Hammed A. Toriola & Anor V. Mrs Olushola Williams (1982)
LawGlobal-Hub Lead Judgment Report
O. OBASEKI, J.S.C.
The appellants were the defendants to an action instituted and filed by the respondent on 26th September, 1970 in the High Court of Lagos State, Lagos – Suit No. LD/631/70 wherein the respondent claimed:
“(1) A declaration of title in fee simple or, alternatively, under Native Law and Custom to all that piece or parcel of land situate and lying and being at Ikorodu Road, Yaba, in Lagos, the said land being more particularly described in the plan attached hereto.
(2) 200 pound as damages for trespass to the said land;
(3) Recovery of possession of the said land; and
(4) An injunction restraining the defendants, their servants/and or agents from continuing or repeating any acts of trespass on the said land.
Pleadings were delivered and the action went to trial on the issues raised in the pleadings. Evidence was called and adduced by the plaintiff/respondent’s case but the defendants/appellants called no evidence before closing their case. Thereafter, learned counsel for the appellants and learned counsel for the respondent addressed the High Court (Agoro, J. ) before the learned trial judge considered and delivered his judgment.
In the reserved judgment, the learned trial judge granted the declaration of title, and made the orders for possession, and of injunction claimed by the plaintiff/respondent. He also awarded damages for trespass. Before granting the reliefs, the learned trial judge in his Judgment commented and concluded as follows:
“I will now consider who between the plaintiff and the defendants have better title to the land in dispute to this action. The plaintiff traced her root of title to the land in dispute to Fasinro Dawodu, Sannit Aboke Bada and Tijani Akiran who by a Deed of Conveyance (Exhibit C) conveyed to Sakariyawo Yaya. The Administrator of Sakariyawo Yaya’s Estate sold to Georgetta Bajulai and Mohammed Sadiq Yaya has confirmed the sale by a Deed of Conveyance (Exhibit C1). Georgetta Bajulai then sold the land in dispute to Abibi Aminu Jinadu by a Deed of Conveyance (Exhibit B). The defendants on the other hand, by paragraph 4 of the amended Statement of Defence, while tracing their root of title to Sakariyawo Yaya, merely relied on a series of purchase receipts none of which was produced in evidence. And the only Deed of Conveyance dated 12th September, 1964, which was mentioned in the pleadings and registered as No. 29 at page 29 in volume 1234 of the Register of Deeds kept in the Lands Registry, in Lagos, was also not tendered in evidence. In any event, under section 16 (1) of the Land Registration Act Cap. 99 Exhibit B would claim priority over the conveyance alleged to belong to the defendants.
“………. In view of the foregoing explanation and on the basis of the evidence which has not been contradicted, I am satisfied that the plaintiff is entitled to a declaration of title and she is hereby declared as owner in fee simple of the land in dispute claimed in the writ of summons…. I am also satisfied that she is also entitled to possession thereof and the plaintiff is hereby granted possession of the land in dispute . . . . .
The plaintiff is accordingly awarded N200 as damages for trespass and the defendants, their servants and/or agents are hereby restrained from continuing or repeating any acts of trespass on the land in dispute.” (Underlining mine)
The defendants appeal against the judgment was varied to exclude the order for possession in view of the success of the claim for damages for trespass and injunction. The concluding paragraph of the judgment of the Federal Court of Appeal brings this out clearly and it reads:
“In the present case, since the learned trial judge was satisfied that the respondent was in possession when the appellants entered and so found, a judgment awarding possession to the respondent is inappropriate. The claim should have been, and it is hereby struck out. To that extent, this ground succeeds but it is of no use to the appellants since in any case, they ought not to remain on the land in view of the order of injunction.”
Still dissatisfied and aggrieved, the defendants have now appealed to this Court to reverse the judgment on grounds which are as follows;
- The Federal Court of Appeal erred in law having based its decision on the fact that Sadiq Yaya validly executed Exhibit C1 as head of the family.
PARTICULARS OF ERROR IN LAW
It is clear all along and particularly in the statement of claim that the grantor of Exhibit C1 purports to have derived his title from a Letter of Administration and not as head of any particular family.
- Having observed as follows, “that under customary law (he did not say which but we think it must be Yoruba since the respondents’ predecessors-in-title were Yorubas), the children of a deceased father can dispose of his property without an order of court”. The Federal Court of Appeal misdirected itself and erred in law.
PARTICULARS OF MISDIRECTION AND ERROR IN LAW
There is no evidence and nothing before the court to show that the transaction relating to the subject matter of this action can be dealt with under Yoruba Native Law and Custom nor is there any evidence of what such a custom is.
- The Federal Court of Appeal erred in Law and mis-directed itself when it held in effect that the production of Letters of Administration in this matter was unnecessary and therefore whether an order of court is necessary did not arise.
Production of Letters of Administration is necessary in law and an Administration could not (as the law was then) deal with property of a deceased without an order of court (Letter of Administration without exception then relate to personal properties only).
- The Federal Court of Appeal is wrong in law to have dismissed ground 3 of the grounds of appeal in view of the finding of the court that Suit No. LD/235/60 has not been decided one way or the other.
Although the appellants did not categorically and specifically set out the questions for determination in this appeal, two questions arise from the brief of argument filed by learned counsel for the appellants and the oral argument advanced before the Court. They are:
(1) In view of the fact that Letters of Administration of the Estate of Sakariyawo Yaya (Deceased) were granted to Buraimo Yaya and Buraimo Yaya sold the land in dispute to Georgetta Bandele Bajulai as Administrator with the approval and consent of the other children of Sakariyawo Yaya, is it competent for Mohammed Sadiq Yaya as head of the Yaya family for himself and on behalf of the children of Sakariyawo Yaya with ther approval and consent as beneficial owners to convey the land in dispute to Georgetta Bandele Bajulai in pursuance of the sale as Exhibit C1 show
(2) Is it competent for the court to proceed to hear and determine the instant case when an earlier case Suit No. LD/235/60 between the parties was still pending in court
Associated with the first question are (1) the issue as to whether Buraimo Yaya needed an order of court before proceeding with the sale (2) the issue whether the estate conveyed was an estate in fee simple or one under customary law
It seems to me that the stand of the appellants is that the evidence adduced by the plaintiff/respondent and her witnesses cannot support the declaration of title granted to the respondent in respect of the land in dispute notwithstanding that the evidence stands uncontradicted. The facts of the case disclosed in these proceedings may be stated as follows:
The respondent bought the land in dispute known as No. 41 Ikorodu Road, Yaba from one Abibi Aminu Jinadu (now deceased) and obtained purchase receipt Exhibit A for ‘a3450 on 25/1/54 from him. Then on the 30th day of January, 1954, Abibi Aminu Jinadu executed a conveyance Exhibit B of the land registered as No. 22 at page 22 in volume 987 of the lands Registry in the Office at Lagos. Abibi Aminu Jinadu acquired title to the land from one Georgetta Bajulai by purchase. The land was conveyed to her in fee simple by a Deed of Conveyance Exhibit C2 dated 26th May, 1953 and registered as No.2 at page 2 in volume 959 of the lands Registry in the Office at Lagos.
Georgetta Bajulai acquired title to the land from Muhammed Sadiq Yaya as head and on behalf of the children of Sakariyawo Yaya by purchase. The purchase was made from Buraimo Yaya as administrator and with the approval and consent of the other children of late Sakariyawo Yaya. Buraimo Yaya was one of the two administrators of the Estate of Sakariyawo Yaya. Muhammed Sadiq Yaya was the second administrator. Buraimo Yaya died before a conveyance of the land was executed so Muhammed Sadiq Yaya as head for himself and on behalf of the children of late Sakariyawo Yaya with their approval and consent as beneficial owners on the 8th day of October, 1947 executed a conveyance Exhibit C1 registered as No. 14 at Page 14 in Volume 810 of the Register of Deeds in the Office at Lagos in favour of Georgetta Bajulai.
Sakariyawo Yaya on the 2nd day of April, 1927 acquired title to the land by purchase and obtained a conveyance Exhibit C registered as No. 38 at Page 38 in vol. 216 of the Register of Deeds kept at the Lands Registry, Lagos executed in his favour by Fasinro Dawodu, Sanni Aboki Bada and Tijani Akiran who sold the land to him for ‘a387. The Estate conveyed by each of Exhibits B, C, C1 and C2 was an estate in fee simple in the land.
The plaintiff/respondent on completion of the purchase was let into and took possession of the land, fenced it round and planted her signboard. In 1960, the defendants/appellants broke into the land, removed plaintiff/respondent’s signboard, damaged her crops and commenced building operations on the land. These acts of trespass were without the permission or consent of the respondent. The respondent then sought redress in court by filing an action Suit No. LD/ 235/60 on 30th June, 1960 against the appellant seeking recovery of possession and damages for trespass.
When service of a motion could not be effected, the suit was on the 1st day of August, 1961 adjourned sine die, it being reported that the 1st defendant had left the known address and the second defendant could not be traced. The suit has not since been listed for hearing. The plaintiff thought it was struck out and as defendants suspended building operations and made a move for settlement out of court, no further action was taken.
Building operations ceased till 1968 when they were again resumed.
The respondent then decided and did file a new action i.e. Suit No. LD/ 631/70 against the appellants claiming the four reliefs already set out above which were more comprehensive than the reliefs claimed in the earlier suit. The respondent vigorously prosecuted the later suit and obtained judgment in her favour. This appeal is against the judgment of the Federal Court of Appeal affirming the High Court judgment in the said suit.
The Federal Court of Appeal made certain comments and observations which have drawn some of the objections of the appellants into focus. The one that has been seriously attacked by learned counsel for the appellant reads:
“In reply, learned counsel for the respondent Mr. W. A. Oseni referred to the conveyances tendered showing the respondent’s root of title and submitted such documents were sufficient to establish her title.That under customary law (he did not say which but we think it must be Yoruba since the respondent’s predecessor-in-title were Yoruba) the children of a deceased father can dispose of his property without an order of Court. That Sadiq Yaya executed Exhibit C1 as head of his father’s family for himself and other children of his father. He referred to the case of Raji Akanor and Another v. Attah Yisau Ajuwon (1966) 1 ALL N.L.R. 246 (247). He finally submitted that since the sale evidenced by Exhibit C1 has not been impeached, the purchaser there-under has a valid title which she could also transfer.
We think the learned counsel for the appellant has entirely missed the point. Sadiq Yaya did not convey as an administrator as the deed Exhibit C1 clearly shows: so that even if an order of court was necessary for an administrator to convey none was needed in this case.
We agree with the respondent’s counsel that Sadiq Yaya could convey as he did, and since the sale made by him has not been impeached the purchaser’s title remained valid. Subsequently, the purchaser under Exhibit C1 Georgetta Bamidele Bajulai transferred a valid title to Abibi Jinadu who eventually sold to the respondent by virtue of Exhibit B.” (Italics mine).
I do not think learned counsel for the appellants fully appreciated that the submission of respondent’s counsel on the competence of all the children of the deceased to convey a valid title under customary law only drew the comment of the court on counsel’s failure to indicate the customary law applicable. The learned justices were in fact thinking aloud and expressing their impressions of the contents of the documents of title in evidence when they observed that it must be Yoruba customary law counsel was referring to. In my view, the observations and comments of the Federal Court of Appeal on the submissions before it are sound and unimpeachable. See Kareem v. Ogunde  1 All N. L. R. (Part 1) 73 at 79, 80.
Learned counsel for the appellants repeated in this Court his submissions to the Federal Court of Appeal on the issue of the competence of an Administrator of Estate to convey without an order of the court. He was relying on Section 2 of the Administration (Real Estate) Act Cap. 2 Vol. 1 Laws of the Federation of Nigeria 1958. I would therefore at this juncture refer to and examine the provisions of this law briefly. This law has been in force since 17th May, 1917. It is a reproduction of Section 2 of Administration (Real Estate) Ordinance Cap. 2 Volume 1 Laws of Nigeria 1948: and reads:
“When any person shall die intestate after the commencement of this Ordinance leaving any real property of whatsoever nature of which the intestate might have disposed by will such real property shall for the purposes of administration be deemed to be part of the personal estate of the said intestate and shall be administered accordingly: Provided always that the real property the succession to which cannot by native law and custom be affected by testamentary disposition shall descend in accordance with the provisions of such native law or custom, anything herein contained to the contrary notwithstanding: Provided also that the real estate shall not be administered unless the administrator shows to the satisfaction of the court that the personal estate is insufficient to pay the intestates debts and the expenses of his funeral, and of taking out administration. “(Italics mine).
The wording of the section seems to me clear and unambiguous and one does not have to search hard or strain one’s imaginative and intellectual powers to get at the meaning and intention of the section. I must therefore construe the words of the section according to the ordinary cannon of construction: that is to say, by giving them their ordinary meaning the English language as applied to such a subject matter in Nigeria unless some gross and manifest absurdity would be thereby produced.
There is no magic in the word “Administrator” and the words “Letters of Administration”.
The above section contemplates that only real property of whatsoever nature which the intestate might have disposed of by will shall for the purposes of administration by the administrator be deemed to be part of the personal estate.
Real property the succession to which cannot by native law and custom be affected by testamentary disposition are excluded from being deemed part of personal estate for purposes of administration. The section also stipulates that:
“Real property not disposable by will shall descend in accordance with the provisions of such native law or custom anything herein contained to the contrary notwithstanding.”
In my view, the administrator cannot touch such real property. Even if the real property might have been disposed of by will, it is only if the administrator shows to the satisfaction of the court that the personal estate is insufficient to pay the intestate’s debts, and of funeral expenses and of taking out administration that the court may order it to be administered. This ipso facto means that the administration of the real estate is for the purposes of meeting those expenses and nothing more.
The provision of Section 3 of the Act – Administration (Real Estate) Act is indicative as to the persons to whom letters of administration should be granted. It states:
“When a person dies intestate possessed of real estate, the court shall, in granting letters of administration, have regard to the rights and interests of persons interested in his real estate, and his heir-atlaw if not one of the next of kin shall be equally entitled to the grant with the next-of-kin.”
Having regard to the provisions of the Administration Real Estate) Act, the presumption arising from the facts recited in Exhibit C1 is that the land 10 dispute sold by Brima (sometimes spelt Buraimoh) was the land to which the first proviso to section 2 aforesaid applies and not for the purposes of administration, that title to it descended to all the children of Sakariyawo Yaya, that it was sold with the approval of all the children and conveyed by Muhammed Sadiq Yaya (also spelt “Yahya) as lead for himslef and on behalf of all the children of Sakariyawo Yaya to Georgetta Bandele Bajulai. In the absence of any evidence to the contrary and there is none on record, the estate in fee simple in the land in dispute was, in my view, validly conveyed to Georgette Bandele Bajulai who later sold and conveyed the same to Abibi Aminu Jinadu who later sold and conveyed the same estate in fee simple to the respondent.
There is therefore no substance in grounds 1, 2 and 3 of the grounds of appeal and they are dismissed.
As regards ground 4, the ground 3 before the Federal Court of Appeal which the ground complains was wrongly dismissed reads:
“The learned trial judge erred in law when he held, inter alia, at page 46 lines 3 to 6.
“In the circumstances, it is my view that the plaintiff has rightly commenced the present action since the proceedings in Exhibit E could not be regarded as constituting estoppel res judicata.
PARTICULARS OF ERROR IN PER LAW.
The proceedings, i.e. Suit No. LD/235/60 between the same parties and relating to the same subject matter not having been disposed of renders the institution of the present action premature” .
The issue of estoppel per rem judicatam was raised by the appellants in paragraph 8 of their statement of defence as follows:
“With reference to paragraphs 13, 14 and 15 of the plaintiff’s statement of claim, the defendants whilst admitting the existence of the writ of summons in Suit No. LD/235/60 says that it is the plaintiff who confuses herself about the names of the defendants and denies that the suit was struck out or otherwise disposed of because of the sickness of the plaintiff. The defendants particularly join issue with the plaintiff on this point and pleads res judicata thereon.” (Underlining mine).
Having raised the plea of res judicata the learned trial judge had a duty to deal with it and I find this decision on it well founded in law. Estoppel per rem judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent court between him and his opponent.
Morinatu Oduka and Others v. Kasumu and Another  N.M.L.R. 281.
The Federal Court of Appeal in dismissing the ground of appeal attacking the learned trial judge’s decision on this point said:
“On ground 3, learned counsel for the appellants submitted that since a previous action on the same subject-matter and between the same parties was pending, the present action was not maintainable.We however think there is no substance in this ground.
Since the earlier case has not been decided one way or the other so that a plea of res judicata could be raised, learned counsel for the appellants has failed to convince us that the present action could not be brought and since the earlier one had been adjourned sine die it is as good as stayed.”
I agree with the Federal Court of Appeal that there is no substance whatever in this ground of appeal. It appears from the pleadings and the uncontradicted evidence that the resumed trespass gave rise to this second suit in which the respondent claimed more reliefs including declaration of title and injunction which were not claimed in the earlier suit.
It is of course undesirable to have a multiplicity of suits between the same parties dealing with the same subject-matter pending in the same court at the same time. But where as in this case and as pleaded, the earlier suit was instituted against the defendants in the names other than their own, but, in the erroneous belief that the earlier case had been struck out, a new suit was instituted against the defendant in their correct names claiming more reliefs than the earlier one, a question of election whether to proceed with the old or new one arises. If as in this case the plaintiff decides to elect and proceeds to judgment with the new and later action, the plaintiff must at some time before or after judgment withdraw the earlier one or be met with a successful plea of estoppel per rem judicatam if after judgment he decides to proceed. I can see no legal basis for any objection to the election to proceed with and prosecute one and stay proceedings in the other.
In this instant appeal, I do not see how it can be said that the institution of the proceedings in the High Court was premature having regard to the facts and surrounding circumstances. The respondent properly exercised her rights to seek redress in court at each point of time she found her rights violated. The mere filing of one suit without its prosecution to judgment does not create an estoppel per rem judicata against the filing and prosecution of other claims on the same subject-matter.
The appellants’ objection is novel and seems to overlook the aspect of the law on election in the conduct of litigation. A litigant has a right to elect to prosecute any of his suits pending in court and stay the others. This is not a case where two alternative tribunals are concerned, and the two suits were being prosecuted simultaneously. It is not a case of a choice between two alternative rights either of which the respondent is at liberty to adopt but not both. It is a case of two suits touching the same subject matter m the same court. The right claimed in the earlier suit is not alternate to the right claimed in the later suit. The question of election between two alternative rights did not and does not in my view arise here. See Lissenden v. CA. V. Bosch LD  A.C. 412. In that case, Lord Atkin dealing with the doctrine of election at page 429 said:
“…… I regard the descriptive phrase equivalent to ‘blowing hot and cold’. I find great difficulty in placing any such phrases in any legal category: though they may be applied correctly in defining what is meant by election at common law or in equity. In cases where the doctrine does apply, the person concerned has a choice of two rights, either of which he is at liberty to adopt but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other: election between the liability of the principal and agent is perhaps the most usual instance in common law.”
The doctrine of election could have no place in the present case. The appellant is not faced with alternative rights: it is the same right that he claims, but in larger degree. In Mills v. Duckworth (1938) 1 All E.R. 318, 321, a plaintiff who had been awarded damages for negligence had taken the judgment sum out of a larger sum paid into court and then had appealed against the quantum of damages and was met by a similar objection to his appeal. Lord Fairfield in overruling the objection pointedly said:
“The plaintiff said “I am not going to blow hot and cold; I am going to blow hotter. Here the applicant is not faced with a choice between alternative rights; he has exercised an undisputed right to compensation and claims to have a right to more. You have not lost your right to a second helping because you have taken the first. ”
Two courses are in such cases usually open to the parties. They are (1) to apply for the court’s order of consolidation of the two suits for the purposes of trial or (2) to continue with the one that embraces the claims in the other and (stay proceedings in or) discontinue the other. See Order 38, Rule 7 (1 and 2) High Court of Lagos (Civil Procedure) Rules Cap. 32 Vol. 3 L/LSN 1973. The provisions of these Rules are as follows:
“(1) Actions pending in the High Court may be consolidated by Order of the court or of a Judge in Chambers where it appears that the issues are the same in all the actions and can therefore be properly tried and determined at one and the same time.
(2) An order to consolidate may be made where two or more actions are pending between the same plaintiff and the same defendant, or between the same plaintiffs and the same defendants or between different plaintiffs and different defendants.
Provided that where action are brought by the same plaintiff against different defendants, they will not be consolidated without the consent of all parties unless the issues to be tried are precisely similar.” (Italics mine)
There is a discretion to consolidate pending actions, that is to say, actions in which the writ has been served (see The Helenslea (1982) 7 PD 57) and in which judgment has not yet been obtained and satisfied. It is clear from the Rules that no application for consolidation will be entertained until pleadings are delivered and issues joined.
No authority was cited to us showing a case of one suit which is pending constituting an estoppel against the prosecution of the other. I am not aware of any, and in my view, ground 4 is frivolous and I hereby dismiss it. On the whole, the appeal fails.
For the above reasons, I would and I hereby dismiss this appeal and affirm the decision of the Federal Court of Appeal in Appeal No. FCAJ L/275/77.
The appellants will pay the respondent costs fixed at N300.00.A. G. IRIKEFE, J.S.C.: I had the advantage of a preview of the judgment just read by my learned brother, Obaseki (J.S.C.) and I agree with the reasoning and conclusions therein contained.
I agree that the appeal should be dismissed and would adopt the order made by Obaseki (J.S.C.) on costs.
M. BELLO, J.S.C.: I have read the judgment delivered by Obaseki J.S.C. For the reasons stated by him, I agree that the appeal should be dismissed with N300 costs to the Respondent. The Respondent, who was in possession of the land before the Appellants’ trespass thereon, established her root of title through purchases down to 1927. On the other hand, the Appellants failed to adduce any evidence of title or right to possess.
On the issue of res judicata, I agree that the pending suit did not constitute res Judicata because the issues and matters realised therein had not be tried and adjudicated. Previous adjudication by a competent court is one of the pillars upon which the rule of estoppel per rem judicata is founded: see Morinatu Oduke and ors. v. Kasumu & Anor. . N.M.L.R. 28 at P.34. There cannot be res judicata without adjudication.
C. IDIGBE, J.S.C.: I agree that this appeal should be dismissed for the reasons stated in the judgment just read by my learned brother, Obaseki, J.S.C. of which I had the advantage of a preview. However, I would like to add a few comments on three principal issues in this appeal. In the second ground of appeal (ground 2) filed on behalf of the appellants, the salient contention of learned counsel on their behalf is that since there was neither evidence in the court of trial, on the Yoruba custom in Lagos on an intestacy nor, that a head of a Yoruba family can sell the family land (and if so on what condition), it was not open to their Lordships of the Federal Court of Appeal hereinafter referred to as “the Court of Appeal” to uphold, as they did, the findings of the learned trial Judge in favour of the plaintiff/respondent which this appeal challenges. I need only add that, in addition to what my learned brother, Obaseki, J.S.C., has said on the issue and with which I am in respectful agreement, this court held in Kareem v. Ogunde  All N. L. R. Part 1 that the native law and custom whereby a Yoruba person’s children are entitled to succeed in Lagos to his property on his death intestate has been firmly established by numerous judicial comments that it does not now have to be specifically proved by evidence. In the case of Kareem (Supra) this court, after detailed reference to Section 14 of the Evidence Act Cap. 62 Vol. 2 of the 1958 edition of the Laws of the Federation of Nigeria (in pari materia with section 14 of the Evidence Law Cap. 39 Vol. 2, Laws of Lagos State 1973) observed per Coker J.S.C. as follows:
“From this it is obvious that a custom or customary law could be proved or sustained if it is shown by facts given in evidence or judicially noticed. The law reports are replete with cases which establish firmly the entitlement of a Yoruba person’s children to succeed in Lagos to his property on his death intestate and the locus classicus is the case of Lewis v. Bankole (1908) 1 N. L. R. 81 ……. see also Miller Bros v. Abudu Ayeni (1924) 5 N. L. R. 42 (per Van Der Meulen J.) etc. ; Caulrick v. Elizabeth Harding and another (1926) 7 N.L.R. 48 (Tew. J), Catherine Mary Sogunro-Davies v. Disu Sogunro and others (1929) 9 N.L.R.79 (Berkeley J.) Ebun Ogunmefun v. Oluremi Ogunmefun and others (1931) 10. N.L.R. 82 (Webber J.) “(see 1972 All N.L.R. 73 at 80)
With regard to the issue, raised in this appeal, that Sadiq Yaya could not validly have executed Exhibit C1 as “Head of the family of Sakariyawo Yaya” (as therein stated) because it is not shown in Exhibit “C(1)” that the said Sadiq Yaya, an Administrator of the Estate of the late Sakariyawo Yaya, in compliance with section 2 of Administrator (Real Estate) Ordinance (now Act) Cap. 2 Vol. 1 Laws of Nigeria 1958 edition, obtained the necessary order of court to deal with the Real Estate of Sakariyawo Yaya prior to the execution of Exhibit “C (1)”, I only need add to what my learned brother said in the lead judgment that the effect of section 2 of Cap. 2 aforesaid is to convert all real estate in Lagos – which an intestate might have disposed by will but the succession to which cannot, under native law and custom, be affected by testamentary disposition – into personality for purposes of administration on an intestacy; and distribution of this estate should proceed on the basis that it is also part of the intestate’s personal estate. In other words section (2) of Cap. (2) aforesaid excludes all real estate described in the last sentence from the operation of the Act aforesaid i.e. Cap. 2 Vol. (1) 1958 Edition of the Laws of Nigeria. In the event, it was enough for the children of Sakariyawo Yaya to give their consent to the disposal- by Sadiq Yaya in his capacity as “Head” of the family of Sakariyawo Yaya of the real estate covered by Exhibit C1 in these proceedings, and unnecessary (even if it could have been legitimately done) for the said Sadiq Yaya to obtain an order of court for the disposal of the said property, as learned counsel for the appellants contends.
Finally, learned counsel for the appellants contends that as there was no witness who testified positively to the effect that Sadiq Yaya was a child of Sakariyawo Yaya, there was no basis for the lower courts to arrive on the conclusion that he could properly have conveyed or disposed of the property in Exhibit C1 on behalf of the family of Sakariyawo Yaya. This submission overlooks the position in which the appellants placed themselves by resting their case on that of the respondent i.e. by in effect submitting that the respondent as plaintiff failed to make out a prima facie case and by electing, in consequence, not to call evidence in support of their own case. The legal position in such a situation is, of course, that the appellants are bound by the evidence called in support of the case for the respondent Qua plaintiff, and the case must be dealt with on the evidence as it stands” – (per Lord Greene M. R. in Laurie v. Raglan Building Co. Ltd. 1942 K. B. 152 at 156. See also Goddard L. J. in Parry v. Aluminium Corporation  W. N. 44 at 64; and Lord Greene M. R. in Yuil v. Yuil  All E. R. 183 at 185). There is, of course, enough evidence, albeit inferentially or by implications from, the combined effects of the recitals in Exhibits C 1 and C 2 in these proceedings (documents executed in 1927 and 1953 respectively and since then unchallenged as to its accuracy) on the issue raised in the above contention on behalf of the appellants i.e. that Sadiq Yaya is a child of Sakariyawo Yaya.
In the event, there is absolutely no merit in the contentions and submissions on behalf of the appellants and, as I said earlier, I agree that this appeal should be and is hereby dismissed. I endorse the orders proposed by my Lord, Obaseki, J.S.C. in the lead Judgment.
KAYODE ESO, J.S.C.: I have had the privilege of a preview of the judgment just delivered by my learned brother, Obaseki J.S.C., and I agree with the reasoning and conclusions therein.
I agree that the appeal be dismissed and it is hereby dismissed. Order as to costs.