⦿ CASE SUMMARY OF:
Maureen Otigbah & Ors v. Agatha Adetutu Uwanaka & Anor (2020) – CA
– Notice of Contention;
– Account of proceeds;
1. Maureen Otigbah;
2. Ejimofor Otigbah;
3. Ekene Otigbah;
4. Ngozi Otigbah;
5. Uchenna Otigbah;
6. Onochie Otigbah;
1. Agatha Adetutu Uwanaka (nee OTIGBAH);
2. George Ifeanyi Otigbah;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Ugochukwu Anthony Ogakwu, JCA
* FOR THE APPELLANT
– Oladipo Yeye, Esq.
* FOR THE RESPONDENT
– Did not show up in court.
⦿ FACT (as relating to the issues)
The Appellant (then Plaintiff) at the High Court of Lagos State in SUIT NO. ID/1174/2011: MAUREEN OTIGBAH & ORS vs. AGATHA ADETUTU UWANAKA (nee OTIGBAH) & ANOR. wherein they claimed the following reliefs:
1. A DECLARATION that the purported Deed of Partition between Mrs. Agatha Adetutu Uwanaka (Nee Otigbah) and George Ifeanyi Otigbah dated 23rd June, 2008 is illegal, unlawful, null, void and of no legal effect.
2. A DECLARATION that the purported Development Agreement/Lease between George Ifeanyi Otigbah and Mrs. Agatha Adetutu Uwanaka (Nee Otigbah) purportedly signed on 3rd April, 2009 is illegal, unlawful, null, void and of no legal effect.
3. A DECLARATION 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 of the Assignor registered as No. 55 Page 55 in Volume 1627 of the Lagos State of Nigeria Land Registry, Ikeja, Lagos, the Claimants and the Defendants are joint owners on equal basis of 3, Otigbah Street, Ikeja., Lagos.
4. AN ORDER permanently restraining the Defendants from giving effect to the purported deed of partition between Agatha Adetutu Nwanaka (Nee Otigbah) and George Ifeanyi Otigbah dated 23rd June, 2008.
5. AN ORDER setting aside the said Deed of Partition and the Development Agreement/Lease entered into between the 1st Defendant and the 2nd Defendant.
6. AN ORDER directing the 1st Defendant to give account of all proceeds of rent collected by her from inception till the final determination of the suit.
7. AN ORDER compelling the 1st Defendant to pay over to the Claimants all funds due to them as joint owners of the property in dispute.
The 1st Respondent set up a counter-claim and she claimed the following reliefs:
1. A DECLARATION that what the late Pa Dawson transferred to his children was his unexpired residue in the leasehold of and the 1st defendant having converted it to a freehold by buying the said property in dispute, she is now the owner of the said property and can partition, develop, lease and do with it as she pleases.
2. A DECLARATION that the said Deed of Partition and Development Agreement/Lease is legal and valid and should stand as per terms in it.
3. The sum of One Million Naira (N1,000,000) being the cost and Professional fees for this Litigation be charged against the Estate.
The matter was subjected to a full dressed hearing at which testimonial and documentary evidence was adduced by the parties.
In its judgment delivered on 30th June, 2015, 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 against the same by Notice of Appeal filed on 22nd July, 2015.
The 1st Respondent 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.
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.
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.
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 6th March, 1996, 2nd October, 1996 and the Purchase Agreement dated 10th February, 1977.
⦿ HOLDING & RATIO DECIDENDI
ON THE RESPONDENT NOTICE OF CONTENTION, THE COURT STATED: It goes without saying that a Respondents Notice [of contention] 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.
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. 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.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. Furthermore, Exhibit C2 was only executed by the Respondents and there is no evidence that the Appellants, as joint owners of the property, consented to the property being partitioned. From the evidence on record, the Deed of Partition, Exhibit C2, is therefore not valid since the Appellants did not consent to the partitioning and the partitioning was also not done on equal basis.
3. ISSUE 3 WAS JUDGED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. The Deed of Assignment assigning the property to the parties herein, Exhibit C1, is dated 2nd June 1977. It recites that Paul Dawson Otigbah is entitled to the property by virtue of the Deed of Lease dated 25th August, 1976. The Purchase Agreement, Exhibit D6, by virtue of which the 1st Respondent claims ownership of the property is dated 10th February, 1977, about four months before Exhibit C1. So based on the documentary evidence before the Lower Court, as at 10th February 1977 when the Purchase Agreement, Exhibit D6, was entered into, the land owning family had already divested their interest and vested the same in Paul Dawson Otigbah by virtue of the Deed of Lease dated 25th August,1976. So as at 10th February 1977, the date on Exhibit D6, they did not have any title to pass to the 1st Respondent. Taking it a notch farther, the Lower Court also relied on the purchase receipts, Exhibits D3A, & B, to show the outright purchase of the property by the 1st Respondent. Now, the purchase receipts, Exhibits D3A & B, are dated 6th March, 1996 and 2nd October, 1996 respectively. This was during the subsistence of Exhibit C1. The late Paul Dawson Otigbah, having assigned his interest to his children by Exhibit C1, which as held by the Lower 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.
Accordingly, the 1st Respondent did not acquire any interest to the property by any of Exhibits D3A & B and Exhibit D6.
ii. The ascription of probative value by the Lower 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. This being so, in the light of the said subsisting interest, the land owning family had no interest in the property to pass to the 1st Respondent. The Lower Court consequently drew wrong conclusions from the evidence and made findings of facts that do not result from the evidence. Ineluctably, having taken an erroneous view of the evidence, the findings which the Lower Court arrived at that the 1st Respondent had become the sole owner of the property are perverse as they are not supported by the evidence on record.
THE COURT OF APPEAL THEN DECLARED:
1. It is hereby declared that the Deed of Partition between Mrs. Agatha Adetutu Uwanaka (Nee Otigbah) and George Ifeanyi Otigbah dated 23rd June, 2008 is illegal, unlawful, null, void and of no legal effect.
2. It is hereby declared 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 of the Assignor registered as No. 55 at page 55 in Volume 1627 of the Lagos State of Nigeria Land Registry, Ikeja, Lagos, the Appellants and the Respondents are joint owners on equal basis of No. 3, Otigbah Street, Ikeja, Lagos.
3. The Respondents are hereby restrained from giving effect to the Deed of Partition between Agatha Adetutu Uwanaka (Nee Otigbah) and George Ifeanyi Otigbah dated 23rd June, 2008.
4. The said Deed of Partition dated 23rd June, 2008 is hereby set aside.
5. The 1st Respondent is hereby ordered to give an account of all the proceeds of rent collected by her from inception until 29th February, 2020 and to pay over to the Appellants all the monies due to them as joint owners of the property.
6. The Appellants are entitled to the costs of this appeal which I assess and fix at N500,000.00 against the 1st Respondent.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
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. – Ogakwu, JCA. Otigbah v. Uwanaka (2020)
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. – Ogakwu, JCA. Otigbah v. Uwanaka (2020)
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. – Ogakwu, JCA. Otigbah v. Uwanaka (2020)
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 21 perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. – Ogakwu, JCA. Otigbah v. Uwanaka (2020)
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. – Ogakwu, JCA. Otigbah v. Uwanaka (2020)
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. – Ogakwu, JCA. Otigbah v. Uwanaka (2020)
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. – Ogakwu, JCA. Otigbah v. Uwanaka (2020)