Albert Martin Lewis And Anor V Abigail Majekodunmi (1966)

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BAIRAMIAN, J.S.C.

The plaintiffs complain of the decision given by Sowemimo J. on 18 May, 1964 in the Lagos High Court Suit 109/1963, dismissing their claims. These are-

1. A declaration that all that piece or parcel of land marked F in the attached probate copy of the will [is the] family property of Jose Domingo, deceased, the common ancestor of both plaintiffs and defendant.

2. An injunction restraining the defendant from erecting fence or building on family compound marked G mentioned in the said probate copy of the will without the consent of the plaintiffs.

3. An account of all moneys received and rents collected on the said piece or parcel of land marked G in the said probate copy and for an order directing the payment to the plaintiffs of their share on taking of such account.

Jose Domingo made his will on 27 January, 1911; he died on 5 February, and probate of the will in common form was granted on 31 March, 1911. The testator’s daughter Maria sued in July, 1912 to have the probate revoked but discontinued that suit and sued again in October, 1915 the executors Charles Patrick Williams and Alexander Martin Lewis for revocation: Suit 176/1915. The judgment in that suit quotes the pleadings. From the Statement of Claim it will be enough to copy paragraph 1 and paragraph 2:

1. The plaintiff is the only child of Jose Domingo otherwise known as Fadumila late of Tokunboh Street in Lagos who died on the 5th February, 1911.

2. The defendants are the executors of a pretended last will and testament bearing date the 27th day of January, 1911 and purporting to have been duly executed by the said Jose Domingo.

Paragraph 1 of the Defence states that-

The defendants admit paragraphs 1 and 2 of plaintiffs Statement of Claim but say that the last will and testament was not a pretended one. The Defence is signed by A. Alakija, defendants’ solicitor. The judgment then goes on to deal with the allegations that the will was invalid for this reason and the other, and dismissed them as unfounded.

The testator devises sundry pieces of land by reference to the plan attached to his will. He devises a piece to “my daughter Maria Joseph of Okepopo Lagos,” and another piece to “my daughter Lorintina Joseph of Tokunboh Street” (which was his address too).

As to F (which is the subject of the 1st claim in this suit) he gives it to “my nephew Domingo Akindele Joseph now at Sekondi Gold Coast”; and as to G (which is the subject of the 2nd claim and the 3rd) he devises it to “Alexander Martin Lewis his heirs and executors in trust for all my relatives both in Lagos and in the interior who shall desire to build and live in my compound and the same is hereby constituted my family compound”;

and he goes on to declare that Alexander Martin Lewis shall be the head of his family compound.

Alexander Martin Lewis was the child of Lorintina and the father of the plaintiffs in this suit. The defendant Abigail Majekodunmi is the daughter of Maria, who also had other children. In her Defence the defendant alleges that Lorintina (or, as she calls her, Laurentia) was a domestic servant of the testator Jose Domingo and his wife, both of whom adopted her. The learned trial judge refers to this allegation made by the defendant, who supported it by the admission made by the plaintiffs’ father in Suit No. 176/1915 that Maria was the only child of Jose Domingo, the testator; the judge notes that this admission was made in the lifetime of Alexander Martin Lewis and of Maria; he concludes that Alexander’s sons, the plaintiffs, are no blood relations of the defendant and cannot, in face of that admission, say that Lorintina, their grandmother, was a daughter of the testator, although he speaks of her as his daughter in his will. The learned judge goes on to decide that the plaintiffs are strangers for all purposes and cannot make any claim either to the land marked F or to that marked G.

Even if the learned judge were right, he overlooks the provision in the will in regard to G-that it is devised to “Alexander Martin Lewis his heirs and executors in trust for all my relatives”; which gives the plaintiffs, the sons of Alexander, an interest to see to it that G is preserved as the family compound and is not turned into the private property of the defendant or any other relative of the testator. Mr. Thomas, the defendant’s counsel in this appeal, concedes that on any view the learned judge erred in regard to the land marked G on the plan. In effect he concedes both the 2nd and the 3rd claims but says they were superfluous.

As to the 2nd claim: There used to be an old fence of bamboo sticks, the position of which is shown on a plan and on a sketch put in by counsel for both sides at the hearing of the appeal; we have marked them as S.C. 1 and S.C. 2 and attached them to this judgment: (they also show where the new concrete fence has been erected.) The plaintiffs do not object to the defendant putting up a bamboo fence in exactly the same places and to the same extent. What they object to is the new concrete fence erected elsewhere inside G, which bars free access and virtually marks off a part of G as private property. The new fence ought to be pulled down. The plaintiffs are entitled to an injunction restraining the defendant from erecting any fence (except a fence similar to the old bamboo fence where that had stood) or building inside the family compound G without their consent.

As regards the 3rd claim: Mr. Thomas concedes that the defendant is not entitled to profits, if any, from rents of rooms in the family compound G; but he says that the rooms are occupied by members of the family and only one is let for the sake of paying the rates. The defendant might as well provide an account of rents received and rates paid in respect of the premises in G, and it will be ordered that she shall do so on oath within three months from the date of this judgment as from the 1st April, 1963, when the question of an account was first brought to her notice by the present suit, down to the 30th June, 1966.

Before dealing with the 1st claim, we have to refer once more to the use of the admission in the Defence in Suit 176/1915 made by the trial judge in the present case. The judgment in the former suit deals with the allegations against the validity of the will, and the res judicata is the validity of the will. The suit was against the executors of the will; the admission was made by their counsel in his pleading, who may well have thought that the allegation of Maria being the only child of the testator was not germane to the dispute and that the executors as representing the estate were not concerned to deny that allegation and raise an irrelevant question in the case. The pleading of counsel for a party is binding on the party in the suit in which it is delivered for the purposes of that suit, and serves.

The pleading of counsel for a party is binding on the party in the suit in which it is delivered for the purposes of that suit, and serves to reduce the evidence which need be called in the facts in issue, and thus reduce the costs in the case; and the formal admissions which counsel makes must not be stretched beyond those purposes. The learned trial judge refers to the admission in the 1915 suit, and goes on to pose this question in his judgment:

“In view of this admission by plaintiffs’ father that the mother of the defendant in this case was the only child of Domingo Jose, how can his children now say that their grandmother one Lorintina Jose was a daughter of Domingo Jose?”

With respect the true question is whether there is any rule of evidence which estops a party from pleading differently in a subsequent suit from what his counsel formally pleaded in the former suit on a subject that was not material to the former dispute. The judgment in the 1915 suit was not pleaded in the Defence; it was tendered through one of the plaintiffs in cross-examination; it was not relied upon in any way in the concluding address for the defendant in the court below. Why it was put in we cannot understand. We asked Mr Thomas, the defendant’s learned counsel, to tell us whether he knew of any authority for the use made by the trial judge of the admission in the 1915 suit; he said he did not know of any and did not rely on that admission. We have since verified the point; it will be enough to quote this passage from the leading case of Boileau v. Rutlin, 2 Exch. Reports 665 at 681 (154 E.R. 657 at 663):

“The facts actually decided by an issue in any suit cannot be again litigated between the same parties, and are evidence between them, and that conclusive, upon a different principle, and for the purpose of terminating litigation; and so are the material facts alleged by one party, which are directly admitted by the opposite party, or indirectly admitted by taking a traverse on some other facts, but only if the traverse is found against the party making it. But the statements of a party in a declaration or plea, though, for the purposes of the cause, he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated.”

We are of opinion that the learned judge erred in the use he made of the former judgment. In regard to portion F, the subject of the 1st claim, Mr. Thomas did not urge that Lorintina was not a daughter of the testator; he urged that on the evidence Domingo Akindele Joseph was not the nephew of the testator himself, but of his wife. So the defendant testified, and Mr. Thomas pointed out that

Other Citation: (1966) LCN/1313(SC)