Chief Oladipupo Akanniolumuyiwa Willlams, San V. Registrar of Titles, Lagos State & Ors (2016)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This Cross-Appeal dated 15th March, 2011 was filed on 15/3/2011 by the 2nd Respondent Chief Ladi Williams against his siblings who were in fact not parties to the action in the Lower Court.
It was stated in the Brief of Argument of the Cross-Appellant that on Tuesday, 18th October, 2007 the Honourable Justice K. O. Alogba delivered his Ruling in the matter which was attached to the record at p.377. In the said ruling, the Court made the following findings which gave rise to this Cross-Appeal.
I must caution that all the interested parties in this case being of an enviable pedigree and themselves personally eminent person, should not have thrown caution to the winds.
I have found no evidence of fraud or deliberate manipulation, misrepresentation and/or suppression of fact in the proceedings leading to the Order of Rectification just set aside.
I agree more with the position that though they would be mistaken in their interpretation of the powers given to them to take steps to pass the legal title in the property to any purchaser, when Tokunbo and Folarin in the belief that the
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beneficial interest in the property was in UIL, (which position Ladi and Kayode then apparently agreed with) proceeded to get the register rectified to read UIL?s names as proprietor, they were only taking steps to carry the steps given to them to see that UIL, transferred title in the property to any eventual purchasers.
If they had transferred the property to their own names, or that of any entity in which Ladi and Kayode were not interested then their motive could begin to be question.
Rather they got the transfer to UIL in which all four of them are Shareholders.
This is a family matter, I shall therefore only say that based on the Affidavit evidence before me, I jettison the prayer of the Appellants for joinder, that findings of improper conduct or fraud be made against the three parties sought to be joined.
The Learned Counsel for the Cross-Appellant submitted that the issues for determination in this application are as follows:
1. Whether the Court was right to rule that there was no evidence of fraud or deliberate manipulation misrepresentation and/or suppression of facts in the proceedings leading to the order of
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rectification just set aside.
2. Whether the Court was right to jettison the prayer of the Applicants for joinder that finding of improper conduct or fraud made against the three parties sought to be joined on the grounds that this is a family matter.
The Learned Counsel for the Cross-Appellant submitted that the Trial Court was not right to rule that there was no evidence of fraud or deliberate manipulation, misrepresentation and/or suppression of acts in the proceedings leading to the Order of rectification just set aside.
According to the Learned Counsel for the Cross-Appellant, the Counter-Affidavit of Mr. T. E. Williams, SAN @ Pg. 130 of the record stating at para. 9 of the Affidavit on P.131 that:
.I aver that Folarin Williams and myself own 9,920,000 out of the 10,000,000 shares of United Investment Limited jointly and all 4 brothers own 20,000 shares each in our personal capacities.”
This clearly showed that the Cross-Respondents believed that they owned virtually entire Company or over 99% of the Share of the said property for themselves through UIL, which incidentally was not a party to the Family
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Agreement.
The result contended the Learned Counsel for the Cross-Appellant, was that the property would no longer form part of the Estate and UIL being a Company that was not a signatory to the Agreement would not be bound thereto.
Therefore the Learned Counsel for the Cross-Appellant submitted that motive of the Cross-Respondent was more questionable under the circumstances, and the Trial Court ought to have been more mindful of the circumstances.
It was the additional contention of the Learned Counsel for the Cross-Appellant that it was wrong for the Trial Court to conclude that Folarin and Tokunbo Williams, SAN were following or believed they were following the now notorious Family Agreement as there was no such instruction in the said Agreement to change the title of the property from Chief Rotimi Williams, where the brothers all had an equal Share, to UIL, where Folarin and Tokunbo Williams, SAN believed they had more than 99% of the Share for themselves.
?The Learned Counsel for the Cross-Appellant stated furthermore that the Family Agreement in it’s definition had stated clearly that the property at 299, Idowu Martins Street, Lagos
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belonged to the Late Chief FRA Williams, SAN, CFR.
In the evaluation of the Learned Counsel for the Cross-Appellant, it is unbelievable, considering the legal expertise of the parties involved, to believe by any stretch of imagination, that the property already in the name of the owner (in this case Chief F.R.A Williams, SAN, CFR) needed to have it’s title transferred to a third party before it could be sold. Such a level of ignorance can only be reserved for illiterates and lay persons but certainly not in this instance where the expertise of three SAN’s and a lawyer of over twenty years experience was involved.
Learned Counsel for the Cross-Appellant maintained that, if there was any such ?beneficial interest? the instruction was that it was to be “transferred to any would be purchaser” particularly in the con of the fact that further to this as at p.375 para 3 of the record wherein the Ruling was contained, Lower Court had stated:
“that at the time the action was taken out, it was not authorized by the proper party or parties to do so.?
?Therefore, it was the inference of the Learned Counsel for the Cross-Appellant
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that the fact of the matter was that the Court made a finding that the action of the persons sought to be joined to rectify the Register was done without the knowledge and consent of all the necessary parties, principally in this case Chief Ladi Rotimi Williams, SAN and Mr. Kayode Adekunle Olusegun Williams, and indeed the Estate of the Late Chief F.R.A. Williams, SAN, CFR, and the consent of the Governor of Lagos State.
The Learned Counsel for the Cross-Appellant pointed out that as the last paragraph on P.375 of the record states, in the conclusion of the Trial Court:
“It therefore follows that the Applicants for joinder being two of the four proper and indeed necessary parties to deal with the property, and having not authorized the taking out of the application for rectification, the action thus became affected and incompetent in the circumstances.”
It was the perspective of the Learned Counsel for the Cross-Appellant that in the con of this conclusion, if it were to be believed that the parties sought to be joined were acting in good faith, they would not have attempted to rectify the Register without notifying all the necessary
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parties.
Learned Counsel for the Cross-Appellant argued that the said person knew full well that the persons seeking to be joined were not notified and had not given their consent as required under S.61(1) of the Register of Title Law and nevertheless presented this falsehood in the pursuance of the judgment by the Honourable Justice Ade Alabi at P.62 of the record on the 28th day of November, 2006 which was subsequently set aside.
It was the submission of the Learned Counsel for the Cross-Appellant that the Affidavit dated November 10th, 2006 concealed the fact that there was no consent from Messrs Chief Ladi Rotimi Williams, SAN and Mr. Kayode Williams who were Applicants for joinder in the Suit at the Lower Court.
Learned Counsel for the Cross-Appellant asserted that in the case of Ntuk Vs. NPA 13 NWLR (Pt.1051) p.392 at p.427 – 429 paras. H – B, per Mohammed JSC.
It is said that fraud is an intentional perversion of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is a false representation of a matter of fact whether by words or by
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conduct by false or misleading allegations or by concealment of that which should have been disclosed which deceives and is intended to deceive so he shall act upon it to his legal injury.
?Learned Counsel for the Cross-Appellant argued that, firstly, the parties sought to be joined knew as a matter of fact (which was also shown by the absence of same in their Affidavit) that the parties seeking joinder had neither been informed nor given their consent to the rectification.
Secondly, the parties sought to be joined sought to cause legal injury to the parties seeking joinder by attempting to transfer property under which the 4 children were entitled to a quarter each of the property to UIL., wherein a value of less than 1% each would be attributable to the persons seeking to be joined.
Thirdly, the parties sought to be joined presented a false representation of facts by concealing the fact that the required consent under S.61(1) (c) Registration of Title Law had not been had and obtained from Chief Ladi Rotimi Williams, SAN and Mr. Kayode Adekunle Olusegun Williams.
Learned Counsel for the Cross-Appellant made the submission that essentially
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fraud was therefore committed because the parties sought to be joined KNEW that they had not obtained and received the consent of Chief Ladi Rotimi Williams, SAN and Mr. Kayode Adekunle Olusegun Williams but nevertheless proceeded to seek to rectify the title of the property in question under S.61(1) (c) Register of Title Law.
Learned Counsel for the Cross-Appellant argued further that as also in the case of Egbo Vs. Nwali & Ors. (1998) 6 NWLR (Pt.553) 195 @ 210 para. C – D per Salami JCA:
“If fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person.”
Thus, in the circumstance, it was submitted by the Learned Counsel for the Cross-Appellant that the High Court was wrong in making a finding of no fraud on the basis that their motive was not questionable.
Learned Counsel for the Cross-Appellant canvassed the view that what matters is according to Egbo Vs. Nwali & Ors. (supra) P.210 para C – D per Salami JCA:
?Fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth or recklessly;
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careless whether it be true or false.”
The Learned Counsel for the Cross-Appellant contended that the Lower Court had stated at P.376 of the Record in it’s Ruling that:
Where proper parties are not before a Court, the Court is without jurisdiction to adjudicate… This is where I sustain the basis of the Applicant for joinder?s contention that the Court lacked jurisdiction as a ground for bringing their application.
Therefore in the perspective of the Learned Counsel for the Cross-Appellant, it was clear that the Court had made a finding that consent of the Applicants seeking joinder was not sought and obtained.
The Learned Counsel for the Cross-Appellant maintained that at p.54 of the Record, in the Written Address prepared by T. E. Williams, SAN it was stated clearly under “Arguments? that S.61 (1) (c) Registration of the Register provides that:
(c) ?in any case and at any time with the consent of all persons interested.?
and therefore, drew the conclusions that the Applicants sought to be joined knew of the said requirement but nevertheless concealed or misled the Honourable Court into the mistaken
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belief that consent of all interested persons had been obtained when in fact it had not been.
Learned Counsel for the Cross-Appellant pointed out that S.425 of the Criminal Code Act states thus:
Any person who willfully procures or attempts to procure for himself or any other person any registration licence or certificate under any Act of law or under any regulation made under the Nigerian (Constitution) Order in council, 1951, or the Nigerian (Constitution) Order in Council, 1945 or the Constitution of the Federal Republic of Nigeria by any false pretence, is guilty of a misdemeanor and is liable to imprisonment for one year.
Also S.413 of the Criminal Code Act states thus:
?Any representation made by words, writing or conduct, of a matter of fact either past or present, which representation is false in fact and which the person making it knows to be false or does not believe to be true, is a false pretence.?
Learned Counsel for the Cross-Appellant, in the circumstances, therefore submitted that the persons sought to be joined knew that the consent of Chief Ladi Rotimi Williams, SAN and Chief Kayode Adekunle Olusegun
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Williams had not been obtained and this fact was willfully concealed from the Court so as to enable the said persons rectify the title of the property under S.61(1)(c) of the Registration of Titles Law under false pretences.
The Learned Counsel for the Cross – Appellant asserted that the Lower Court ought not to have been drawn by sentiment however well intended with regards to the ‘pedigree” of those persons sought to be joined as same would cause a great miscarriage of justice against the persons seeking joinder, as no person regardless of their “pedigree? is above the law.
Also in respect of fraud, it must be noted that on P.34 of the Record of Appeal, Mr. Folarin Williams signed “jointly? on the subscriber’s form for himself and the Late Chief F.R.A. Williams, SAN, CFR on September 17th, 2003 at a time when the Late Chief F.R.A. Williams, SAN, CFR was alive and well and still attending Court.
This raises the question that, why was the Late Chief F.R.A. Williams, SAN, CFR unable to sign in the subscribers column for himself in September, 2003 given that a great portion of his wealth or nearly all of it was being held therein?
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i.e. in United Investments Limited.
It is doubtful that the Late Chief F.R.A. Williams, SAN, CFR was even aware of this alteration of the subscribers form given that Folarin Williams signed on his behalf and there is also no evidence whatsoever that he consented to this act. It is very much doubtful that Chief F.R.A. Williams, SAN, CFR one of the greatest legal icon of our time was ?ignorant of the law?, as regards signing the subscribers form.
More importantly, S.27(5) Companies and Allied Matters Act states thus:
?The Memorandum SHALL be signed by each subscriber in the presence of one witness who shall attest the signature.?
Where is the signature of the Late Chief F.R.A. Williams, SAN, CFR? Why is it not on the subscriber’s Form? This is a mandatory provision with respect to the Memorandum of a Company. It is herein categorically submitted that not only would it render the said Memo and Articles invalid, but also that THIS IS AN ACT OF FRAUD and is impossible to ignore.
?The Learned Counsel for the Cross-Appellant in the circumstances stated that the Lower Court was not right to jettison the prayer of the
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Applicants for joinder in the finding of improper conduct or fraud made against the three parties sought to be joined on the grounds that this was a family matter.
Learned Counsel for the Cross-Appellant emphasized that according to the law, this was NOT a family matter, but the rectification of title in accordance with statute law laid down from the Constitution of the Federal Republic of Nigeria, and which the Judiciary being an arm of Government must apply and dispense.
There is no known provision of law which allows parties to a suit commit criminal acts of fraud and escape the long arm of the law on the grounds that the parties are related.
In Okoli Vs. Ojiakor (1997) 1 NWLR (Pt.479) P.48, the principles governing joinder of parties are as follows:
A party interested in the subject matter of a suit could seek to be joined either at the trial Court or in the Court of Appeal. In either case he needs to show that he has an interest in the result of the litigation. To order joinder of a party to a suit, the Courts take a number of principles or factors into consideration some of which include the following.
(a) The party is
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aggrieved or likely to be aggrieved by the result of the litigation to the extent that he will be directly, legally or financially affected by the result of the litigation;
(b) To enable the Court fully completely and effectually deal with the Suit in Order to frustrate or stop a possible future litigation on it; and
(c) To ensure that the principles of fair hearing under S.33 of the 1979 Constitution and the Natural Justice Rules of audi alteram partem are not breached.
Learned Counsel for the Cross-Appellants in the con submitted that:
(i) Mr. Folarin Rotimi Abiola Williams and Mr. Tokunbo Eniola Williams, SAN are the third and fourth sons of the Late Chief F.R.A. Williams, SAN CFR respectively and will be bound legally and financially by any decision reached by this Honourable Court and at the material time were Directors/Shareholders in the Applicant?s Company.
(ii) Chief (Mrs) Abimbola Williams, SAN is a niece of the Late Chief F.R.A. Williams, SAN CFR and was at the material time working as a staff of Messrs Tokunbo Eniola Williams, SAN and Mr. Folarin Rotimi Abiola Williams. She is also a signatory to the Family Agreement
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and it was she who moved the Motion to rectify which was eventually set aside.
From the description of the parties above, the Learned Counsel for the Cross-Appellant made it clear that they are the only person who would have been aware of the proceedings leading to the Ruling herein (which was set aside) being Counsel in Chief Rotimi Williams’ Chambers. It must be assumed according to the Learned Counsel for the Cross-Appellant that Messrs Tokunbo Eniola Williams, SAN and Mr. Folarin Rotimi Abiola Williams conveyed their consent through Chief (Mrs) Abimbola Williams, SAN.
Learned Counsel for the Cross-Appellant expressed the view that Chief (Mrs.) Abimbola Williams, SAN had a sacred duty imposed by law and by practice of the Honourable Legal Profession to inform the Lower Court of all other relevant facts known to her, particularly that Chief Ladi Rotimi Williams, SAN and Chief Kayode Williams, were also interested parties persons as envisaged under S.61(1)(c) of the Registration of Titles Law, Laws of Lagos State 2003 and had not given the consent in writing. Such information would have assisted the Lower Court to reach the correct decision in the
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matter.
Learned Senior Counsel Chief (Mrs.) Abimbola Williams, SAN and Mr. T. E. Williams, SAN should have promptly informed the parties seeking joinder of their intention to rectify the Register and/or serve the Originating Motion on them, so that they could have taken appropriate steps, either to give their consent or object to the said originating Motion.
Thus, according to the Learned Counsel for the Cross-Appellant in the present case, Learned Senior Counsel who moved the Applicant’s Originating Motion knew at all material times that Chief Ladi Rotimi Williams, SAN, Chief Kayode Adekunle Olusegun Williams, Mr. Folarin Williams and Mr. Tokunbo Eniola Williams, SAN who were interested persons in the subject matter Plot 299, were also Directors/Shareholders in the Applicant, but the consent of Chief Ladi Williams, SAN and Chief Kayode Adekunle Olusegun Williams to rectify the Register of Titles in respect of the said Plot 299 was not sought for and obtained.
These material facts were concealed from the Court at ALL material times to the Ruling dated 28/11/06. Indeed it was NEVER the case of the Applicant herein that the consent of all
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interested persons were obtained in writing and placed or exhibited before this Court.
Clearly, Chief (Mrs.) Abimbola Williams, SAN was the main protagonist that caused the unfortunate turn of events that gave rise to the setting aside of the Ruling dated 28/11/06 and was also a party in respect of the fraudulent misrepresentation and it is for these reasons that she, along with Messrs Tokunbo Eniola Williams, SAN and Mr. Folarin Rotimi Abiola Williams ought to be joined as necessary parties.
Furthermore, at p.377 para 4 of the record, the Court in it’s Ruling stated thus:
“..Any application for Rectification of the Register of Title in that property ought and must be brought by all of them without exception and by no other person or body.?
It was therefore submitted by the Learned Counsel for the Cross-Appellant that the Lower Court having made a finding that in the case of the 1st and 2nd persons sought to be joined (along with Chief Ladi Rotimi Williams, SAN and Chief Kayode Adekunle Olusegun Williams) were the only persons interested therein, ?ought to have joined them as necessary parties in this Suit, in line with his
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finding?.
The Cross-Appellant it must be stated, has confused the trial in civil proceedings with trial in a criminal proceeding.
In the determination of this Cross-Appeal, it is pertinent to state that Section 133 Sub-section 2 of the Evidence Act, Cap. E14 of the Laws of the Federation of Nigeria, prescribes that in Evidence as to the interpretation of documents:
“Evidence may not be given to show that common words, the meaning of which is plain and which do not appear from the con to have been used in a peculiar sense, were in fact so used.
It is the express view of this Court in the con of Section 141 that all the allegations made in this Cross-Appeal do not in fact exist within the confines of the Family Agreement of 2005. The submissions made in respect of the allegations are not sufficient to persuade this Court to satisfactorily agree to, or accede to the perception of any illegalities in the transaction in respect of which the Cross-Appeal has been made.
Abubakar, JCA pointed out in Williams Vs. Williams (2014) 15 NWLR at Page 244 that:
The law is trite regarding the bindingness of terms of agreement
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where parties as in the instant appeal voluntarily enter into an agreement and willingly too endorse the said terms, the agreement must be honoured, Courts of law being Courts of justice and conscience will certainly not allow anything to be read into an express agreement, terms on which parties were not in agreement.
?In the circumstances the Cross-Appeal lacks merit and is hereby dismissed.
No order as to costs is made.
Other Citations: (2016)LCN/8858(CA)
