Dennis C.O. Iwenofu Vs Chief Francis A. Iwenofu (1975)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In paragraph 17 of his statement of claim delivered after the commencement of the proceedings in the High Court of Lagos State, the plaintiff’s amended claim against the defendant, now appellant, reads:-“(a) 750 (Seven Hundred and Fifty Pounds only) being special and general damages for

(i) defendant’s act of trespass, intermeddling with the estate of the deceased;

(ii) defendant’s interference with the plaintiff’s administration of the estate of the deceased which defendant’s acts and conduct (unlawful as they are) have caused damages and loss of rents to the said estate.

(b) Injunction restraining the defendant, his servants and/or agents perpetually, from further intermeddling or interference with the said estate of which the plaintiff alone is the lawfully appointed administrator.”

Paragraphs 3, 4, 9, 10, 11, 13, 14, 15, and 16 of the plaintiff’s statement of claim read:-

“3. By a grant made on the 13th day of January, 1971, the Probate Registrar, Western State of Nigeria, granted to the plaintiff, letters of Administration of the real and personal property of One Madam Fani Cole (nee Iwenofu) who died intestate on the 20th day of March, 1965. Plaintiff therefore sues as Administrator.

4. The said Madam Fani Cole (nee Iwenofu) owned and possessed all that HOUSE AND PREMISES situate at 82, Bale Street, Ajegunle, Apapa until her death.
5. The said Letters of Administration granted by the Probate Registrar, Western State of Nigeria, became later resealed on the 23rd of June, 1971 in Lagos and by the direction of this Honourable Court. The plaintiff will, at the trial of this action, produce the said Grant and rely on same to prove all material facts.
6. The plaintiff avers that the defendant is one of the sons of the plaintiff but that the defendant is neither his heir nor the eldest son. The plaintiff will show at the trial of his action that contrary to the plaintiff’s instructions and warnings from the plaintiff’s solicitors, the defendant wrongfully seized possession of the premises and of the house and has failed, refused and neglected to account to the plaintiff for any rents collected from the house and premises since the death of the said owner.
7. The defendant’s said course of conduct was without an order of any court nor by the authority of the plaintiff, the competent and sole administrator of the estate of the said deceased.
8. In or about early 1968, the Ajeromi District Council, Ajegunle, Apapa took over the said house and property by and through its sub-committee on the Administration of Abandoned Properties, as a result of the Nigerian Civil War. Until release of same, the said council collected rents from the house and premises.
9. On or about the 6th of January, 1971, the defendant falsely presented himself to the said District Council as the true owner of the said house and premises at 82, Bale Street, Ajegunle, Apapa. The plaintiff will, at the trial of this action, refer to his solicitor’s letter to the Probate Registrar, Ibadan, dated the 29th of December, 1970 (which was copied to the defendant), letter No. C. 102/20 dated the 25th of January, 1971 addressed to the said District Council, Ajeromi, Apapa and letter No. AJ 477/3 Vol. 11/227 of the 28th of July, 1971, addressed to the plaintiff’s solicitors by the said Council, to show material collusion on this matter. The said collusion was at the initiative of the defendant.
10. The plaintiff will show at the trial of this action, that since the wrongful release of the said property to the defendant, the defendant has kept and is still keeping the said property and house for his own use.
11. The plaintiff avers that the defendant has refused, failed and neglected to surrender to the plaintiff, the possession of the said property or at all for the estate of the deceased and that the defendant has, since the said deceased’s death on 20th March, 1965, collected all rents due to the estate and that the said rents continue to be collected still by the defendant without due authority.”

(The underlining is ours).

In his own statement of defence, the defendant denied all the above averments. He averred further paragraphs 9, 10, 11, 12, 13, 14, 17, 18, and 19 thereof as follows:-

“9. That the defendant came to Lagos in 1953 to join Madam Fani Cole who helped the defendant to secure a job in Lagos under Costain West Africa.

10. That the said Fani Cole at the time when the defendant came to Lagos in 1953 was living at Bale Street, Apapa in a thatched roof and bamboo wall of an uncompleted building.
11. That after the arrival of the defendant the said Fani Cole told the defendant she started the building, that the defendant could have the bamboo house if the defendant could rebuild the said house which is now No. 82, Bale Street, Ajegunle, Apapa.
12. That the defendant agreed to rebuild the said house and started work on it which was completed by the defendant in 1958.
13. That the lease fee of the said house was two pounds (2) a year which was normally paid by the defendant to Ojora family.
14. That the rate in respect of the property was paid by the defendant to Ajeromi District Council in the defendant’s name.
15. That since the building of the house by the defendant in 1958 the defendant has been collecting the rent of said house and the receipts were signed in the name of the defendant when Fani Cole was still alive.
16. That if Letters of Administration were granted to the plaintiff at all, it was after the dispute between the defendant and the plaintiff has started over the said building.
17. The defendant will contend at the trial that if Letters of Administration were granted to the plaintiff at all these Letters of Administration were obtained by fraud.”

In his testimony in support of the claim, the plaintiff said that the late Madam Fani Cole was his sister, that he was not in Lagos when she died, but that he had since obtained Letters of Administration to administer her estate. He said the house at No. 82, Bale Street, Ajegunle, which is now in dispute, belonged to Fani Cole and that the defendant did not “join” her in building it. The plaintiff further explained that it could not be correct that the defendant built the house because at the time the house was built by Fani Cole the defendant was still at school. Finally, the plaintiff said he brought the action as the Administrator of the estate of Fani Cole and produced the Letters of Administration (Exs. C & C1).

Under cross-examination, the plaintiff still insisted that Fani Cole was his sister,. When he was, however, shown a photo copy of an affidavit (Ex. G) wherein he (the plaintiff) swore with respect to the estate of one Mary Nwakego Iwenofu (plaintiff’s sister):-

“6. that Fanny Ilom Cole the sole beneficiary as it were of the testatrix’s estate is not the daughter of the testatrix but was merely domestic servant to the testatrix,

7. that Fanny Ilom Cole had since 1928 been living in Lagos separate and apart from the testratrix,
8. that the said Fanny Ilom Cole returned to Onitsha in 1953, and was occasionally travelling to Lagos and back.”

the plaintiff, who later admitted that the signature in the affidavit is his, replied-

“I cannot remember swearing to the contents of the affidavit.”

To further questions about the house asked under cross-examination, he replied-

“I do not know whether the land is a leasehold or freehold. I do not know the owner of the land. I do not know when the land was purchased. It was purchased between 1910 and 1911 … I do not know how much the land costs Mrs. Fani Cole. She got her money from her trade … I have never seen the house before. I have no document to show that the house belonged to Mrs. Fanny Cole. …. The receipts for the rent may be issued in the defendant’s name because he is paying the rents. … I did not see the receipt with which Mrs. Fanny Cole bought the land.”

The plaintiff did not call any witness in support of his claim.

The defendant, in his defence to the claim, testified along the lines of the averment in his statement of defence. He said the late Fani Cole who died in the Lagos Teaching Hospital after an operation in 1965, without any issue, got the land on which the house was built from the Ojora family but that he had been paying the rent of 2 per annum which had been paid up till 1972. He produced the receipts (Exs. H & H1) made out in his name from Chief Ojora of Lagos for the years 1967 to 1972. His testimony about how the building was constructed by Fani Cole and himself is as follows:

“The house was built of bamboo and has a thatched roof. She helped me to secure a job at Costain West Africa Ltd.; she told me that our aunt Miss Mary Nwakaego Iwenofu was getting old and she wanted to go home to look after her. Mrs. Fani Cole and I contributed money and bought bricks. I was handing over all my earnings to her. We started to remove the bamboo walls one by one in parts until we built the house up. The house was standing on the thatched roof until she left Lagos for Onitsha in November, 1953. The brick walls had been built up to the roof. As time goes on, I plastered the building and got a carpenter who put on the roof.

The house was finally completed with bricks and corrugated iron sheets.

Since then I have been living in the house, had been collecting the rents and issuing the receipts. Mrs. Fani Cole was still alive at this time.

When I was plastering and putting on the roof, Mrs. Fani Cole was at Onitsha but she was visiting Lagos occasionally. The money I spent was from my own earnings. … I have been dealing with the property before and after the death of Mrs. Fani Cole. I have also been paying the rates to the Council.

The house would have cost me almost a thousand pounds to build.”

One Frederick Ebubedike (2nd D/W), a former Member of Parliament who was also a member of the Ajegunle – Ajeromi District Council between 1955 and 1963, testified for the defendant. He said that after the completion of the building in dispute, Mrs. Fani Cole came to him in 1964 and told him that she would like to hand over the whole building to the defendant, who had built it because she did not know what would happen in future as she had no issue. George Okoli (3rd D/W) who was a tenant in the house from 1950 until 1963 said he paid all his rents to the defendant.

In a reserved judgment, the learned trial Judge, instead of dealing with the strength of the plaintiff’s claim, devoted more time on the weakness of the defendant’s case. For example, after considering the testimony of the defence at length together with that of the 2nd D/W whom he disbelieved, the learned trial Judge found as follows:-

“I do not believe the defendant and this witness that the defendant helped in rebuilding the house. If he did, this would have been the first point that he would have raised when the plaintiff (his father) wanted to take over the house.

The defendant sat over the house and was collecting the rents over the years. He did not have the guts to apply for Letters of Administration to administer the estate. When his father did and obtained one, he refused to hand over the only tangible asset to him. He then set up a defence in his S/D that the deceased promised he could have the house if he would rebuild it and in his evidence stated that he rebuilt jointly with her ….

I am unable to hold that the defendant either rebuilt the house on his own or jointly with the late Madam Fani Cole. I do not believe him. …

I have no hesitation whatsoever in holding from the evidence before me that the defendant had no interest whatsoever in the property at 82,Bale St.”

On the claim for trespass, the learned trial Judge said that it is clear from paragraphs 17 and 21 of the statement of defence that the defendant not only agreed that he had the house released to him by the Ajeromi District Council but also that he had been collecting rents from the tenants in the premises. He then found as follows:-

“By this admission, the defendant has agreed that he disturbed the possession of the plaintiff. It is the rule of law that an administrator is the owner (at least during the period of administration) of all goods and chattels belonging to the deceased. Ownership of personal chattels draws with it possession.

The defendant’s act of obtaining possession of the property is an act of trespass. The admission in his evidence that he lives in the property without the consent of the plaintiff or his agent is an admission of the act of trespass. I find the defendant liable in trespass as claimed by the plaintiff.”

One of the points canvassed before us in the appeal against the judgment is that the learned trial Judge erred and misdirected himself, both in law and on the facts, in entering judgment for the plaintiff/respondent when there was no conclusive proof before the court that Fani Cole owned the building in dispute at the time of her death or that it is part of her estate in respect of which Letters of Administration were granted to the plaintiff. It was also contended that the judgment is against the weight of evidence.

After giving due consideration to the arguments put forward by learned counsel for both parties, it is our view that there is prima facie evidence, which was not rebutted by the plaintiff/respondent, that the defendant/appellant has an interest in the property in dispute because –

(a) it was he who paid the ground rent on the property to the Ojora family who own the land as shown in the receipts for the years 1967 – 1972 (Exs. H-H1) made out in his name by the family;

(b) it was he who let rooms in the house to sub-tenants from whom he has been collecting rents for a number of years dating back to the time when Fani Cole was still alive;

(c) it was to him that the property was released by the Ajegunle – Ajeromi District Council (who must be assumed to know who was in lawful control of it) after the end of the civil war; and

(d) he was the one who has been paying the rates on the property to the said Ajegunle – Ajeromi District Council.

There is also the uncontradicted evidence that the Ojora family, since 1958, had changed the name of the head tenant of the premises in dispute from Fani Cole to that of the defendant/appellant.

The plaintiff/respondent sued as the administrator of the estate of Fani Cole. The first issue which the learned trial Judge should have determined, and which he failed to determine, is whether the plaintiff/respondent has succeeded in establishing his status vis-a-vis the building in dispute by leading credible evidence to show that the building is part of the estate which he is empowered by the Letters of Administration (Exs. C-C1) to administer. The determination of this issue is crucial because of the admission of the plaintiff/respondent that he had never seen the house before, did not know whether the land on which it was built was leasehold or freehold, and did not know when the land was purchased, or how much it cost. It must be remembered that he also admitted that he had no document to show that the house belonged to Fani Cole.

As learned counsel for the defendant/appellant has rightly pointed out, these admissions have completely knocked the bottom out of the plaintiff/respondent’s claim to sue to as the administrator of the estate. Furthermore, it has completely destroyed the averment in his pleadings that the house was owned by Fani Cole in her lifetime and is therefore part of her estate. We do not, therefore, see how the learned trial Judge could sustain the claim by relying on the weakness of the defendant/appellant’s case.

As for the claim for damages for trespass which can be maintained only by a person in possession or who has a legal right to the possession, of the property, there is, again, the clear admission that the plaintiff/respondent does not even know the house. In the face of this admission, we cannot see how the learned trial Judge could have come to the conclusion that the plaintiff/respondent’s possession of the building was disturbed by the defendant/appellant. It was not disputed that the defendant/appellant paid the ground rent to the owners of the land on which the house was built, or that he paid the rates to the Ajeromi District Council. The plaintiff/respondent averred in paragraph 14 of the statement of claim that there was collusion between the defendant/appellant and this Council and that this resulted in the release of the property to him after the civil war. He referred specifically to some letters. It is significant that these letters were not produced and no evidence was led in support of this serious allegation. It was also not disputed that the defendant/appellant collects rents from the sub-tenants which he (the defendant/appellant) had put in the premises. From these undisputed facts, it seems to us that if anybody has any right to be in possession of the property it is the defendant/appellant and not the plaintiff/respondent. Therefore, the conclusion of the learned trial Judge that the “defendant act of obtaining possession of the property is an act of trespass” is a non sequitor. In the particular circumstances of this case, the learned trial Judge was clearly in error in holding, as he did, that the possession of or occupation of the house by the defendant/appellant without the consent of the plaintiff/respondent is an act of trespass.

The findings of facts made by the learned trial Judge have been seriously attacked at the hearing of this appeal. It is, therefore, pertinent to refer to our observations in Fashanu v. Adekoya (1974) 6 S.C. 83 at page 91 which are as follows:-

“The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a tribunal of trial and a court of appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.”(The underlining is ours).

As we have spotlighted above, the learned trial Judge, in the case in hand, has not only drawn wrong conclusions from accepted facts, he has also glaringly approached the determination of those facts in a manner which is clearly against the weight of the evidence adduced before him.

It is our view, therefore, that, on the totality of the evidence adduced before him, the learned trial Judge should have dismissed the plaintiff/respondent’s claim. The onus is on the plaintiff/respondent to prove his case. Having failed dismally in his effort to do this, the learned trial Judge should not have relied on the weakness of the defendant/appellant’s case to bail out, albeit unsuccessfully.

We accordingly allow the appeal and set aside the judgment of the learned trial Judge (Adeoba, J.), including the order made by him as to costs, in suit No. 796/71. Instead, we order that the plaintiff’s claim be dismissed and that this shall be the judgment of the court. We also order that the plaintiff shall pay to the defendant the costs of these proceedings fixed in this court at N155 and in the court below at N140.

---

Other Citation: (1975) LCN/2004(SC)