Motunde Shonekan V. Gladys Ayodele Smith (1964)

ADEMOLA, C.J.N

The appellant in this case has appealed against a declaration in the High Court of Lagos declaring the plaintiff/respondent as “the sole beneficiary entitled to all the lands comprised in the Deed of Settlement dated the 31st day of January, 1895 and registered as No. 91 at page 356 in Volume 26 of the Register kept at the Federal Lands Registry in Lagos.”

Two other defendants were named in the writ of summons as the Trustees of the said land, and an Order was sought to compel them to convey the land to the plaintiff/respondent. These two defendants, it would appear, did not take active part in the proceedings, and indeed, they both died before the case was heard in the High Court. There are no new trustees appointed in their place.

The Deed of Settlement (Exh. A) appears to be a Deed of Settlement of Marriage made by one Rufus Alexander Wright and, after having appointed the Trustees, the relevant portion, which forms the Area Of Law of the present dispute, runs as follows:

“To have and to hold the premises hereby granted unto the said Trustees their heirs of their body in Trust for the said Emanuel Wright during his natural life and thereafter in trust for William Joseph Ladipo Wright until he shall have attained the age of thirty years and married and if there shall be no issue of the said William Joseph Ladipo Wright lawfully begotten in trust for the said settlor’s other children who shall be living at the date of the death of the said William Joseph Ladipo Wright and in default of such in trust for those who shall be next entitled under and by virtue of the Statute of Distribution.”

The learned trial Judge in the Court below entered judgment for the plaintiff/respondent for the declaration sought and made an Order in terms of the amended Writ of Summons. Earlier in his judgment, he recorded his findings as follows:

“I am of the opinion that the plaintiff, on the date of the death of William Joseph Ladipo Wright, took the settled property as a joint tenant with the other children of the settlor, Rufus Alexander Wright; and that both Layinka and Rufus Adekunle Wright having since died, the last of them dying in 1950, the plaintiff is entitled to the whole of the settled property absolutely as the sole survivor of those other children of Rufus Alexander Wright….”

It is common ground that the appellant is the only surviving child of Layinka who died in 1924; that Rufus Adekunle Wright, brother to Layinka, and to whom we shall refer later in this judgment, died in 1950; and that the plaintiff/respondent their sister, is now the only surviving child of Rufus Alexander Wright.

For the appellant eight amended grounds of appeal were filed; but only four of them, namely the 4th, 5th, 6th and 8th need our consideration for the purpose of this appeal. Before they are considered, however, reference must be made to two preliminary points which came up at the hearing and were argued before us. The first arose from the first ground of appeal which, in effect, states that all the parties interested in the Deed of Settlement were not before the Court. Although the matter was not raised in the Court below, as the pleadings disclosed that Rufus Adekunle Wright left a widow who might have an interest in the Settlement, we formed the view that she should be served with notice to appear and so directed by virtue of the proviso to Order VII Rule 5(1). A record of appeal with the amended grounds of appeal were duly served upon her. She was present in Court and was duly represented by Counsel. In answer to questions from the Court, we were satisfied that if she had any interest at all, she was barred from being joined as a party to this action since it was clear that she knew of the action before it originated; she had helped either one or both sides, and she was satisfied to leave it to the plaintiff/respondent to fight her own battle.

Also, during the hearing of the appeal an application was made to us by way of Motion, the applicant claiming on behalf of herself and on behalf of the children of Rufus Adekunle Wright, to be joined as interested parties under the proviso to Order VII Rule 5 and Order 58 Rule 9 (Supreme Court Rules). As Counsel was unable to satisfy us as to what interest the applicant has in the Estate, and as it was common ground that the said Rufus Adekunle Wright died leaving a widow whom he had married by a monogamous marriage and no children were born of the marriage, we dismissed the application.

The appeal then was fought between the respondent Gladys Ayodele Smith and the appellant Mrs. Motunde Shonekan, her niece, who had been the contestants in the High Court. The issues, as argued before us, resolve themselves into three questions involving the interpretation of the Deed of Settlement.

The first is, was the respondent born before the death of Joseph Ladipo Wright? In effect this is the 8th Ground of appeal. It is abundantly clear from the Deed of Settlement that she could not take if she was born after the death of the said Joseph Ladipo Wright. This issue was clearly resolved by the learned Judge in favour of the respondent. Counsel attacked this finding and sought to justify his attack by referring to a case in the High Court of Lagos (Suit LD/25/1959) the judgment of which was put in evidence in this case and marked Exh. F. It would appear that in that case the Court found that the present respondent had in her own right no beneficial interest under and by virtue of the Deed of Settlement (Exh. A). That finding was not disturbed in this Court when the matter came on appeal (FSC. 98 of 1961); it was then held by this Court that according to the evidence in that case Rufus Adekunle Wright was ‘the last true and complete owner of the property covered by the Deed of Settlement. We are not unmindful of that decision but we must point out that Exh. F is a certified true copy of judgment in a proceeding between the Trustees on the one part and a total stranger; there was no contest in that suite between the present parties, and the judgment in it cannot be claimed to operate as res judicata on the present dispute. The judgment now under appeal is based on incontrovertible evidence in the suit between the parties, and we see no ground for setting aside the learned Judge’s finding of fact that the respondent has been born before the death of Joseph Ladipo Wright. As for the evidence in the other suit, on which the judgment Exh. F was given, that evidence is not admissible as evidence in the present case; the illegitimate use of such evidence has been repeatedly pointed out in several judgments of this Court beginning with that in Babatunde Jemi Alade v. Lawani Aborishade, 5 F.S.C. 167.

We now turn to the second submission, covered by the 5th and 6th grounds of appeal made by the appellant’s Counsel, which indeed was in issue before the trial Judge. It is whether, on the true interpretation of the Deed, a joint tenancy or tenancy in common was created. We have been asked to say that the interest created was one of tenancy in common. The interpretation the learned Judge put on the Deed is that it did not create, an interest which the two sisters – Layinka and the respondent-and their brother Rufus Adekunle Wright, could succeed to as tenants in common; that the interest created was that of joint tenancy.

Now, the presumption of law is in favour of joint tenancy, unless there are clear words of severance in the instruments or they could be inferred. Where property is given to several persons concurrently, the question whether these persons take as joint tenants or as tenants in common, depends on the contents of the instrument. They prima facie take as joint tenants-Stuart v. Bruce (1798) 3 Ves. 632: Crooke v. De Vandes (1812) 9 Ves. 197, 204. A close examin

Other Citation: (1964) LCN/1138(SC)