Gbadamosi Rabiu Vs Silifatu Abasi (1996)

LAWGLOBAL HUB Lead Judgment Report

ADIO, J.S.C. 

The property in dispute is at No. 20 Olowu Street, Lagos. It belonged to one Madam Ayisatu Awape (hereinafter referred to as “Madam Awape”). In her lifetime she had three children, namely, Alhaji Gbadamosi Rabiu (the defendant/appellant), Idirisu (the father of the plaintiff/respondent) and Abudu Salami.

The said Abudu Salami had no child and he died in 1920. In the case of Idirisu, he died about 1940 and he was survived by a daughter, Silifatu Abasi, who is the present respondent. Madam Awape who was, of course, the grandmother of the respondent, died about 1950 and she was survived by only one son, the present appellant.

Sometime in 1952 the property aforesaid at No. 20, Olowu Street, Lagos, was pulled down and was re-developed into a four storey building with money allegedly provided by the appellant. After the death of Madam Awape, there was a disagreement between the appellant and the respondent on the question whether the aforesaid property should be inherited by the appellant alone or by the appellant and the respondent.

The contention of the respondent was that she was entitled to whatever would have been her father’s share in the property of Madam Awape if her father had survived Madam Awape. For that reason, she, as plaintiff, instituted an action against the appellant in the High Court of Lagos State in which she claimed the following reliefs:-

“(1) A declaration that the property situate and known as No. 20, Olowu Street, Lagos, belong (s) to the plaintiff and the defendant under native law and custom.

(2) An order for partition of the said property consisting of 20 (Twenty) rooms and one store.

(3) An order for injunction restraining the defendant, his servants and/or agents from interfering with the plaintiff’s possession of the said property.

(4) An order for account for all the monies collected by the defendant in respect of the said property from the 1st day of August, 1981.

(5) Payment over to the plaintiff of what is due to her on the taking of such an account”

The learned trial Judge gave judgment in favour of the respondent and granted all the reliefs claimed by her. Relying on the decision in Danmole & Ors. v. Dawodu & Ors, 3 (1958) SNCLR 6; (1958) F.S.C.46 he held that the respondent was entitled to share in the property aforesaid left by Madam Awape who was a Yoruba woman that died intestate. Dissatisfied with the judgment, the appellant lodged an appeal against it to the Court of Appeal. The court below affirmed the judgment of the learned trial Judge, with modification. Dissatisfied with the judgment of the court below, the appellant lodged a further appeal to this court There is a matter which should be dealt with as a preliminary issue.

This is to ensure that it does not becloud the fundamental and the only main issue in this case, which is whether the respondent could legally claim what would have been her own father’s share in the property of Madam Awape though Madam Awape was not survived by the respondent’s father. There was allegation that the appellant re-developed Madam Awape’s property in question at his own expense. The question is whether the re-development of the aforesaid property at the expense of the appellant in any way affects the determination of the main issue in this case. The answer to the question is in the negative.

Assuming, for the purpose of argument, that the property of Madam Awape, a Yoruba woman who died intestate, devolved on the appellant and the respondent as family property under Yoruba customary law, the fact that the appellant spent his money to re-develop it from bungalow to a four-storey building will not in any way affect or diminish the right of the respondent therein because improvement of family property by a member of the family does not divest the property of its original character, it remains a family property. See Shelle v. Chief Asajon of Oloja Ereko II (1957) SCNLR 286; (1957)2 F.S.C. 65.

The parties filed and exchanged briefs. The appellant filed an appellant’s brief and the respondent filed a respondent’s brief. A number of issues for determination were set down in the brief of each of the parties. I stated above that, in my view, there was only one main or fundamental issue to be determined by this court. There were five reliefs claimed by the respondent. According to the court below, four of the reliefs had been determined by the learned trial judge and there was no appeal against the determination of the learned trial Judge in respect of each of the four reliefs. The court below, in this connection, stated, inter alia, as follows:-