TRIMSKAY NIGERIA LIMITED V MRS. MUTIAT BANKOLE-OKI

CORAM

FATAYI-WILLIAMS, JUSTICE SUPREME COURT

PARTIES

TRIMSKAY NIGERIA LIMITED APPELLANTS

MRS. MUTIAT BANKOLE-OKI RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Claimant/Appellant commenced this action before the trial Court to recover a property situated at No.54, Ladipo Labinjo Crescent, Surulere Lagos, and filed an Originating summons seeking for possession of same and mesne profit. The Defendant/Respondent filed his defence and also counter-claimed. On an amended counter claim, the Defendant/ Respondent claimed that the said property is her matrimonial home and that of the 2nd Defendant to the counter- claim in the suit.

The Claimant/Appellant filed an amended Reply and Defence and at the conclusion of trial, the Court delivered its judgment in favour of the Defendant/ Respondent. Dissatisfied with the decision of the High Court, the Claimant/Appellant appealed to the Court of Appeal.

HELD

Appeal Allowed.

ISSUES

1.Whether the fact that the Appellant purchased the property herein in issue when the vendor had occupiers in the property who have been shown not to have any title or interest whatsoever in the property in occupation can defeat the purchase of the Appellant from the Vendor who rather showed ample evidence of title in the property to the exclusion of all (Grounds 1, 2 and 3 of the Notice of Appeal).Whether the fact of customary marriage between the Respondent and CW2 precludes the Appellant’s right to recovery and changes the status of the Respondent from being a tenant at will/licensee of the Appellant upon purchase and transfer of the property in which the Respondent is merely an occupier. (Grounds 4, 5, 6, 7 and 8 of the Notice of Appeal)?

2.Whether the principle of lispendente lite is applicable to the already concluded contract of sale before the suit by the Defendant/Respondent was filed as to preclude the Appellant from perfecting its property during the suit (Grounds 9 and 10 of the Notice of Appeal).?

3.Whether a customary marriage with a vendor of a property can create a matrimonial home in such property bought by the vendor 13 years after such marriage as to vest the children to the marriage with right to inherit same after the owner and vendor had transferred same inter vivos. (Grounds 11 and 13 of the Notice of Appeal).?

4.Whether the trial court was right in imposing on CW2 an intention to create a permanent interest in the res litigiosa in favour of the Respondents children by his acts when he personally disposed of the property for valuable consideration to the Appellant (Distilled from Ground 12 of the Notice of Appeal).?

5.Whether the trial court was not misdirected when it based its judgment on the first Amended Statement of Defence of the Respondent and the document annexed thereto but which were neither tendered in evidence by the Respondent at trial nor relied upon in final address and held in favour of the Respondent that the property aforesaid could not be otherwise known short of a family home for the Defendant and her two sons. (Distilled from Ground 14 of the Notice of Appeal).?

RATIONES DECIDENDI

RECOGNITION OF CUSTOMARY LAW – CUSTOMARY LAW IS RECOGNISED AND ENFORCEABLE IF IT IS NOT REPUNGNANT TO NATURAL JUSTICE AND DECENCY

‘‘Under the provision of the Constitution of the Federal Republic of Nigeria and more particularly under the provision of Section 14 of the Evidence Law, Customary Law is given recognition and is being enforceable if is not repugnant to natural justice and decency and if proven, courts are enjoined to give judicial notice”. PER. S. D. BAGE, J.C.A

COMPETENCY OF ISSUES NOT COVERED BY ANY GROUND OF APPEAL – ISSUES NOT COVERED BY ANY GROUND OF APPEAL SHOULD BE STRUCK OUT

‘‘Now on the competency of issue not covered by any ground of appeal, the general rule is that it has to be struck out by the court. See Josien Holdings Ltd Vs. Lornamead Ltd. (1995) 1 NWLR (PT.371) 254 at 284 – 285. It was held as follows:-“It cannot be over emphasized that an appellate Court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out See: Management Enterprises Vs. Otusanya(1987) 2 NWLR (Pt.55). 179; Attorney – General Of Anambra State Vs. Onuselogu Enterprises Ltd. (1987) 4 NWLR (PT.86) 547; Oniah Vs. Onyia(1989) 1 NWLR (Pt.99) 514 at 529; Western Steel Works Ltd. Vs. Iron Steel Workers Union Of Nigeria &Anor(1987) 1 NWLR (PT.49) 284 and Adelaja Vs. Fanoiki & Anor(1990) 2 NWLR (Pt.131) 137 at 148.’’PER. S. D. BAGE, J.C.A.

PERVERSE DECISION – MEANING OF PERVERSE DECISION

‘‘As to the meaning of a perverse decision, is a decision of the court, when it ignores the facts of Evidence before it and when considered as a whole amounts to miscarriage of justice. In such a case, an Appellate Court is bound to interfere with such a decision and set it aside. See: N.E.P.A. Vs. Ososanya(2004) 1 SC (Pt.1) 159; Newbreed Org. Ltd Vs. Erhomonsele(2006) 5 NWLR (Pt.974) 499 at 527; Burammoh Vs. Bamgbose(1989) 3 NWLR (Pt.109) 352.’’PER. S. D. BAGE,J.C.A

SPECULATION – DUTY OF COURT NOT TO SPECULATE ON THE CONTENT OF A DOCUMENT NOT BEFORE IT

‘‘It is trite Law that Court does not speculate on the contents of a document not produced before it. See: Amgbare Vs. Silva (2009) 1 NWLR (PT. 1121) 1 at 85 para F – G; Gbajor Vs. Ogunburegui(1961) 1 ALL NLR 853; Merchantile Bank of Nig. Plc. &Anor Vs. Linus Nwobodo(2003) 3 NWLR (PT. 648) 297 at 319; Abubakar Vs. Waziri(2008) ALL FWLR (PT 436) 2025; Newbreed Org. Ltd Vs. Erhomonsele(2006) 5 NWLR (Pt. 974) 499 At 527, Burammoh Vs. Bamgbose (1989) 3 NWLR (Pt. 109) 352.’’PER. S. D. BAGE,J.C.A

CREATION OF PROPERTY – WAYS IN WHICH PROPERTIES ARE CREATED

“Property can be created either by an act of parties or by a declaration to that effect in a will which modern times is the commonest way of doing it, while in the majority of cases, it is created by operation of Law”. PER S.D. BAGE, J.C.A.

GROUND OF APPEAL – A GROUND OF APPEAL THAT DISCLOSES A REASONABLE GROUND OF APPEAL SHOULD NOT BE STRUCK OUT FOR NON CONFORMITY WITH A PARTICULAR FORM.

‘‘The Appellant who files a Notice of Appeal shall set forth concisely the grounds which he intends to rely upon in the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant and consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form. See Nwadike Vs. Ibekwe (1987) 4 NWLR (Pt.87) 718; Mil.Gov. Of Imo State Vs. Nwauwa(1997) 2 NWLR (Pt.490) 675; Akaniwon Vs. Nsirim(1997) 9 NWLR (PT.520) 255; Loke Vs. Inspector (1998) 1 NWLR (PT.534) 481; Akanbi Vs. Raji(1998) 12 NWLR (Pt.578) 360.’’PER. S. D. BAGE,J.C.A.

NATIVE LAW AND CUSTOM – NATIVE LAW AND CUSTOM IS A MATTER OF EVIDENCE TO BE DECIDED ON THE FACTS PRESENTED BEFORE THE COURT EXCEPT IT HAS BEEN JUDICIALLY NOTICED

“It is a well-established principle of Law that native Law and Custom is a matter of evidence to be decided on the facts presented before the Court in each particular case, unless it is of such notoriety and has been so frequently followed by courts that judicial notice would be taken of it without evidence required in proof”. See Larinde Vs. Afko(1940) 6 WACA 108; Agbai Vs. Okogbue(1991) 9 – 10 S.C.N.J. 49 at 80 – 81;Taiwo Vs. Dosunmu(1966) N.M.L.R 94; Oyewunmi Vs. Ogunesan(1990) 3 NWLR (Pt.137) 182 at 207; Giwa Vs. Erinmilokun(1961) 1 ALL NLR 294 at 296; Adegboyega & Ors. Vs. Igbinosun & 2 Ors. (1969) 1 N.M.L.R. 9 at 15.’’ PER S.D. BAGE, J.C. A.

CONCEPT OF A MATRIMONIAL HOME UNDER NATIVE LAW AND CUSTOM – THE CONCEPT OF A MATRIMONIAL HOME UNDER NATIVE LAW AND CUSTOM IS ACCEPTED AS A NORM

“ Consequently, the concept of a matrimonial home even under native Law and custom is accepted as a norm, in as much as it promotes family ties, security and values which are essential for the growth and development of the children and the family as a whole; albeit a Polygamous Union.’’ PER. S. D. BAGE, J.C.A

CUSTOMARY MARRIAGE AND LEGAL MARRIAGE – EFFECT OF CONTRACTING A LEGAL MARRIAGE UNDER THE ORDINANCE WHILE A CUSTOMARY MARRIAGE IS EXISTING

‘‘The existence of one customary marriage and the contracting of another Legal marriage under the ordinance is illegal. See: Agbeja Vs. Agbeja(1985) 3 NWLR Pt.11.’’PER. S. D. BAGE,J.C.A

FAMILY PROPERTY- WAYS OF CREATING FAMILY PROPERTY

‘‘Family property, what it represents is already settled in Law. Family property can be created either by an act of parties or by a declaration to that effect in a will which in modern times is the commonest way of doing it, while in the majority of cases, it is created by operation of Law. This latter form of creation of family Land is wet illustrated in the Leading case of Ogunmefun Vs. Ogunmefun (1931) 10 N.L.R 82, it was held as follows: Thus, once a parcel of Land has the tag “Family property” attached to it, it is so held in trust for all members of that family including the yet to be born, the head of the family being the trustee. Members of the family have right of possession to the portions of such family land allocated to them. They cannot until partition has been effected dispose off their holdings to outsiders thereby depriving the entire family body of its right to corporate possession.’’PER. S. D. BAGE,J.C.A.

COURT- DUTY OF THE COURT TO RELY ON ALL PROCESSES BEFORE IT AND TAKE ACCOUNT OF ALL EXHIBITS TENDERED IN EVIDENCE BEFORE DELIVERY OF JUDGMENT

‘‘It is the Law that a Court must rely on all extant processes before it but not processes that have been amended and must take account of all exhibits tendered in evidence and not mere documents mentioned in pleadings in coming to its judgment.’’PER. S. D. BAGE,J.C.A

SALE OF FAMILY PROPERTY OR FAMILY LAND – FOR SALE OF FAMILY PROPERTY TO BE VALID, THE HEAD OF THE FAMILY AND OTHER PRINCIPAL MEMBERS MUST PARTICIPATE IN THE SALE

“The Law is quite explicit on the sale of family property or family Land. In order to effect a valid sale of family property, the head of the family together with the principal members (majority) must participate in that exercise and where the head of family sells family land in his private capacity or holds himself out as the absolute owner thereof; such a sale is void. Also, a sale or Lease of family Land carried out by the head of the family alone to the exclusion of other principal members is voidable sale of family Land by a member without the consent of the head is invalid”. On these settled Law see: Solomon &Ors. Vs. Mogaji(1982) 11 S.C. 1 at 10, Olanika vs. AK. 79; Agamran Vs. Olushi(1907) 1 NLR 66; Mogaji Vs. NUGA (1960) 5 FSC 107; DR F. Akerele Vs. A. J. Atunrase(1969) 1 ALL NLR 201; Ekpendu Vs. O. Saka(1994) 2 SCNJ 39.’’ PER S.D. BAGE, J.C.A.

CERTIFICATE OF OCCUPANCY – A CERTIFICATE OF OCCUPANCY RAISES A REBUTTABLE PRESUMPTION THAT THE HOLDER IS IN EXCLUSIVE POSSESSION

“A Certificate of Occupancy only gives the right to use and occupy the Land. It neither confers nor is it necessary an evidence of title. It is only a prima facie evidence which raises a presumption that the holder is in exclusive possession and has a right of occupancy over the Land in dispute. However, like all other presumption, it is always rebuttable and the onus of disproving this right is on the person who asserts the contrary”. See Ogunleye Vs. Oni (1990) 2 NWLR (Pt.135) 745; Adesoye Vs. Olowolagba(1996) 12 S. C. N. J. 95; Auta Vs. Ibe(2003) 7 S.C.N.J. 159 at 169.’’ PER S.D. BAGE, J.C. A.

CONCEPT OF CAVEAT EMPTOR – THE CONCEPT OF CAVEAT EMPTOR PRESUPPOSES THAT THE BUYER MUST BEWARE OF ANY GREEK SALE.

“The law is that the buyer must beware of any item on sale to which she is called to purchase. The Latin maxim “caveat emptor” is apt in this regard. The point is the buyer must beware of any Greek sale.”PER S.D. BAGE, J.C.A.

DOCTRINE OF LIS PENDIS – APPLICATION OF THE DOCTRINE OF LIS PENDIS

“The doctrine of Lispendis affects a purchaser, who buys property the subject matter of litigation during the pendency of such litigation, not because the purchaser is caught by the equitable doctrine of notice but because the Law does not allow the Litigant parties, and give them pending the litigation, rights in the property in dispute so as to prejudice the other party”. See: Ebuekuvs. Amola(1988) 1 N.S.C.C. 582 (1988) 2 NWLR (Pt.75) 128; Bamgboye, Vs. Olusoga(1996) 4 NWLR (Pt.444) 520 at 542; Barclays Bank of Nig. Ltd Vs. Alh. Ashiru and Ors. (1978) 6 & 7 SC 99 at 123 – 125, 128 – 129; Olugbode Vs. Sangodeyi (1996) 4 NWLR (pt. 444) 500 at518; N.N.B. Ltd Vs. Bazumu (1998) 11 NWLR (Pt.575) 645 at 654; Majekodunmi VS. COOP. Bank Ltd (1997) 10 NWLR (Pt.524) 198 at 219; Umoh Vs. Tila(1999) 12 NWLR (Pt.631) 427 at 435 – 436.’’ PER S.D. BAGE, J.C.A.

RULE GOVERNING FORMULATION OF ISSUES – ISSUES SHOULD BE DIRECTLY LINKED TO GROUND(S) OF APPEAL.

‘‘The rule in couching an issue is its wordings relates directly or from the surrounding circumstances it can be linked to the ground or grounds of appeal.’’ PER. S. D. BAGE, J.C.A.

OWNERSHIP OF LAND- RELATIONSHIP BETWEEN OCCUPATION, POSSESSION AND TITLE TO LAND- SECTIONS 36(1) AND 36(2) LAND USE ACT

‘‘Perhaps the Land Use Act under Sections 36(1) and 36(2) brought out more clearly the Relationship between occupation, possession and Title to Land –
(a) A person who occupies real property does not necessarily assert title or ownership to it. He does not even necessarily assert possession of it.
(b) Possession of Land entails not only physical possession (or right to possess) but also the intention to defend that possession against the whole world, except, sometimes the true owner. Interpretations have been given by various decisions of the supreme court on the clear provisions of section 36 (1) 36 (2) of the Land Use Act on the tripartite relationship, between occupation, possession and title see: Abioye Vs. Yakubu(1991) 5 NWLR (Pt.190) 1; Ogunola Vs. Eiyekole(1990) 4 N.W.L.R (Pt.146) 632; Archibong Vs. Ita(2004) 1 S.C.N.J. 141 at 183; Akintola Vs. Oyelade (1993) 3 S.C.N.J. 20.’’PER. S. D. BAGE,J.C.A.

CASES CITED

STATUTES REFERRED TO

1.Constitution of the Federal Republic of Nigeria

2.Evidence Act

3.Land Use Act

4.Matrimonial Causes Act

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