Col. Halilu Akilu V. Chief Gani Fawehinmi (No.2) (1989)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This is a rather curious and intriguing case. The plaintiffs now appellants are claiming as “beneficiaries of the Estate of Mrs. Elizabeth Chinweze deceased.” There is no dispute that the appellants are the children of Mrs. Elizabeth Chinweze deceased. The appellants who were born many, many years after the death of Peter Chinweze the husband of Elizabeth Chinweze never claimed to be the children of Peter Chinweze by the operation of any “Native Law and Custom” or natural law , let alone English law.

As beneficiaries of the estate of Mrs. Elizabeth Chinweze (deceased) the appellants claimed against Mrs. Veronica Masi, their half sister the following reliefs:

1. A declaration that the house situate at No.5 Ogui Road, Enugu is the bona fide property of Mrs. Elizabeth Chinweze (deceased) of whom the Plaintiffs are beneficiaries thereof.
2. A declaration that the Defendant is a Trustee de son tort in respect of the estate of the said Mrs. Elizabeth Chinweze (deceased).
3. A declaration that any transaction not in the interest of the beneficiaries in respect of the said No.5 Ogui Road is null and void and without effect whatsoever.
4. Injunction restraining the Defendant, her servants or agents from any act of interference with the said property contrary to the interest of the beneficiaries and from dealing with it in any manner whatsoever as if it was her property.

In the two affidavits seeking the approval of the court for the named plaintiffs (the appellants) to represent all the other beneficiaries, no mention was ever made of Peter Obikwesi Chinweze, the late husband of Elizabeth Chinweze deceased, the father of the 1st Defendant Mrs. Veronica Masi and the original lessee of the property designated No.5 Ogui Road, Enugu, now in dispute. This is Stage 1.

Stage 2 opened with the application of Eddy C. Ibe (under Order IV Rule 5(1) High Court Rules, Laws of Eastern Nigeria 1963 applicable in Anambra State) to join as a party to the pending proceedings between plaintiffs/appellants and their sister the 1st Defendant. In his affidavit in support Eddy C. Ibe deposed inter alia:

“2. The case is in respect of the property situate at and known as No.5 Ogui Road, Enugu which I bought from the Defendant on or about 20th June, 1975 for N10,000.00 and the Defendant receipted for money paid for it.

7. Before I bought the property from the Defendant, I made a search in the Lands Registry to ascertain whether or not the Defendant owned the property and I was satisfied after that search that she alone had, the exclusive and unfettered ownership, of the property.
8. The instrument of the Defendants’ title is registered in the Lands Registry Enugu as No. 64 at page 64 in Volume 254.
9. After the Defendant sold the property to me, the plaintiffs applied for Letters of Administration from the Probate Registry Enugu in respect of the property which letters were refused them following my entering a caveat to prohibit its grant to them.
10. The Defendants were advised by the Probate Registrar Enugu to take out a Probate action against me in court but this the Defendants (sic) had failed to do but instead have pressurized their half sister, the Defendant, to repudiate the contract of sale of the property to me.
11. My interest in this property cannot be fully and adequately defended if I am not made a party to this suit.
12. The plaintiffs already know that I bought the property since 1975 but in order to get an easy judgment they have decided to collude with their sister by suing her and not making me a party to the suit. ”

The plaintiffs filed a counter-affidavit which did not counter, save for bare general denials, the allegations of fact deposed to by the intervener Eddy C. Ibe.

The trial High Court then joined Eddy C. Ibe as 2nd Defendant.

Pleadings were then ordered, filed and exchanged. Since the action of the plaintiffs was filed in their capacity as “beneficiaries of the Estate of Mrs. Elizabeth Chinweze (deceased)” it is necessary to have a hard look at the pleadings to see if and how the plaintiffs traced the devolution of the property No.5 Ogui Road from its original lessee, Peter Obikwesi Chinweze, to Mrs. Elizabeth Chinweze deceased and whether or not on her death the property now in dispute formed part of the estate of Mrs. Elizabeth Chinweze – the root of the plaintiffs’ title. It may here be convenient to set out some relevant paragraphs of the plaintiffs’ Statement of Claim:

“1. The plaintiffs are the children of Elizabeth Chinweze Mrs. (deceased) and sue for themselves, for and on behalf of the beneficiaries of the Estate of Elizabeth Chinweze (deceased).

2. The 1st Defendant is one of the daughters of Mrs. Elizabeth Chinweze (deceased).
3. By a deed of lease dated 1st March 1935, registered as No. 82 at page 82 in Volume 32 of the Registry of Deeds the property known as Plot 5 Block 1 Eastern Native Location, Enugu was leased to Mr. Peter Obikwesi Chinweze deceased.
4. By a deed of Assignment dated 6th day of July, 1959 the Federal Administrator General as Administrator of the Estate of Peter Chinweze (deceased) assigned the said plot 5 Block 1 Eastern Native Location, Enugu to Elizabeth Chinweze (now deceased) for herself and on behalf of Veronica Chinweze who was a minor. The deed of assignment was registered as No. 64 at page 64 in volume 254 of the Land Registry in the office at Enugu.
5. The children of Elizabeth Chinweze grew up to know the property in dispute as their property to the knowledge and consent of the 1st Defendant.
6. The plaintiffs on record applied for letters of administration of the property in dispute.
7. The plaintiffs from birth up to date have lived in the premises and are still living therein as the family property and have never paid any rent or tribute to 1st Defendant. ”

From the above paragraphs 7 and 22 it looks as though the entire case of the plaintiffs is predicated on the fact – not that the property in dispute belonged to Elizabeth Chinweze on her death as a hereditament – but that “they grew up to know the property as their property” and that they had all along lived there. In their statement of claim the plaintiffs did not claim through Peter to whom the property was originally leased. One then wonders the locus standi of the plaintiffs and their Quo Warranto to bring this action. I will deal with this aspect of the case later.

After due hearing (and it was an unwarranted luxury even to pave heard evidence in this case) the learned trial Judge found as follows or more accurately recorded the undisputed facts of this case as follows:

1. The property in dispute is state land. It was originally leased to the father of the 1st Defendant, Peter Obikwesi Chinweze now deceased.
2. Peter Obikwesi Chinweze died on the 17th August, 1939 intestate (see Ex. 2).
3. The 1st Defendant was en ventre sa mere at the time of her father’s death.
4. After her husband’s death his wife Elizabeth Chinweze did not remarry but she however “succeeded in gathering seven other children including the plaintiffs. The 1st plaintiff was born in 1943.” (Four years after Peter’s death).
5. The plaintiffs and the alleged beneficiaries (except the 1st Defendant) are not the children of the marriage of the late Peter Obikwesi Chinweze and the deceased Mrs. Elizabeth.
6. The Federal Administrator-General was granted Letters of Administration over the estate of late Peter O. Chinweze on 31st July, 1940. The estate included the property at No.5 Ogui Road now in dispute.
7. The Federal Administrator-General administered the estate from 1940 until 1959 when by a deed of assignment he assigned the property now in dispute to Mrs. Elizabeth Chinweze and Veronica Chinweze the 1st Defendant.

From these undisputed facts the learned trial Judge then held that”

”………. the conveyance to the assignees in Ex. 2 does not in any way show words of severance and cannot but be regarded as a joint tenancy. Mrs. Elizabeth Chinweze held the legal estate in trust for herself and the 1st Defendant alone. When she died, her interest in the property in dispute did not enure to her estate but instead accrued to the 1st Defendant as the surviving joint tenant. The plaintiffs therefore, had nothing to inherit. They are strangers to the property in dispute and consequently, have no interest to assert. In other words, the plaintiffs have no locus stand to bring the present action”

In the final result Nwokedi, J. (as he then was) dismissed all the claims of the plaintiffs.

Dissatisfied and aggrieved by the above judgment of the Anambra State High Court the plaintiffs appealed to the Court of Appeal Enugu Division. Two issues were raised and agitated in the Court of Appeal namely:

1. Whether the trial court was right in joining the 2nd Defendant as a party to the proceedings.
2. Whether the property in dispute was at the time of her death the property of Mrs. Elizabeth Chinweze, property which formed part of her estate and which could thus be inherited by her beneficiaries.

On the issue of joinder, the Court of Appeal held at p. 235 of the record:

“I am therefore of the opinion that the learned trial Judge was right in law to have granted the joinder of the 2nd Respondent in this action”

On the 2nd issue whether or not the property in dispute enured to the beneficiaries of the Estate of Mrs. Elizabeth Chinweze the Court of Appeal held at p. 238 of the record of proceedings:

“The learned trial Judge quite rightly, in my view, found that it was exclusively owned by the 1st Respondent.”

The Court at p. 239 continued:

“The property in dispute originally belonged to the father of 1st Respondent and by Exhibits 1 and 2 she was a joint tenant with her mother on whose death she became the sole owner of the said property. The appellants who are children of a different father cannot be entitled to any interest in the property in dispute. They can never be considered to have locus stand in bringing any claim in respect of the property in dispute. If they bring such claim it will be dismissed. . . . . . ”

The Court of Appeal then dismissed the plaintiffs’ appeal before it.

Still dissatisfied and aggrieved the plaintiffs have finally appealed to this court.

In a motion on Notice dated 12th March, 1988, learned Counsel for the appellants asked for an extension of time to file his Brief of Argument and deeming the Brief filed and served on the Respondents as duly and properly filed. His motion was granted by the court on 18th May, 1988. Our Courts (the Court of Appeal and this Court) have from time to time commented on what should be the correct format and content of a good Brief. In Archbode Engineering Ltd. v. Water Resources Hydro Technique Wassertechnik G.M.B.H. (1985) 3 N.W.L.R. (Pt.12) 300 at pp. 304/305 the Court of Appeal per Ademola J .C.A. gave some useful hints about Brief writing – the format and contents of a good Brief and commended and recommended the Manual of Brief Writing by Nnaemeka-Agu. In Atpioko Ekpan & ano. v. Chief Agunu Uyo (1986) 3 N.W.L.R. (Pt.26) 63 at p. 76. Obaseki J.S.c. delivering the lead judgment commented as follows:

“The formats of the Brief of Argument which the appellants and Respondents are enjoined to file should follow the guide lines laid down in the Supreme Court Rules, 1985 particularly Order 6 Rule 5(1).”

Also in Engineering Enterprise v. A-G., Kaduna (1987) 2 N.W.L.R. (Pt.57) 381 at pp. 413/414 I commented on the failure of the appellant to file what should be considered to be a good Brief and set out in some details what a Brief ought to contain. In spite of all these three decisions the Brief filed by the appellants in this appeal left much to be desired.

As stated clearly in Order 6 Rule 5(1) Supreme Court Rules, 1985 a written Brief should be:

a succinct statement of his argument in the appeal. The Brief shall contain what are in the appellant’s view the issues in the appeal. . . . . . . . . . . . ”

Having formulated the Issues in the appeal the rest of the Brief should deal with arguments in elaboration of those issues. Although issues as formulated should be referable to the grounds filed what ought to be argued and stressed are those issues and not necessarily the Grounds of Appeal. For example one issue may comprehend many grounds and it will be against the letter and intendment of Order 6 Rule 5(1) to start arguing the Grounds one by one, instead of the one issue arising out of those grounds. In the Brief filed in this appeal learned counsel for the appellants argued his grounds of appeal one by one and not the issues he formulated. Rules of court are made for the benefit of the court and the parties in order to facilitate the process of adjudication and they must therefore be followed by counsel. A good Brief should mirror the real issues in controversy and so argue them as to induce conviction and acceptance.

The appellants in their Brief formulated 6 Issues for Determination and the 2nd Respondent formulated 4 Issues for Determination. From a cool consideration of the undisputed facts of this case as pleaded, the evidence led, and the judgments of the two courts below, only two issues will arise and call for resolution by this court namely:- (i) whether or not the trial court was right in joining the 2nd Defendant as a party to this case and (ii) whether or not the property at No.5 Ogui Road, Enugu, now in dispute, formed part of the estate of Mrs. Elizabeth Chinweze. These two issues formed the substance of Issues No.1 and No.6 in the Appellants Brief and Issues nos. 3 and 4 in the 2nd Respondent’s Brief.

Joinder of the 2nd Defendant

This joinder was made under Order IV Rule 5(1) of the High Court Rules of Eastern Nigeria Cap.61 of 1963 applicable in Anambra State. Order IV Rule 5(1) stipulates:

“5(1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to, or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result had not been made parties, the court may. . . direct that such persons shall be made either Plaintiffs or Defendants in the suit as the case may be ”

When the 2nd Defendant applied to be joined as a party to this case he swore to an affidavit the relevant paragraphs of which I reproduced earlier on in this judgment.

These paragraphs show that he bought the property at No.5 Ogui Road the property in dispute – from the 1st Defendant on the 20th June, 1975; that he was given an irrevocable power of Attorney (by the 1st Defendant) “to administer, manage, and superintend the property pending the Commissioner of Lands’ consent to the formal assignment of the property to me;” that he successfully resisted the move of the plaintiffs (acting in collusion with the 1st Defendant) to obtain Letters of Administration in respect of the self same property; that the plaintiffs were aware that he bought the house No.5 Ogui Road now in dispute. From the affidavits of the 2nd Defendant reproduced at pp. 9 & 10 of the record of proceedings it clearly appears that he, the 2nd Defendant, claims to be entitled to the subject-matter of the suit namely ownership of No.5 Ogui Road, Enugu. He also claims that his interest in the property will be adversely affected if he is not made a party.

The 3rd claim in this case is for “a declaration that any transaction not in the interest of the beneficiaries in respect of the said No.5 Ogui Road is null and void and without effect whatsoever.” This claim means that the purported sale to the 2nd Defendant should be declared null and void. If the plaintiffs were acting in good faith they should have realised that the 2nd Defendant was a necessary party given the facts of this case as deposed to in the 2nd Defendant’s affidavit in support of his motion to be joined as a party. Being a necessary party the plaintiffs had a duty and an obligation to join him. Even if 2nd Defendant were not joined and it appears from the proceedings that he ought to have been joined the trial Judge could have suo motu joined him under Order IV Rule 5(1) above:- Ezenwa v. Mazeli (1955) 15 W.A.C.A. 67 at p. 69. If the court could suo motu have joined the 2nd Defendant, a fortiori it had a duty to join him if he applied to be made a party to enable him defend his proprietary interest in and over the property at No.5 Ogui Road:- Re I.G. Farbeindustrie A.G. Agreement (1943) 2 All E.R. 525. During his oral argument Mr. Enechi Onyia of counsel for the appellants submitted that the 2nd Defendant’s interest will only be in respect of the purchase price he paid to the 1st Defendant. Even that itself would constitute “some share or interest in the subject matter of the suit” to enable the trial Judge to allow the 2nd Defendant intervene.

The 3rd Claim of the plaintiffs before the joinder of 2nd Defendant was for:

(3) A declaration that any transaction not in the interest of the beneficiaries in respect of the said No.5, Ogui Road is null and void and without effect whatsoever.

There is no need to conduct such cases of declaration in a world of make belief. Courts do not lend themselves to speculative claims. Either there was a transaction in respect of No.5 Ogui Road against the alleged interest of the beneficiaries of Mrs. Elizabeth Chinweze or there was not. If there was no such transaction a claim for declaration will have no factual foundation and will thus constitute an abuse of process. If there were such a transaction the claim should contain the details, including the person or persons against whom the declaration is sought. Transaction (from the Latin trans-agere) must necessarily involve at least two parties, in this case the 1st Defendant and who The 2nd Defendant then came forward and said – “I am the other party to the transaction of the sale of No.5 Ogui Road please make me a party to the suit to defend my interest in the property.” Put in this naked form, it becomes as clear as crystal that the presence of the 2nd Defendant is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in this case. It will amount to judicial quibbling to refuse to join the 2nd Defendant. It is also the policy of the courts to avoid as much as possible a multiplicity of suits. Learned Counsel for the appellants submitted that the 2nd Defendant should have come by 3rd party proceedings or file a separate suit for specific performance. The simple answer to that submission is that the court has a duty to prevent the expensive luxury of having two separate suits where it can by joinder settle the whole matter in one action: Montgomery v. Fay, Morgan & Co. (1895) 2 Q.B. 321 at p. 324 per Lord Esher M.R. Also where as in this case the determination of claim No.3 between the plaintiffs and the 1st Defendant will involve and affect the 2nd Defendant’s legal rights over No.5 Ogui Road or his pecuniary interests, the trial court was right in making the 2nd Defendant a party:- Gurtner v. Circuit (1968) 2 Q.B. 587: Byrne & Anor. v. Brown: Diplock Third Party (1889) 22 Q.B.D. 657 a 666: Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q.B. 357.

One other reason for joining the 2nd Defendant is the doctrine of estoppel by standing by. In the words of Order IV Rule 5(1) he is a person “who may be likely to be affected by the result”. If 2nd Defendant knew of the pendency of this suit and kept quiet he will be bound by the result. In paragraph 28(e) of their Statement of Claim the plaintiffs/appellants specifically mentioned the 2nd Defendant. They want a declaration that the purported sale of the property (the said No.5 Ogui Road) to 2nd Defendant by the 1st Defendant is null and void and without legal effect whatsoever. I wonder how learned Counsel for the plaintiffs who filed this paragraph 28 of the Statement of Claim in 1979 can in 1988 argue that the joinder of the 2nd Defendant offends Order IV Rule 5(1) High Court Rules. The learned trial Judge was therefore right where he held:

“The 2nd Defendant has an interest to protect and the said interest is against the claims of the plaintiffs. The 2nd Defendant is contending that the plaintiffs are not beneficiaries to the property in dispute and that the property has been sold to him. In such a situation it will be a travesty of Justice for the court to shut its eyes to the case of the 2nd Defendant. ”

I am in complete agreement with the able assessment of the situation in this case by the learned trial Judge. Cases should not be conducted in a world of make belief. They should not degenerate into mere shadow boxing. As was done in Ezenwa v. Mazeli supra the courts should endeavour to have before it all parties and all persons who claim any interest in the subject matter of the suit. This way we will avoid having a multiplicity of suits.

The next important issue deals with the Locus Standi, the Quo Warranto of the appellants to institute and prosecute an action concerning the property at No.5 Ogui Road, Enugu, which until his death belonged to Peter Obikwesi Chinweze. This Issue comprehends two Questions for Determination as formulated by the appellants and by the 2nd Respondent. On the appellants’ side Question No.6 is as follows:

Issue for Determination No. 6:

“Whether the appellants who were born after the death of the late Peter Chinweze by undisputed wife living in the matrimonial home was (sic) part of Late Peter Chinweze family and could inherit part of the family property. ”

A man’s family normally consists of – the man, his wife or wives and the children born to him by such wife or wives. I have on purpose used the expression wife or wives because we have here in Nigeria two types of marriages recognized by law (a) Marriage under the Marriage Act or Ordinance. This is a monogamous system of marriage and (b) Marriage by Customary Law. This is a polygamous system. In this case, the pleadings are completely silent on the type of marriage Peter Chinweze contracted with Elizabeth Chinweze. But whatever the system of marriage the undisputed fact is that the appellants were born after the death of Peter Chinweze. They were therefore not his natural sons for it is contrary to the course of nature for a dead man to produce children: They were not his adopted or “acknowledged” children and thus legitimised under the rule in decisions like Alake v. Pratt 15 W.A.C.A. 20: Bamgbose v. Daniel 14 W.A.C.A 116. The appellants were not even claiming through Peter Chinweze.

The appellants were claiming as children born by the “undisputed wife of Peter Chinweze a wife living in the matrimonial home.” Their argument then is that as such children, they formed part of late Peter Chinweze’s family and could inherit part of the family property. There is a lacuna and a fallacy in the above argument. The appellants will first acquire the status of heirs before they can talk of inheriting. They have not claimed to be Peter Chinweze’s heirs. Their claim as pleaded was predicated on the fact that they were “beneficiaries of the Estate of Mrs. Elizabeth Chinweze deceased.”

During his oral argument in court learned Counsel for the appellants referred us to paragraphs 7, 8, 9 and 10 of the Statement of Claim and then submitted that these paragraphs estopped the 1st Defendant from denying their claim to be beneficiaries. What really did the appellants plead I will set out below the most relevant paragraph:

“7 The Children of Elizabeth Chinweze grew up to know the property in dispute as their property to the knowledge and consent of the 1st Defendant.”

Even if the above qualifies as an estoppel it is only one against the 1st Defendant who did not take any part in this appeal. It is not an estoppel against Peter Chinweze the original owner of No. 5 Ogui Road, Enugu now in dispute. Secondly, estoppel is not a rule of substantive law in the sense of declaring a right. It is rather a rule of evidence:-London Joint Stock Bank v. Macmillan (1918) A.C. 777 at p. 818 per Viscount Haldane. Estoppel is part of the law of evidence. It is no other than a bar to testimony. It merely prevents the person estopped from denying the existence of a fact:- Evans v. Bartlam (1937) 2 All E.R. 646 at p. 653. An estoppel gives no title to that which is the subject matter of the estoppel and therefore it has no effect on the reality.

The appellants are here as it were claiming title to No.5 Ogui Road by estoppel. That cannot be as no title is established by estoppel:-Bensley v. Burdon (1830) 8 L.J.O.S. Ch.85. “Title by estoppel” is a negative title. It is a highly metaphorical and elliptical mode of indicating the use which may be made of an estoppel- either as a mine layer or mine sweeper; either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail. An estoppel can never be a capital unit. It does not ipso facto confer title. The appellants’ “growing up to know the property in dispute to be their property” does not make that property theirs. This is not one of the modes of acquiring title to land under our law. In any event, the appellants were claiming as “beneficiaries of the estate of Mrs. Elizabeth Chinweze” and not as owners in their own right. The issue now is – Was No. 5 Ogui Road, Enugu part of the estate of Elizabeth Chinweze on her death

The above was in substance the 4th Issue for Determination as formulated in the Brief of Argument of the 2nd Respondent:

“4. Does the 1st Respondent own the property in dispute absolutely as contended by the 2nd Respondent in which case she has an unfettered right to dispose of it or is it jointly owned by her with the appellants as contended by the other parties (i.e. the first Respondent and the appellants) in which case she can only dispose of it with the concurrence and agreement of the appellants.” How did the courts below deal with this vital issue The trial High Court held that:

1. the assignment by the Administrator-General Ex. 2, conveyed the property in dispute to Elizabeth Chinweze widow of Peter Chinweze and her daughter Veronica Chinweze the only daughter of the marriage between the said Peter and Elizabeth.
2. Ex. 2 created a joint tenancy without words of severance. This implies unity of title, of time, of interest and of possession. All such interests are identical in size and possession. The whole land belongs to each.
3. By the operation of law such joint tenancy leads to the doctrine of survivorship or jus accrescendi by which if one joint tenant dies without having obtained a separate share in his life time his interests do not pass to his personal representatives but accrue to the survivor of the joint tenants.
4. When therefore Elizabeth Chinweze died intestate her interest in No. 5 Ogui Road did not enure to her estate but instead it accrued to the 1st Defendant Veronica Masi nee Chinweze as the surviving joint tenant.
5. The plaintiffs therefore had nothing to inherit. They are strangers to the property No.5 Ogui Road, Enugu, now in dispute. The Court of Appeal agreed with the above analysis.

The above is a correct statement of the law. I also agree. The learned Counsel for the appellants during his oral argument conceded that even under Customary Law a wife has only a life interest in the property of her deceased husband and that if Elizabeth Chinweze died her interest would cease. Elizabeth Chinweze has died and she left nothing for the appellants to inherit with regard to the property at No.5 Ogui Road. This will still be the position even if she left that property by her will to the appellants for jus accrescendi praefertur ultimate voluntatis- (the right of survivorship is preferred to the last will). The right of survivor of joint tenants prevails even though the joint tenant who has died has devised his interest to a third person:- Shonekan v. Smith (1964) N. M. L. R. 59 at p. 62: (1964) 1 All N.L.R. 168 at p. 173.

The plaintiffs/appellants not being children of Peter Chinweze are excluded from succession. The property No.5 Ogui Road, Enugu not forming a part of the estate of their mother Elizabeth Chinweze is definitely outside what the appellants may lay claim to as beneficiaries of her estate. The appellants therefore have no locus standi to bring this action to claim a property which sadly enough does not form part of the estate of their mother Elizabeth Chinweze. As beneficiaries of the estate of Elizabeth Chinweze the appellants cannot maintain an action to claim any property (here No. 5 Ogui Road, Enugu) comprised in the estate of Peter Chinweze. The action was therefore rightly dismissed by the two courts below. In this court we did not call on the 2nd Respondent.

In the final result this appeal fails and it is hereby dismissed. There will be costs to the 2nd Respondent which I assess at N500.00.

OBASEKI, J.S.C.: I have had the advantage of reading in advance, the draft of the judgment just delivered by my learned brother, Oputa, J.S.C. and I find that the opinions on all the issues for determination in this appeal expressed therein accord with mine. I therefore hereby adopt them as my own.

The appellants and the 1st Respondent are the surviving children of Mrs. Elizabeth Chinweze (deceased). Mrs. Elizabeth Chinweze (deceased) was married to Mr. Peter Chinweze who predeceased her. The 1st Respondent was born post-humously to Mr. Peter Chinweze by Mrs. Elizabeth. Other children born to Mrs. Elizabeth Chinweze including the appellants claimed to be the children of Mr. Peter Chinweze (deceased). Mr. Peter Chinweze (deceased) had landed property situate at No.5 Ogui Road, Enugu. The appellants and all the children of Mrs. Elizabeth Chinweze grew up there and regarded the place as their home. The appellants thought they had interest in the property. When their mother died, they thought they had inherited the house along with other children. When news of the alienation of the property by the 1st Respondent to the 2nd Respondent reached them, they instituted an action in the High Court which has led to the appeal to the Court of Appeal and from thence to this Court. In it, they claimed

(1) A declaration that the house situate at No.5 Ogui Road, Enugu is the bona fide property of Mrs. Elizabeth Chinweze (deceased);

(2) A declaration that the Defendant (1st Respondent now) is a trustee deson tort in respect of the estate of the said Mrs. Elizabeth Chinweze (deceased);

(3) A declaration that any transaction not in the interest of the beneficiaries in respect of the said No.5 Ogui Road is null and void and without effect whatsoever;

(4) Injunction restraining the defendant, her servants or agents from any act of interference with the said property contrary to the interest of the beneficiaries and from dealing with it in any manner whatsoever as if it was her property.

The 2nd Respondent having bought the property from the 1st Respondent applied to the High Court to be joined as Defendant and he was joined as 2nd Defendant by order of the court.

The High Court found that when Elizabeth Chinweze died intestate, her interest in No. 5 Ogui Road terminated and did not ensure to her estate but instead it accrued to the 1st Defendant Chinweze as the surviving joint tenant of the property and dismissed appellants’ claim.

The Court of Appeal agreed with the High Court and I have found nothing in the submissions of the appellants’ counsel either in the brief or orally before this Court to persuade me to the contrary.

My learned brother, Oputa, J.S.C. has made a detailed analysis of the facts with which I agree. The legal position makes the appellants total strangers to the property. It may be true that the 1st Respondent being of the same mother as the appellants (but different fathers) and being older in age did not discriminate against the appellants in the enjoyment of the property. But that claim alone is insufficient to invest the appellants with any legal interest in the property to warrant their claim in this action. I find no merit in this appeal and I hereby dismiss it and affirm the decision of the Court of Appeal with costs to each Respondent fixed at N500.00.

UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Oputa, J.S.C. and I entirely agree with it.

There are only two cardinal issues for determination in this appeal. The 1st being whether the 2nd Respondent had been properly joined when he applied to the trial Court to be joined as a co-Defendant. The 2nd issue is whether the property in dispute was part of the estate of late Mrs. Elizabeth Chinweze and could thus be inherited by the appellants.

Order IV rule 5(1) of the High Court Rules, Cap. 61 of the Laws of Eastern Nigeria, 1963 (applicable to Anambra State) has made provisions for the joinder of parties. The trial Court has a discretion there under to join a party to a suit, as either plaintiff or Defendant, whether on the application of the party or on its own motion. The 2nd Respondent had shown by his application that he had some interest to protect in the property in dispute as a bona fide purchaser of the property. The learned trial Judge was therefore right in joining the 2nd Respondent as a co-Defendant to the action brought by the appellants.

With regard to the second issue for determination, it is quite clear from the evidence adduced at the trial that following the death of Peter Chinweze, the late Mrs. Elizabeth Chinweze and the 1st Respondent became the joint tenants of the property in dispute by virtue of the assignment of the property made to them by the Federal Administrator-General in the following terms: herself and as the legal guardian of Veronica Chinweze (1st Respondent) as beneficiaries under the estate of Peter Obikwesi Chinweze.” The joint tenancy thus created remained extant up to the death of Mrs. Elizabeth Chinweze, who was the mother of the 1st Respondent. By the doctrine of survivorship in a joint tenancy, the 1st Respondent became the sole owner of the property following the death of her mother – Shonekan v. Smith 1964 N.M.L.R. 62; (1964) 1 All N.L.R. 168. She therefore had the right to sell the property to the 2nd Respondent at the time the purchase took place.

The appellants, though the children of Mrs. Elizabeth Chinweze, did not establish any relationship with late Peter Chinweze, apart from living, after his death, in the property in dispute as the children of Mrs. Elizabeth Chinweze. They were not the children of Peter Chinweze, since he died in 1939 and the eldest of the appellants – 1st appellant was born in 1943, nor were they by any twist of imagination, his heirs under any law – statutory, common or customary. Though they had a right to inherit the estate of their mother, the property in dispute did not form part of such estate, since the right of Mrs. Elizabeth Chinweze in the property passed to the 1st Respondent on the death of the former by the common law doctrine of the right of survivorship in a joint tenancy.

For these and the fuller reasons lucidly given in the judgment of my learned brother Oputa, J .S.C., I too would dismiss the appeal and confirm the decision of the trial court and the Court of Appeal. As the 1st Respondent did not take part in the appeal, the 2nd Respondent is entitled to N500.000 costs.

AGBAJE, J.S.C.: In the High Court of Justice of Anambra State held at Enugu the plaintiffs, Peter Chinweze and Martin Chinweze sued originally Veronica Masi alone claiming against her the following reliefs:

“(1) A declaration that the house situate at No.5 Ogui Road, Enugu is the bona fide property of Mrs. Elizabeth Chinweze (deceased) of whom the plaintiffs are beneficiaries thereof.

(2) A declaration that the Defendant is a trustee de son tort in respect of the estate of the said Mrs. Elizabeth Chinweze (deceased).

(3) A declaration that any transaction not in the interest of the beneficiaries in respect of the said No.5 Ogui Road is null and void and without effect whatsoever.

(4) Injunction restraining the Defendant her servants or agents from any act of interference with the said property contrary to the interest of the beneficiaries and from dealing with it in any manner whatsoever as if it was her property.”

Pursuant to an application by one Eddy C. Ibe to be joined as a co-defendant in the case the learned trial Judge on 16th May, 1979 ordered that he, Eddy C. Ibe be so joined. On the same day pleadings were ordered in the case. Pleadings were subsequently filed and delivered. The case proceeded to trial before Nwokedi J. who in his judgment dated 18th September, 1981 dismissed the plaintiffs’ claims, holding in doing so as follows:

“The learned Counsel for the plaintiffs in the course of his argument, indicated that he was abandoning his claim in paragraph 28(c) of the statement of claim. The said claim is hereby dismissed. Having held that the plaintiffs have failed to establish that they are entitled to any interest whatsoever in the property in dispute and that they have no locus standi in bringing the present action, I have no option but to dismiss all the other claims. ”

The plaintiffs appealed unsuccessfully against this judgment to the Court of Appeal Enugu Division. This is a further appeal by the plaintiffs to this court against the judgment.

Briefs of Arguments were filed on both sides. It appears to me from the brief of argument filed on behalf of the plaintiffs that the main issues arising for determination in this appeal are two which are stated as follows in the plaintiffs’ brief of arguments:

(One) “Whether the claim of the appellants against the 1st Respondent is such that the 2nd Respondent should be joined as a party in accordance with the provisions of Order IV Rule 5(1) of the High Court Rules of Eastern Nigeria, since there is no issue (from the claim/ Statement of Claim) to be determined between the appellants and the 1st Respondent and the presence of 2nd Respondent is not essential for the just and effective determination of the triable issues between the appellants and the 1st Respondent.”

(Two) “Whether the apellants who were born after the death of late Peter Chinweze by undisputed wife living in the matrimonial home was part of late Peter Chinweze family and would inherit part of the family property.”

I shall take issue 1 first which to me does not present any difficulty. The rules as to joinder of a party whom the plaintiff does not intend to sue are the same in this country as those prevailing in the United Kingdom. The decision in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R. 273 sets down the test to be applied in such a situation. In Amon’s case it was held as follows:

(i) the test whether under R.S.C., Ord. 16, r.11, the court had jurisdiction to add as Defendant a person whom the plaintiff did not wish to sue was whether the order for which the plaintiff was asking in the action might directly affect the intervener (i.e., the person proposed to be added as a party) by curtailing the enjoyment of his legal rights (see p. 281, letter C, p. 290, letter E, post); for the only reason which might render the presence of a party before the court to be “necessary” to enable the court to adjudicate completely (within the meaning of R.S.C., Ord. 16, r. 11) was that he should be bound by the result of the proceedings.”

In view of the decision in Amon’s case and the submission of Counsel for the plaintiffs to us on his contention that the trial court was wrong to join the 2nd Defendant (the 2nd Respondent in this appeal) which submissions are inter alia as follows:

“It is true that if the 1st Respondent lost in this suit the 2nd Respondent would lose his purchase and be thereby affected by the result of the case.

It is difficult to see how any reasonable tribunal can hold that the trial court was wrong to join the 2nd Defendant in the circumstances. In effect, I am satisfied that the order of joinder of Eddy C. Ibe as the 2nd Defendant in this case by the learned trial Judge was rightly made.

I will proceed to deal with the other main issue in this case that is whether the plaintiffs from the evidence in this case were members of late Peter Chinweze family and could inherit part of the family property.

It does not appear that there is any dispute as to the evidence in this regard. In fact the 1st Defendant practically agreed to everything the plaintiffs asserted in this respect. Perhaps it will be better for me to recite the relevant facts of the plaintiffs’ Statement of Claim in this regard:

“1. The plaintiffs are the children of Elizabeth Chinweze Mrs. (deceased) and sue for themselves for and on behalf of the beneficiaries of the Estate of Elizabeth Chinweze (deceased).

2. The 1st Defendant is one of the daughters of Mrs. Elizabeth Chinweze (deceased).
3. By a deed of lease dated 1st of March, 1935 registered as No. 82 at page 82 in Volume 32 of the Registry of Deeds formerly kept at the Lands Registry at Enugu, the property known as Plot 5 Block 1 Eastern Native Location, Enugu was leased to Mr. Peter Obikwesi Chinweze (deceased).
4. By a deed of assignment dated 20th January, 1954 and registered as No. 75 at Page 75 in Volume 96 of the Lands Registry in the Office at Enugu, the said Mr. Peter Chinweze (deceased) assigned the property known as Plot 5 Block 1, Eastern Native Location or Ogui Enugu to Mrs. Elizabeth Chinweze and Veronica Chinweze as assignees.
5. By a Deed of Assignment dated 6th day of July, 1959 the Federal Administrator-General as Administrator of the Estate of Peter Chinweze (deceased) assigned the said plot 5 Block 1, Eastern Native Location, Enugu to Elizabeth Chinweze (now deceased) for herself and on behalf of Veronica Chinweze who was a minor. The deed of assignment was registered as No. 64 at Page 64 in Volume 254 of the Lands Registry in the Office at Enugu.
6. At the time of the execution of the Deed of Assignment registered as No. 75 at Page 75 in Volume 96 of the Lands Registry in the Office at Enugu the 1st Defendant was a minor as she was born in January, 1940.
7. The children of Elizabeth Chinweze grew up to know the property in dispute as their property to the knowledge and consent of the 1st Defendant.
8. At all material times rent realised from the property was used in feeding, paying school fees and maintaining the children of Elizabeth Chinweze (deceased) to the knowledge of the 1st Defendant.
9. At all material times the property the subject matter of this action was known to be the property of Chinweze family and not that of the 1st Defendant.
10. The 1st Defendant’s interest in the said property to her knowledge after her marriage was to supervise the property in the interest of the male members of Chinweze family and the unmarried female members of the same family.
11. Elizabeth Chinweze died on 21st July, 1962 and left 7 surviving children.
12. The 1st Defendant is the oldest child of Elizabeth Chinweze (deceased).
13. The plaintiffs on record applied for letters of administration of the property in dispute.
14. The 2nd Defendant filed a Caveat claiming that the property was sold to him.
15. On inquiries the 1st Defendant wrote the 2nd Defendant a letter dated 22nd April, 1976 a copy of which was sent to the plaintiffs denying any sale of the property to the 2nd Defendant and requesting him not to act as her Solicitor.
16. The plaintiffs did not at any time authorize the 1st Defendant to alienate the interest in the property or to sell the property.
17. The plaintiffs from birth up to date have lived in the premises and are still living therein as the family property and have never paid any rent or tribute to the 1st Defendant. .
18. The plaintiffs have been on the property as of their own right and are not tenants of the 1st Defendant.
19. The 2nd Defendant acted as a Barrister-at-Law and Solicitor at all material times in respect of the property the subject-matter of this action.
20. The 2nd Defendant claimed that he paid the 1st Defendant N10,000.00 for the property.”

As I said, the 1st Defendant Veronica Masi admitted in her Statement of Defence virtually everything pleaded by the plaintiffs. The only significant addition by her in her Statement of Defence was Paragraph 6 thereof which says:

“The 1st Defendant admits that she purported to dispose of the property to the 2nd Defendant in consideration of N10,000.00 (ten thousand Naira) but not by way of sale. What the 1st Defendant wanted at the time she took N10,000.00 from the 2nd Defendant was just the loan for health reasons but that she was made to sign some documents by the 2nd Defendant to get the money, most of which documents she could scarcely read or understand. The 2nd Defendant assured the 1st Defendant that the papers the 1st Defendant was signing were bank papers necessary for raising the loan of N10,000.00 on reasonable interest – all secured on the house – 5 Ogui Road. The 1st Defendant never had independent advice. The Power of Attorney which the 1st Defendant purported to execute will be relied upon at the trial to show the ambidexterity of the 2nd Defendant. As an example, the 1st Defendant had never consulted the firm of Eze Ozobu & Co. in her life nor had she ever seen Mr. L. M. Ekwom until 8th September, 1979 yet the signature of the said Mr. L. M. Ekwom purported to show that he acted for the 1st Defendant in 1975.”

The defence of the 2nd Defendant Eddy C. Ibe will be found essentially in paragraphs 3 and 24 of his Statement of Defence dated the 13th February, 1981:

“3. The second Defendant admits that the first Defendant who was sued in her married name of Veronica Masi is the daughter of the late Peter Obikwesi Chinweze and the only child. Peter Obikwesi Chinweze was married to Mrs. Eliabeth Chinweze; they had only one child who is the first Defendant on record. The plaintiffs are not the children of Peter Obikwesi Chinweze.”

“24. In further answer to paragraph 20 of the statement of claim, the second Defendant states that he purchased the property for N10,000.00 which he paid to the first Defendant and will rely on paragraphs 29,30,31,32 and 33 of this statement of defence in further answer to paragraph 20 of the plaintiffs’ statement of claim. ”

There was also allegation by him of collusion between the 1st Defendant and the plaintiffs to bring this action against him. There can be no doubt on the facts pleaded and adduced in evidence by the plaintiffs that Peter Chinweze deceased was the undisputed owner of the property to which the plaintiffs’ claim relate. He was neither the natural nor putative father of the plaintiffs. In fact it was clear on the evidence that both plaintiffs were born after the death of Peter Chinweze well after the gestation period from the time of his death. The only person who was born within the gestation period for the time of the death of Peter Chinweze was the 1st Defendant Veronica Masi who is now regarded and rightly so as his only natural daughter. The point must also be made that no custom was pleaded by the plaintiffs which made them children of Peter Chinweze in the circumstances I have stated above.

What remains therefore for me to decide is whether on the facts of this case the plaintiffs can be regarded as members of Peter Chinweze, deceased, and thereby be entitled to inherit his property.

The gist of the facts proved by them is that from their birth they have been regarded as members of the family of Peter Chinweze deceased by his widow and his daughter that 1st Defendant. In other words, the plaintiffs were trying to say that they have been assimilated into the family and have thereby become part owners of the property of Peter Chinweze.

In this regard it will be necessary to refer to the case of Owonyin v. Omotosho (1962) W. N. L. R. 1 where the point was made that an original owner of land could bring in a partner and make him part owner of the property. In this regard I refer to the following passages from the judgment of Bairamian F.J.:

“The learned Judge said that he was most reluctant to accept the existence of a custom where the original owner and settler in effect makes a stranger a joint owner with him of the land he has settled on. Later he says that some tenants were put on the land by the plaintiff’s family, others by the Defendant’s family, and others by the joint action of both families.” Later on he says: “But ownership or title must go to the first settler in the absence of any evidence that they jointly settled on the land or that a grant of a joint interest was made to the latter arrival by the first. The question therefore resolves itself to this – who was the first settler on the land in dispute, Okegbemi or Owonyin”……………

” I venture to think that the true question in the case is whether the evidence of the conduct of the parties weighs down in favour of the view that the land belongs to them both. Native law and custom is, I think, a mirror of accepted usage. It seems to me immaterial whether it was Okegbemi or Owonyin who settled on the land first: whichever it was, did he make the latter arrival his partner That he did is suggested by the fact that, as the judgment states, some tenants were put on the land by the plaintiff’s family, others by the Defendant’s family, and others by the joint action of both families. ”

The above principle in Owonyin v. Omotosho can hardly apply in the instant case for it is undisputed that Peter Chinweze was the sole original owner of the property in question and there was no suggestion, and in fact there could not be such a suggestion that he ever treated the plaintiffs as members of his family. The latter is obviously so because he did not know of their existence since they were born after his death. It is the law that upon, the death of Peter Chinweze the land in dispute would become Peter Chinweze’s family land and his only child who would qualify to be a member of that family would be his natural child – Veronica Masi. There can be no question of Peter Chinweze being the putative father of the plaintiffs as I have said earlier on in this judgment. I would say that the facts that they were born after his death and well outside the period of gestation bear repeating coupled with the fact that they were born after the 1st Defendant Veronica Masi who herself was born after the death of Peter Chinweze but within the period of gestation after the deceased’s death.

As I have said, no custom was pleaded in this case which would have made the plaintiffs children of Peter Chinweze in the circumstances. There can be no estoppel by conduct upon which the plaintiffs can rely in this case because on their own showing it was all a case of benefit to them and no detriment as a result of the association relied upon. In other words the plaintiffs have not suggested that they have altered their position for the worse as a result of the association. (See Iga v. Amakiri (1976) 11 S.C.1.)

There is no claim by the 1st Defendant against the 2nd Defendant in respect of the property the subject’97matter of this action which the 2nd Defendant allegedly said he bought from the 1st Defendant. So the validity or otherwise of that purported sale is not an issue in this case. The only issue for determination is whether or not the plaintiffs in this case have a locus standee to maintain the present action against the Defendant. I am satisfied that the trial court was right in coming to the conclusion that the plaintiffs had no locus standi to maintain the suit. I am equally satisfied that the Court of Appeal, the lower court, was right in affirming the decision of the trial court. In the result, I too will dismiss the plaintiffs’ appeal.

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother Oputa, J.S.C. that the plaintiffs’ appeal fails in my judgment. I abide by the order as to costs in the lead judgment.

WALI, J.S.C.: I have had the privilege of reading in advance, a copy of the lead judgment of my learned brother, Oputa, J .S.C. and I entirely agree with his reasoning and the conclusion that the appeal is without any merit. It has woefully failed and must therefore be dismissed.

Having regard to the provision of Order IV Rule 5 and the affidavit deposed to by the 2nd Respondent, he was a person properly joined as a co-Defendant to the suit in the trial court. The affidavit sworn to by him, effectively revealed that he is a person that “May be entitled to, or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result…” The court will make an order of joinder of a party to a suit when, on the facts before it, such a joinder may enable it to effectually and completely adjudicate upon and settle all issues involved in it – See JIA Enterprises (Electrical) Ltd v. British Commonwealth Insurance Co. Ltd. (1962) 1 All N.L.R. 362.

The appellants were born long after the demise of Peter Chinweze, the husband of Elizabeth Chinweze (also now deceased). Though she remained in the matrimonial home after the demise of her husband, conceived and gave birth to the appellants in the said matrimonial home, that is No.5 Ogui Road, Enugu, that alone is not enough to confer on them any legal enforceable interest in the property. The property was assigned to Elizabeth Chinweze, herself and on behalf of Veronica (1st Respondent), the legitimate and surviving daughter of Peter Chinweze and who was a minor at his death. The effect of this is that Elizabeth would have a life interest in the property and which would on her death cede to Veronica, the 1st Respondent.

The question of application of Ibo Native Law and Custom to give the appellants any interest and locus in the matter did not arise since that was not pleaded, nor would the question of either adoption or legitimation of the appellants by Mr. Peter Chinweze, since they were born by Elizabeth, his widow, long after his demise. The appellants therefore, being not issues of late Peter Chinweze by his widow, Elizabeth, have no common interest in the disputed property. They have no locus to institute the action.

It is for these and the more elaborate reasons given in the lead judgment of my learned brother, Oputa, J.S.C and which I hereby adopt as mine, that I earlier on expressed the opinion that the appeal is without any merit. It is accordingly dismissed with N500.00 costs to the 2nd Respondent.

The judgments of the trial Court and the Court of Appeal are confirmed.

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SC.215/88-SC.216/88