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Conditions for validity of partitioning jointly– owned property


MAUREEN OTIGBAH & ORS v. AGATHA ADETUTU UWANAKA & ANOR (2020) LPELR-49539 (CA)

In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON WEDNESDAY, 18TH MARCH, 2020
Suit No: CA/L/956/2015

Before Their Lordships:
MOHAMMED LAWAL GARBA, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
JAMILU YAMMAMA TUKUR, JCA

Between
1. MAUREEN OTIGBAH
2. EJIMOFOR OTIGBAH
3. EKENE OTIGBAH
4. NGOZI OTIGBAH – Appellant(s)
5. UCHENNA OTIGBAH
6. ONOCHIE OTIGBAH
And
1. AGATHA ADETUTU UWANAKA (nee OTIGBAH) – Respondent(s)
2. GEORGE IFEANYI OTIGBAH

LEAD JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A
FACTS OF THE CASE
The parties in this appeal are scions from the loins of the late Paul Dawson Otigbah. He sired them from two different women. The appellants and the 2nd respondent are children of the same mother while the 1st respondent has a different mother. The common denominator between the parties is their late father. The root of the contest in this appeal is the property left behind by their father. The property is situated at No 3 Otigbah Street, Ikeja, Lagos. In his lifetime, their father by a Deed of Assignment dated June 2, 1977 assigned the said property to his children, the parties herein, out of love, bond and affection. The said Deed of Assignment was admitted at the trial as Exhibit C1.

Subsequently, a Deed of Partition was executed between the 1st respondent and the 2nd respondent partitioning the property. The Deed of
Partition is Exhibit C2. There is also a Development Lease by which the 1st respondent was to develop and take control of the property. The Development Lease is Exhibit C3. The Deed of Partition and the Development Lease are both dated June 23, 2008. Furthermore, there is a Purchase Agreement between the original owners of the land and the 1st respondent. It is dated February 10, 1977. By the said Purchase Agreement, the property was sold to the 1st respondent as the outright sole owner of the property. It is Exhibit D6 in this matter.

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 some reliefs. The 1st respondent set up a counter-claim and she claimed some reliefs.

The matter was subjected to a full dressed hearing at which testimonial and documentary evidence was adduced by parties. In its judgment delivered on June 30, 2015, the trial 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 against the same to the Court of Appeal. The 1st respondent filed a Notice of Contention that the judgment of the trial Court be affirmed on grounds other than those relied on by the trial Court. 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. The appeal was consequently heard on the appellants’ brief alone.

ISSUES FOR DETERMINATION
The appellants nominated three issues for determination as follows: “1. 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 (see Grounds 1, 2 and 7).

2. 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 (see Grounds 6 and 8)
3. 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 March 6, 1996, October 2, 1996 and the Purchase Agreement dated February 10, 1977 (see Ground 3, 4, 5).”

APPELLANTS SUBMISSION
The appellants submitted on the first issue that the trial Court having held that the parties were joint owners of the property was wrong to have refused the order directing the 1st respondent to render an account of the rents collected as she was the one managing the property and collecting rent from the tenants at the property. It was opined that the 1st respondent was in the position of a trustee, since their father assigned the property to her on behalf of and for the benefit of all his children vide vs. AINA (2016) LPELR 40352 CA, amongst others.

On the second issue, the appellants submitted that their interest in the property with the 1st respondent was joint and that the 1st respondent cannot claim 50 percent of the property while the 2nd respondent and the appellants would collectively have the remaining 50 percent. The joint ownership, it was asserted, implied that the parties have the same right and equal share over the property. The cases of OSUJI vs. EKEOCHA (2009) 16 NWLR (PT. 1166) 81 at 128 and OBASOHAN vs. OMORODION (2001) 13 NWLR (PT. 729) 206 at 222 were relied upon. The appellants posit that being jointly owned, the property could only be partitioned with the consent and approval of all the joint owners and shared equally or where equal sharing cannot be achieved, monetary compensation of equal value of the land will be paid to the co-owners.

It was the further contention of the appellants that the 1st respondent being a trustee cannot turn herself into a developer of the trust property since a trustee should not place herself in a situation where her personal interest and her trusteeship duties may possibly conflict. The appellants maintained that the 1st respondent used the rent proceeds collected from the property to develop the property and that the Development Lease Agreement is, in consequence, illegal, null and void. It was conclusively submitted that the trial Court was wrong in holding that the Deed of Partition and Development Lease Agreement were legal and valid in law and not liable to be set aside.

The quiddity of the appellants submission on issue number three is that the trial Court was wrong in holding that the 1st respondent had become the sole owner of the property by virtue of her having purchased the same. It was argued that in the absence of evidence that the leasehold jointly owned by the parties had expired; the 1st respondent’s purchase of the property could not extinguish the subsisting lease.

The appellants submitted that the 1st respondent’s Purchase Agreement, was executed on February 10, 1977 before the death of their father and that having counterclaimed that she used her money to purchase the property, she failed to lead evidence to show the source of the money she used to purchase the property. The appellants contended that it was their joint money, the proceeds of rent from the property that the 1st respondent used to pay for the property.

RESOLUTION OF THE ISSUES
Determining the appeal, the Court observed that it has not been confuted that the property in question in this matter belonged to the late Paul Dawson Otigbah and that he executed a Deed of Assignment, assigning the property to his children, the parties to this appeal. The Court noted that the critical issue in this appeal is whether the trial Court correctly held that the 1st respondent had become the owner of the property, and it is premised on the manner this issue is resolved that would determine the fate of the Deed of Partition, Exhibit C2, the Development Lease, Exhibit C3 and indeed the appellants demand for an account since based on the reasoning of the trial Court, the 1st respondent having become the owner was within her rights in her actions consequent upon which it dismissed the appellants’ case.

The Court further noted that as found and held by the trial Court, there was no evidence before it as to whether the lease granted to the late Paul Dawson Otigbah had expired as at the time the 1st respondent purchased the property. The late Paul Dawson Otigbah, having assigned his interest to his children by Deed of Assignment (Exhibit C1), which as held by the trial Court made them joint owners of the property, the land owning family did not have the property to sell to the 1st respondent in 1996. The Court stated the well established legal maxim 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. The Court held that the ascription of probative value by the trial Court to Exhibits D3A & B and D6 as showing that the 1st respondent had become the sole owner of the property did not take into cognisance the application of the principle of nemo dat quod non habet, since at the material time the transaction in the said Exhibits were undertaken, it was not shown on the evidence that the leasehold title of the late Paul Dawson Otigbah, which he assigned to his children had expired. That being so, in the light of the said subsisting interest, the Court found that the land owning family had no interest in the property to pass to the 1st respondent. Then trial Court consequently drew wrong conclusions from the evidence and made findings of facts that do not result from the evidence. For the reasons already advanced and based on the applicability of the legal principle of nemo dat quod non habet, the Court held that Exhibits D3A & B and D6 do not have the vires to form the basis on which the 1st respondent can be said to be the sole owner of the property. The position therefore remained as held by the trial Court, that by virtue of Exhibit C1, the parties were joint owners of the property.

The Court stated the position of the law 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.

The Court held that from the evidence on record, the Deed of Partition, Exhibit C2, was therefore not valid since the appellants did not consent to the partitioning and the partitioning was also not done on equal basis. With regard to the Development Lease Agreement, Exhibit C3, the Court held that it provides for a ten-year duration commencing on November 1, 2008 and terminating on October 31, 2018. So the said Development Lease Agreement is no longer extant, having expired by effluxion of time.

From the evidence on record that the 1st respondent has been collecting the rent from the property, the Court found that since the property was 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. The Court observed that from the evidence and finding of the trial Court, 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.

HELD
On the whole, the appeal was found meritorious. The decision of the trial Court dismissing the appellants’ claim and entering judgment for the 1st respondent on her counterclaim was thereby set aside. In its stead, the 1st respondent’s counterclaim was thereby dismissed in its entirety and judgment was entered for the appellants.

Appearances:
Oladipo Yeye, Esq. with him, S. A. Obafemi, Esq. For Appellant(s)
Respondents absent and not represented by Counsel
Compiled by LawPavilion

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