Wulemotu Olagunro V. J.b. Ogunsanya & Anor (1970)
LawGlobal-Hub Lead Judgment Report
In suit LD/504/65 in the Lagos High Court the plaintiff’s amended particulars of claim read:-
”The plaintiff’s claim against the defendant are:
(i) for a declaration for an order that the purported sale of a portion of the property known as 61 Princess Street, Lagos is not valid and or of no effect or alternatively an order setting aside the said sale; and
(ii) an order for possession of the said portion of the property known as 61 Princess Street, Lagos.”
In the statement of claim it was alleged that the property in issue, namely 61 Princess Street, Lagos, was left by one Hanidu Akanni in his Will and paragraph 5 of the statement of claim set out the terms of his devise:
“5. The said Hanidu Akanni made a devise in the said Will which runs thus ‘I give my dwelling storey house situate at the said Princess Bridge Street, and all the residue of my real property and all my personal property to the said Shefi Mosebolatan, Wulemotu, Tijani and my servant Momoda (who is very dutiful, obedient and honest and who I regard as one of my children) equally.”
and paragraphs 9, 11, 15 and 17 of the statement of Claim read:
“9. The plaintiff further avers that the hereditaments were used in common by all the four devisees, the hereditaments had always been regarded and treated as the family property, and have also regarded the- four devisees as four branches of the family of Hanidu Akanni alias Hanidu Languno;
11. The defendant was put into possession of the portion in dispute by one Tijanu Olanguno now deceased one of the devisees;
15. The plaintiff further avers that no deed of partition had ever been executed in favour of any of the devisees;
17. The plaintiff will contend that any alienation of the portion in dispute to the defendant and any interest title or right the defendant may claim to have on the portion in dispute is invalid and is of no effect.”
Paragraph 2 and 3 of the amended statement of defence reads:-
“2. The defendant avers that few years after the death of Amidu Languno the property devolved on the 4 beneficiaries under the last Will and testament of the said Amidu Languno in four equal shares as tenants in common.
3. The defendant further avers that the house and landed property was partitioned between the 4 beneficiaries thought no formal deed of partition was executed but each person entered into possession of his or her alloted portion and thereon exercised exclusive right of ingress and aggrees in the common bathroom, common kitchen and other conveniences in the premises.”
and the defendant then claimed that Tijani H. Languno by virtue of being owner of his portion let the defendant into possession and later sold to him his portion of the house and landed property in issue. The defendant counter-claimed for a declaration that he was owner of that portion of the house and landed property and joined Raliatu Olanguno as co-defendant to his counter-claim.
The terms of the devise were therefore not in issue but what was in dispute was whether the property devised had in fact remained in the ownership of the 4 persons named in the will as tenants in common or whether there had, as was alleged by the defendant, been a partition.
The plaintiff did not dispute that each of the 4 persons named in the devise had had absolute use of a portion of the property, but maintained that the ownership of the property had never altered and it remained in the 4 as tenants in common. The defendant maintained that there had been a partition but admitted that there had never been a deed of partition.
He maintained however that this was not necessary as there had been an oral arrangement between the 4 beneficiaries whereby the property was partitioned and he was therefor entitled in equity to call for the property to be transferred to him by the executors.
On the 7th of February, 1967 in his judgment Ikpeazu, J. rightly appreciated that the essential question was whether the tenancy in common had been severed.
He held that the matter was governed by the Land Transfer Act, 1897 and in particular by section 3(1) which reads:- 45
“At any time after the death of the owner of any land his personal representatives may assent to any devise contained in his Will, or may convey the land to any person entitled thereto as heir, devise, or otherwise, and may make the assent or conveyance, either subject to a charge for the payment of any money which the personal representatives are liable to pay, or without such charge; and on such assent or conveyance, subject to a charge of all moneys (if any) which the personal representatives are liable to pay, all liabilities of the personal representatives in respect of the land shall cease, except as to any acts done or contracts entered into by them before such assent or conveyance.”
He considered that the assent of the personal representatives did not prior to 1925, which is what applied, need to be in writing but could be given orally or by conduct. Before dismissing the claim he held that on the evidence there had been a partition as each person was entitled to enjoy his portion exclusively and that this had been concurred in by the executors so that each party had as a result become absolutely entitled and could transfer his portion. He also non-suited the defendant on the counter-claim stating:-
“He cannot get a declaration of title since the conveyance is not legally admitted as evidence and I have decided to non-suit him on that claim. He is however, clearly the equitable owner of this portion of the building which is clearly delineated on the plan – exhibit D – namely, four rooms, one shop, and one store and I declare him owner therefore accordingly. I also grant him possession of this aid apartments.”
Now in our view the learned trial Judge was in error in thinking that, because each of the 4 beneficiaries had by agreement between themselves the absolute use of a portion of the devised property, that meant that there had been a partition. It is a common practice for family land to be allotted to individual members of the family for their use but it remains family land.
So here the land given by the testator to 4 persons (3 of whom were his children and the 4th his servant whom he treated as a child) was prima facie held by them as tenants in common and if there was to be a partition then there should have been a deed of partition, yet it was stated that there was none.
The learned trial Judge thought that there was no need for a deed of partition as the personal representatives assent to any devise contained in the will and that by virtue of Wise v. Chitburn (1924) 1 Ch. 460 such assent could be implied by conduct and was to be so implied here. In our view, however, this power of assent could not be applied to the facts here as there was no question of the executors assenting to a devise in the will so as to give the defendant’s predecessor in title absolute ownership after a partition of the devised property. The devise was not a portion of the land to each of the 4 beneficiaries individually and absolutely, but to the 4 beneficiaries as tenants in common. There was therefore no basis for an assent and accordingly if there was to be a partition there should have been a deed of partition, but admittedly there was none.
We would not leave the matter here as we do not think that any partition, let alone one legally carried out, was ever established. It is not enough to show that a portion of the land had been used absolute by each beneficiary in order to establish a partition. There would need to have been a proper plan prepared and once again it was admitted that this was not done.
Moreover if one looks at the land in issue in the plan (exhibit C) it is clear that the portion which the defendant claimed as his absolutely was in fact two separate parts in the plot which cannot be reached without going through some of the property of one or more of the other beneficiaries. Clearly to our minds this shows it was an allotment to the beneficiary from whom the defendant bought this portion of land to use it, and not to own absolutely the land such as would enable him to dispose of it.
It follows that in our view the learned trial Judge was in error in dismissing the plaintiff’s claim as no partition was in fact legally established.
We accordingly set aside the judgment of the learned trial Judge dismissing the plaintiff’s claim, non-suiting the defendant’s counter-claim and declaring him the equitable owner of the portion of the land in question and granting him possession of it, together with the order as to costs.
We grant the plaintiff the relief sought in her amended particulars of claim, namely, a declaration that the purported sale of a portion of the property known as 61 Princess Street, Lagos, was invalid and also grant the plaintiff’s claim as against the defendant for possession.
The defendant’s counterclaim is dismissed. The plaintiff is entitled to her costs of this appeal from the defendant, J.B. Ogunsanya, which we assess at 72 guineas and to her costs in the High Court which we assess at 80 guineas.