Alhaji Sadu Saliu Kayaoja V. Alhaji Ibraheem a. Bello & Ors (2004)

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D. MUHAMMAD, J.C.A.

Sometime, in September, 1981, while on the Muslim’s pilgrimage to Mecca, Alhaja Sabalemotu Alarape Adekayaoja, died intestate. She was survived by the parties to the suit that brought about the instant appeal. The appellant who at the trial court was the plaintiff, is the deceased’s half brother on the paternal side. The defendants, now respondents, are late Sabalemotu’s half-brothers and sister, on the maternal side. On Sabalemotu’s death, the respondents took over her estate and subsequently, applied for a letter of administration.

A caveat thereat was entered by the appellant, who also instituted an action seeking the following reliefs:-
“(a) A declaration that the plaintiff is entitled to administer and inherit the real property (sic) namely 11 Ogunjobi Street and 16 Ereko Street Mushin, belonging to Alhaja Sabalemotu Alarape Adekayaoja and also, the rents accruing therefrom from the time of the intestate’s death.
(b) A declaration that the plaintiff is entitled to share in the personal estate namely gold, and/or silver jewelry, other personal effects and money in the savings account of the said deceased, with the Union Bank Ltd. at Balogun Square Branch, Lagos, or at any other branch of the bank.
(c) A declaration that the plaintiff is entitled to join in the administration of the estate of the late Alhaja Sabalemotu Alarape Adekayaoja.
(d) Injunction restraining the defendants from taking out letter of administration to the estate of the said Alhaja Sabalemotu Alarape Adekayaoja to the exclusion of the plaintiff’s family.”

Pleadings were ordered, filed and exchanged. From the pleadings and evidence adduced by the appellant, the plaintiff’s case is that appellant and the deceased were of the same father: Salu Kayaoja. On the death of their father, the appellant and all other surviving children of Salu Kayaoja agreed to partition the land owned by their father and which by Yoruba customary rule, had devolved collectively on heirs; that the deed of partition exhibit D was declared invalid in suit No. 1/273/55 between Alahaji Lasisi Onasanya v. J. O. Shiwoniku; this fact was accepted by the members of the Adekayaoja’s family. It is also their case that all lands dealt with pursuant to the invalid deed of partition, being family land, consequently, reverted to the estate of their late father. Such land cannot, by virtue of the death of Alhaja Sabalemotu intestate, devolve on the respondents.

On the part of the respondents, the case made is that beyond the decision of Duffus J, in suit No. 1/273/55, evidence abound that the estate of late Salu Adekayaoja had been partitioned. Resulting from the subsisting partition, the properties in controversy had legitimately devolved on the deceased Alhaja Sabalemotu and that same on the death of the said Alhaja should by Yoruba custom, devolve on them.

Plaintiff/appellant’s claim was dismissed by the Lagos State High Court whereat the suit was tried.
Being dissatisfied, the appellant has brought the instant appeal, against the lower court’s decision, dated 18th July, 1998.

From the three grounds of appeal in his notice, appellant has formulated three issues as having arisen for the determination of the appeal. The issues are:-
“(1) Whether on the state of the pleadings, the Judge ought not to have found that the plaintiff had proved his case?
(2) Whether the trial Judge was right in not holding the deed of partition invalid?
(3) Whether a person where (sic) is not a member of a family, can inherit property from that family under Yoruba Native Law and Custom?

At the hearing of this appeal, the respondents who had formulated six issues in their brief of argument, withdrew issues (III), (IV) and (V) thereto.

Same are hereby, accordingly struck out. Resultantly respondents’ live issues are:-
(1) Whether or not, the deed of partition signed by the beneficiaries, dated 17/12/49 is still subsisting?
(2) Whether or not, the judgment of Dagfus J. could bind a person who was not a party to the suit and have retrospective effect on transactions made six years before the delivery of the judgment exhibit “D” (Judgment delivered in 1955)?

(IV) Who as between the appellant, being Alhaja Sabalemotu’s half brother (from he father’s side) and the respondent’s been her half sister and brothers (from her mother’s side) is entitled to inherit the properties of Late Alhaja Sabalemotu Alarape Kayaoja?

Under his first issue, appellant argues that from the state of pleadings of parties, respondents have admitted that Alhaja Sabalemotu Kayaoja was detailed by the family to collect rent on property No. 46 Kayaoja layout and that the rents that had been so collected was in possession of the deceased. The rent accruing from this family property, cannot be inherited by the respondents who, being related to the deceased only on the material side, are not members of the very family in respect of whom the money was collected.

Failure of the court to make a specific finding as to what should happen to rents so collected by the life time of the deceased was fatal to the court’s decision.

In arguing his 2nd and 3rd issues, appellant argued that the trial Court has relied heavily on the judgment in suit No. 1/273/55 to invalidate the deed of partition, exhibit R. Consequently, the court decided and wrongly too that ownership of Houses No. 11 Ogunjobi Street and No. 16 Ereko Street Mushin were vested in late Alhaja Sabalemotu in her personal capacity. The correct position is that being family property same had reverted to the family.

Appellant argued further that given the unchallenged evidence of PW2 at line 14 of page 36 of the record that Salu Kayaoja, their ancester, has seven children, and only four of whom signed exhibit R, the exhibit could not have been valid as found by the trial court. Appellant relies on the decisions in Okene v. Orianwo (1998) 9 NWLR (Pt. 566) 408 at 428 and Baruwa v. Ogunshola (1938) 4 WACA 159, to the effect that the respondent could only inherit, if the ownership of the properties in question by the family had come to an end by virtue of its being partitioned. The court was wrong to have relied on the testimonies of the witnesses called by the respondents instead of exhibit R, the very document which validity was being contested. Exhibit R was incapable of conferring any individual beneficial interest on any descendant of the Kayaoja.