Alhaji Sadu Saliu Kayaoja V. Alhaji Ibraheem a. Bello & Ors (2004)
LawGlobal-Hub Lead Judgment Report
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.
On the whole, appellant has argued that the appellant be allowed.
In arguing their 1st and 2nd issues for the determination of the appeal, respondents argued that neither of the parties to the instant appeal made exhibit R, the deed of partition, the subject of the controversy between them. Only signatories to or beneficiaties of the deed or such persons whose right have been adversely affected by the deed are in position to invalidate the deed. Respondents contend that the lower court is correct to have stated that since neither party was a party to suit No. 1/273/55, Alhaji A. Onasanya v. J. O. Shinwoniku, the deed of partition cannot be invoked to decide the rights of parties in the instant case.
As to their issue IV and the last, the others having been withdrawn and struck out, respondents argued that property situate at No. 16, Ereko Street Mushin, Lagos, known as plot No. 47 as well, had been shown to have been sold by the Kayaoja family to Alhaja Ramotu, the mother of the deceased. Exhibit V conveyed the property as sold. The other property, No. 11 Ogunjobi Street had also been duly established to have been owned by the deceased. The two properties as well as the personal property of the deceased on the authority of Alase & Ors. v. Sanya Olori-Ilu & Ors. (1965) NMLR 66; (1982) Vol. 3 NSCC 294 at 296 and Bolajoko and Another v. Layeni 19 NLR 99, devolve on respondents under the Yoruba Customary Law.
Respondents urge that lower court’s decision be affirmed as same cannot be faulted.
The principal question to be answered in the course of determining the appeal would be whether or not, appellant had proved his case, given the pleadings and evidence before the court. Invariably attention has to be gleaned at the existence or otherwise of the partition of the estate of late Salu Kayaoja, a fact that will determine consequentially, if indeed the landed properties left behind by the late Sabalemotu had ceased to be family property and by operation of the Yoruba Customary Law, the respondents rather than the appellant were the lawful heirs thereto.
It must be stressed at once that both parties in the instant appeal, are one as to what the Yoruba customary law provide on the effect of partition on a family land. The trial court was right to have restated the principle in the same vein. It is a trite Yoruba customary law principle that family land is communally held and that title or ownership remains in the family unless and until partition of the property had been effected. Once proved, therefore, partition has the effect of division of the communal or group ownership characteristic of family lands.
In the instant case, where the appellant institutes an action claiming a right on the basis that the land in controversy belongs to the family, he succeeds if at the end of trial the land has remained the family property he claims it to be. Conversely, evidence to the effect that the property in contention is erected on family land that has been partitioned certainly takes the bottom off the appellant’s case.
It is a basic requirement of our adversarial system of justice that a claimant must prove that which he asserts. Where the appellant claims that the estate of his late sister, Alhaja Sabalemotu, is part of family property and the respondents join issue with the appellant to the effect that the estate was acquired after a partitioning of the family property, the trial court must decide if indeed a partition had occurred and state the effect of its occurrence. The logic is that property that devolves on another pursuant to a partition of family land can be alienated without restriction: see Johnson v. Macaulay (1961) 1 All NLR 743; Ogunmefun v. Ogunmefun (1931) 10 NLR 82; Caulcrick v. Harding (1926) 7 NLR 48 and Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414.
Whether or not, a partition of family property had taken place is always a question of fact to be resolved by reference to the pleadings and evidence available to the court. Arguments pertaining to the proof or otherwise of the fact of the partition of the real estate of late Salu Kayaoja boils down to the evaluation of the evidence undertaken by the trial court as to this contested fact.
It has been emphasized in a seemingly endless chain of authorities that evaluation of evidence is the primary function of the trial court. An appellate court would only intervene where such evaluation is shown to be perverse. The appellate court is very slow and hesitant to interfere with the trial court’s evaluation of evidence, if the exercise borders chiefly on the credibility of the witnesses and the choice of whose testimony was to be preferred. This is so because, the trial court is, having had the opportunity of seeing the witnesses, in a better position to draw the correct inferences. Where, I however, the quarrel is simply that the trial court’s evaluation is wrongly done either wholly or partly, and injustice has resulted from the exercise, the appellate court intervenes. See Lado v. State (1999) 9 NWLR (Pt. 619) 369, see; Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt.95) 26 and Nwankpu v. Ewulu (1995) 7 NWLR (Pt. 407) 269 SC.
Appellant’s amended statement of claim is to be found at pages 50-54 of the record of appeal of significance are paragraphs 3, 4, 5, 9, and 12. The combined effect of these paragraphs is that subsequent to the death of Salu Adekayaoja intestate his children sought to partition their father’s land among themselves; the said vast area of land included No. 11 Ogunjobi Street and No. 16 Ereko Street Mushin respectively; that the deed of partition which was executed in 1949, was nullified following the judgment in suit No. 1/273/55 of 6/10/60; that in between 1949, when the deed of partition was executed and 1960, when same was nullified, plots of land from the estate of the late Sule Kayaoja were allotted to the deceased’s heirs to develop as private residence; that on the nullification of the shortlived deed of partition, however, the heirs who never had any deed of conveyance in respect of the plots of land allotted to them, henceforth, held their individual plots in trust for the whole family.
Plots 11 Ogunjobi Street, and 16 Ereko Street were allotted to, held and developed by Alhaja Sabalemotu, before her death and are the properties in controversy; that after the judgment in suit No. 1/273/55 in 1960, the entire heirs to the estate of late Salu Kayaoja, including the late Sabalemotu accepted the fact of nullification and dealt with the land owned by their father as family property; that following this acceptance, principal members of the family were authorised to and executed conveyance in favour of purchasers of portions of the estate of their father late Sabalemotu was one such principal donated the power of attorney.
The relevant averments in the pleadings of the respondents are paragraphs 4, 5, 6 and 9, reflected at pages 80-82 of the record. It is averred therein that heirs of the late Salu Kayaoja, apart from executing a deed of partition in 1949, pursuant to which they allotted to themselves parcels of land, they also sold the remaining unallotted parcels under a power of attorney donated to principal members among them; that plot No. 16 Ereko Street was sold and conveyed to Ramotu Ashabi, the mother of the respondents and the late Sabalemotu, and that the conveyance thereto was registered as No. 23/23/411; that No. 11 Ogunjobi was allotted to the late Sabalemotu consequent to the deed of partition of the estate of the plaintiff’s late father; that the parcel was registered in the land registry with late Sabalemotu as the beneficial owner; that the mother of Sabalemotu was on death buried on No. 11 Ogunjobi Street.
Parties led evidence in proof or refutal of the claim. From the pleadings and evidence of both sides is the fact that none of the heirs to the estate of late Salu Kayaoja was a party to suit 1/273/55 pursuant to which Duffus J. invalidated the deed of partition, exhibit D, in his judgment, exhibit R of 6110/60.
After its review of the evidence in proof of the pleadings of the parties, the lower court at pages 151 – 152 of the record judged the matter thus:
“From the above review of my evidence can it be said I that, the deed of partition is not substituting? I am of the view that the deed of partition of 1949, exhibit R is still very much alive and substituting. The decision in suit No. IK/273/55 delivered on the 6th of October, 1960, has no effect on the partition of Kayaoja family. The parties in that suit are not the same parties in this suit…I say the deed of Partition of 1949 is still subsisting having regard to the evidence of the 1st defendant, the 1st DW, the 2nd DW, 3rd and 4th PW and the inconsistence in the plaintiff’s evidence. I am satisfied that the power of attorney made in ex. E appointing 5 attorneys was executed to deal with the unalloted plots of land in the Kayaoja family land.
The plaintiff is still at No. 25 Ereko Street. He sold 7B Ayonuga Street, Mushin. The conveyed plots 16 and 17 of the layout. When he sold No. 7B, Ayonuga Street for N70,000.00, he did not tell the 2nd PW who is one of the 2 surviving attorneys including the plaintiff.
However, the 4th PW told the court that he was told, but he gave the purchase price as N37,000.00. I hold that ex. H to H2 are in respect of unallotted plots. Ex. H1 and H2 were silent on the deed of partition being set aside, it was only exh.H which made mention of the judgment of Justice Duffus. The evidence of the 3rd and 4th PWs that No. 7B, Ayonuga Street was sold on behalf of the family can never be correct having regard to the evidence of the 1st DW and exhs P and Q. I am satisfied that there was partition and that it is still subsisting.
Having so held the 4 plots given to each child of Kayaoja became his/her personal property. Having become personal property to any person of his/her choice, to the exclusion of Kayaoja family.”
The court concluded at page 156 thus:-
“On the evaluation of the 1st defendant evidence and that of his witnesses, I have no iota of doubt that they were speaking the truth. What they say in their evidence corroborated that of the 2nd DW. I am satisfied that there is abundance of evidence of partition both oral and documentary exh ‘R’ and once there is evidence of partition the land ceases to be family land to buttress this view of mine, I refer to the following cases:-
(i) Abike v.Adedokun (1986) 3 NWLR (Pt. 30) 548 at 556
(ii) Kalio and Anor. v. Woluchem and Anor. (1985) 1 NWLR (Pt. 4) 610 at 624
(iii) Taiwo v. Taiwo (1958) SCNLR 244; (1958) 3 FSC p. 80 at 82.
A partition can be effected orally in accordance with native law and custom, once the land has been partitioned, it becomes personal property of the allottee and can be disposed by the allottee in any form he/she may choose. The mother of the Alhaja Alarape Kayaoja was buried at No. 11, Ogunjobi Street.
The plaintiff raised no objection. This is evidence of ownership by the deceased.
Finally, the court asked:
“Who now becomes entitled to inherit and succeed to the estate of late Alhaja Sabalemotu: Is it the half brother/ sister on the paternal line or the half sister/brother on the maternal line?”
On the various judicial authorities it reviewed through pages 157 – 160 of the record, the court decided that respondents were the ones entitled by the operation of Yorub a native law and custom to so inherit and accordingly dismissed the appellant’s claim family property had taken place, the person to whom a particular portion of the hitherto family property was allotted becomes its owner. Where such a person dies intestate as in the case at hand, by operation of Yoruba customary law, deceased’s maternal relations inherit the estate.
So be it. The authorities applied by the trial court are apposite. It must be stressed that it was appellant’s burden to prove all the facts he averred to in his pleadings. It is an elementary principle of law that failure to lead evidence on pleaded facts is fatal to a claimant’s case. It was lawful for the trial court to refuse to find that appellant was entitled to the rent collected by the late Sabalemotu in respect of property N. 46 Kayaoja Estate, when evidence in proof of the pleaded facts remained lacking. See Iseru v. Catholic Bishop, Warri Dioceses (1997) 3 NWLR (Pt. 495) 517 SC and Insurance Brokers of Nigeria v. ATM Co. Ltd. (1996) 8 NWLR (Pt. 466) 316 SC.
Appellant is emphatic that the trial court was wrong to have allowed the respondents re-litigate an issue, already decided by a competent court. He argued that exhibit D the judgment of Duffus, J. had invalidated exhibit R, the deed of partition by virtue of which No. 11 Ogunjobi Street devolved on late Salemotu. The issue of partition having been determined, it is argued cannot be reopened again. It might well be so.
Where a plea of issue estoppel has succeeded, parties must certainly be bound by the raised issue as determined in a previous case. See Fidelity Shipping Co. Ltd. v. Exportchleb (1965) 2 ER 5 and Samuel Fadiora & Anor. v. Festus Gbadebo & Anor. (1978) 3 SC 219.The lower court in its judgment rejected the appellant’s plea on the basis that both the parties and the subject matter in the earlier suit had differed from those in the subsequent matter before it. The differences are more apparent than real. Firstly, all claimants to the property, part of the estate of late Salu Kayaoja, had a common root of title making them either parties directly or privies.
Secondly, although the suit before the trial court seemed to have been founded on the question of inheritance. The issue however, could only be resolved consequent upon the determination of the question of title. Appellant is on a firm terrain in his submission that the court was wrong to have relied on the very deed of partition that had been previously adjudicated upon in its decision as to the fact of partition pertaining to the property in contention. The proper course open to the trial court was to strike out all the paragraphs in the pleadings of parties wherein the issue of the deed of partition was raised and to determine the suit on the basis of the outstanding pleadings of parties. See William Ladega & Ors v. Shittu Durosimi & Ors. (1978) 3 SC 91 at 102. This, in practical terms, meant that neither the appellant, not the respondents would be allowed to reopen an issue that was determined all over again. The court was accordingly wrong to have allowed parties before it prove whether or not the property at No. 11 Ogunjobi Street was part of family property on the basis of exhibit ‘R’. It does not mean, however, that the estate of Salu Kayaoja cannot be shown to have been partitioned by means other than exhibit ‘R’. If the aspect of parties pleadings that dwelt on exhibit ‘R’ and the evidence in proof of same are expunged from the record of the trial court, will the decision arrived at endure? Undoubtedly.
The trial court found the fact of partition from two perspectives: exhibit ‘R’ and the manner in which heirs dealt with the estate of Salu Kayaoja even post the invalidation of exhibit ‘R’. The court found and relied on the uncontroverted evidence that plot No. 16 Ereko Street was sold and conveyed to Ramotu Ashabi the mother of the respondents. The fact that Ramotu Ashabi was, on death, buried at No. 11 Ogunjobi Street, has equally not been disputed. And no protest from any heir too as to this burial. There is the added fact that appellant also dealt with some parcels of land from the estate of his father in a manner inconsistent with family ownership. The trial court had acted on sufficient evidence and correctly concluded that the estate of Kayaoja, beyond the fact of exhibit ‘R’, had in fact been partitioned. Alhaja Sabalemotu was an allottee of No. 11 Ogunjobi after the partition of the estate of her father. The fact of sale of No. 16 Ereko Street to respondents’ mother still persists. By the applicable law, appellant does not inherit Sabalemotu.
The court decided this much inspite of the initial lapse in its judgment. The decision is not perverse. It cannot be tempered with now. I affirm same. From the foregoing, the three issues formulated by the appellant are resolved against him. The appeal lacks merits. It is dismissed with N7,000 cost to the respondents.
Other Citations: (2004)LCN/1543(CA)