Tokunbo Shogbola & Ors V. Alhaja B. Kudaisi (2002)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

I

n the suit in the Court below, there were two defendants against whom the Plaintiff brought her action. Judgment was on 11/6/93 delivered in favour of the plaintiff against the two defendants. Only the 1st defendant appealed to this Court. The 2nd defendant did not appeal.

The claim of the plaintiff filed at the High Court of Lagos State in suit ID/576/90 on 20/3/90 was as follows:-
Possession of the house and premises situate at 1A Olorogun Street, Surulere, Lagos State which were let out by the Plaintiff to the defendants as tenants – at will which said tenancy was determined by Notice to quit given by the plaintiff on the 10th of January 1990 to 1st defendant and on the 23rd of February 1990, the Plaintiff did serve on the defendants Notices in writing of her intention to apply to recover possession of the premises/house (duplicate of which notice are hereby annexed) by serving same personally on the defendants and that notwithstanding the said notices the defendants refused and neglected to deliver possession of the house/premises and still detain same.

The plaintiff claims;
Possession and mesne profits from 1st March 1990 at the rate of N100.00 per month until possession are given up.
Grounds for Possession:
(1) Personal Use
(2) Substantial Repairs
(3) Nuisance.

The 1st defendant filed a Statement of Defence to which the Plaintiff flied a Reply.
The 2nd defendant also filed a Statement of Defence.
The 1st defendant later filed an Amended Statement of Defence on 3/6/92 and another on 24/9/92. Significantly the 1st defendant had put title in issue in his defence.

Trial proceeded on these pleadings, after which the learned trial Judge, Sotuminu J. delivered judgment as aforesaid, against which the 1st Defendant appealed.
His only ground of appeal originally was as follows:-
“The judgment is against the weight of evidence.”
Subsequently 3 further grounds were filed as follows:-
“1. The learned trial Judge erred in her judgment by saying that the property in question – 1A, Olorogun Street, Surulere, Lagos was not a family property even after resorting to the two cases in the Judgment – Ogundairo v Abeje 1967 LLR 9 and Coker v Coker 1938 14 NLR 83 which are of contrary opinions.
2. The learned trial Judge erred in law by saying the house in dispute is not family property even though the evidence and judgment showed that the original tenant was the later Alhaji Ayinde Salami who had not diverted his interest (nor purchased the house in dispute from the LEDB the original owner) before his death.
3. The Court below lacked jurisdiction to try the case as proper parties was not before it.”

In order to place in proper perspective the case made by each party, I shall set out the most relevant averments in the pleadings of the plaintiff and 1st defendant.
For the Plaintiff, there are the following:-
“2. The 1st defendant is Nephew of the plaintiff and was a Tenant-at-will of the Plaintiff in respect of the House/Premises including big yard at the said 1A, Olorogun Street, Surulere.
4. On or about the month of January 1982, the plaintiff became the owner of the House/Premises at 1A, Olorogun Lane (Now Street) in Surulere Housing Scheme No. I by virtue of purchase from the Lagos State Government and she was issued with Certificate of Sales dated 26th of January, 1982. The Plaintiff would found and rely on the trial of this action on the said Certificate of Sale in proof of her title.
6. The 1st defendant being the plaintiff’s nephew was allowed to live in the House/Premises at the said 1A, Olorogun Street, without payment of rent to the plaintiff.
8. That the 2nd defendant is sub-tenant of the 1st defendant and they were also informed of the plaintiff’s intention to return back from Kaduna and to live in Lagos at the said 1A, Olorogun Street, Surulere.
9. That the Plaintiff’s Sister, one Mrs. Wusa Jacob of 7, Oyerokun Street, Surulere being the mother of the 1st defendant was informed and was also prevailed on to inform her son, the 1st defendant to vacate the premises.
10. That the plaintiff later learnt that the 1st defendant and or his Mother, the said Mrs. Wusa Jacob has been collecting rent from the 2nd defendant for the yard of the premises let to the 2nd defendant by the 1st defendant.
16. That the 1st defendant was tenant-at-will of the plaintiff of the said House/Premises; but the Plaintiff on the 23rd of February 1990 duly determined such Tenancy and demanded for possession of the said House/Premises; yet the defendants refused to deliver up possession thereof to the plaintiff.”

Paragraphs 11 – 15 plead issues relating to Service of Statutory Notices to quit on the defendants by the plaintiff and her Solicitors.
The 1st defendant/appellant’s amended statement of defence had the following relevant averments:-
“1. The 1st Defendant admits paragraph 1 of the Statement of Claim only to the extent of the name borne by the plaintiff; but categorically denies the allegation that the Plaintiff is the owner and landlady of the House/Premises comprising of one room and parlour with big yard at 1A, Olorogun Street, Surulere, Lagos State.
2. The 1st Defendant admits being a newphew of the plaintiff; but denies being at any time a tenant-at-will of the plaintiff at 1A, Olorogun Street, Surulere or anywhere else.
3. The 1st Defendant says categorically that the property 1A, Olorogun Street, Surulere, is the property of 1st Defendant’s maternal grandfather, the late Alhaji Ayinde Salami and on the death of the said Alhaji Ayinde Salami on 31st January, 1978 became family property, the Ayinde Salemi family, comprising of the direct children of the late Ayinde Salami and all his descendants.
4. The plaintiff is entitled to one room on the premises No. 1A, Olorogun Street, Surulere, by virtue of IDI IGI (per stirpes) distribution of Estate under the Yoruba Customary Law consequent upon the fact that 1st defendant’s later maternal grandfather had children through two wives.
5. The 1st Defendant occupies the room that belongs to the branch of his mother, Mrs. Wusamotu Jacob.
7. The 2nd Defendant is not tenant or sub-tenant of 1st Defendant in respect of any space at No. 1A. Olorogun Street, Surulere, but tenant of Alhaji Ayinde Salami family.
11. The 1st Defendant is not tenant-at-will of the plaintiff and denies all the claims put up by the plaintiff.
12. The 1st Defendant avers that when the Lagos State Development Property Corporation (hereinafter referred to as L.S.D.P.C.) decided to sell houses in their Surulere Estate, a meeting of the Alhaji Ayinde Salami Family was summoned.
13. At the said meeting presided over by Mr. R. A. Salami (Head of the Family) it was decided that funds should be raised to buy the house subject-matter of this suit from the L.S.D.P.C.
14. At the time, there is one other family house at No. 13, Murtairu Ijaiye Street, Itire from which the family collects rents from tenants.
16. At a stage in 1982, Mr. R. A. Salami informed the 1st Defendant and his mother, Mrs. Wusa Jacob, that he (R. A. Salami) had borrowed money from the plaintiff to purchase the house from the L.S.D.P.C.
18. The 1st Defendant’s mother, in the presence of the 1st Defendant told Mr. R. A. Salami that he ought not to have borrowed money from any member of the family since all that need be done was to add more money to the rents collected from the family property at 13, Mutairu Ijaiye Street, Itire.
27. The 1st Defendant maintains that the property subject-matter of this suit is property of the Alhaji Ayinde Salami family and not personal property of the plaintiff.
28. Furthermore, consequent upon the L.S.D.P.C. advice, Wusamotu Jacob and Ayisat Onabiyi on 28th February, 1990 reminded Mr. R. A. Salami to call the family meeting but he would not reply. The 1st Defendant will rely on the letter at the trial of this Suit.
30. The Plaintiff has not the authority or instruction of the 1st defendant and his mother to purchase the said property in her name. And the 1st Defendant will rely on copy of Ex-Governor Jankande broad case speech of 26th January, 1982 as authority that the plaintiff could not lawfully purchase the property subject-matter of this suit.
31. WHEREOF the 1st Defendant urges on this Honourable Court to dismiss the plaintiff’s claim in its entirety and DECLARE the property that of ALHAJI AYINDE SALAMI FAMILY.”

Plaintiff averred in her Reply to the Statement of defence as follows:-
“2. As to paragraphs 3, 4, 5, 12 and 13 of the Statement of Defence, the Plaintiff admit that Alhaji Salami is the maternal Grandfather of the 1st defendant, that the said Alhaji Salami died on the 21st of January, 1978, and that at the time of the said Alhaji Salami’s death he was living at 1A, Olorogun Street, Surulere otherwise the plaintiff deny the other averment contained in paragraph 3 of the Statement of Defence and the 1st defendant is put to strict proof of the averment contained therein.
3. The plaintiff in further answer of the said paragraphs 3, 4, 5 and 13 of the Statement of Defence avers and would contend that Alhaji Salami as at the time of his death was a tenant of the Lagos State Development Property Corporation in respect of the property at 1A, Olorogun Street, Surulere and therefore had no interest of the nature that would make 1A, Olorogun Street, Surulere family property.
4. That Alhaji Salami was one of the many others displaced by Slum Clearance in Lagos Island about 1957 and were rehoused at Surulere Housing Scheme.
5. That before 1957, Alhaji Salami was living as tenant of late C. F. Joseph at 16, Richards Lane, Lagos with four of his children namely (1) Adisa (2) Wusa, the 1st defendant’s mother (3) Waidi and (4) Bolaji, the plaintiff herein, otherwise known as Nimota.
6. That Alhaji Salami had surviving him when he died five children of which the four herein before mentioned are of the same mother.
7. That Ayisatu, who is the fifth child and the third in order of seniority was by a different mother.
8. That when displaced persons from the Slum Clearance area were being rehoused, the following children of the deceased were allocated the respective houses against his or her name.
(1) Adisa: 6, Ifelodun Street, Surulere where he still resides and he has since purchased it under the Civilian Governor Jakande house ownership Scheme.
(2) Wuse: 17, Onatoro Street, Surulere but she gave back to LEDB the flat, because she was unable to pay her rent, that although she had given birth to the 1st Defendant she was not married to the 1st defendant’s father she later got married to Mr. Akin Jacobs who was also allotted house during the rehousing period, and both Wusa and her husband are living at 7, Oyerokun Street, Surulere which property has been purchased by Wusa’s husband during the Civilian Governor Jakande house ownership Scheme.
(3) Ayisatu was already married, and has since before 1957 been living with her husband.
(4) Waidi: was allotted 31A, Olorogun Street, Surulere and Waidi lived in the house with her family until he died. Waidi also purchased 31A, Olo Olorogun Street, Surulere pursuant to Governor Jakande House Ownership Scheme.
(9) That it was only the plaintiff who lived with Alhaji Salami at 1A, Olorogun Street, Surulere until she moved with her husband to Kaduna from where she now want to return home.
(10) That Alhaji Salami was tenant of Lagos State Development and Property Corporation to the time of his death and therefore at death has no other right in 1A, Olorogun Street, Surulere than that of tenant of L.S.D.P.C.
(11) That when purusant to Alhaji Jakande Governor of Lagos State electoral pledge the house 1A, Olorogun Street, Surulere was offered for sale none of the plaintiff’s sibling or Ayisatu in any manner what-so-ever requested for or offered to purchase it, and it was almost being sold out to other applicant before Adisa, and to the knowledge and consent of other siblings of the plaintiff and Aylsatu advised the plaintiff to apply and purchase it. The plaintiff would found and rely at the trial of this action on the certificate of sale dated 26th of January, 1988 issued to her as evidence of ownership of the property.
(12) That since purchase she has been in effective possession and it was the plaintiff that allowed the 1st defendant to live in the house as her tenant.
(13) That the plaintiff will contend that the property at 1A, Olorogun Street, Surulere is her property and not Alhaji Ayinde Salami family property as alleged by the 1st defendant or at all and the 1st defendant and or another persons has no interest what so ever in it.

From the foregoing it can be seen that the 1st defendant/Appellant had challenged the title of the Respondent to the property in question. He had put title in issue and the trial and the, decision in the lower Court turned on this major issue, whether the Respondent had title to the property and therefore entitled to recover possession thereof as claimed.

Evidence led by the parties at the trial went along those lines, mainly to establish if the property was family property, or it belonged to the respondent as claimed, in which case she would be entitled to possession. I will at this stage deal with the judgment appealed from. After considering the pleadings of the parties, their evidence and the submission of their counsel, the learned trial Judge in his judgment identified 4 issues which arose in the suit as follows:-
1. Was the property in dispute family property?
2. Has the plaintiff established ownership?
3. Are the defendants tenants within the definition of Tenants in Section 40 (1) of the 1976 Edict?
4. From the pleadings of both parties and the evidence led by them, are the defendants entitled to take advantage of the 1976 Edict.

The learned trial Judge decided each of these. She said:-
“In answering question 1, it is necessary to refer to the definition of family property in Ogundairo VS. Abeje (1967) LLR. page 9, family property was defined as property which devolves from father to children and grand children under Native Law and Custom and which no individual child or member of the family can dispose of in his or Will until the property is partitioned, and each child or member of family has his or her separate share of the whole. Similarly, Family house is defined in the Case of Coker vs. Coker (1938) 14 NLR page 83 as a house set aside by a father for his wives and children to occupy jointly after his decease together with wives of married sons and their children.

Therefore for a house to be family house or family property it must possess ownership. In the present case there is evidence that Late Alhaji Salami did not purchase the house in dispute from the LEDB the original owner. I therefore hold that the house in dispute is not family property. In answering question 2, it was decided in the leading case of Nwosu V. Udeaja (1990) 1 NWLR part 125 page 188 at page 218 that one of the five ways of proving title is by production of a document of grant or title. The Supreme Court found that purchase was established in that case as one of the five ways. By producing Exhibit ‘A’, the certificate of Sale, it is my view and I so hold that the Plaintiff had established ownership of the premises in dispute.