Abiodun Vincent V. Alhaja Iyabo Vincent (2007)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM JP+, J.C.A.
The Appellant as Plaintiff at the High Court of the Lagos State claimed as follows: –
(i) A declaration that the defendant is not entitled under Yoruba Native Law and Custom to unilaterally take over family property not allocated or partitioned to her by the family with the consent of the head of the family.
(ii) An order that the defendant do forthwith deliver possession of the two rooms wrongly taken over on 1st floor of the property situate at 15, Oke-Arin Street, Lagos.
(iii) The sum of N1,000.00 per month far the use and occupation of the two rooms from November 1993 the time the defendant took over possession until possession is given up.
The Defendant filed a statement of defence along with a counter-claim.
The counter-claim is as follows: –
(i) That under Yoruba Native Law of Custom of distribution by Idi-Igi defendant being one out of the two is entitled to two rooms out of the five rooms allocated to Olatunji Vincent Family on the property at 15, Oke-Arin Street. Lagos.
(ii) An order that the remaining one room left after sharing two rooms each to each of the two branches should be let out and rents collected wherein be used for the payments of tenement rate.
The learned trial Judge dismissed the main claim and entered Judgment for the Defendant counter claimant. Dissatisfied, the Appellant seeks a reversal of the said decision. Three grounds of appeal were originally filed, an additional ground was filed with the leave of the Court.
The appellant urged the Court to allow the appeal and enter Judgment for the Plaintiff as Appellant before this Court.
The brief facts of the case which led to this appeal are as follows: –
A landed property situate at the 15, Oke-Arin Street Lagos now belongs to the entire family of Olatunji Vincent. It is uncontroverted that one Olatunji Vincent who died intestate, had seven children of his two wives. The issue in controversy is that of the five rooms left to be shared among the seven children. The original Plaintiff in this suit who is now deceased and was replaced by the current one, had as the Head of the family, adopted the Ori-Ojori method of the distribution of the estate of their deceased father.
The Respondent, who was the Defendant-Counter-claimant before the trial Court took objection to the Ori-Ojori method. She preferred the Idi-Igi method. Accordingly, she rejected the one room due to her under the Ori-Ojori method and unilaterally gave to herself, two out of the five rooms to be shared among the seven children. This she did in defiance of the decision of the Head of the family.
What are these methods termed idi-igi and ori-ojori? The case of Obidairo v. Bakare (2005) All FWLR (Pt. 256) page 1382 at 1391 proffered some explanation. It was held that under the Yoruba tradition of the distribution of the estate of a man who died intestate, there are two methods. These are idi-igi known as per stripes and the Ori-Ojori, known as per capita. The idi-igi method distributes the estate per the number of wives the deceased had, no matter the disparity in the number of children among the wives.
The Ori-Ojori method on the other hand considers the number of children and shares out the property equally among the children.
Preliminary Objection
The learned Counsel to the Respondent has incorporated and argued a notice of Preliminary Objection in the Respondent’s brief of argument. It is the submission of the learned Counsel that the additional ground of appeal filed with the leave of this Court is incompetent. The reason for this objection is that the particulars set out under the said ground of appeal contain arguments and conclusions instead of complaints arising from the decision of the learned trial Judge. Citing the case of Shuaibu v. Union Bank of Nigeria Limited (2001) SC NJ1 (?), Kano ile Plc v. G and H (Nigeria) Limited. (2002) 2 N.W.L.R. (Pt.751) Page 420, the learned Counsel urged us to strike out the additional ground of appeal.
In an Appellant’s reply brief, the learned Counsel for the Appellant dismissed the Preliminary Objection as misconceived. The learned Counsel submits that the particulars were succinctly and specifically couched to enable the Respondent know the exact complaint against the Judgment.
Having adequately argued issue two, maintains the learned Counsel, the Respondent’s learned Counsel has not been misled. Issue two, argues, the learned Counsel, is premised on the additional ground.
I have perused the particulars filed in substantiation of the additional ground of appeal filed. I find nothing untoward about the said particulars which are largely similar in content with those filed in support of the original grounds of appeal. The rule is that the particulars to a ground of appeal must contain sufficient disclosure of the complaint against the Judgment appealed against. (Refer: Okudo v. Inspector General of Police (1998) 1 N.W.L.R (Pt. 533) Page 335 at 338. I am of the humble opinion that this has been done efficiently in the particulars of the additional ground. Accordingly, I uphold the submission of the learned Counsel for the Appellant and hold that the Preliminary Objection. Preliminary Objection is misconceived.
It is accordingly hereby dismissed.
The Issues:-
Two issues were formulated for determination in the appeal by the Appellant. The Respondent apparently adopted the two issues in its argument against the appeal.
Issue one is said to have been distilled from grounds 1-3 of the grounds of appeal. It is formulated in these terms:
“Whether the trial Judge was right in rejecting the decision of the head of the family for distribution of family property per capita (ori-ojori) and substituting therefore its own view that distribution be per stripes. This issue covers grounds 1 to 3 of the grounds of appeal.”
“If the answer to issue 1 above is in the negative whether the respondents is not liable to pay monthly N1000 mesne profit for the use and occupation of the part of the premises wrongly taken over, as claimed in the writ and supported by the evidence on both sides. This the issue called in question in the additional ground of appeal.”
Issue One: –
On this issue, the learned Counsel submits that the learned trial Judge erred in failing to uphold the decision of the head of the family in the distribution of the estate. The learned Counsel maintains that there is no law which requires the head of the family to justify his decision to adopt the Ori-Ojori method of distribution. Nonetheless, argues the learned Counsel, the reason for the decision of the deceased head of the family was explained in paragraph 9 of the statement of claim and evidence was proffered in support of the said decision.
The learned Counsel for the Appellants saw in the decision of the trial Court, an approval to the reckless conduct of the defendant, an invitation to anarchy. By unilaterally taking two rooms to herself, against the decision of the head of the family, the Respondent had forcibly acquired the said property, argues the learned Counsel for the Appellant.
The learned Counsel cites the case of Adeniji and Anor v. Adeniji and Ors (1972) 1 All NLR pg 298, which held that it was an error for the trial Judge to order a distribution according to the Ori-Ojori method when there was no evidence that the head of the family had decided in favour of that method, thereby depriving the head of the family of his right to resolve such a dispute. The Apex Court held that the decision of the head of the family as to the method of distribution should prevail. Also cited in substantiation of the Appellant’s case are the following cases: –
1. Danmole and Ors v. Dawodu and Ors (1958) 3 FSC 46.
2. Akinyede v. Opere (1968) 1 All NLR Page 65.
3. Olowu v. Olowu (1985) 3 N.W.L.R. (Pt.13) page 272 at 37.
In the brief of Respondent, the learned Counsel submits that the decision of the learned trial Judge is correct in that by the evidence before the Court, the inference to be drawn is that the property was shared under the doctrine of idi-igi.
The learned Counsel cites the case of Shuaibu v. Union Bank Limited (2001) 1 SC NJI and Kano ile Plc v. GKH (Nigeria) Limited (2002) 2 N.W.L.R. (Pt. 751) Page 420 in support of his argument.
It is further the submission of the learned Counsel that the cases cited by the Appellant’s learned Counsel are not applicable in the instant appeal. The learned Counsel does not however give details of the relevant distinction.
The crux of the complaint of the Appellant before the trial Court is the unilateral decision of the Respondent to take over the family property not allotted or apportioned to her by the family. Nor did she have the consent of the head of the family to acquire the said property.
The contention of the Respondent that the Head of the family had not been appointed is a porous argument to begin with. It was not contested that the deceased was the eldest of the Olatunji Vincent family at the commencement of this matter.
The Respondent admitted in her evidence at the trial, that she was at the meeting at which it was decided that the Ori-Ojori method of distribution be adopted, (page 20 of the Records for this appeal.)
The Respondent stated as follows before the trial Court:-
“We shared 2 reasons for Akande and Maria Taiye I was given 1 room and I said no I wanted 2 rooms.
I asked for two rooms because I wanted Idi-Igi…”
Under cross examination, the Respondent said
” … Yes, we had a meeting ….. Yes, I was asked to take 1 room and I said no I took 2 rooms.”
(Page 30 of the Records for this Appeal.)
The implication of her testimony before the Court is that she elected a particular method and went ahead to do what she wanted inspite of the decision at the meeting in favour of a different method. If each member of the family decides to ignore the decision taken at a meeting of the family and allocate to themselves whatever they want, surely there would be chaos and rancour in the family.
If the Respondent was dissatisfied with the decision of the head of the family, she should have sought respite in a Court of law. Defying the decision of the head of the family and taking what she wants is not a healthy way of living with siblings. The head of the family is not a figure head, he is there for a purpose and his decision once made, must be respected, until over turned by a popular vote at another meeting, or by a Court of competent jurisdiction. Arbitrariness and defiance never augurs well for any group of people however small the size. Unilateral decisions always lead to dissention and a breach of peace, creates suspicions and breads disaffection.
Courts must not be seen to give a nod to lawlessness and defiance to lawful authority, however minute the situation. The Rule of law is the only cure for acts of lawlessness.
The learned trial Judge was right in holding that where there is a dissenting voice, the decision of the head of the family shall be subjected to scrutiny by the Court. The question to ask here is to which Court did the Respondent take the decision of the head of the family for the said scrutiny?
The facts before the trial Court are that the Respondent did not challenge the decision of the head of the family before any Court of law. She simply “took 2 rooms’; she declared. That she did in total defiance of the decision of the head of the family or of the meeting she admitted she attended.
There must be some order in the conduct of a family affair. It is said in favour of order, that even in a beer parlour, there is respect for the elder. If the deceased Plaintiff had not been appointed the head of the family, it is not disputed that he was the eldest among the children. If his authority were not recognized, why did the Respondent approach him for a room for her son who came in from Maiduguri?
The learned, trial Judge stepped out of bounds when he dwelt on the question of the legitimacy of the meeting. It was not an issue placed before the Court either in the main suit nor in the counter-claim. Nor was the issue of the fairness or the propriety of electing one method over the other an issue before the Court.
The Respondent said she was at the meeting which gave her one room. She preferred the idi-igi and therefore, she took two rooms, period!
The issue was not put to vote at the meeting therefore, the decision of the head of the family prevails and is binding on the Respondent. (Refer Adeniji and Anor v. Adeniji and Ors supra).
Accordingly, the Respondent had no right to defy the decision of the head of the family. The Respondent cannot, without the consent of the head of the family, take two rooms when she was given one at the meeting.
Issue Two
The Appellant claims mesne profit from the Respondent on the room she unilaterally acquired. The rent value of each room is put at N500.00 per month, this fact is not denied by the Respondent (Page 21 of the Records referred). Cited in support of this issue are the following cases:
(1) Ibile Holdings v. Poss (2002) 16 N.W.L.R. (Pt.792) Page 117 at 133 and
(2) African Petroleum Limited v. Owodunni (1991) 8 N.W.L.R. (Pt.210) Page 391 at 317 and 420.
The Respondent counters this claim for mesne profit on two grounds to wit that: –
(1) “the Appellant cannot claim possession and trespass at the same time.
(2) That as a member of the family, the Respondent is entitled to have reasonable ingress and egress, to have a voice in the management of the property and to share in any surplices (sic) uses of income derived from it after necessary outgoings have been met.
The learned Counsel for the Respondent submits that the case of African Petroleum Limited (supra) is not applicable in the circumstances of this case. He cites in support of his own submission, the cases of Banjo and Anor v. Ayekoti and Anor (1973) 1 All NLR (Reprint) 258 at 270-271, Aromire v. Awoyemi (1972) 2 SC Page 1 at 7 and Thomas v. Thomas 16 NLR 5.
First and foremost, some of the citations given by the learned Counsel for the Respondent are either incomplete or non-existent. Further, the principles decided in those cases are left interned on the pages of the said reports perhaps on the exclusive book shelves in the learned Counsel’s chambers. We of this Court unfortunately do not have access to the said bookshelve.
In the case of African Petroleum (supra), the Supreme Court had defined mesne profit as the rents and profits which a trespasser has or might have received or made during his occupation of the premises. The said occupation being illegal, the rent collected must be paid over to the true owner as compensation for the tort which he committed.
The principle is amply applicable in the instant appeal. Having unilaterally acquired the extra room and put same to commercial usage, the Respondent is bound to pay over the proceeds of such illegal acquisition to the rightful owner, the entire family. The rent she has admitted she collects on the family property must be paid over to the head of the family for equitable distribution to all members of the family including herself. Of course, since she is entitled to one room, she shall pay over, the proceeds of the other room.
This appeal therefore succeeds on all the grounds of appeal filed and the two issues formulated. The decision of the learned trial Judge is hereby set aside in its entirety.
A cost of N5,000.00 is awarded to the Appellant, against the Respondent. It is hereby so ordered.
Other Citations: (2007)LCN/2340(CA)
