Ressel L. Y. Dakolo & Ors. V. Gregory Rewane-dakolo & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

Suits No.W/135/94 and No.W/163/94 were ordered consolidated by the learned trial Judge. The 1st, 2nd and 3rd respondents, as plaintiffs suing in a representative capacity claimed against the appellants’ as defendants for:

1. A declaration that No. 1 Robert Road, Warri and No. 45 Warri/Sapele Road, Warri are the bonafide property of Late Madam Edomi Ogbe.
2. A declaration that the plaintiffs’ being the surviving children of late Madam Edomi Ogbe whose parents administered the properties before the death of the last of them in 1992 are entitled to letters of Administration of the properties.
3. An order against the 4th defendant revoking the Letters of Administration granted by the 4th defendant to the 1st, 2nd 3rd defendants on or about 7th of February, 1994 in respect of the said properties.
4. An order against the 4th defendant to cause to be issued Letter of Administration to the plaintiffs in respect of the properties at No.1 Robert Road, Warri and No. 45 Warri/Sapele Road, Warri.
5. An order of perpetual injunction against the 1st to 3rd defendants, from applying for Letters of Administration in respect of the said properties and against the 4th defendant, its servants, privies or agents from issuing letters of Administration to the 1st to 3rd defendants their servants, privies or agents, heirs or successors-in-title.

The defendants in the consolidated suits suing as Administrators of the personal and real estate of Solomon Dakolo claimed as follows:

1. A declaration that the property situate at and known as No. 1 Robert Road, Warri otherwise referred to as 9, Warri/Sapele Road and after renumbering of streets referred to as 45 Warri/Sapale Road, Warri is part of the estate of Solomon Dakolo, deceased, who died on 31st December, 1954 and does not form part of any estate called Edomi Ogbe Estate.
2. A declaration that the defendants appointment of Ben Akporiaye as estate agent and the purported vesting in him of the power to manage the property known as No.1 Robert Road otherwise or sometimes referred to either as 9 or 45, Warri/Sapele Road, Warri without the consent of the plaintiffs is wrongful, null and void.
3. A declaration that having regard to the fact that the property known as No. 1 Robert Road Warri, did not at any time belong to Edomi Ogbe nor does same form part of Edomi Ogbe’s Estate upon which the defendants grounded their claim/authority, the defendants appointment of Dr. G. I. Emiko as the legal representatives in respect of the above named property is wrongful, null, void and deceptive.
4. An order compelling each of the defendants to account for rents or money collected throught the instrumentality of Ben Akporiaye or their agent, Warri otherwise referred to as 9 or 45 Warri/Sapele Road and pay some over to the plaintiffs.
5. An order for a perpetual injunction restraining agents, or all servants from demanding and/or collecting rents any tenant/occupants of the premises known as No. 1 Robert Road, Warri otherwise referred to either as 9 or 45 Warri/Sapele Road, Warri and from interfering or medling in any manner howsoever with the management of the said property without the consent or permission of the plaintiffs.

For clarity the respondents were plaintiffs in suit No.W/135/94 while the appellants were plaintiffs in Suit No.W163/94. After consolidation; the respondents remained as plaintiffs while the appellants in suit No.W/163/94 became the defendants. The Probate Registrar of the High Court of Justice, Delta State was the 4th defendant. Trial was at the High Court of Delta State. In Warri, Akpiroroh J (as he then was) presided. Six witnesses gave evidence for the defendants. Documents were admitted as exhibits. The Plaintiffs relied on traditional evidence to prove that they own the property while the defendants relied on acts of ownership. The learned trial judge was satisfied with the plaintiffs’ evidence and entered judgment in favour of the plaintiffs. The claims of the defendants’ were dismissed. Dissatisfied, the defendants’ lodged an appeal in the Court of Appeal, Benin Division. That court agreed with the judgment of the learned trial judge and in the concluding paragraph of the judgment said:

“in the result having regards to the aforesaid, I hold the view that this appeal lacks merit and it is hereby dismissed. The judgment of the learned trial Judge, Akpiroroh, J (as he then was) delivered on 7/8/98 is therefore affirmed by me…,”

This appeal is against that judgment. In accordance with Order 6 Rule 5 of the Supreme Court Rules briefs of argument were filed and exchanged by counsel. Learned counsel for the appellant filed an appellant’s brief and a Reply brief on 27/9/06, and 5/11/09 respectively. Learned counsel for the respondents filed a respondent’s brief on 9/10/09. Incorporated in the respondents brief are arguments on a Preliminary objection. This is now accepted practice, as it obviates the necessity of filing a separate Notice of Preliminary objection. This practice makes it possible for the judge to determine the preliminary objection with the appeal, thereby saving time. In the appellants briefs three issues are distilled from five grounds of appeal. They are:

1. Whether the Court of Appeal was right in holding that the issue of estoppel was adequately dealt with and could not be considered,
2. Whether the 1st – 3rd respondents rather than the appellants proved their case for title and thus entitled to judgments.
3. Whether or not the court of Appeal made a correct approach to the appellants’ case having regard to the state of the Law, the treatment given to the issue for determination, grounds of appeal, the law and the approach adopted.

On his part, learned counsel for the 1st-3rd respondents formulated two issues for determination.

1. Whether the court below was right when it adopted and considered the sole issue for determination formulated by the appellants and struck out the other grounds of Appeal from which no issues were formulated.
2. Whether the court below was right when it affirmed the judgment of the trial court based on the sole issue for determination submitted to it by the appellants.

Preliminary Objection

Learned counsel for the appellants’ filed five grounds of appeal from which three issues were distilled for determination of this appeal.

His objection is that Grounds 2, 3, 4 and 5 and issues 1, 2, and 3 are incompetent and should be struck out.

I have examined in detail the grounds of appeal and the issues, and considered submissions of counsel on the preliminary objection. I find the grounds of appeal to be inelegantly drafted and prolix in the extreme, but anyway one looks at it the substance of the appellants’ grievance appears obvious. In effect the appellants’ are not satisfied with concurrent findings of fact by the courts below. In the circumstances I shall adopt the three issues formulated by the appellants’ learned counsel for determination of this appeal. At the hearing of the appeal on the 5th of April 2011 learned counsel for the appellant adopted his briefs and urged the court to allow the appeal. Learned counsel urged the court to uphold the preliminary objection and dismiss the appeal as incompetent. Learned counsel for the appellant urged the court to dismiss the preliminary objection.

The Facts

The original owner of No. 1 Robert Road, Warri is Chief Ogbe Yonwuren. One of his chirdren is Madam Edomi Ogbe. After her first marriage to one Mr. Weeks, she Married Mr. Solomon Benson Henry Dakolo. The appellants are the children of Solomon Benson Dakolo, while the respondents are children of Ayo Glasone Yon-Dakolo, a son of Madam Edomi Ogbe. The respondents are plaintiffs, by traditional evidence satisfied the learned trial Judge that the original owner gave No. 1 Robert Road, as a gift to his daughter, and they as her grandchildren are entitled to Letters of Administration of the property in the absence of their parents who are dead. The Court of Appeal agreed with the findings of the learned trial Judge and dismissed the appeal.

Issue 1: