CORAM

---

---

PARTIES

---

MAUREEN OTIGBAH & ORS APPELLANTS

---

AGATHA ADETUTU UWANAKA & ANOR RESPONDENTS

---

AREA(S) OF LAW

---

Not Available

 

---

SUMMARY OF FACTS

The parties in this appeal are children of the late Paul Dawson Otigbah, but from two different mothers. The Appellants and the 2nd Respondent are of the same mother while the 1st Respondent has a different mother. The dispute in this appeal is the Estate of their father, which property is situate at No 3 Otigbah Street, Ikeja, Lagos. In his lifetime, their father by a Deed of Assignment dated 2nd June, 1977 assigned the said property to his children, the parties herein, out of love, bond and affection. Subsequently, a Deed of Partition was executed between the 1st Respondent and the 2nd Respondent partitioning the property. There is also a Development Lease by which the 1st Respondent was to develop and take control of the property. The Deed of Partition and the Development Lease are both dated 23rd June 2008. Furthermore, there is a Purchase Agreement; it is between the original owners of the land and the 1st Respondent. It is dated 10th February, 1977. By the said Purchase Agreement, the property was sold to the 1st Respondent as the outright sole owner of the property. Now, the Appellants contending that the Deed of Partition and Development Lease Agreement are illegal and that the 1st Respondent had failed to give an account of rents collected from the tenants at the property instituted proceedings before the High Court of Lagos State wherein they claimed for Declarations that the purported Deed of Partition and Development Agreement/Lease between George Ifeanyi Otigbah and Mrs. Agatha Adetutu Uwanaka (Nee Otigbah) purportedly signed on 3rd April, 2009 are illegal; that by virtue of the Deed of Assignment dated 2nd June, 1977 between Paul Dawson Otigbah and Agatha Adetutu Otigbah for herself and other children, the parties are joint owners on equal basis of the disputed property; Orders; Cost of litigation ; amongst other reliefs. At the end of the trial, the lower Court dismissed the Appellants case and entered judgment for the 1st Respondent in terms of her counterclaim. The Appellants being dissatisfied with the said judgment appealed to the Court of Appeal against the same by Notice of Appeal. The 1stRespondent filed a Notice of Contention that the judgment of the Lower Court be affirmed on grounds other than those relied on by the Lower Court, but the Respondents did not file any brief of argument and even though all the processes were served on them, they also did not attend Court at the hearing. Hence the appeal was consequently heard on the Appellants brief alone.

---

HELD

---

Appeal Allowed

---

ISSUES

---

Whether the Lower Court, having found that the Appellants and the Respondents were joint owners of the leasehold interest in No. 3, Otigba Street, Ikeja, Lagos as per Exhibit C1, was not wrong in refusing to grant the order directing the 1st Defendant/Respondent to render account of the rents collected by her in respect of the said property to the other co-owners. Whether the lower Court was right in holding that the Deed of Partition and the Development Agreement made between the 1st and 2nd Defendant/Respondents were legal and valid in law and not liable to be set aside. Whether the lower Court was right in holding that the 1st Defendant/Respondent had become the sole owner of No. 3 Otigba Street, Ikeja, Lagos by virtue of the purchase receipts dated 6th March, 1996, 2nd October, 1996 and the Purchase Agreement dated 10th February, 1977.

---

RATIONES DECIDENDI

---

APPEAL, PRACTICE AND PROCEDURE

---

NOTICE OF CONTENTION –ESSENCE OF A RESPONDENT’S NOTICE OF CONTENTION
“In any event, the thrust of the 1st Respondents Notice of Contention (see pages 538-539 of the Records) is to overturn the finding of the Lower Court that the Appellants and the Respondents are joint owners of the property. This is not the purpose of a Respondents Notice of Contention for the judgment to be affirmed on grounds other than those relied on by the Court. The Respondents Notice of Contention is resorted to where the position of the Respondent is that the judgment was based on wrong grounds or premise; and that there is evidence on record which can sustain the judgment on grounds other than those relied upon by the Trial Court. The Respondents Notice of Contention postulates the correctness of the Judgment. See American Cyanamid Company Vs. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (PT 171) 15 or (1991) LPELR (461) 1 at 23-24, Sunmonu vs. Ashorota (1975) 1 NMLR 16 and Lagos City Council vs. Ajayi (1970) 1 ALL NLR 291”. –

---

APPEAL, COURT, PRACTICE AND PROCEDURE

---

CROSS APPEAL- PROPER PROCEDURE FOR A PARTY SEEKING A REVERSAL OF A LOWER COURT’S DECISION
“It goes without saying that a Respondents Notice that postulates the correctness of the decision appealed against cannot complain about the decision of the Court. Where the 1st Respondent seeks to have the finding and decision of the Lower Court that all the children of late Paul Dawson Otigbah are joint owners of the property reversed, the appropriate procedure is for her to file a cross appeal. It is not to be achieved by a Respondents Notice of Contention to affirm: African Continental Seaways Ltd vs. Nigerian Dredging Roads And General Works Ltd(1977) 5 SC 235, Eliochin Nig. Ltd vs. Mbadiwe(1986) 1 NWLR (PT. 14) 47, Oro vs. Falade (1995) 5 NWLR (PT. 398) 385 and County & City Bricks Development Company Ltd vs. MKC Nigeria Ltd (2019) LPELR (46889) 1 at 8-11 . –

---

LEGAL MAXIM, WORDS AND PHRASES

---

DOCTRINE OF NEMO DAT QUOD NON HABET – MEANING OF THE DOCTRINE OF NEMO DAT QUOD NON HABET
“The well established legal maxim is expressed in the Latinism nemo dat quod non habet; meaning that no one may give that which does not belong to him. At all times material to Exhibits D3A & B and Exhibit D6, the land owning family had divested itself of the property and it had nothing left to convey to any person. See Olohunde vs. Adeyoju (2000) LPELR (2586) 1 at 25, Ojengbede vs. Esan (2001) LPELR (2372) 1 at 28, Ibrahim vs. Osunde (2009) LPELR (1411) 1 at 30, Adelaja vs. Fanoiki (1990) LPELR (110) 1 at 25, Okelola vs. Adeleke (2004) LPELR (2438) 1 at 17 and Gbadamosi vs. Akinloye (2013) LPELR (20937) 1 at 29-30. Accordingly, the 1st Respondent did not acquire any interest to the property by any of Exhibits D3A & B and Exhibit D6”. –

---

LAW OF EVIDENCE, COURT, PRACTICE AND PROCEDURE

---

EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE – WHAT DOES EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO ENTAILS?
“The lower Court as the trial Court has the duty of evaluation of evidence and ascription of probative value thereto. There is a duty on the trial Court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. See Olufosoye vs. Olorunfemi (1989) 1 SC (PT I) 29 or (1989) LPELR (2615) 1 at 9, Guardian Newspaper Ltd vs. Ajeh (2011) 10 NWLR (PT. 1255) 574 at 592 and Wachukwu Vs. Owunwanne(2011) LPELR (3466) 1 at 50-51.
There is little or no difficulty with perception of evidence, id est, receive all available relevant evidence. It is in perception of evidence that the Lower Court admitted Exhibits C1, D3A & B and D6 in evidence. Evaluation of evidence on the other hand is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See Onwuka vs. Ediala (1989) 1 NWLR (PT. 96) 182 at 208-209, Oyadiji vs. Olaniyi (2005) 5 NWLR (PT. 919) 561 and Ameyo vs. Oyewole (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. See Adeyeye vs. Ajiboye (1987) 1 NWLR (PT 61) 432 at 451 and Stephen vs. The State (1986) 5 NWLR (PT 46) 978 at 1005”. –

---

COURT, JUDGMENT AND ORDER, APPEAL, PRACTICE AND PROCEDURE

---

FINDINGS OF FACT BY A TRIAL COURT- CIRCUMSTANCES WHEN AN APPELLATE COURT WOULD INTERFERE WITH THE FINDINGS OF A TRIAL COURT
“The settled legal position is that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an Appellate Court to substitute its own views for the views of the Trial Court, however, an Appellate Court can intervene where there is insufficient evidence to sustain the judgment; or where the Trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses; or where the findings of facts by the Trial Court cannot be regarded as resulting from the evidence or where the Trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See FHA vs. Olayemi (2017) LPELR (43376) 1 at 69-71, Edjekpo vs. Osia (2007) 8 NWLR (PT. 1037) 635 or (2007) LPELR (1014) 1 at 46-47, Are vs. Ipaye (1990) LPELR (541) 1 at 22, Woluchem vs. Gudi (1981) 5 SC 291 at 320 and Fasikun II vs. Oluronke II (1999) 2 NWLR (Pt. 589) 1 or (1999) LPELR (1248) 1 at 47-48. –

---

COURT, JUDGMENT AND ORDER, APPEAL, PRACTICE AND PROCEDURE

---

EVALUATION OF EVIDENCE – INSTANCE WHEN AN APPELLATE COURT WOULD BE IN A GOOD POSITION AS THE TRIAL COURT TO EVALUATE EVIDENCE
“In the circumstance, the Lower Court having failed to properly evaluate the evidence, and the question of evaluation of evidence not involving the credibility of witnesses, this Court is in as good a position as the Court of trial to intervene, evaluate the evidence, set aside the perverse findings in order to obviate miscarriage of justice and then make the consequential and proper findings of facts. See Narumal & Sons Nig Ltd vs. Niger Benue Transport Company Ltd(1989) 2 NWLR (PT 106) 730 at 742, Abisi vs. Ekwealor (1993) LPELR (44) 1 at 51-55, Atolagbe vs. Shorun (1985) 1 NWLR (Pt 2) 360 and Sapo vs. Sunmonu (2010) LPELR (3015) 1 at 54-55”. –

---

LAND LAW, PRACTICE AND PROCEDURE

---

PATITIONING OF LAND – REQUIREMENT FOR A VALID PARTITIONING OF JOINT OWNERSHIP OF LAND
“The law is settled that in order for there to be a valid partition of a property which is jointly owned, all the co-owners have to consent to the property being partitioned and the partitioning has to be in equal shares or where that cannot be attained, provision would be made for payment of money to secure equality of partition: Baruwa vs. Osoba (1996) LPELR (13680) 1 at 14-16 and 24-26, Adeleke vs. Aserifa (1986) 3 NWLR (Pt. 30) 575, Adegoke vs. Olotin (2019) LPELR (48766) 1 at 27 -28 and Odekilekun vs. Hassan (1997) LPELR (2206) 1 at 24-25”. –

---

LAND LAW, LEASE, PRACTICE AND PROCEDURE

---

JOINT OWNERSHIP OF LAND- EFFECT OF A DEVELOPMENT LEASE AGREEMENT OF LAND ENTERED INTO BY PARTIES UNDER A JOINT OWNERSHIP
“With regard to the Development Lease Agreement, Exhibit C3, it provides for a ten year duration commencing on the 1st day of November, 2008 and terminating on the 31st day of October, 2018. So the said Development Lease Agreement is no longer extant, having expired by effluxion of time. The Development Lease stipulates that at the expiration of the ten year period, the 1st Respondent shall give up possession and surrender the shops. The effect of having held that the Deed of Partition, Exhibit C2, is invalid and that the 1st Respondent is not the sole owner of the property, is that the property as developed reverts to the parties under the joint ownership established by Exhibit C1. The Lower court found and held that on the evidence the 2nd Respondent voluntarily signed Exhibit C3 and that his signature was witnessed by the 6th Appellant. Furthermore, that they collected some money as their share based on the stipulations of Exhibit C3. The contention of the Appellants that the property was developed with the proceeds of the rent from the property is inutile since I have already stated that the Development Lease having effluxed, the property reverts to the joint ownership established by Exhibit C1. From the evidence, the parties have benefitted from Exhibit C3 in line with its stipulations; the law and indeed equity will not allow the Appellants to repudiate or disown the said Exhibit C3 on any ground, more so, when it has now run its course as provided therein: Ohieweri vs Okosun (2003) 11 NWLR (PT. 832) 463, Batalha vs. West Const. Co. Ltd (2001) 18 NWLR (PT. 744) 85, Achu vs. Civil Serv. Comm., Cross River State (2009) 3 NWLR (PT. 1129) 475 and National Union Of Road Transport Workers vs. First Continental Insurance Co. Ltd (2019) LPELR (48005) 1 at 39-41” . –

---

LAND LAW, PRACTICE AND PROCEDURE

---

JOINT OWNERSHIP OF LAND- DUTY OF A PARTY TO RENDER ACCOUNT OF PROCEEDS TO CO-OWNERS IN A JOINT OWNERSHIP OF PROPERTY
“The evidence on record is that the 1st Respondent has been collecting the rent from the property (See pages 445 and 456-458 of the Records). Having held in this judgment that the Lower Court wrongly held that the 1st Respondent is the sole owner of the property, the foundational basis on which the Lower Court held that the issue of rendering account does not arise has been defenestrated. In the circumstances, since the property is the joint property of the parties and the evidence is that the 1st Respondent has been collecting the rent from the tenants, she is obligated to render an account to her co-owners. I am not oblivious of the evidence and finding of the Lower Court that the 1st Respondent had been providing for the upkeep and education of the Appellants; this however does not absolve the 1st Respondent from rendering accounts. See Mesrs Misr (Nig) Ltd vs. Ibrahim (1974) 5 SC 55 at 61, Eme vs. Wamuoh (1991) 7 NWLR (PT 203) 375 at 389, Godwin vs. The Christ Apostolic Church (1998) LPELR (1327) 1 at 27-28 and Njoku vs. Balogun (2018) LPELR (46983) 1 at 41- 44” . –

---

CASES CITED

---

Not Available

---

STATUTES REFERRED TO

---

Not Available|

---

CLICK HERE TO READ FULL JUDGMENT