Madam Alice Okesuji V. Fatai Alabi Lawal (1991)

LawGlobal-Hub Lead Judgment Report

O. I. AKPATA, J.S.C.

One of the issues raised in this appeal touches on admission of fact by counsel during proceedings in the trial court. The question is whether counsel can retract such admission at the appeal stage, particularly where he has failed to show that the admission was a mistake.

The facts of this case as found by the learned trial Judge Ayorinde, J. (now Chief Judge) and which are not in dispute in this appeal are simple. Madam Salamotu Abeje who died on 28th July, 1847 devised by Will the two wings of her landed property known as No. 178 Bamgbose Street, Lagos to the 1st and 2nd defendants respectively for their life time, with the reversionary interests to their children in equal shares absolutely. The property was erroneously referred to in the Will as Nos. 176 and 178. It is only one property consisting of two wings. The 1st and 2nd defendants are children of the testatrix. The 1st, 2nd and 3rd defendants were named as executors and executrix of the Will.

The 1st and 3rd defendants for one reason or another, executed a deed of conveyance dated 2nd December, 1948, Exhibit B, conveying the entire two wings of the property to the 2nd defendant absolutely, even though it was clear in the Will that he was only a life tenant in respect of only one wing of the property. The 2nd defendant subsequently executed an instrument of charge dated 1st August, 1950 to secure a loan of ‘a3374 (the equivalent of N748.00 when the purchasing power of the naira was strong) granted to her by one Samuel Adewunmi Sebanjo a money lender. About six months later, that is, on 30th January, 1951, Mr. Sebanjo executed a release of charge. The release enabled the 2nd defendant to execute an instrument of transfer of the property in fee simple for the sum of 495 pounds (N990.00) in favour of one Mrs. Juliana Jokotola, who was in fact the wife of Samuel Adewunmi Sebanjo, the money lender. Virtually until he died in 1968, Mr. Sebanjo personally collected the rent in respect of the property.

On 24th August, 1966, Madam Jokotola executed an instrument of transfer of a wing of the landed property in favour of Madam Alice Kemiki Okesuji, the 5th defendant – a cousin of S. A. Sebanjo, the money lender.Both the money lender and his wife had died before the action the subject matter of this appeal was instituted. The 4th defendant Dr. Olabisi Sebanjo is a beneficiary of the estates of S. A. Sebanjo and his wife Madam Jokotola. Before S. A. Sebanjo died, the plaintiff and other beneficiaries of the estate, that is, the grand-children of Madam Abeje, had made representations to him complaining about what they regarded as fraudulent transactions relating to No. 178 Bamgbose Street. Paragraphs 16, 17 and 18 of the statement of claim read:

“16. Mr. Samuel Adewunmi Sebanjo promised to release Madam Abeje (sic) Estate to the beneficiaries in 1966 as requested but failed or refused to do so before his death in February, 1968.

17. In fact it was the protest of the plaintiff and other beneficiaries against the fraudulent alienation of Madam Abeje Estate that made Mr. Samuel Adewunmi Sebanjo ashame (sic) of collecting rents personally from the Estate and led to the transfer of the estate to the 5th defendant and to his appointment of Mr. J. O. Orekoya as his agent and caretaker to collect the rents for him from December, 1966.
18. The plaintiff avers that the transfers of Madam Abeje Estate to Mrs. Juliana Jokotola under the Certificate of Title No. LO 1722 dated 31st January, 1951 and the subsequent transfer thereof to the 5th defendant under the Certificate of Title No.I724 dated 1st September, 1966 constituted a fraud and collusion between Mr. Samuel Adewunmi Sebanjo, Mrs. Juliana Jokotola Sebanjo and the Fifth defendant Madam Alice Kemiki Okesuji.”

In his action filed on 28th July, 1977, the plaintiff Fatai Alabi Lawal (suing as representative of all the beneficiaries of the estate of Madam Salimotu Abeje (deceased)) claimed jointly and severally against the defendants as follows:

“(1) A Declaration that No.I76 and No. 178, Bamgbose Street, Lagos, Nigeria as referred to in the Will of Madam Salimotu Abeje, dated 27th March, 1947 are two wings of the same house under the same No.178, Bamgbose Street, Lagos, Nigeria which is Madam Abeje (sic) Estate, and that Madam Abeje was never the owner of 176. Bamgbose Street, Lagos.

(2) A Declaration that the purported transfers of Madam Abeje (sic) Estate in fee simple to Mrs. Juliana Jokotola Sebanjo in 1951 and to Madam Alice Kemiki Okesuji in 1966 respectively were null and void on ground of fraud to defeat the interests of the reversioners including the plaintiff, and contrary to the provisions of the Will of Madam Abeje dated 27th March, 1947.

(3) An order for rectification of the Proprietorship Register of Title at the Lands Registry, Court Lagos by expunging the names of Mrs. Juliana Jokotola Sebanjo and Madam Alice Kemiki Okesuji and their agents or assigns and beneficiaries of their estate from the Certificate of Title No. LO 1722 and LO 1924.”

The case for the plaintiff was presented by only one witness Alhaji Atanda Lawal, the son of the first defendant. The 5th defendant testified and called a witness. The 1st to the 4th defendant did not adduce evidence. It is also to he noted that the 2nd defendant was not present in court throughout the proceedings up to the time judgment was delivered. In fact he filed no statement of defence.

In his judgment, the learned trial Judge held as a fact that the 1st and 3rd defendants freely conveyed the property No. 178 Bamgbose Street to the 2nd defendant contrary to the intention of the testatrix that the 2nd defendant should have only a life interest in respect of a wing of the property. He did not mince words in coming to the conclusion that “this conveyance to the 2nd defendant was fraudulent and meant to defeat the interests of the reversioners.”

The learned trial Judge went on to emphasize that the 5th defendant “who is a cousin of the money lender, husband of Madam Juliana Jokotola Sebanjo, had actual and constructive notice. She was aware of the will and the fact that Exhibit F spoke of a part. This ought to put her on her guard. If she made enquiries she would have discovered the will. Mr. & Mrs. Sebanjo knew about the will. The transaction was kept within them for obvious reasons of not attracting attention of the reversionary interest.” Judgment was entered for the plaintiff as claimed.

Against this decision the 5th defendant appealed to the Court of Appeal Four grounds of appeal were filed. Three issues arising therefrom were formulated in the appellant’s brief. They read:

“1. Whether or not it was proper for the court below to accept and rely on extrinsic evidence to establish a mistake in the will in the absence of an ambiguity or typographical error in exhibit “A” in view of the fact that the testatrix knew the state of all her properties at the time she made her Will

2. Did the plaintiff prove the fraud pleaded to warrant the consequential order of annulment of Exhibit “B”, “C”, “D”, “E” and “F” and the consequential order of rectification of the proprietorship register
3. Has the 2nd defendant, as a tenant for life under The Will, Exhibit “A” the power to sell and convey the property at 178, Bamgbose Street, Lagos to the purchaser freed and discharged from the interest of the. reversioners If so, can the exercise of that power constitute fraud per se

In his judgment, Kolawole, J.C.A., (concurred in by Nnaemeka-Agu, J.C.A. (as he then was) and Kutigi, J .C.A.), up-held the decision of the trial Judge and declared that Exhibit B was void and that all the documents, Exhibits C, D, E, & F based on it were equally void.

The learned Justice of the Court of Appeal was of the firm view, as the trial Judge, that the action of the three executors and executrix, 1st, 2nd and 3rd defendants respectively, in conveying the property in Exhibit B to the 2nd defendant in fee simple apart from being fraudulent appeared to be a deliberate act on their part to ensure that the reversioners were disinherited. He concluded that if Madam Jokotola had no title there was nothing she could transfer to the appellant, the 5th defendant.

Exhibit B is the conveyance made in favour of the 2nd defendant in respect of No. 178 Bamgbose Street in 1948 Exhibit C is the deed of transfer of the property purportedly transferred by the 2nd defendant to Jokotola Sebanjo in 1951. Exhibit D is the deed of transfer by Madam Jokotola Sebanjo to the 5th defendant in 1966. Exhibit E is a certified copy of the certificate obtained by the 5th defendant in registering the property in her name in September, 1966. Exhibit F is the original of Exhibit E.

The appellant has now come to this court. A total of nine grounds of appeal were filed. Before the hearing of the appeal on 5th November, 1990, grounds 4, 5 and 9 which were incompetent and were withdrawn by the appellant were struck out. Leave to argue grounds 1, 2 and 3 which relate to fresh points of law not taken up in the Court of Appeal was granted. In effect the only grounds of appeal competent to be argued were grounds 1, 2, 3, 6, 7 & 8. These grounds read:

“1. The court below erred in law in holding that the 2nd defendant failed to appear and defend the action thereby assuming that he was duly served with the writ of summons when there was no (admissible) evidence before the court to show that the 2nd defendant was so served.

2. The court below misdirected itself in law and in fact in failing to direct itself that:

(i) the High Court wrongly assumed jurisdiction to adjudicate the action against the 2nd defendant when there was no proof of service of the writ of summons on him;

(ii) the High Court wrongly assumed that the 2nd defendant admitted the claims before the court by his non-appearance;

(iii) there being no proof of service on the 2nd defendant through whom the appellant claims title to the disputed property, and the plaintiff failing to call the 2nd defendant give evidence in support of his claims, the claims against the appellant should fail.

The court below erred in law and on the facts in failing to observe that there being no indorsement on the writ of summons, of service of the same on the 2nd defendant and 5th defendant (appellant), the proceedings and judgment are a nullity against them.

PARTICULARS

(i) only one writ of summons was issued, directed to and commanding only the 1st defendant to appear to it.

(ii) The said writ of summons was not indorsed as having been served on any of the defendants by the bailiff.

(iii) There is no writ of summons on record directed to the 2nd and 5th defendants neither is there any indorsement or proof of service of the same on them.

6. The Court of Appeal misdirected itself in law when it held that it was the Settled Land Act, 1925 that applied to the settlement by virtue of Sections 12 and 16 of the High Court Law, Cap.52, 1973, instead of the Settled Land Act, 1882 when:

(i) The claims before the court do not amount to “probate causes and proceedings” under Section 16 of the High Court Law of Lagos State, 1973 Cap.52 as the claims only concern the construction of a Will and validity of devises made by a beneficiary/executor under it.

(ii) The Settled Land Act, 1882 is applicable by virtue of the Law (Miscellaneous provisions) of Lagos State, Cap. 65, 1973 Laws of Lagos State.

7. The Court of Appeal misdirected itself in law by failing to direct itself that the Settled Land Act, 1882 and’ not the applicable to the Settled and therefore that the 2nd defendant could validly transfer the fee simple interest in the land to Mrs. Juliana Jokotola. (There is typographical error).

PARTICULARS

(i) As the tenant for life in respect of No. 178, Bamghose Street, Lagos, the 2nd defendant had unfettered powers of sale under Sections 3, 6 and 18 of the Settled Land Act, 1882.

(ii) The transfer of the fee simple interest in the land by the 2nd defendant to Madam Jokotola, the 5th defendant’s predecessor-in-title and the subsequent transfer to the 5th defendant were, therefore, valid in law.

8. The judgment is against the weight of evidence.”

Nine issues were formulated in the appellant’s brief. Some of them relate to grounds 4, 5 and 9 which have been struck out. The issues relevant to this appeal are these:

“4.1 Is there any proof on record that the 2nd defendant was served with the Writ of Summons

4.2. Whether the High Court and the lower Court rightly assumed jurisdiction in the action against the 2nd defendant without first satisfying themselves that he was duly served with the Writ of Summons

4.3. Whether the lower Court did not wrongly assume that the 2nd defendant admitted the claims against him because he failed to appear

4.4. (if the above is answered in the negative) can the judgment stand against the 5th defendant whose title is traced to the 2nd defendant

4.5. Are the proceedings in the two lower courts not a nullity against the 2nd and 5th defendants for:

(i) non-service of originating process on the 2nd defendant

(ii) non-proof of service of originating process (i.e. non-endorsement of due service on the Writ of Summons) on the 5th defendant

4.7. Is it the Settled Land Act, 1882 or the Settled Land Act, 1925 that applies to the settlement

4.8. Were the dispositions to the appellant and her predecessors-in-title not valid under the Settled Land Act, 1882

It can be seen the issues 1 to 5 raise the question of failure or otherwise to serve the 2nd defendant and/or 5th defendant with the writ of summons and the effect of such failure, if there was indeed a failure.

Learned counsel for the appellant submitted that the learned trial Judge proceeded with the case on the assumption that the 2nd defendant and all the other defendants had been duly served with all the relevant processes. According to him, it was the duty of the court of first instance to satisfy itself that the 2nd defendant had been duly served with the originating process (writ of summons) before assuming jurisdiction to hear and determine the case against him, especially as the 2nd defendant did not appear nor was he represented by counsel and did not file any defence. In support he cited the case of Alhaji Umaru Launi v. Ezeadua (1983) 6 S.C.370. In this circumstance, he argued, having wrongly assumed jurisdiction against the 2nd defendant when he was not served, going by the record, with the writ of summons, the proceedings and the judgments of the two lower courts against him based on the said writ are a nullity. He sought in aid the case of Shroeder & Co. v. Major & Co. Ltd. (1989) 2 NWLR (Pt. 101) 1.

Learned counsel contended that since the appellant, 5th defendant, traced her title through 2nd defendant vide Exhibits D and F and lost the case because of the 2nd defendant’s implied admission of the claim by his “non-appearance”, the judgment against the appellant cannot stand if the judgment is a nullity in respect of the 2nd defendant for non-service.

It was counsel’s further submission that since the writ of summons on record is not indorsed as having been served on any of the defendants, even though the 5th defendant/appellant defended the case, it is nonetheless a fundamental defect being a condition precedent to the court having jurisdiction to entertain the action at all. He therefore urged us to hold that all proceedings before the High Court and the judgments of the High Court and Court of Appeal based on it are null and void.

On this issue counsel finally contended that the situation is worsened by the fact that there is no writ of summons directed to the 5th defendant/appellant. He drew attention to the fact that the only writ made part of record, at page 2 line 17 to 19, was directed to the 1st defendant alone and that the appellant could not have appeared as a result of that writ. It was counsel’s submission that there is enough doubt as to whether the appellant was duly served with the originating process (writ of summons).

It is to be noted that learned counsel for the appellant has not positively stated that the 5th defendant was not served with the writ of summons or that no writ of summons was directed to her or that no one was indorsed as having been served on her. The complaint is that “the writ of summons on record (at page 2)” was not indorsed or directed to the appellant. I shall return to this aspect of his submission later in the judgment.

Firstly, I wish to point out that the issue of non-service of the writ of summons on the 2nd defendant and the 5th defendant or that relevant indorsements were not made on writ was not raised either in the trial court or in the Court of Appeal. There is however nothing precluding the appellant from raising in this court any question which touches on the jurisdiction of the trial court to entertain the action or that the proceedings are a nullity because of a fundamental defect.

It is not in dispute that the 2nd defendant was not present in court throughout the proceedings and that he filed no statement of defence. Learned counsel for the appellant has relied on the record of appeal in his effort to establish that 2nd defendant was not served with the writ of summons.

In the trial court, going by the record of appeal, and as pin-pointed by learned counsel for the respondent, the plaintiff/respondent filed a motion on notice in the High Court dated 10/8/79 for leave to prosecute the case in a representative capacity. When the motion came on for hearing on 27/10/79 the court noted at page 30 lines 12 to 13 of the record thus:

“I observe that there is no report of service on the 1st to 3rd defendants.”

This observation apparently relates to the service of the motion on notice. Mr. Odufalu appeared for the 4th and 5th defendants. Counsel for the plaintiff then requested for adjournment. At pages 31 to 32 is the affidavit of service of the motion on notice on each of the defendants, including the 2nd defendant. It was sworn and filed on 27/11/79. On 9/3/81, Mr. Oriade for the plaintiff informed the court that the 1st, 2nd and 3rd defendants had expressed their willingness not to defend “even though we have been serving them all processes in this case.” (See page 50 line 8 to 12 of the record of appeal).

Mr. Odufalu for the 4th and 5th defendants then said:

“I am not sure if the 1st, 2nd and 3rd defendants have been served the summons for direction:

However, nothing was said relating to the service of the writ of summons. 16/6/81, Mr. Odufalu, in the presence of the 5th defendant, observed thus:

“As the court would see the 2nd defendant was served with the writ of summons but he would never put in an appearance.”

(See page 51 lines 24 to 26).

This was an obvious admission by learned counsel for the 5th defendant/appellant in the presence of the 5th defendant/appellant who is claiming in this court that the 2nd defendant was not served with the writ of summons. The expression “as the court would see” is very significant. It suggests that there was something before the court from which it “would see” that the 2nd defendant had been served.

The appellant can therefore not be heard to complain that the 2nd defendant and herself were not served with the writ of summons. Although the appellant is represented by a different counsel in this court in the person of Mr. Fashanu, her counsel here is precluded from shifting grounds on the issue. Embarrassing as it was to him, Mr. Fashanu agreed that he was bound by the observation of counsel for the fomer appellant. He however tried to wriggle out of his dilemma by saying it could have been a mistake of counsel. A counsel can, while functioning as such, make admissions of fact which could be binding on his client, particularly where such admission was made for the purpose of dispensing with proof at the trial and when the client failed to retract the admission before judgment. There is no doubt that in considering the effect of an admission the court would take into account the circumstances under which it was made and the weight to be attached to it. This is the type of admission by counsel which in a civil case is prima facie evidence against his client. There is also a presumption of regularity in the teamed trial Judge proceeding to trial in the absence of the 2nd defendant when the 2nd defendant himself has not complained that he was not served. In the case of Alhaji Umaru Launi v. Ezeadua (1983) 6 S.C. 370 relied on by learned counsel, the Court of Appeal dismissed the appeal when it took the view that both parties, though served, had elected not to come to court. The appellant appealed to this court complaining that he was not served. This court held that the onus was on the Court of Appeal to satisfy itself that there had in fact been service on the parties and not what was assumed in the case.

It was held that the Court of Appeal acted clearly without jurisdiction.

The case under inference is in no way similar to the case in hand, and the principle enunciated therein is not applicable to the instant case. Firstly, the 2nd defendant has not complained that he was not served. Secondly, none of the parties in that case made any admission which can be held against him.

If there was any lingering doubt that the 2nd defendant was probably not served, it was put to rest by the observation of learned counsel for the respondent in his brief of argument to which the appellant filed no answer.

Chief Oriade at page 5, paragraphs 3.07 and 3.08 submitted thus;

“3.07 It is remarkable that out of the five defendants it was only the 5th defendant who appealed against the judgment of the learned trial court. The 5th defendant/appellant had, at the time of settlement of the Record of Appeal in the High Court of Lagos State in Suit No.LD/809/77 excluded from the Record of Appeal many documents such as the Bailiffs Affidavit of Service of the writ of summons on the 2nd and 5th defendants.

3.08 The plaintiff/respondent submits, with all due respect to my Lords, that the Fifth defendant/ appellant, who had admitted and confirmed through her counsel, H. A. Odufalu, Esq. at page 51 lines 24 to 27 of the Record of Appeal that the 2nd defendant had been served with the writ of summons is estopped in law from complaining that the writ of summons was not served or that there was no proof of service of the writ of summons on the 2nd defendant.”

The allegation that the appellant excluded from the record of appeal the bailiffs affidavits of service of the writ of summons on her and the 2nd defendant has not been refuted by her. No reply brief was filed in answer to this allegation and learned counsel for the appellant made no effort to refute it in his oral argument.

I however doubt whether counsel would have been allowed to do so in his oral submission without filing a reply brief as this court has held that it may refuse to hear oral argument from counsel in respect of points raised in respondent’s brief to which no reply brief is filed. (See Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370 at page 402). In the light of the above, I find no substance in grounds 1, 2 & 3.

It was the submission of counsel for the appellant that the lower courts wrongly applied the Settlement Land Act, 1925 to the settlement instead of the Settlement Land Act of 1882. Failure to apply the 1882 Act denied the appellant of the protection she is entitled to under it which made her title valid and unassailable, though obtained through a tenant for life.

According to him, by virtue of section 2 of the Land Law (Miscellaneous Provisions) Law of Lagos State, Cap.65, the Settlement Land Act, 1882 of England is applicable to the settlement in this case being a statute of general application in England and the applicable law in Lagos State. He submitted that the lower Court wrongly relied on sections 12 and 16 of the High Court of Lagos State Law 1973, to the effect that the construction of a Will is a probate matter whereby the law presently in force in England would apply. Learned counsel contended that the issue in this case was not a probate matter. He referred to Order 1 Rule 2 of the Lagos High Court Civil Procedure Rules which defines probate actions as including “actions and other matter relating to the grant or recall of probate or of letters of administration, other than common form business.” He stressed that the grant or recall of probate in respect of the Will was not in issue in this case.

By failing to rely on the 1882 Act, he submitted, the Court of Appeal fell into serious error because under that Act a tenant for life under a settlement could transfer the fee simple in the property, the subject-matter of the settlement, to a purchaser. He pointed out that by section 20(2) of the 1882 Act a disposition or sale of settled land by a tenant for life is binding on the estate, not withstanding any limitation in the settlement.

In effect learned counsel urged us to hold that the disposition by the 2nd defendant as a tenant for life to Madam Sebanjo was valid. This is so, he argued, because neither Madam Sebanjo nor the appellant was linked to Exhibit B, assuming that the lower courts were right in holding that Exhibit B was void. It was therefore the submission of learned counsel that the 2nd defendant being a tenant for life, going by the will Exhibit A, could dispose of the property by sale to a purchaser in fee simple.

It was however the submission of Chief Oriade that it is the provision of section 6 of the Settlement Act, 1925 that is applicable to this case in that it provides that where a settlement is created by Will of the estate owner who died after 1925, the Will is the trust settlement and the personal representatives of the testator shall hold the land on trust and when required to do so, to convey it to the person who under the Will or the Act is the tenant for life or if more than one, as joint tenants.

Learned counsel referred to the fact that section 22 of the Supreme Court Act, Volume 6, Cap. 211 Laws of Nigeria, 1948 which is reproduced in section 16 of the 1973 High Court Law Volume 3 Cap.52 of Lagos State provides that the jurisdiction of the High Court in probate causes and proceedings may be exercised by the Lagos State High Court in conformity with the law and practice for the time being in force in England – that is, in accordance with the 1925 Settlement Act.

Before resolving the question as to which of the Settlements Acts is applicable, I wish to state that grounds 4, 5 & 9 having been struck out there is no ground of appeal complaining against the finding of fact reached by the learned trial Judge and upheld by the Court of Appeal that fraud and forgery were committed in a large scale.

The omnibus ground of appeal, which is ground 8, was not argued in the appellant’s brief and no issue was formulated in respect of it. In his judgment, Kolawole, J.C.A., reasoned thus:

“I have discussed the effect of the pleadings on this appeal. I start with the allegation that the Instrument of Transfer was a forgery. It was alleged in paragraph 20(iii) of the statement of claim that Musiliu Ayinde Lawal did not sign or execute personally the Instrument of Transfer dated 31 January, 1951 (Exhibit C) by which the property in question was transferred to Madam Juliana Jokotola. That averment was not denied by the 2nd defendant. As far as the 2nd defendant who was a party to the action was concerned that averment was deemed to be admitted and the plaintiff need not proceed to prove an admitted fact as against the 2nd defendant.

Quite apart from the admitted fact there was evidence which stood uncontroverted that the 2nd defendant was in Calabar in 1951 and did not execute the Instrument. The contention of Mr. Odufalu that it was the duty of the plaintiff to call the 2nd defendant to prove that he did not execute the document overlooked the fact that the 2nd defendant was plaintiff’s adversary; it was therefore no business of the plaintiff to call his opponent to testify on his behalf.”

The learned trial Judge had this to say at pages 92-93:

“From the transaction pleaded and the exhibits produced it is clear that only a part of the land or No.178 Bamgbose Street, was affected. The question arises as to who owns the other part. S.28(3) of the Law has not been complied with. This may be because of the collusion of the defendants and the deceased Mr. and Mrs. Sebanjo to defraud the reversionary interests. In Exhibit ‘C’ for example, no plan is attached and yet part of the land was allegedly transferred to LO 1724.

I have found fraud in the manner this property was registered.”

Kolawole, J.C.A., also held at page 210, lines 27-30 that “the learned judge had ample materials before him upon which to base the fraud found against the 1st, 2nd, 3rd and 5th defendants as well as Samuel Adewunmi Sebanjo.”

What this boils down to is that the alleged predecessor in title of the property in dispute did not obtain good title because Exhibit C by which she claimed to obtain title was a forgery. Therefore the 2nd defendant parted with nothing. The Exhibit is void. In effect the appellant could not derive good title from Madam Juliana Jokotola, the wife of the money lender. It is therefore immaterial whether the applicable law is the 1882 Settlement Act or that of 1925.

In my view the substratum of the relief claimed by the plaintiff/respondent is the Will Exhibit A. The controversy hinged on it. The interpretation to be given to its contents, particularly, whether the 2nd defendant had a life interest in the property and whether the administrators and administratrix could transfer the property to him in fee simple is relevant.

Order 1 Rule 2 of the Lagos High Court Civil Procedure Rules defines probate actions as including “actions or other matters relating to the grant or recall of probate or of letters of administration other than common from business.” The use of the word “including” clearly shows that the definition is not exhaustive.

I am in agreement with the views held by Taylor, C.J., in the case of Okoya v. Ojule & Ors. (1968) 2 All NLR 55 at pages 58 to 59 that the construction and interpretation of a Will and its contents are matters within the jurisdiction of the High Court of Lagos State and being probate matter is governed by the law and practice for the time being in force in England, that is the 1925 Settlement Act.

As rightly pointed out by Kolawole, J .C.A., there is no doubt that No.178 Bamgbose Street, Lagos is a settlement land under sections 1 and 2 of the Settlement Land Act 1925. By section 1 any Will by which any land stands limited in trust for any person by way of succession creates a settlement. Section 2 states that land which is or is deemed to be the subject of a settlement is for the purpose of the Act settled land. Section 107(1) makes it plain that a tenant for life shall, in exercising any power under the Act, have regard to the interests of all parties settled under the settlement, and shall, in relation to the exercise thereof by him, be deemed to be in the position and to have the duty and liabilities of a trustee for those parties.

By the Settlement Land Act, 1925 the 2nd defendant could not convey the property in fee simple to Madam Juliana Jokotota, the wife of the money lender. She could not deprive the plaintiff and other grand-children of the testatrix Madam Abeje of their reversionary interests in the property. He is deemed to be “in the position and to have the duties and liabilities of a trustee” to those with reversionary interest.

Kolawole, J.C.A., put it thus and I agree with him:

“…the instrument of transfer upon which Exhibit C was issued pretended to transfer Madam Abeje’s estate to Madam Juliana Jokotola but in fact transferred nothing. That instrument is void for two reasons. First, it was a forgery because it was not executed by the 2nd defendant; second, it pretended to transfer Madam Abeje’s estate when he transferred nothing It follows that the certificate document is void.”

On the whole, the appeal fails. It lacks merit. It is therefore dismissed with costs assessed at N500.00 in favour of the respondent.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Akpata, J.S.C. I entirely agree with the judgment. I have nothing to add. Accordingly, the appeal lacks merit and it is hereby dismissed with N500.00 costs to the respondent.

S. M. A. BELGORE, J.S.C.: I read in advance the judgment of Akpata, J.S.C., with which I am in complete agreement, for the reasons advance in his judgment, to which I have nothing to add, and which reasons I adopt as mine. I also dismiss this appeal as totally lacking in merit with the same consequential orders as to costs.

AGBAJE, J.S.C. (Retired).

Editorial Note:

Hon. Justice Abdul Ganiyu Olatunji Agbaje, J.S.C. was in the panel that heard this appeal. However, before the Reasons for Judgment were delivered on Friday, 1st February, 1991, he had retired from the Supreme Court Bench.

The following is his contribution which was written on Thursday, 22nd November, 1990 before his retirement took effect from Friday, 23rd November, 1990:-

Having read the record of proceedings in this case including the briefs of arguments and having heard in open court counsel for the appellant and the respondent, I am satisfied that there is no merit in this appeal. Accordingly I dismiss the appellant’s appeal with N500.00 costs to the respondent.

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SC.162/1986