I. B. Animashawun Vs Onwuta Osuma & Ors (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

Some time in the year 1906, one Badaru Animashawun obtained from the Mgbelekeke family of Onitsha, the right to the use and occupation, under what is known in Onitsha as a “kola tenancy”, of a piece of land in Onitsha verged green in plan No. SE 29/63 of 10th June, 1963 (exhibit A). Badaru Animashawun later built houses on the land which he occupied with the members of his family. In 1928, he leased the portion verged pink in the plan (exhibit A) to one J. M. Stuart-Young.

Four years later, the Mgbelekeke family, being of the opinion that Badaru Animashawun had sold his rights in the portion in question to Stuart- Young and had thereby forfeited his kola tenancy, granted another lease of the same portion to Stuart-Young. Being dissatisfied with this action of the Mgbelekeke family, Badaru Animashawun brought an action against both the family (represented by one Michael Obanye) and Stuart-Young in Suit No. 4/32 (exhibit B).

At the hearing of that suit on 26th February, 1934, Mr. Clinton who appeared for the family (who were the 1st defendant) agreed to begin “as his case is that the plaintiff was a kola tenant and forfeited his rights of such by selling house to 2nd defendant”. Evidence was then adduced by the family. When the case of the family closed, learned counsel for Stuart- Young (who was the 2nd defendant) informed the court that he was not calling evidence on behalf of 2nd defendant.

Whereupon learned counsel for Badaru Animashawun opened the case for the plaintiff and called Stuart Young (2nd defendant) as his witness. After the witness had been cross examined, the case was adjourned to the following day 27th February, 1934. The following are the notes made by Graham Paul J., at the hearing on the following day:

“Court adjourned for ten minutes to enable parties to consider as to an extra-judicial settlement. On resumption counsel intimates that a settlement has been arrived at.

The terms of settlement are that the plaintiff and his successors are to be entitled to two-thirds of the rent under the lease by the first defendant to the second defendant and that this applies to arrears as well as to future rents. Order by consent accordingly.”

Pursuant to this consent judgment, Badaru Animashawun and the Mgbelekeke family, as lessors, executed a lease of the land in question in favour of Stuart-Young as lessee. This lease (exhibit C) executed on 1st January, 1937 (fifteen months after the coming into force of the Kola Tenancies Ordinance Cap. 98 of the Laws of Nigeria, 1948) was for a term of twentyfive years at an annual rent of 10pounds. It is significant that the name of Animashawun came before that of the Mgbelekeke family in the said deed of lease. The lease also provides that:

“The above named rent of ten pounds per annum is to be divided 6pounds 13s 4d to Badaru Animashawun and 3pounds 6s 8d to the Mgbelekeke family.”

Among the covenants entered into by the lessee is one in clause 5(2) which reads:

“At the expiration or sooner determination of these presents to deliver up the said piece of land peaceably to the lessors.”

In 1939, Stuart-Young died. After his death, one Solomon Obike (who was the 3rd defendant in the present action) after obtaining letters of administration in respect of the estate of Stuart-Young stepped into his shoes as lessee under the said lease and continued to pay the rent to both lessors in the agreed proportion 6pounds 13s 4d to Badaru Animashawun and 3pounds 6s 8d to the Mgbelekeke family. In 1934 Badaru Animashawun died and this arrangement continued after his death.

In 1962, the lease to Stuart-Young expired. Isiaka Badaru Animashawun (the present plaintiff) who is the eldest son of the late Badaru Animashawun and is also the head of the family came to Onitsha and invited Solomon Obike (3rd defendant) to one Chief Bakare’s house. At the hearing of this action Isiaka Animashawun narrated what transpired at that meeting as follows:

“I told him that the lease has expired and I would like to know what he was prepared to do. He said that Mgbelekeke people have sold the house to him for 1,000pounds. He is still occupying the house and he has not been paying me any rents. It is not correct that he has sought for me to negotiate for the land with me.”