Madam Alice Okesuji V. Fatai Alabi Lawal (1991)

LawGlobal-Hub Lead Judgment Report

O. I. AKPATA, J.S.C.

One of the issues raised in this appeal touches on admission of fact by counsel during proceedings in the trial court. The question is whether counsel can retract such admission at the appeal stage, particularly where he has failed to show that the admission was a mistake.

The facts of this case as found by the learned trial Judge Ayorinde, J. (now Chief Judge) and which are not in dispute in this appeal are simple. Madam Salamotu Abeje who died on 28th July, 1847 devised by Will the two wings of her landed property known as No. 178 Bamgbose Street, Lagos to the 1st and 2nd defendants respectively for their life time, with the reversionary interests to their children in equal shares absolutely. The property was erroneously referred to in the Will as Nos. 176 and 178. It is only one property consisting of two wings. The 1st and 2nd defendants are children of the testatrix. The 1st, 2nd and 3rd defendants were named as executors and executrix of the Will.

The 1st and 3rd defendants for one reason or another, executed a deed of conveyance dated 2nd December, 1948, Exhibit B, conveying the entire two wings of the property to the 2nd defendant absolutely, even though it was clear in the Will that he was only a life tenant in respect of only one wing of the property. The 2nd defendant subsequently executed an instrument of charge dated 1st August, 1950 to secure a loan of ‘a3374 (the equivalent of N748.00 when the purchasing power of the naira was strong) granted to her by one Samuel Adewunmi Sebanjo a money lender. About six months later, that is, on 30th January, 1951, Mr. Sebanjo executed a release of charge. The release enabled the 2nd defendant to execute an instrument of transfer of the property in fee simple for the sum of 495 pounds (N990.00) in favour of one Mrs. Juliana Jokotola, who was in fact the wife of Samuel Adewunmi Sebanjo, the money lender. Virtually until he died in 1968, Mr. Sebanjo personally collected the rent in respect of the property.

On 24th August, 1966, Madam Jokotola executed an instrument of transfer of a wing of the landed property in favour of Madam Alice Kemiki Okesuji, the 5th defendant – a cousin of S. A. Sebanjo, the money lender.Both the money lender and his wife had died before the action the subject matter of this appeal was instituted. The 4th defendant Dr. Olabisi Sebanjo is a beneficiary of the estates of S. A. Sebanjo and his wife Madam Jokotola. Before S. A. Sebanjo died, the plaintiff and other beneficiaries of the estate, that is, the grand-children of Madam Abeje, had made representations to him complaining about what they regarded as fraudulent transactions relating to No. 178 Bamgbose Street. Paragraphs 16, 17 and 18 of the statement of claim read:

“16. Mr. Samuel Adewunmi Sebanjo promised to release Madam Abeje (sic) Estate to the beneficiaries in 1966 as requested but failed or refused to do so before his death in February, 1968.

17. In fact it was the protest of the plaintiff and other beneficiaries against the fraudulent alienation of Madam Abeje Estate that made Mr. Samuel Adewunmi Sebanjo ashame (sic) of collecting rents personally from the Estate and led to the transfer of the estate to the 5th defendant and to his appointment of Mr. J. O. Orekoya as his agent and caretaker to collect the rents for him from December, 1966.
18. The plaintiff avers that the transfers of Madam Abeje Estate to Mrs. Juliana Jokotola under the Certificate of Title No. LO 1722 dated 31st January, 1951 and the subsequent transfer thereof to the 5th defendant under the Certificate of Title No.I724 dated 1st September, 1966 constituted a fraud and collusion between Mr. Samuel Adewunmi Sebanjo, Mrs. Juliana Jokotola Sebanjo and the Fifth defendant Madam Alice Kemiki Okesuji.”

In his action filed on 28th July, 1977, the plaintiff Fatai Alabi Lawal (suing as representative of all the beneficiaries of the estate of Madam Salimotu Abeje (deceased)) claimed jointly and severally against the defendants as follows:

“(1) A Declaration that No.I76 and No. 178, Bamgbose Street, Lagos, Nigeria as referred to in the Will of Madam Salimotu Abeje, dated 27th March, 1947 are two wings of the same house under the same No.178, Bamgbose Street, Lagos, Nigeria which is Madam Abeje (sic) Estate, and that Madam Abeje was never the owner of 176. Bamgbose Street, Lagos.

(2) A Declaration that the purported transfers of Madam Abeje (sic) Estate in fee simple to Mrs. Juliana Jokotola Sebanjo in 1951 and to Madam Alice Kemiki Okesuji in 1966 respectively were null and void on ground of fraud to defeat the interests of the reversioners including the plaintiff, and contrary to the provisions of the Will of Madam Abeje dated 27th March, 1947.

(3) An order for rectification of the Proprietorship Register of Title at the Lands Registry, Court Lagos by expunging the names of Mrs. Juliana Jokotola Sebanjo and Madam Alice Kemiki Okesuji and their agents or assigns and beneficiaries of their estate from the Certificate of Title No. LO 1722 and LO 1924.”

The case for the plaintiff was presented by only one witness Alhaji Atanda Lawal, the son of the first defendant. The 5th defendant testified and called a witness. The 1st to the 4th defendant did not adduce evidence. It is also to he noted that the 2nd defendant was not present in court throughout the proceedings up to the time judgment was delivered. In fact he filed no statement of defence.

In his judgment, the learned trial Judge held as a fact that the 1st and 3rd defendants freely conveyed the property No. 178 Bamgbose Street to the 2nd defendant contrary to the intention of the testatrix that the 2nd defendant should have only a life interest in respect of a wing of the property. He did not mince words in coming to the conclusion that “this conveyance to the 2nd defendant was fraudulent and meant to defeat the interests of the reversioners.”

The learned trial Judge went on to emphasize that the 5th defendant “who is a cousin of the money lender, husband of Madam Juliana Jokotola Sebanjo, had actual and constructive notice. She was aware of the will and the fact that Exhibit F spoke of a part. This ought to put her on her guard. If she made enquiries she would have discovered the will. Mr. & Mrs. Sebanjo knew about the will. The transaction was kept within them for obvious reasons of not attracting attention of the reversionary interest.” Judgment was entered for the plaintiff as claimed.

Against this decision the 5th defendant appealed to the Court of Appeal Four grounds of appeal were filed. Three issues arising therefrom were formulated in the appellant’s brief. They read: