Olaide Ibrahim Vs S.A. Ojomo (Now Deceased) (2004)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The respondents herein were the plaintiffs at the Lagos High Court in suit No. LD/1929/90 where they claimed against the appellant as defendant as per the further amended statement of claim dated 31st March, 1992, and the amended writ of summons dated 15th April, 1992, the following reliefs:

“(a) The sum of Six million Naira being special and general damages for trespass committed by the defendant on their properties at Nos. 42 and 44 Doherty Street, Lagos.

(b) Perpetual injunction restraining the defendant and their agents or privies from further committing any acts of trespass on the said land or intermeddling with the administration of the said property.

(c) An account of all monies collected from the various tenants in the said properties from 1st July, 1987.”

The defendant in his further amended statement of defence denied the plaintiffs’ claim. At the trial each party called witnesses to substantiate its claim or defence. From the pleadings and the evidence led at the trial, the facts of the case may be summarized as hereunder:-

The subject-matter in dispute between the parties is the properties at Nos. 42 and 44 Doherty Street, Lagos which forms part of the estate of Chief Michael Eledumo Ojomo who died intestate on 4th November, 1974. On 24th February, 1975, three of his children were granted letters of administration as administrators and administratrixes of the said properties. The three children are Clement Adegbemisoye Eledumo, Festus Ayodele Eledumo Ojomo (deceased) and Mrs. Adejoke Delano nee Ojomo (PW1). For convenience they will be referred to as the former administrators/administratrixes. Following an application by some of the beneficiaries of the estate of Chief Michael Eledumo Ojomo, the letters of administration granted to the former administrators/administrative dated 24th February, 1975, was revoked by an order of the High Court dated 16th July, 1980, and on 17th October, 1981, fresh letters of administration of the real and personal property of the estate were granted to the following children of the deceased:-

(1) Sunday Adedoyin Ojomo (now deceased); (2) Mrs. Olatomi Orimolade; (3) Mrs. Oyinlola Jimoh; (4) Dr. [Mrs.] Olafenwa Durojaiye who are the plaintiffs in this case and may be referred to as the present administrators/administratrixes.

They initiated the action leading to this appeal against the defendant a property developer who entered into the properties in dispute and commenced redevelopment thereof ostensibly on the agreement he had entered into with some of the former administrators/administrative. The plaintiffs’ case was that upon their father’s death, they let out the properties at Nos. 42 and 44 Doherty Street, Lagos to tenants including one Mrs. Anifowoshe trading under the name Ade Top (Nig.) Ltd. and from all the tenants they realized the sum ofN37,000.00 per annum. Sometime in 1987, without the consent of the family and the beneficiaries who were then of age, the defendant disrupted the tenants of the estate by demolishing the property at No. 42 Doherty Street, Lagos and was threatening to demolish No. 44 Doherty Street, Lagos. It was the plaintiffs’ case that at no time did the former administrators/administratrixes enter into any agreement with the defendant to redevelop the properties as the family never decided to develop same.

The defendant’s case was that he the defendant is a property developer. One Mr. Olusola Cole informed him of the plan to redevelop the properties in question. Mr. Cole arranged for him to hold a meeting with the Ojomo family at Owo. The family interviewed him and asked him to submit a proposal, which he did. The proposal was accepted and an agreement was reached whereby he was to be granted a long term lease to redevelop the properties at his expense and latter rent them and recovers his investment before surrendering the properties to the family. The agreement exhibit D1 was executed by the former administrator/administratrixes consequent upon which he paid the sum of N15,000.00 into the estate account at U.B.A. Broad Street, Lagos. As he was informed there were no tenants in the buildings, he entered into the premises and having found the houses empty, he commenced the demolition of the old buildings in July, 1987. He had demolished the whole of No. 42 and part of No. 44 Doherty Street when Mrs. Anifowoshe the proprietress of Ade Top (Nig.) Ltd. one of the tenants approached him requesting to be taken back as tenant after the reconstruction but as they could not reach an agreement on the rent payable, she sued the defendant but the suit was later discontinued.

Upon the foregoing facts, the learned trial Judge found as a fact that the agreement exhibit D11 was executed by the defendant and two of the former administrators/administratrixes and that the administratrixes Mrs. Adejoke Delano did not sign it and relying on section 4(2) of the Administration of Estates Law, Cap. 2, Laws of the Lagos State 1973 and the case of Yusuf v. Dada (1990) 4 NWLR (Pt. 146) 657, he held that the building lease exhibit D11 was defective. Furthermore, he held that as the Governor’s consent had not been obtained before exhibit D11 was purportedly executed as required by the Land Use Act, No.6 of 1978, the said exhibit D11 was void by virtue of section 26 of the said Land Use Act. However, the trial court accepted that the defendant pursuant to exhibit D11 paid the sum of N15,000.00 into the estate account and held that by that, the defendant had acquired an equitable interest in the properties in dispute and having entered into the properties with the consent and permission of the plaintiffs’ predecessors in office and title an action in trespass cannot be maintained against him. Accordingly, the plaintiffs’ claim was dismissed.

Aggrieved by that decision, the plaintiffs lodged an appeal against it before the Court of Appeal Lagos Division which court in the lead judgment delivered on 15th day of June, 1999, by Oguntade, JCA allowed the appeal and entered judgment for the plaintiffs to whom he awarded N10,000.00 damages for trespass with order of injunction restraining the defendant and his privies from further committing any acts of trespass on the properties situate at Nos. 42 and 44 Doherty Street, Lagos.

Against that judgment of the Court of Appeal, the defendant has appealed to this court. The notice of appeal dated 10th June, 1999, is predicated on eight grounds of appeal which without their particulars read as follows:

Ground 1

The learned Justices of the Court of Appeal erred in law when they held that the persons who transferred the interest to the defendant could not validly do so unless they acted in concurrence with the 3rd personal representative Mrs. Adejoke Delano.

Ground 2

The learned Justices of Court of Appeal erred in law when they held that once exhibit D11 is void, the defendant/appellant cannot have any equitable interest.

Ground 3

The learned Justices of the Court of Appeal erred in law by treating exhibit D11 as void because the 3rd personal representative did not sign it.

Ground 4

The learned Justices of the Court of Appeal misdirected themselves in law by equating signing of a document to mean concurrence when such is not contained in section 4(2) Cap. 2, Administration of Estates Law of Lagos State 1973.

Ground 5

The learned Justices of the Court of Appeal erred in law by finding that the defendant/appellant is in trespass because exhibit D11 is void.

Ground 6

The learned Justices of the Court of Appeal erred in law by finding that the defendant is in trespass because his possession was based on exhibit D11.

Ground 7

The learned Justices of Court of Appeal award of damages was not in accordance with the principles.

Ground 8

The learned Justices of the Court of Appeal erred in law by granting perpetual injunction restraining the defendant.”

The parties through their counsel filed and exchanged briefs of arguments and on 30th November, 2003 when the appeal was heard they adopted their respective briefs with oral addresses in expatiation of some arguments in the briefs. Based on the grounds of appeal, five issues were identified in the defendant’s/appellant’s brief which were adopted in the plaintiffs/respondents’ brief for the determination of the appeal. These are:

“First issue

Did the plaintiffs/respondents pleaded (sic) the facts that concurrence of all the individual that constitute the administrator and administratrix were to be obtained by the defendant/appellant.

Second issue

Did the plaintiffs plead the issue that because one of the previous administrator and administratrix did not sign exhibit D11 that made the defendant to be in trespass.

Third issue

Was the Court of Appeal right when the Court of Appeal found that the lower court was in error to have held that since the defendant was in possession (plaintiff) could not claim in trespass.

Fourth issue

Was the Court of Appeal right when they found that the issue of equitable interest did not arise when evidence of defendant that the giving of possession was with the consent of the entire family.

Fifth issue

Was the Court of Appeal right to grant damages for trespass and injunction when there was no appeal against the finding of the court on same.”

With due respect to both counsel, the issues as formulated above leave much to be desired. Issues 1 and 2 relating to pleadings do not appear to have been derived from any of the grounds of appeal nor from the decision appealed against. There is no indication as to which grounds of appeal the issues are related to. Issues for determination in an appeal should be formulated in general practical terms and tailored to the real issues in controversy in the case: Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 714. Prolixity or proliferation of issues is not ideal as it tends to obscure the core issue to be determined and tends to reduce the issue to trifles. Appeals are not won on large number or quantity of grounds of appeal but on the quality of the content of the grounds of appeal and issues. In my view, having regard to the judgment appealed against and the grounds of appeal, the fundamental issue germane to the determination of this appeal may be formulated thus:

“Was the Court of Appeal right in holding that exhibit D11 was void on the ground that there was no concurrence of all the former administrators/administratrixes in the execution of the document having regard to the provisions of section 4(2) Cap. 2, Administration of Estates law, Laws of Lagos State 1973and thereby adjudging the entry of the defendant on the property in dispute trespassory”

In considering this lone issue formulated above, it is pertinent to refer to relevant passages in the judgment of the Court of Appeal where in the leading judgment of Oguntade, JCA, the learned Justice made pronouncements pertinent to the issue under consideration. At page 346 from line 18 es seq, His Lordship said:

“From the evidence given before the trial Judge and the passage reproduced above, it was clear that administrators and administratrixes of the estate of M.B. Ojomo who died intestate on 4/11/74 were first appointed on 2412/75. They were Clement Adegbemisoye Eledumo, Festus Ayodele Eledumo Ojomo and Adejoke Delano. The position remained so till when exhibit D11 was purportedly executed. Under section 4(2) of the Administration of Estates Law, Cap. 2, Laws of Lagos State where two or more personal representatives are dealing with the real estate of a deceased person, such personal representatives when executing a conveyance shall act with the concurrence of all the personal representatives. The case of Yusuf v. Dada (supra) to which the learned trial Judge referred is clear authority that personal representatives dealing with the real estate of the deceased person have a joint and entire interest in the estate of the deceased and each has no separate interest which he can individually transfer. Where each purports to do so, nothing passes. It seems to me that the learned trial Judge has been on the right track in calling to mind the provisions of section 4(2) of the Administration of Estates Law, Cap. 2, Laws of Lagos State and the case of Yusuf v. Dada (supra). The trial Judge mistakenly one must say having started on the right course deviated into considering the cases of Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt. 4) 783; Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167 as conferring on the defendant an equitable interest. The latter cases i.e. Okoye v. Dumez (Nig.) Ltd. and Obijuru v. Ozims (supra) dealt with an entirely different matter which was irrelevant to the issue which the trial Judge has to consider. These cases deal with the equitable interest derivable under a registrable instrument in favour of a purchaser who has paid and been put in possession. In those cases, it was not in dispute that the vendors who had sold the properties had the right to convey the proprietary interest in the properties to the purchasers. In the instant case, we have a situation where the persons who transferred the interest to the defendant could not validly do so unless they acted in occurrence with the 3rd personal representative Mrs. Adejoke Delano who had not joined in the execution of exhibit D11. Clearly therefore, the two personal representatives had no interest which they could pass to the defendant vide exhibit D11. The question of equitable interest does not arise at all.

At p. 348, bottom line, et seq, the learned Justice continued:

In this case, it was common ground that the properties at 42/44 Doherty Street, Lagos belonged to the estate of late M.B. Ojomo. Three persons were the personal representatives of the said property. The defendant needed the concurrence of the three to be able to enter the premises. But he had the authority of only two. The authority of those two was as good as nothing. It is therefore correct to say that the defendant had no valid authority to enter to demolish the premises …

As the only authority relied upon by the defendant to support his entry was exhibit D11, which has turned out to be useless the defendant ought to have been found liable in trespass.

And finally, at p. 352 from line 14 et seq, the court concluded thus:

“The result of the authorities for the purpose of this case translates into this. Once I have found that the document exhibit D11 by which the defendant gained possession is void, the defendant’s entry to the land is void ab initio and amounts to trespass.”

It is manifest from the above passages that the court below took the view that exhibit D11 was void since it was not executed by all the three former administrators/administratrixes and the appellants have forcefully argued that this is in violation of the Administration of Estates Law, Cap. 2, Laws of Lagos State, 1973. As the provision of section 4(2) of the said Administration of Estates Law (supra) is the fulcrum upon which this appeal revolves, it is necessary to reproduce it in extenso. It enacts:

“4(2) Where as respects real estate there are two or more personal representatives, a conveyance of real estate devolving under this Part of this Law shall not, save as otherwise provided as respects trust estates, be made without concurrence therein of all such representatives or an order of the court … ” (Italics for emphasis)

The operative words are ‘concurrence therein’. Does the expression imply that all the personal representatives must execute the conveyance which by section 2 of the Administration of Estates Law (supra) includes a mortgage, charge, lease, assent etc. Learned counsel for the appellant has forcefully canvassed that the expression B “concurrence therein” does not imply that all the personal representatives must execute the instrument of transfer and that the execution by one or two of several personal representatives was valid provided that all of them concurred or agreed to the transaction. He alluded to a passage in the judgment of the trial court at page 234, line 1 et seq of the record where it said:

“On the basis of the above cited authorities, the defendant having entered upon the land the subject matter of this suit with the consent and permission of the plaintiff’s predecessors in office and title cannot be said to have interfered with the plaintiffs’ possession.” and submitted that the trial court having found as of fact that there was a concurrence by all the former administrators/administratrixes, and that finding having not been reversed by the court below, the execution of the lease exhibit D 11 by the two former administrators/administratrixes was valid and not void.

In support of his contention that the expression “concurrence therein” as used in section 4(2) of the Administration of the Estates Law (supra) does not imply the execution of a conveyance by all the personal representatives, learned counsel called in aid, a passage from Williams & Mortimer, Executors, Administrators and Probate, 1970 Edition, page 463 where it was stated thus:

“Where more than one executor or administrator is appointed, the joint office is treated as that of an individual. Each executor represents the estate for all purposes subject only to the statutory exceptions. They have joint and entire interest or intestate which is incapable of being divided … ” (Italics for emphasis)

In his response, learned counsel for the plaintiffs maintained that exhibit D11 relied upon by the defendant is void, not being in conformity with section 4 of Administration of Estates Law (supra).

Having given a careful consideration to the submissions of both learned counsel, I am of the opinion that there is considerable force in the submission of the learned counsel for the defendant/appellant on the meaning of section 4(2) of the Administration of Estates Law Cap. 2, Laws of Lagos State, 1973 which at the risk of repetition but for emphasis reads thus:

“4(2) Where as respects real estate there are two or more personal representatives, a conveyance of real estate devolving under this part of this law shall not, save as otherwise provided as respects trust estates, be made without concurrence therein of all such representatives or an order of court … ”

It is a cardinal principle in the construction of a statute that where the words of a statute are clear or unambiguous, those words shall be so construed as to give effect to their ordinary or literal meaning and enforced accordingly: See Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; Okumagba v.Egbe (1965) 1All NLR 62, (1965) 1 NMLR 62; African Newspaper of Nigeria Ltd. & 2 Ors. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; and Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377. Longman’s Dictionary of Contemporary English defines the word ‘concurrence’ as agreement. Black’s Law Dictionary, 6th Edition at page 291, talks of “concurrence’ , as “a meeting or coming together; agreement or union in action; meeting of minds, union in design; consent.”

I am of the view that the expression “concurrence therein” appearing in subsection 4(2) of the Administration of Estates Law Cap. 2, Laws of Lagos State (supra) means the agreement or consent of all the personal representatives in the conveyance of the real estate of the deceased.

Evidence of such concurrence can be manifested by the execution of the conveyance by all the personal representatives but it is not limited to that. Where there are several personal representatives and they are all in agreement that the deceased’s real estate vested in them should be disposed or alienated, one or some of them can validly execute a conveyance in that regard but if there was no concurrence of all of them such a conveyance executed by one or some of them can only be valid with order of court.

This view appears to be in accord with the decision in the English Court in the case of Fountain Forestry v. Edwards (1975) Ch.1 dealing with the interpretation of section 2(2) of the English Administration of Estates Act, 1925, which also provides that a conveyance of real estate including chattels real cannot be made without the concurrence therein of all the representatives (still living) to whom a grant has been made in respect of the property conveyed or without an order of the court, a provision identical with section 4(2) of the corresponding Lagos State Law under consideration. In the aforesaid case, Robert Edwards, one of two administrators entered into a contract for the sale of land forming part of the deceased’s estate, which was expressed to be made between both administrators and the plaintiffs, as purchasers. Robert Edwards was expressed to sign for himself and the co-administrator who did not herself sign the contract. As the co-administrator was unwilling to complete the transaction by signing the conveyance, the plaintiffs sued the two administrators claiming specific performance on the basis that one administrator could bind the other under the general law. It was held that Robert Edward having purported to sign the contract on behalf of himself and his co-administrator, had warranted that he had authority to bind the latter but that since that authority was in fact lacking, there was no contract of which specific performance could be granted.

In other words, if there had been concurrence between the two administrators, the execution of the conveyance by one of the administrators would have been binding on the coadministrator who did not sign. This case therefore illustrates the principle under consideration to the effect that where the real estate of the deceased is vested in several personal representatives, it could be conveyed by one or some of them if there is a concurrence among all of them in the transaction.

It would therefore be erroneous with respect, if the two lower courts held the view that exhibit D11 was void merely because all the personal representatives did not execute it. The conveyance was not void but binding if there is evidence of concurrence therein by all the three former administrators/administratrixes.

This leads me to an examination as to whether there was such concurrence. In this connection, I disagree with the contention of learned counsel for the defendant/appellant that there was a finding by the trial court that there was such a concurrence. A finding one way or the other in that regard is very crucial to the determination of this appeal. It was the defendant who raised that question about the concurrence of all the former administrators/administratrixes. Thus in paragraphs 4 and 5 of the further amended statement of defence (p.160 of the record) the defendant pleaded thus:

“4. Defendant avers that the firm of Ibrahim, Adegbola, Shitta and Associates discussed proposals with the administrators and administratrixes and an oral agreement was reached.

5. Defendant avers that the beneficiaries of the estate were consulted and some of them asked that the developer should give some money to some individual beneficiaries for their benefit which was done.”

In a reply to the statement of defence (p. 54) the plaintiffs in paragraph 1 thereof denied the above averments and in paragraphs 2 and 3 of the said reply pleaded further:

“2. The plaintiffs in reply to paragraphs 3, 4,5,6,7,14 and 21 aver that at no time in 1987 or thereafter did the administrators and administratrixes of the estate of M.B. Ojomo (deceased) and the beneficiaries of the said estate enter into a discussion or an agreement for the redevelopment of the estate property at Nos. 42/44, Doherty Street, Lagos and did not put the defendant into possession.

3. Further to the above, no sum of money was advanced by the defendant for the purpose, or consideration for the redevelopment of the said estate property.”

In civil cases, the burden of proof is cast on the party who asserts the affirmative of a particular issue: See Okechukwu v. Ndah (1967) NMLR 368; Akinfosile v. Ijose (1960) SCNLR 447; NBN Ltd. v. Opeola (1994) 1 NWLR (Pt. 319) 126. The burden rests on the party whether plaintiff or defendant who substantially asserts the affirmative of an issue: See Messrs Lewis & Peats (N.R.I.) Ltd. v. A.E. Akhimien (1976) 7 SC p.157 at 169. In the instant case, the defendant having asserted and the plaintiffs having denied that the former administrators/administratrixes discussed and reached agreement on the redevelopment of the property in dispute with the defendant’s firm, the onus was on the latter to prove by credible evidence that assertion. In an effort to discharge that burden, Clement Adegbemisoye Elenuno (Eledumo) who was one of the former administrators/administratrixes, testifying in-chief as DW1 said (p.129, lines 15 to 25):

“The family decided in 1985 to rebuild two houses belonging to the estate of late M.E. Ojomo. The properties are No. 42 and 44 Doherty Street, Lagos. It was decided at a meeting at Owo. We kept minutes of the meeting where the decision was taken. This is the minutes of the meeting where the decision was taken.”

Alhaji Bashua seeks to tender the minutes in evidence. Mr. Onakoya has no objection.

Court: Late M.E. Ojomo family meeting minutes held in John’s house at Owo on 2nd November, 1985, is admitted in evidence and marked exhibit D9.

Answering questions under cross-examination, the witness at p.184, lines 23 and 29 said:

“I agree there was no agreement to give the property to a developer in exhibit D9.”

And as if that did not sufficiently damnify his case, he continued, still under cross-examination at p. 189 lines 6 and 7 as follows.”

” .. .I was the only executor present at the meeting exhibit D9.”

It seems to me crystal clear that the defendant failed woefully to establish his assertion in paragraphs 4 and 5 of his further amended statement of defence regarding the concurrence of the former administrators/administratrixes in the redevelopment project involving the conveyance of the properties in dispute to the defendant.

As I had stated earlier on, the trial court made no pronouncement on the issue but the jurisdiction of this court to make necessary findings in appropriate cases where the trial court failed to do so is not in doubt. In the case of Akibu v. Opaleye & Anor. (1974) 11 SC 189 at 202, this court, per Sowemimo, JSC restated the principle thus:

“Although this court rehears a case on appeal, it does this only on the records and where it is quite clear that evidence has been led in the lower court which establishes a fact, it will make the necessary finding which the lower court failed to make: See Thomas v. Thomas (1947) AC 484, pp. 487, 488; also Fatoyinbo v. Williams (1956) 1 FSC 87.

“See also Chief Frank Ebba v. Chief Ogodo & Anor. (1984) 4 SC 84 at 99. Since from the record in the present proceedings, there is no evidence that all former administrators/administratrixes of the estate of Chief M.D. Ojomo agreed or concurred in the conveyance of the properties in dispute nor obtained an order of court to convey the said properties as required by section 4(2) of the Administration of Estates Law, Lagos State supra, the document, exhibit D11 executed by only two of the former administrators/administratrixes in purported conveyance of the said properties to the defendant and his firm is void and not binding on the plaintiffs nor on the estate vested in them. I will therefore resolve the lone issue formulated by me against the defendant/appellant in favour of the plaintiffs/ respondents.

In the premise, this appeal fails and it is accordingly dismissed. As to costs, I award to the plaintiffs/respondents as against the defendant/appellant the sum of N10,000.00.

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SC.249/2000