➥ CASE SUMMARY OF:
Madam Alice Okesuji vs Fatai Alabi Lawal (1991) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.162/1986
➥ JUDGEMENT DELIVERED ON:
Friday, the 1st day of February, 1991
➥ AREA(S) OF LAW
Service of writ.
➥ PRINCIPLES OF LAW
⦿ BECAUSE THERE WAS NO BAILIFF ENDORSEMENT
It is straining the rule on proof of service to say that a defendant who filed a defence to a statement of claim was not served with the writ of summons because there was no bailiff’s endorsement on the writ. — Olatawura, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
E.O.I. Akpata, J.S.C.
⦿ FOR THE APPELLANT
Chief R. A. O. Oriade.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
In his action filed on 28th July, 1977, the plaintiff Fatai Alabi Lawal (suing as representative of all the beneficiaries of the estate of Madam Salimotu Abeje (deceased)) claimed jointly and severally against the defendants as follows: “(1) A Declaration that No.I76 and No. 178, Bamgbose Street, Lagos, Nigeria as referred to in the Will of Madam Salimotu Abeje, dated 27th March, 1947 are two wings of the same house under the same No.178, Bamgbose Street, Lagos, Nigeria which is Madam Abeje (sic) Estate, and that Madam Abeje was never the owner of 176. Bamgbose Street, Lagos. (2) A Declaration that the purported transfers of Madam Abeje (sic) Estate in fee simple to Mrs. Juliana Jokotola Sebanjo in 1951 and to Madam Alice Kemiki Okesuji in 1966 respectively were null and void on ground of fraud to defeat the interests of the reversioners including the plaintiff, and contrary to the provisions of the Will of Madam Abeje dated 27th March, 1947. (3) An order for rectification of the Proprietorship Register of Title at the Lands Registry, Court Lagos by expunging the names of Mrs. Juliana Jokotola Sebanjo and Madam Alice Kemiki Okesuji and their agents or assigns and beneficiaries of their estate from the Certificate of Title No. LO 1722 and LO 1924.”
In his judgment, the learned trial Judge held as a fact that the 1st and 3rd defendants freely conveyed the property No. 178 Bamgbose Street to the 2nd defendant contrary to the intention of the testatrix that the 2nd defendant should have only a life interest in respect of a wing of the property.
The learned Justice of the Court of Appeal was of the firm view, as the trial Judge, that the action of the three executors and executrix, 1st, 2nd and 3rd defendants respectively, in conveying the property in Exhibit B to the 2nd defendant in fee simple apart from being fraudulent appeared to be a deliberate act on their part to ensure that the reversioners were disinherited.
The Appellant has now come before this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the High Court and the lower Court rightly assumed jurisdiction in the action against the 2nd defendant without first satisfying themselves that he was duly served with the Writ of Summons?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THERE WAS ADMISSION THAT THE 2ND DEFENDANT WAS SERVED
“However, nothing was said relating to the service of the writ of summons. 16/6/81, Mr. Odufalu, in the presence of the 5th defendant, observed thus: ‘As the court would see the 2nd defendant was served with the writ of summons but he would never put in an appearance.’ (See page 51 lines 24 to 26). This was an obvious admission by learned counsel for the 5th defendant/appellant in the presence of the 5th defendant/appellant who is claiming in this court that the 2nd defendant was not served with the writ of summons. The expression ‘as the court would see’ is very significant. It suggests that there was something before the court from which it ‘would see’ that the 2nd defendant had been served. The appellant can therefore not be heard to complain that the 2nd defendant and herself were not served with the writ of summons. Although the appellant is represented by a different counsel in this court in the person of Mr. Fashanu, her counsel here is precluded from shifting grounds on the issue. Embarrassing as it was to him, Mr. Fashanu agreed that he was bound by the observation of counsel for the fomer appellant. He however tried to wriggle out of his dilemma by saying it could have been a mistake of counsel. A counsel can, while functioning as such, make admissions of fact which could be binding on his client, particularly where such admission was made for the purpose of dispensing with proof at the trial and when the client failed to retract the admission before judgment. There is no doubt that in considering the effect of an admission the court would take into account the circumstances under which it was made and the weight to be attached to it. This is the type of admission by counsel which in a civil case is prima facie evidence against his client.”
II. Is it the Settled Land Act, 1882 or the Settled Land Act, 1925 that applies to the settlement?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE 1925 ACT IS THE LAW APPLICABLE AS THE TIME IN ENGLAND
“I am in agreement with the views held by Taylor, C.J., in the case of Okoya v. Ojule & Ors. (1968) 2 All NLR 55 at pages 58 to 59 that the construction and interpretation of a Will and its contents are matters within the jurisdiction of the High Court of Lagos State and being probate matter is governed by the law and practice for the time being in force in England, that is the 1925 Settlement Act. As rightly pointed out by Kolawole, J .C.A., there is no doubt that No.178 Bamgbose Street, Lagos is a settlement land under sections 1 and 2 of the Settlement Land Act 1925. By section 1 any Will by which any land stands limited in trust for any person by way of succession creates a settlement. Section 2 states that land which is or is deemed to be the subject of a settlement is for the purpose of the Act settled land. Section 107(1) makes it plain that a tenant for life shall, in exercising any power under the Act, have regard to the interests of all parties settled under the settlement, and shall, in relation to the exercise thereof by him, be deemed to be in the position and to have the duty and liabilities of a trustee for those parties.”
III. Were the dispositions to the appellant and her predecessors-in-title not valid under the Settled Land Act, 1882?
RULING: IN RESPONDENT’S FAVOUR.
A. THE DISPOSITION IS INVALID
“By the Settlement Land Act, 1925 the 2nd defendant could not convey the property in fee simple to Madam Juliana Jokotota, the wife of the money lender. She could not deprive the plaintiff and other grand-children of the testatrix Madam Abeje of their reversionary interests in the property. He is deemed to be “in the position and to have the duties and liabilities of a trustee” to those with reversionary interest. Kolawole, J.C.A., put it thus and I agree with him: “…the instrument of transfer upon which Exhibit C was issued pretended to transfer Madam Abeje’s estate to Madam Juliana Jokotola but in fact transferred nothing. That instrument is void for two reasons. First, it was a forgery because it was not executed by the 2nd defendant; second, it pretended to transfer Madam Abeje’s estate when he transferred nothing It follows that the certificate document is void.””
“On the whole, the appeal fails. It lacks merit. It is therefore dismissed with costs assessed at N500.00 in favour of the respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)