Dennis C.O. Iwenofu Vs Chief Francis A. Iwenofu (1975)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In paragraph 17 of his statement of claim delivered after the commencement of the proceedings in the High Court of Lagos State, the plaintiff’s amended claim against the defendant, now appellant, reads:-“(a) 750 (Seven Hundred and Fifty Pounds only) being special and general damages for

(i) defendant’s act of trespass, intermeddling with the estate of the deceased;

(ii) defendant’s interference with the plaintiff’s administration of the estate of the deceased which defendant’s acts and conduct (unlawful as they are) have caused damages and loss of rents to the said estate.

(b) Injunction restraining the defendant, his servants and/or agents perpetually, from further intermeddling or interference with the said estate of which the plaintiff alone is the lawfully appointed administrator.”

Paragraphs 3, 4, 9, 10, 11, 13, 14, 15, and 16 of the plaintiff’s statement of claim read:-

“3. By a grant made on the 13th day of January, 1971, the Probate Registrar, Western State of Nigeria, granted to the plaintiff, letters of Administration of the real and personal property of One Madam Fani Cole (nee Iwenofu) who died intestate on the 20th day of March, 1965. Plaintiff therefore sues as Administrator.

4. The said Madam Fani Cole (nee Iwenofu) owned and possessed all that HOUSE AND PREMISES situate at 82, Bale Street, Ajegunle, Apapa until her death.
5. The said Letters of Administration granted by the Probate Registrar, Western State of Nigeria, became later resealed on the 23rd of June, 1971 in Lagos and by the direction of this Honourable Court. The plaintiff will, at the trial of this action, produce the said Grant and rely on same to prove all material facts.
6. The plaintiff avers that the defendant is one of the sons of the plaintiff but that the defendant is neither his heir nor the eldest son. The plaintiff will show at the trial of his action that contrary to the plaintiff’s instructions and warnings from the plaintiff’s solicitors, the defendant wrongfully seized possession of the premises and of the house and has failed, refused and neglected to account to the plaintiff for any rents collected from the house and premises since the death of the said owner.
7. The defendant’s said course of conduct was without an order of any court nor by the authority of the plaintiff, the competent and sole administrator of the estate of the said deceased.
8. In or about early 1968, the Ajeromi District Council, Ajegunle, Apapa took over the said house and property by and through its sub-committee on the Administration of Abandoned Properties, as a result of the Nigerian Civil War. Until release of same, the said council collected rents from the house and premises.
9. On or about the 6th of January, 1971, the defendant falsely presented himself to the said District Council as the true owner of the said house and premises at 82, Bale Street, Ajegunle, Apapa. The plaintiff will, at the trial of this action, refer to his solicitor’s letter to the Probate Registrar, Ibadan, dated the 29th of December, 1970 (which was copied to the defendant), letter No. C. 102/20 dated the 25th of January, 1971 addressed to the said District Council, Ajeromi, Apapa and letter No. AJ 477/3 Vol. 11/227 of the 28th of July, 1971, addressed to the plaintiff’s solicitors by the said Council, to show material collusion on this matter. The said collusion was at the initiative of the defendant.
10. The plaintiff will show at the trial of this action, that since the wrongful release of the said property to the defendant, the defendant has kept and is still keeping the said property and house for his own use.
11. The plaintiff avers that the defendant has refused, failed and neglected to surrender to the plaintiff, the possession of the said property or at all for the estate of the deceased and that the defendant has, since the said deceased’s death on 20th March, 1965, collected all rents due to the estate and that the said rents continue to be collected still by the defendant without due authority.”

(The underlining is ours).

In his own statement of defence, the defendant denied all the above averments. He averred further paragraphs 9, 10, 11, 12, 13, 14, 17, 18, and 19 thereof as follows:-

“9. That the defendant came to Lagos in 1953 to join Madam Fani Cole who helped the defendant to secure a job in Lagos under Costain West Africa.

10. That the said Fani Cole at the time when the defendant came to Lagos in 1953 was living at Bale Street, Apapa in a thatched roof and bamboo wall of an uncompleted building.
11. That after the arrival of the defendant the said Fani Cole told the defendant she started the building, that the defendant could have the bamboo house if the defendant could rebuild the said house which is now No. 82, Bale Street, Ajegunle, Apapa.
12. That the defendant agreed to rebuild the said house and started work on it which was completed by the defendant in 1958.
13. That the lease fee of the said house was two pounds (2) a year which was normally paid by the defendant to Ojora family.
14. That the rate in respect of the property was paid by the defendant to Ajeromi District Council in the defendant’s name.
15. That since the building of the house by the defendant in 1958 the defendant has been collecting the rent of said house and the receipts were signed in the name of the defendant when Fani Cole was still alive.
16. That if Letters of Administration were granted to the plaintiff at all, it was after the dispute between the defendant and the plaintiff has started over the said building.
17. The defendant will contend at the trial that if Letters of Administration were granted to the plaintiff at all these Letters of Administration were obtained by fraud.”

In his testimony in support of the claim, the plaintiff said that the late Madam Fani Cole was his sister, that he was not in Lagos when she died, but that he had since obtained Letters of Administration to administer her estate. He said the house at No. 82, Bale Street, Ajegunle, which is now in dispute, belonged to Fani Cole and that the defendant did not “join” her in building it. The plaintiff further explained that it could not be correct that the defendant built the house because at the time the house was built by Fani Cole the defendant was still at school. Finally, the plaintiff said he brought the action as the Administrator of the estate of Fani Cole and produced the Letters of Administration (Exs. C & C1).

Under cross-examination, the plaintiff still insisted that Fani Cole was his sister,. When he was, however, shown a photo copy of an affidavit (Ex. G) wherein he (the plaintiff) swore with respect to the estate of one Mary Nwakego Iwenofu (plaintiff’s sister):-

“6. that Fanny Ilom Cole the sole beneficiary as it were of the testatrix’s estate is not the daughter of the testatrix but was merely domestic servant to the testatrix,

7. that Fanny Ilom Cole had since 1928 been living in Lagos separate and apart from the testratrix,
8. that the said Fanny Ilom Cole returned to Onitsha in 1953, and was occasionally travelling to Lagos and back.”

the plaintiff, who later admitted that the signature in the affidavit is his, replied-