned share. The old authorities say that the family head may use the idi-igi or the ori ojori method to effect the partitioning. The method used by the family head is binding on the other members of the family.
In addition to this, for a court to hold that there was valid partitioning where the power to partition an estate derives from letters of administration, the partitioning must accord with the provisions of the letters of administration. It is clear that Chief A.O Lawanson and Mrs. Yetunde Vanderpuye were appointed administrators of the estate of S.B. Lawanson on the 17th of July, 1975 and that by letters of administration dated 25th of June, 1984 (Exhibit P1), the administrators were under the obligation to divide the estate amongst all the children in accordance with the ori-ojori (per head) rule of Yoruba customary law of succession (See page 211 of record).
Where a deceased polygamist dies intestate, there are two methods of distribution employed to dispose of his estate under the Yoruba Customary Law of Succession. The first method is the Idi-Igi (per stripes) method and the second is the Ori-ko-ju-ori simply shortened as Ori Ojori [Per Capita) method. Under the Idi-Igi system, the deceased’s estate is shared according to the number of wives he had irrespective of the number of children each wife has. Under the ori-ojori system however, the estate is shared out directly to the children equally. Each member of the family entitled to inherit gets equal and exclusive share of the deceased’s property. It is well settled that the Idi-Igi method of distribution is the universal method of distribution and should ordinarily be adopted.
However, where there is a dispute among the family members as to which of the methods is to be used, the head of the family is empowered to and should decide which of the methods ought to be adopted. See Dawodu v. Danmole (1958) 3 FSC 46; Adeniyi v. Adeniyi (1972) 1 All NLR 298.
This is however not the issue at hand. There was no dispute as to which of the methods ought to be adopted here. The Letters of Administration clearly states that the ori-ojori method should be, employed. Since that was the case, the Administrators appointed by the court were under the obligation to partition the estate of the Late Chief S.B. Lawanson according to the terms of the letters of Administration.
Also, it needs to be said here that in this day and age where such matters should be committed into writing and in order to settle the estate with the Probate Registrar which is mandatory, a deed of partitioning according to the mandate of the letter of administration must have been signed by all beneficiaries to the partitioning. It is that deed that confers exclusive title/right in that portion of their father’s estate on each of the beneficiaries/children entitled to inherit.
There is nothing from the facts and evidence adduced at the lower court to show that the partitioning as mandated by the letter of administration took place. The record does not show that indeed there was any meeting in which the estate was divided or partitioned according to the mandate of the letter of administration. There was also nothing to show that all the children of the late S.B. Lawanson concurred to any purported partition of the property. Exhibit P2 cannot by any stretch of interpretation or imagination be regarded as a deed of partition or even evidence that there has been partitioning in equity. The issue of partitioning is one of mixed facts and law. Equity has no place in the scheme of things. The assertion by A.O. Lawanson that he was equitably entitled exclusively to a portion of the family property which is the house in dispute, does not hold water. In spite of improvements by a family member, family property remains family property until it is partitioned.
And even though, it is claimed that the 5th Defendant at the trial court during cross-examination alluded to a certain meeting where property was distributed, this by itself does not constitute a valid partition. The mandate to partition was not at large. The power to partition was given only to Late Chief A.O. Lawanson and Mrs. Yetunde Vanderpuye, also deceased and to no other. These two must however partition the estate in accordance with the provisions of the letter of administration. I must say again that the letter mandated ori-ojori method to be used and there was no evidence that this was done.
In any case, the Respondents as tenants at the property in dispute lack the requisite locus to prove partitioning of the said property as they have no proprietary interest in the said property.
The finding of the trial court was thus perverse and not supported by facts. A decision is said to be perverse when it is speculative, not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law and an appellate court can interfere with a decision of the trial court that is perverse. See Ebenoguu v. Onyemaobim (2008) 3 NWLR Pt. 1074 P9.396; Mini Lodge Ltd v. Ngei (2007) WRN vol. 4 pg. 54; Baridam v. The State (1994) 1 NWLR pt. 320
In the circumstances, the orders granted by the trial court were based on perverse findings of fact not supported by the evidence on record. They must be set aside. The second issue is resolved in favour of the Appellant. This knocks the bottom out of the resolution of the first issue in favour of the Respondents. Thus this appeal succeeds. The decision of the trial court is set aside. I make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I read before now the lead Judgment of my learned brother, Bage, JCA which I agree. This appeal is meritorious and is also allowed by me. My Lord has meticulously and quite efficiently dealt with the salient issues submitted for the determination of this appeal. I accordingly adopt both his reasoning and conclusion in this appeal as mine. I abide by all the consequential orders made in the lead Judgment. I also make no order as to costs.
Appearances
O. Fabunmi with him G. IgwebuikeFor Appellant
AND
Patrick Nsolo with him Franca OmeniFor Respondent
