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CHAIRMAN, LAGOS EXECUTIVE DEVELOPMENT BOARD
V.
MEMUNATU ASHANI, ADMINISTRATOR-GENERAL AS PUBLIC TRUSTEE AND ANOTHER
THE WEST AFRICA COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
11TH DAY OF JANUARY, 1937
2PLR/1937/09 (WACA)
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OTHER CITATION(S)
JELR 82969 (WACA)
(1936-37) III WACA PP. 143-150
LEX (1937) – III WACA PP. 143 – 150
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
CHAIRMAN, LAGOS EXECUTIVE DEVELOPMENT BOARD – Plaintiff
AND
1. MEMUNATU ASHANI, ADMINISTRATOR-GENERAL AS PUBLIC TRUSTEE
2. MOSHEBOLATAN OJO GIWA – Defendants-Respondents
AND
JIMOH SUNMONU – Defendant-Appellant
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REPRESENTATION
A. Kayode — for First Defendant-Respondent
No appearance by Second Defendant-Respondent
Third Defendant-Respondent in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – COMPENSATION:- Conflicting claims to ownership of land subject matter of public acquisition and compensation pursuant to the Lagos Town Planning Ordinance, 1928 – How resolved
REAL ESTATE AND PROPERTY LAW – PARTITION:- Partition made by parties against scheme of Will bequeathing the property – Validity of – Challenge of by persons who were minors at date of partition agreement – When partition would be deemed to be in bad faith – Relevant considerations
ESTATE ADMINISTRATION AND PLANNING:- Property under administration – Where properties forming part of became partly partitioned and partly held in common – Public acquisition of properties in both categories – How compensation properly treated
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CASE SUMMARY
Claim to set aside a partition of lands after acquisition thereof by Plaintiff under the Lagos Town Planning Ordinance, 1928.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. There is no doubt that at the time when the alleged partition was made that the claimant and the other children of his deceased father were too young to be consulted about a partition. They were minors at the time. However, they were given their share of the partition which was consented to on their behalf by a person designated in the Will to act for them as a ‘father’.
2. In these proceedings, while retaining their share under the partition, they seek to deprive some other members of the family of their shares. That position is untenable. The present claim is simply an attempt to go back on the quite fair, proper, and agreed partition, tempted by the accident of acquisition and the consequent compensation. There is no reason in equity to favour such a claim.
Appeal dismissed but judgment of Court below varied in relation to distribution of compensation
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MAIN JUDGMENT
GRAHAM PAUL, J.
This suit was brought under the Lagos Town Planning Ordinance, 1928, by an originating summons to determine the ownership of the properties known as Nos. 2, 4, and 10 Ojo Giwa Street and 71 Aroloya Street, Lagos, which are being acquired by the Lagos Executive Development Board under section 38 (1) of the Ordinance. The plaintiff is only a nominal party and has taken no active part in the suit. His only interest is to have a definite decision upon the conflicting claims so that he may know to whom the compensation payable for the acquisition is to be paid.
All the properties in question belonged to the late Ojo Giwa who died on 29th January 1918 leaving a Will dated 27th January, 1918. Under that Will Emanuel Akitayo was the sole surviving executor in 1934, when a suit (No. 199/1934 in this Court) was brought against him by Jimoh Sunmonu, a grandchild of the deceased and the second defendant in the present suit. The claim in that suit was for an account of the said Emanuel Akitayo’s administration of the estate as executor and trustee on the footing of his wilful neglect and maladministration of the said estate; for the charging of the said Emanuel Akitayo with such sums as had been lost to the estate by his breach of trust and wilful default; and for the removal of the said Emanuel Akitayo from being trustee under the said Will, and to have a receiver appointed in his place. In that suit the said Emanuel Akitayo admitted that he had concurred in a partition of the properties of the deceased which was agreed upon by the beneficiaries under the Will and which was different from the terms of the Will in regard to the distribution of the properties.
There was no suggestion that Emanuel Akitayo had been in any way personally dishonest or fraudulent in his administration. In the course of the trial his Counsel intimated that his client was anxious to be relieved of his duties of administration, and by consent judgment was entered removing him from his position as trustee on the ground that he had committed a technical breach of trust in ratifying a scheme of partition differing from the terms of the Will. But the plaintiff in that suit consented to his claim based on wilful neglect and maladministration being struck out. The Administrator-General as Public Trustee was appointed to take charge of the estate in place of the said Emanuel Akitayo. Before his removal from office the said Emanuel Akitayo as executor under the Will had intimated a claim in regard to the compensation now in question, had been cited as a defendant, and had filed his statement of interest in these proceedings. On his removal as executor, the Administrator-General as Public Trustee was substituted for him as a defendant in these proceedings. The Administrator-General formally adopted the statement of interest filed by his predecessor but took no further active part in the proceedings – leaving it to the other three defendants, Memunatu Ashani, Jimoh Sunmonu and Moshebolatan Ojo Giwa, to fight out the conflict in their respective statements of interest.
Before dealing with the respective positions and rights of these three contesting defendants it is first to be noted that there is apparently no conflict between these parties as to No. 10 Ojo Giwa Street or as to No. 71 Aroloya Street. No evidence was offered by any of the parties in regard to these two properties. For the guidance of the plaintiff in the payment of compensation I shall deal with these two non-contentious properties at the end of this judgment. The specific issue I have had to try is as to the ownership of Nos. 2 and 4 Ojo Giwa Street.
I now come to the examination of the claims of Memunatu Ashani, Jimoh Sunmonu and Moshebolatan Ojo Giwa. Memunatu Ashani and Moshebolatan Ojo Giwa gave evidence before me. There is no conflict between them in their claims or their evidence. Beyond tendering the Will of the late Ojo Giwa, Jimoh Sunmonu did not give or call any evidence, and he opposes the claims of both Memunatu Ashani and Moshebolatan Ojo Giwa.
It will be convenient first to consider the claim of Moshebolatan Ojo Giwa. She is a daughter of the late Ojo Giwa. Her evidence is that under the scheme of partition agreed upon by the members of the family there was allotted to her and to her sister Raliatu, about 1921, a property then known as No. 2 Ojo Giwa Street. On 15th August, 1923, the house on this property having been burnt down, Moshebolatan and Raliatu by indenture partitioned the property between them, and each on her own portion of it, at her own expense, built a house. Raliatu’s house became known as No. 2 Ojo Giwa Street, and Moshebolatan’s as No. 4 Ojo Giwa Street. Each of the sisters put tenants in her house and drew the rents, without interference or complaint from any member of the family, either as to the building of the houses or as to the drawing of the rents. Up to the time of the acquisition by the Board, so far as Moshebolatan is concerned, this position continued. In 1981, Moshebolatan, wishing to grant a mortgage over her house, apparently in order to satisfy the mortgagee as to her title, moved this Court for an order that a deed of conveyance be executed to her by the executors under the Will of her house and the land on which it stood. The Court made the order and the conveyance was apparently executed. Moshebolatan then executed the mortgage which was subsequently paid off, and at the date of the acquisition she was the owner of her portion under the partition, No. 4 Ojo Giwa Street, unencumbered.
Raliatu, on 8th January, 1924, granted a mortgage over her portion, No. 2 Ojo Giwa Street, to “Memuna Aduke” (another name for the first defendant in these proceedings, “Memunatu Ashani”). The first defendant on 10th March, 1928, through one Bakare (a licensed auctioneer who gave evidence) by public auction sold No. 2 Ojo Giwa Street under the mortgage to one Abudu Ramonu Smith for £110. On 20th September, 1928, the said Abudu Ramonu Smith by private treaty sold No. 2 Ojo Giwa Street to the first defendant for £120.
In these circumstances the defendant Moshebolatan claims that she is entitled to that part of the compensation which is applicable to No. 4 Ojo Giwa Street and the defendant Memunatu Ashani claims that she is entitled to the compensation payable in respect of No. 2 Ojo Giwa Street.
To these two claims the defendant Jimoh Sunmonu replies that the alleged partition of the deceased’s properties was contrary to the terms of the deceased’s Will and was made without the consent of himself and the other children of Sunmonu, a child of the deceased who predeceased the deceased. He contends for these reasons that any transactions based on the alleged partition must be ignored, and that the whole compensation for Nos. 2 and 4 Ojo Giwa Street should be handed over to the Public Trustee for distribution in terms of the Will.
There is no doubt on the evidence before me that at the time when the alleged partition was made Jimoh Sunmonu and the other children of Sunmonu were too young to be consulted about a partition. They were minors at the time. The question I have to decide is whether in all the circumstances of the case these minors can now attack the partition which is the basis of their two rival defendants’ claims.
In his answer to the statement of interest of the executor, Jimoh Sunmonu says that the distribution under the partition was “unfair, unreasonable, inequitable, and was done in utter disregard of the interest of the grandchildren in the said trusts who were then all minors.” But no evidence whatever was adduced in support of that allegation, nor were his rival defendants asked a single question in cross-examination to suggest that there was any ground for this allegation. Jimoh Sunmonu has deliberately left the Court completely in the dark as to the comparative value, as at the date of the partition and for the period of some fifteen years since the partition, of the share of property given to the children of Sunmonu. I cannot therefore exclude the possibility that under the scheme of partition the children of Sunmonu obtained a share which was in fact, or seemed at the time, a fair share. Still less can I assume that the share the allotted to them was “unfair, unreasonable and inequitable.”
It was not suggested in argument that a partition by agreement differing from the scheme of the Will could not be competently arranged because some of the beneficiaries were minors. Obviously if the proper representatives of the minors consented a binding scheme of partition could be arranged. Partition, where some of the parties interested are minors, is of common occurrence in Lagos custom, and well known in this Court. That raises the questions as to who were the proper representatives of the children of Sunmonu, and whether they agreed to the partition. It is before me in evidence, is not contradicted nor was there any cross-examination on the statement, that all the members of the family old enough to be consulted agreed in the partition. If the proper representatives of the minor grandchildren were members of the family, and presumably they must have been, I am bound to hold on the evidence that they agreed to the partition. For fifteen years or more the children of Sunmonu have been enjoying their share under the partition and there is no claim before me to set aside that partition as a whole.
But the matter does not end there. The deceased, in choosing someone to whom he could entrust the interests of his family after his death, chose Emanuel Akitayo. Expressly in his Will the deceased said that Emanuel Akitayo “shall act as father and trustee of my children.” And he defines “my children” as including grandchildren. If Sunmonu, the father of Jimoh Sunmonu, had lived, and had agreed to the partition, Jimoh Sunmonu clearly could not at this time of day be allowed to attack the partition. Sunmonu the father of Jimoh predeceased the testator and the testator directed that Emanuel Akitayo should act as the father of his grandchildren. Emanuel Akitayo, who has no axe to grind, ratified the partition, and to my mind that is enough to dispose of the claim of Jimoh that the partition scheme arranged some fifteen years ago and the transactions or dealings following on it must be ignored.
It is in evidence before me that each member of the family of Ojo Giwa got some share of Ojo Giwa’s properties under the partition scheme. That evidence is not contradicted, nor was there any cross-examination on that evidence. The children of Sunmonu are admittedly members of the family of Ojo Giwa; and there is no suggestion in the evidence before me that they were not given a share of Ojo Giwa’s properties, or that they gave up their share, or that they did not get a fair share, or that they have taken any steps to repudiate Board the whole scheme of partition under which for some fifteen years they have been enjoying their share. In the absence of any such suggestion in the evidence I must conclude that at the time of the partition they did receive, and have since enjoyed, a fair share of the properties of Ojo Giwa. In these proceedings, while retaining their share under the partition, they seek to deprive some other members of the family of their shares. That position is untenable.
After hearing the witnesses and Counsel in this case I am left with the definite impression that the partition, at the time it was made and ever since, was agreed to by all members of the family or their proper representatives. It is also clear to my mind that if this accident of acquisition and consequent compensation had never happened no one would have dreamt of attacking the fact, or the fairness of the agreed partition, as at the time it was made.
As regards No. 2 Ojo Giwa Street there was a public auction in 1924 based on the partition and no one then questioned the propriety of the partition.
In 1931 there was as regards No. 4 Ojo Giwa Street the application in Court for a conveyance. There was the partition deed of 1923 with a surveyor’s plan attached and no one raised any question. Jimoh himself was present at the public auction sale of 1924. There was the sale to the first defendant in 1932 when Jimoh would be somewhere about 28 years of age. There was beyond doubt a partition with the complete agreement of the family and of Emanuel Akitayo. The present claim of Jimoh, in support of which he offers no evidence at all, is to my mind simply an attempt on his part to go back on the quite fair, proper, and agreed partition. Without disclosing, or allowing himself to be cross-examined as to what the children of Sunmonu have themselves had over these fifteen years as a result of the partition, he has been tempted by the accident of acquisition and the consequent compensation to come forward with this bogus claim. I see no reason in equity to favour such a claim.
I find that the compensation applicable to No. 2 Ojo Giwa Street must be paid to the first defendant Memunatu Ashani and the compensation applicable to No. 4 Ojo Giwa Street must be paid to the 4th defendant Moshebolatan Ojo Giwa.
As regards No. 10 Ojo Giwa Street and No. 71 Aroloya Street I formally hold that the compensation must be paid as follows: “1. No. 10 Ojo Giwa Street to the Public Trustee to be distributed per stirpes among the descendants of Ojo Giwa. “2. No. 71 Aroloya Street to Muniratu Omolabake. As regards costs, I find that Memunatu Ashani is entitled to costs against Jimoh Sunmonu which I assess at twenty-five guineas. Moshebolatan Ojo Giwa is also entitled to costs against Jimoh Sunmonu which I assess at one guinea. J. Martin for Fourth Defendant-Appellant.
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.
It is not necessary to set out the facts in this case as they are fully set out in the judgment of the trial Judge.
Ojo Giwa died on the 29th January, 1918, leaving a Will in which he declared that Emanuel Akitayo “shall act as father and trustee of my children”: “children” are defined in the Will as including his grandchildren by Sunmonu deceased. By this Will he left certain properties on the trusts therein set forth. Disputes arose, and about 1920 and 1921 a partition was arranged. Jimoh Sunmonu was then a minor: there is no evidence as to his exact age. The Judge when he saw him in Court at the trial of the action, at the beginning of last year, thought he looked about 30; Jimoh took no steps to get this partition set aside, and the trial Judge rightly or wrongly formed the opinion that he would never have challenged the partition had not part of the properties, the subject-matter of the trusts under the Will, been acquired under the Lagos Town Planning Ordinance, 1928.
Be that as it may Jimoh Sunmonu has now challenged the partition. In paragraph 5 of his answer to the statement of interest of Emanuel Akitayo, the surviving executor of the Will, Jimoh Sunmonu said:
“5. With reference to paragraph 8 of the Statement of Interest, the second defendant states that such agreement referring to the partition is a direct breach of the trusts contained in the Will of the said Ojo Giwa (deceased), and that the grandchildren including himself were never consulted. He further states that the said distribution was unfair, unreasonable, inequitable and was done in utter disregard of the interest of the grandchildren in the said trusts who were then all minors.”
Dealing with the allegation that the distribution was unfair, etc., the trial Judge in his judgment said:-
“No evidence whatever was adduced in support of that allegation, nor were his rival defendants asked a single question in cross-examination to suggest that there was any ground for this allegation. Jimoh Sunmonu has deliberately left the Court completely in the dark as to the comparative value, as at the date of the partition and for the period of some fifteen years since the partition, of the share of property given to the children of Sunmonu. I cannot therefore exclude the possibility that under the scheme of partition the children of Sunmonu obtained a share which was in fact, or seemed at the time, a fair share. Still less can I assume that the share then allotted to them was unfair, unreasonable and inequitable.’ ”
As to the allegation that the children of Sunmonu, who were minors at the time of the partition, were not consulted, the trial Judge remarks:-
“It is before me in evidence, is not contradicted nor was there any cross-examination on the statement, that all the members of the family old enough to be consulted agreed in the partition. If the proper representatives of the minor grandchildren were members of the family, and presumably they must have been, I am bound to hold that they agreed to the partition and there is no claim before me to set aside the partition as a whole.”
Counsel for Sunmonu has endeavoured to convince us that Sunmonu’s children got nothing out of the partition that they were not entitled to under the Will. If that is so why was it not so alleged in paragraph 5 of Sunmonu’s answer to the statement of interest of Emanuel Akitayo set forth above. In that paragraph Jimoh does not complain that he and his brother and sister got nothing, but merely that the partition was unfair, etc. Pressed by this Court Jimoh’s Counsel had to admit that they did get a share of the farm, Igbein, greater than that they were entitled to under the Will. He tried to explain this by saying that the additional share was what they received from their father: of this there is no evidence on the record.
The trial Judge in the course of his judgment said on this point:
“It is in evidence before me that each member of the family of Ojo Giwa got some share of Ojo Giwa’s properties under the partition scheme. That evidence is not contradicted, nor was there any cross-examination on that evidence. The children of Sunmonu are admittedly members of the family of Ojo Giwa, and there is no suggestion in the evidence before me that they were not given a share of Ojo Giwa’s properties, or that they gave up their share, or that they did not get a fair share, or that they have taken any steps to repudiate the whole scheme of partition under which for some fifteen years they have been enjoying their share. In the absence of any such suggestion in the evidence I must conclude that at the time of the partition they did receive and have since enjoyed a fair share of the properties of Ojo Giwa. In these proceedings, while retaining their share under the partition, they seek to deprive some other members of the family of their shares. That position is untenable.”
We are in entire agreement with the passage just quoted. In our opinion the partition was not void but voidable. If the three children of Sunmonu when they attained their majority were not satisfied with the terms of the partition it was open to them to apply to the Court to set aside the partition. In such an action they would have had to show what benefits they had received under the partition and brought them into account.
They have not thought fit to adopt this course. The partition still stands, and in all the circumstances of the case we consider that the trial Judge was right in holding that the compensation in respect of 2 and 4 Ojo Giwa Street and 71 Aroloya Street should be paid to the persons mentioned by him in his judgment. This part of the judgment must therefore stand.
There remains to be considered whether the learned trial Judge was right in holding as he did that the compensation to be paid in respect of No. 10 Ojo Giwa Street should be paid to the Public Trustee to be distributed per stirpes among the descendants of Ojo Giwa is correct.
We have not had the advantage of having had this point argued contradictorily, but having regard to the fact that this house was under the terms of the Will to be regarded as a family house and to be enjoyed by the children of the testator as therein defined and their heirs or assigns, we are of the opinion that the compensation in respect of No. 10 Ojo Giwa Street should be paid to the Public Trustee to be distributed per capita to the following children of the testator :-Osenatu Molola, Muniratu Omolabake, Safuratu Lasebikim, Yesufu Akinwunmi, Moshebolatan, Olatundo, Ajayi and Rabi and his grandchildren by Sunmonu; if any of the persons just referred to shall be dead the share of that person shall go per stirpes to his or her children.
We order that the judgment of the Court below be varied accordingly.
As the appellant has succeeded upon a minor point only on this appeal and as the respondents have been substantially successful we award costs as follows:-
“To Memunatu Ashani costs against the appellants assessed at 15 guineas.
“To Moshebolatan Ojo Giwa costs against the appellant assessed at one guinea.”
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