Nnanyelugo Samuel O. Ebosie V. Joseph Phil-ebosie & Ors (1976)
LawGlobal-Hub Lead Judgment Report
OBASEKI, AG. JSC.
In the High Court of Justice of the former East-Central State holden at Onitsha the plaintiffs/respondents took out against the defendant/appellant a writ of summons claiming:-
(i) A declaration that the two pieces or parcels of land situate at 16A, Venn Road North, Onitsha and No. 11A, Iboku Street, Onitsha which are more clearly shown and delineated in a plan to be filed in court are the communal property of the children of Philip Onwunnamugha Ebosie.
(ii) An injunction to restrain the defendant, their servants, agents and privies from erecting defendant’s personal building on the said land.
Pleadings were ordered, settled and duly delivered and the issues joined came up for trial before Oputa, J. After hearing evidence and address of counsel, he delivered a considered judgment on the 9th day of September, 1974 –
(a) striking out the counterclaim without leave;
(b) dismissing the claim for injunction; and
(c) granting the plaintiffs/respondents the following declarations:-
(i) that the piece or parcel of land with buildings thereon at No. 16A, Venn Road North, Onitsha and more clearly delineated in plan Exhibit 9 is the communal property of the Ebosie family; and
(ii) that the property known as and called No. 11A, Iboku (or Iboko) Street, Onitsha, shown on Exhibit 8 is also the communal property of the Ebosie Family.
It is against this judgment that this appeal has been lodged. Before the hearing of the appeal, counsel for the appellant sought and obtained leave of this court to withdraw the application he filed for “an order to adduce new evidence, i.e. an order to bring in pages of the written address by the counsel for the defendant given to the learned trial Judge but was not considered. The motion was therefore struck out. Eight lengthy grounds of appeal were filed but from a careful study of them, we observed that apart from Ground 1, i.e. the omnibus ground, all the other grounds were invalid grounds. They were mere arguments on the facts and findings of the learned trial Judge. In any case, it was only Ground 1 which reads:- “That the judgment is against the weight of evidence” that was argued properly before us. We will therefore at this juncture set out the facts established before the learned trial Judge. The plaintiffs/respondents and defendant/appellant are children of Philip Onwunnamugha Ebosie (deceased) who died on 22nd day of July, 1930 at Onitsha. The 1st and 3rd plaintiffs/respondents are born of the same mother while the 2nd plaintiff/respondent and the defendant/appellant are issues of another mother. The defendant/appellant is the eldest surviving son of late Philip Onwunnmugha Ebosie. Apart from the parties, there are other children of the late Philip Onwunnamugha Ebosie surviving. The late Philip Onwunnamugha Ebosie died testate. He left a Will made on the 23rd day of January, 1926, in which he appointed the defendant/appellant as a sole executor. He also left a lot of properties including No. 16A, Venn Road North and New Market Road landed property the subject-matter of this case on appeal. The provisions of the Will were not in dispute and were not the subject-matter of these proceedings. It appears that at the time of the death of his father, the defendant/appellant was a minor and Probate of the Will was not taken out till 30th of April, 1949, i.e. over eighteen years after the death of the deceased. The Will, Exhibit 11, gave a life interest in the following properties:- Viz:
(1) Storey house (with out-houses and their entire contents) situate at Venn Road, Onitsha Waterside;
(2) One house and one out-house at John Afag Street, Onitsha Waterside;
(3) One house near Hausa Burial Ground, Onitsha;
(4) Land oppoiste Mr. Cambell situate at Ezenwa Street, Onitsha;
(5) Plot at New Market Road, Onitsha without rights of alienation, sale, transfer or mortgage to each of his eight sons in succession in order of seniority namely: (1) Samuel Onuorah Ebosie; (2) Joseph Chukumah Ebosie; (3) Emmanuel Ifekandu Ebosie; (4) Charles Onwuka Ebosie; (5) John Brainmah Ebosie; (6) George Ebosie; (7) Christopher Ebosie; and (8) Isaac Obidigbo Ebosie.
This apparently satisfied no-one. It appears there was an uneasy calm in the family circle as could be seen from the facts pleaded in paragraphs 20, 21 and 22 of the Statement of Defence; they read as follows:-
“20. In order to avoid family dispute and to keep the Ebosie family united, the defendant sent copies of the Will of their late father to all the sons of late Ebosie but the 1st plaintiff will not budge and continued to manage the properties. The defendant will rely on letters dated 14/6/47 from Dr. Emma Ebosie and 7th October, 1947. And also letter dated 4th September, 1947 from J.C. Ebosie.
21. The 1st plaintiff and his brothers despite repeated warning, and without the defendant’s approval and consent built a house and a store as shown in the defendant’s Plan (sic) which the defendant will also rely (No.MEC/151/72).
22. A as a result of the 1st plaintiff’s greed and attempt to usurp the right of the defendant, the defendant summoned their immediate relatives of Ogbendida and shared their late father’s properties as contained in paragraph 7 of the Statement of Defence with no right of sale.”
To break the uneasy calm and enthrone peace, harmony and contentment, the defendant/appellant in 1952 decided with the concurrence of his brothers to depart from the provisions of the Will and follow an agreed scheme of distribution. He therefore summoned a selected family meeting of his brothers and some male relations. The defendant’s evidence on this issue reads:-
“I summoned all my brothers to a meeting. I also asked some members of our extended family to attend as observers. When we were all assembled I brought out the Will Exhibit 11 and told all assembled that if we went strictly by Exhibit 11, I should own the whole of my late father’s property for life. I then told my brothers that I do not want to follow Exhibit 11, strictly. I then proposed to share our father’s properties according to the number of wives who had male children. This was agreed to by all of us …………………………………………………………..
5. The main building now called 16A, Venn Road North went to me as the head of the family.”
The 2nd plaintiff/respondent who is a full brother of defendant/appellant in his evidence touching on or dealing with No. 16A, Venn Road North said:- “It was decided that the eldest son or Okpala should in his life-time occupy No. 16A, Venn Road North.” The evidence of the 1st plaintiff/respondent was to the same effect. It reads:- “The defendant as the eldest son was to occupy the place No. 16A, Venn Road North during his life-time and after him the house should descend to other sons of late Phil-Ebosie in their order of seniority by birth.” Plaintiffs’ 3rd witness, Okeke Chima who was the only independent witness testifying on this issue said:- “I know the plaintiffs and the defendant. We belong to the same extended family. In April 1952 I was invited by the defendant to a meeting which was held in Philip-Ebosie’s compound along Venn Road North………. There was others invited ……….. The purpose was to share out and divide the property of late Philip Ebosie among his sons who have grown up to maturity ……………. Both parties, plaintiffs and defendant, consented to us sharing their late father’s property among his sons. We decided that the property at Venn Road North excluding the portion allocated to the 1st and 3rd plaintiffs’ mother should remain communal to all sons of late Philip-Ebosie. The defendant being the eldest son was allowed to arrange the property for himself not his other brothers. We decided that the premises at Venn Road North reserved as communal should become the Iba (ancestral family) house of the Ebosie family.”
Since No. 16A, Venn Road North went to the defendant as head of the family, it is clear that it can only remain with him as long as he is head of the family which office is for life. No. 16A, Venn Road North was therefore reserved as communal property but to be residence of the head of the family who is the eldest surviving son for life. The defendant gave evidence that he received other properties but not as head of the family. The office of head of family is not held in perpetuity. At the same meeting of 1952 the family also decided that the New Market Road property should become the communal property of the late Philip Ebosie’s children. This property was on 11/2/54 leased to S.C.O.A. and with part of 10 years rent of £1,500 paid by and received from the S.C.O.A., the Ebosie family bought the land with building thereon known as No. 11, Iboku Street Onitsha. Also with part of the said rent, the family put up a building known as No. 11A, Iboku Street, on part of the unbuilt portion of the premises at 11, Iboku Street, Onitsha. The defendant/appellant’s evidence on this issue reads:- “It is correct that the New Market Road property leased to S.C.O.A. now belongs to late Philip Ebosie family communally …………. When the New Market Road property was leased to S.C.O.A. we were paid 10 years rent in advance. It was with part of this money that we the members of the Philip Ebosie family, bought the Iboku Street property. We the Philip Ebosie family then built a house with part of the rent from S.C.O.A. on the Iboku premises. This is property known as No. 11A, Iboku Street.”
Similarly, on this issue the 1st plaintiff’s/respondents evidence reads:- “On her death (Ofonne’s mother) my father inherited the New Market Road property. It is correct that on my father’s death the New Market Road property became communal to all the male issues of late Philip Ebosie. The property at New Market Road was fairly large………… ………This portion was leased by all the children to S.C.O.A. The defendant and I signed that lease ………………………….. We had a bulk rent of about £1,000 from S.C.O.A. when we leased this property to them. With the proceeds we then bought No. 11, Iboku Street with a house on it. We then rented the existing house and built our house…………………………. It is 11, Iboku Street that we plaintiffs are saying is communal property to all the male issues of late Philip Ebosie including the defendant.”
It is settled law that property bought with rent derived from communal property is communal property unless there is evidence to the contrary. During last civil war the property at No. 16A, Venn Road North was severely damaged and reduced to ruins by hostilities and rendered uninhabitable. On the cessation of hostilities the appellant cleared what was left of the ruins of the old buildings from the site and proceeded to erect his personal buildings on the land without consultation with and without the concurrence of all his brothers. The respondents took objection to what they regarded as the conversion of family communal property to personal property and instituted proceedings against the appellant in the Onitsha High Court in terms of the claim stated above. On this issue we refer to paragraphs 5(1), 5(7), 9, 10, 14 and 15 of the Statement of Claim. These said paragraphs are as follows:-
“5. The landed property of late Philip O. Ebosie was shared as follows: (1) Venn Road Storey building and out-houses with the exception of the area containing Mrs. Ebosie’s building and the adjacent shop – to be the ‘Iba’ (family communal property) but to be occupied by the oldest surviving sons and any children of late Philip O. Ebosie who is in need of accommodation in Onitsha. (7) New Market Road where the sisters of late Philip O. Ebosie were living to be communal property to all male children jointly. It was jointly leased to S.C.O.A. about 1953/54 and the first bulk rent paid by S.C.O.A. was used to purchase the land at 11A, Iboko Street to provide accommodation for their aunties. One of their aunts called Ofunne lived there until she died in or about 1959.
9. The storey building at Venn Road was completely damaged during the civil war.
10. The defendant is now erecting a personal house on the said site contrary to the 1952 accord that the house and premises should be regarded as ‘Iba’ and communal property to the Ebosie’s family.
14. The plaintiffs and the defendant in accordance with the 1952 accord used the money collected from S.C.O.A. to buy jointly a property at No. 11A, Iboko Street, Onitsha, as a communal property.
15. The defendant has granted the said property to someone unknown and unless restrained will claim the same as personal property.”
With regard to the property at No. 16A, Venn North Road, the defendant/appellant denied communal ownership. He claimed it as his exclusive property. And with regard to the property at No. 11A, Iboku Street, his contention was that although it was built with the rent paid to the Ebosie’s family by S.C.O.A. he, after consultation with the first plaintiff/respondent, decided to build the house for Madam Ofonne Ebosie their late father’s sister as her personal property. He admitted that with the exception of first plaintiff he did not consult the other brothers and did not obtain the consent in writing of any of them. Having admitted that it was not the decision of all his brothers and that there was no written concurrence from 1st plaintiff and his other brothers, the learned trial Judge rightly in our view rejected his contention. A building erected on land communally owned with money communally owned cannot be anything else but communal property until the community divests it of its communal character. After a thorough review of the evidence and the law, the learned trial Judge found in favour of the respondents and made the declarations set out above at the commencement of this judgment. Summarising his findings the learned trial Judge said, inter alia:- PAGE| 8 “Having reviewed the evidence on this issue” (concerning No. 16A, Venn Road North) “I am satisfied that the preponderance of probability is definitely in favour of plaintiffs’ contention and probability is always a safe guide to sacred sanctuary of belief. I therefore believe the plaintiffs and their witnesses and I find as a fact that in the 1952 meeting summoned by the defendant it was agreed that No. 16A, Venn Road North should become communal property of all the sons of late Philip O. Ebosie and be used as communal ancestral family house and that the defendant and any other subsequent head of the family should occupy that family house and its precincts and enjoy thereon something in the nature of a life interest. I disbelieve any defence witness (particularly 1st D.W. and 2nd D.W.) where his evidence tends to suggest that No. 16A, Venn Road North was given to the defendant personally and absolutely during the 1952 sharing of the landed properties of late Philip O. Ebosie. The next issue between the parties is whether No. 11A Iboku (or Iboko) Street and the rents accruing therefrom are communal to all the children of late Philip O. Ebosie. Here the defence is on an extremely very slippery wicket…… ……… ……… ……… ……… ……… …… …..
From these admissions it logically follows that the Iboku Street property belongs to the Ebosie family. In the absence of any reliable evidence (and I have none) that the entire family conveyed this property No. 11A, Iboku Street after its purchase to Madam Ofunne, I do not see how the court can entertain paragraph 24 of the Amended Statement of Defence or any evidence of the 2nd Defence Witness contrary to these admissions from the totality of the evidence led. I am satisfied and find as a fact that No. 11A, Iboku Street, Onitsha belongs to the Ebosie family and not to Madam Ofunne Ebosie.” In our view, these findings are amply supported by the evidence adduced before the learned trial Judge. We observe that the appellant’s rights under the Will over all the other properties his father devised to him for life which he disclaimed were adequately considered. It was indeed unnecessary for the learned trial Judge to give more consideration to the contents of the Will than he did in view of the evidence that the male children who were the beneficiaries under the Will at a family meeting decided and agreed to abandon the provisions of the Will in favour of family distribution and that they did disclaim their life interests under the Will, by word and deed.
We are aware that a beneficiary may for some personal reason refuse to accept the property devised or bequeathed to him by Will. The reasons for doing this are numerous and we do not propose to catalogue them here. Whatever his reasons may be, even if he has no reason at all, nothing precludes a person from renouncing a testamentary gift. A renounced testamentary gift is distributed in accordance with the rules of intestate succession.
We accordingly endorsed the view of the learned trial Judge when he said:- “If the Ebosie children decided to throw away their father’s alleged Will and share out his properties among themselves and have since 1952 maintained that position, I do not think that the defendant who for more than 22 years had acquiesced in this state of affairs can wake up in 1974 to talk about the Will.”
The position is that the male children each of whom under the Will had life interests in succession (on death in order of seniority) disclaimed their life interests, surrendered them and released the properties for distribution. The effect of a disclaimer or release is to accelerate the next interest in remainder (Re Scott, Scott v. Scott (1911) 2 Ch. 374 at 377. Re Hodge (1943) Ch. 300 (1943) 2 All ER 304) and if all the male children had not agreed to release their life interests all the properties would not have been available for distribution and whatever interest would have accrued to the estate of the appellant after his death would have been postponed. We are of the opinion that it is too late for the appellant to return to the Will.
He is estopped by his action (Burkenshaw v. Nicholls (1873) AC 1004 HL at p. 1026) The appellant’s evidence that the property at No. 16A, Venn Road North, Onitsha was given to him as head of the family, in our view defeated his case of individual ownership. What is the function of the head of the family? Graham Paul, J., in Balogun v. Balogun, 2 WACA 290 at 299 describes the functions of a family head under customary law as follows:- “The courts of Nigeria are perfectly familiar with the position of the Head of a family under native law and custom – particularly in Lagos. Although the main principles do not differ very materially in other parts of the country.
The head of the family is in charge and control of the family property. He collects the revenue of family property, he has to make certain disbursements out of the family revenue for family purposes, upkeep of the family property, funeral, marriage and baptismal ceremonial expenses of members of the family education of children and so on. The head of a family has very considerable and onerous duties to perform varying in degree, of course, according to size, wealth and importance of the family. And I have never heard it suggested that the head of a family had under native law and custom to meet the expenses of duties property incidental to his position as head of the family out of his own money as distinct from family funds.”
In our view that statement explains the basis of the respondents’ objection to the appellant expending his own personal money on family property destroyed by the war. We find no merit in this appeal and hereby dismiss it. We hereby also affirm the judgment and orders of Oputa, J.
PAGE| 10 We observe that the declarations made by the learned trial Judge were made in favour of the Ebosie family instead of “the children of Philip Onwunnamugha Ebosie” as claimed. As it is apparent from the judgment of the learned trial Judge (when he said):-
“Having fully considered the facts and the law I can make and do hereby make the declarations sought by the plaintiffs”, that he intended to make the declarations sought, we hereby in the interest of justice amend the declarations he made to read:- “(1) That the piece and parcel of land at No. 16A, Venn Road North, Onitsha and more clearly delineated in Plan Exhibit 9 is the communal property of the children of Philip Onwunnamugha Ebosie (deceased).
(2) That the property known as and called 11A, Iboku (or Iboko) Street, Onitsha shown on Exhibit 8 is also the communal property of the children of Philip Onwunnamugha Ebosie (deceased). In no circumstance can a court find for a plaintiff other than in accordance with his final pleadings whatever evidence may have been offered (Mandilas & Karaberis v. J.O. Oridola (1972) 2 S.C.47 at p. 51).
Costs allowed the respondents in this court are assessed at N146.
Other Citation: (1976) LCN/2283(SC)
