⦿ CASE SUMMARY OF:
Alhaji Suara Yusuff v. Yetunde Dada (Mrs.) & Ors. (1990) – SC
⦿ LITE HOLDING
Where family land is sold, by a family head, and the family does not protest or act to stop work on it immediately, and the buyer builds on the land, the principle of estoppel will be worked against the family.
⦿AREA OF LAW
– Customary Law.
– Executor de son tort.
– Head of a Yoruba family.
– Doctrine of notice.
Alhaji Suara Yusuff
Yetunde Dada (Mrs.) & Ors.
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Chief Afe Babalola, S.A.N.
* FOR THE RESPONDENT
– Chief Ladosu Ladapo, S.A.N.
⦿ FACT (as relating to the issues)
Mrs. Yetunde Dada and 3 Ors. as administratrices/administrators of the estate of Chief J.O. Laniyonu, deceased, sued Alhaji Yusuf for the following reliefs:
1. N25,000.00 damages for trespass committed by the defendant, his servants, agents and tenants in respect of Chief J. O. Laniyonu’s land lying and situate at AGBAAKIN FAMILY LANDILA LAYOUT Iwo Road, Ibadan on or about August, 1979 and which trespass still continues;
2. AN INJUNCTION to restrain the defendant, his servants, agents, tenants, workmen or otherwise howsoever from entering, remaining, or further trespassing on the said land.
Pleadings were ordered, filed and delivered.
Relevant to the issues raised in this appeal are the following averments in the plaintiffs’ statement of claim:-
“1. The 1st and 3rd plaintiffs are the children of late Chief Josiah Oladipo Laniyonu who died intestate at Ibadan on 6/9/78 while the 2nd and 4th plaintiffs are the widow and cousin of the said late Chief J.O. Laniyonu respectively.
2. By virtue of a deed of conveyance dated 21/7/60 registered as no. 23 at page 23 in volume 391 of the lands registry in the office at Ibadan, the late Chief J.O. Laniyonu became seised of a parcel of land lying and situate at Agbaakin layout, Iwo Road, Idi-Ape Ibadan by grant from AGBAAKIN FAMILY for a consideration of 100.00 (One Hundred Pounds).
3. The late Chief Laniyonu was put in possession immediately after the execution of the said conveyance and no one disturbed him on the land.
4. The plaintiffs are the lawful administrators of the estate of the late Chief J.O. Laniyonu having obtained Letters of Administration dated 22/9/81 from the probate registrar of the High Court of Justice Oyo State of Nigeria.
5. The defendant is unlawfully occupying late Chief Laniyonu’s land and it is the area marked RED in PLAN No. OB.5095 dated 30/1/84 and drawn by Mr. O. BAMGBOSE, a licensed surveyor and attached to this document. Plaintiffs will found on this plan at the trial of this action.
6. On or about August, 1979 the defendant wrongfully occupied the land in dispute at Iwo Road, Ibadan without lawful authority and commenced building construction of the structure shown in the said plan No.OB.5095.”
The defence of the defendant to the claims against him is contained in part in the following paragraphs of his statement of defence:-
“3. The defendant admits paragraph 1 of the plaintiffs’ statement of claim but will add that the 3rd plaintiff being the eldest surviving son is the Dawodu and head of late Chief J. O. Laniyonu family under native law and custom. The defence case will be founded upon this legal issue at the trial of this suit.
4. With reference to paragraphs 4, 5 and 6 of the statement of claim the defendant avers that before the grant of the letters of administration to the plaintiffs on 22/9/81 by the probate registrar, 3rd plaintiff in order to meet the funeral and testamentary expenses of his late father (Chief J.O. Laniyonu) and being the eldest surviving son had sold and transferred the land in dispute to the defendant for valuable consideration in the presence of witnesses in accordance with native law and custom.”
The case proceeded to trial before Sijuade, J., who having heard the parties and their witnesses gave his judgment in the case on 2nd July, 1984. He found for the plaintiffs holding in doing so as follows:- “On the whole, the defendant has failed to prove that his possessory title to the land in dispute is legal and better to oust the legal title of the plaintiffs whose claim I find overwhelmingly proved to my satisfaction. The defendant’s hold has therefore been an adverse possession of the land in dispute since 1979 without the authority and consent of legal owners, and must therefore be restrained. He is therefore a trespasser who is liable in damages to the plaintiffs notwithstanding the huge investments said to have been made by him on the land. It is an act of recklessness on his part to proceed to development without first obtaining a legal title or instrument from his vendor even though he described himself as a land agent in his pleading.”
The defendant being dissatisfied with the judgment appealed against it to the Court of Appeal Ibadan Division. His appeal was not successful. This is therefore a further appeal by the defendant against the decision of the trial court against him, albeit by way of appeal from the decision of the Court of Appeal.
1. Whether the conduct of the 3rd plaintiff in joining in this action as a plaintiff to evict the defendant from the land he sold to him is not unconscionable and therefore inequitable as to vitiate this action.
2. What is the effect of the Letters of Administration issued to the plaintiffs on the sale of the deceased’s land by the 3rd plaintiff to the defendant prior to the issuance of the Letters of Administration?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 2 IS RESOLVED IN FAVOUR OF THE APPELLANT/DEFENDANT BUT AGAINST THE RESPONDENT/PLAINTIFF.
i. Applying the facts in the case now under consideration to the law as I have just set it out above, it is clear that the third plaintiff led the defendant to believe the land in dispute is his. As far as he is concerned it will be most unconscionable to allow him to resile from that position after the defendant has altered his position to his detriment as a result of the conduct of the 3rd plaintiff. As regards the other three plaintiffs, having regard to the law and the facts and circumstances of this case, it is inescapable to hold that they too had notice of the presence of the defendant on the land and did nothing to warn him until he has finished his building on the land.
ii. It is because of the above legal propositions that I have come to the conclusion that the conduct of the 3rd plaintiff in the circumstances leading up to this case is a relevant fact with its attendant consequences in this case. It is also because of these same legal propositions that I am satisfied that all the plaintiffs, the administrators of the estate of the deceased, are affected by the conduct of the 3rd plaintiff in question and its attendant consequences.
iii. In the case in hand, there is evidence that the defendant carried out extensive developments on the land in dispute. And the plaintiffs are on the evidence at all material times the proposed administrators of the estate of Chief J.O. Laniyonu, deceased, which included the land in dispute at Ibadan. The 1st, 2nd and 4th plaintiffs were all of them resident at Ibadan overseeing the estate. So, the evidence, in the words of Lord Cranworth in Ware v. Lord Egmount, discloses that they had knowledge of facts which would enable the court to say that they ought to have acquired the notice with which it is sought to affect them and that they could have acquired it but for their gross or culpable negligence. So they will be presumed to have had the notice. This is quite apart from what I have said earlier on that they in law will be said to be affected by the notice of the 3rd plaintiff.
2. ISSUE 2 IS RESOLVED IN FAVOUR OF THE RESPONDENT.
i. So in my judgment the provisions of Section 10 [adminstration of estates law] of the law apply in the case in hand. Because of section 10 of the law, the real and personal estate of the deceased, Chief J.O. Laniyonu, would be deemed to have been vested, from the date of his death until administration was granted, in the Chief Judge of Oyo State in the same manner and to the same extent as it vests in the probate Judge of Her Majesty’s High Court of Justice in England. It was during this period that Abiodun Laniyonu, the 3rd plaintiff sold the land in dispute, part of the estate of the deceased, to the defendant.
ii. So, it appears that in England an executor de son tort cannot, because of the estate of a person who dies intestate being vested in the probate Judge pending grant of letters of administration to that estate, make any valid disposition of the deceased’s land. So, because of section 10 of the law, the 3rd plaintiff, Abiodun Laniyonu, as head of Chief J.O. Laniyonu family, could not have made a valid disposition of the land in dispute to the defendant at a time when application for a grant of letters of administration to the estate of Chief J.O. Laniyonu was pending in court.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Agbaje JSC
So I am satisfied that the two courts below misdirected themselves, by misdirection or non-direction, on the point, which misdirection has resulted in a miscarriage of justice. So their concurrent findings of fact in favour of the plaintiff/respondent cannot be allowed to stand
William, Mortimer and Sunnucks Executors, Administrators and Probate, 16 Edition, pages 92-93:- “Executor de son tort – Intermeddling. A person not lawfully appointed executor or administrator and without title to a grant may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship such an intermeddler is called a tort executor or an executor de son tort (i.e. of his own wrong). The same term is used whether the deceased died testate or intestate, for the law knows no such appellation as “administrator de son tort.”
Williams, Mortimer and Sunnucks Executors, Administrators and Probate, 16th Edition says at page 466: “DOCTRINE OF NOTICE: The interest of a personal representative in the property of the deceased is not however so different from the interest of a beneficial owner that the normal doctrines of notice cease to apply. Thus where A, one of the executors of B, had notice of a transaction because of his partnership with one G, it was held that the executors of B were not bonafide holders for valuable consideration without notice because A could not sever his character of executor from his character as partner. The executors were therefore affected with notice. The converse is the position where an executor has notice derived from another executorship or trust.”
⦿ SOME PROVISION(S)
Section 73(1)(L) of the Evidence Act provides as follows:- “73(1) The court shall take judicial notice of the following facts:- (a)-(k) not relevant; (1) all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England or the Federal Supreme Court or former Supreme Court of Nigeria or by the High Court of the Region and all customs which have been duly certified to and recorded in any such court;
Section 10 of the Administration of Estate Law of Oyo State which reads: “Where a person dies intestate and administration is granted under this law in respect of his real and personal estate, that estate shall be deemed to have been vested, from the date of his death until administration is granted in the Chief Judge in the same manner and to the same extent as it vests in the Probate Judge of Her Majesty’s High Court of Justice in England.”
⦿ RELEVANT CASE(S)
Osborne, C.J., in Lewis v. Bankole: (1) to ascertain the native law or custom, if any, which would regulate the matters in dispute. I have during thirteen years experience of West Africa been concerned in “one capacity or another with several cases in which native customary law has been the subject of judicial investigation; and in nearly every case I have found that there are general underlying principles not difficult to understand, and obviously based on the primitive requirements of the community. In some instances those principles have been modified, and even departed from, as the result of contact with European methods; indeed, one of the most striking features of West African native custom, to my mind, is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics. The great danger in applying it in this court is that of crystallizing it in such a way that it cannot be departed from in cases where expediency demands, and where natives themselves would depart from it; and I therefore preface my findings with the remark that they are intended as findings of the general principles which govern native custom in lagos at the present day, and not as hard and fast findings of immutable native law.”
Lewis v. Bankole says unequivocally as follows:- “There is practically a consensus of opinion that on the death of the founder of a family the proper person to be head of the family is the “Dawodu” or eldest surviving son. This seems to be a well established rule both in Lagos and in other parts of Yoruba land.”
Morayo v. Okiade 8 W.A.C.A. 46 at 47-48 is very much relevant to the point I am considering:- “The general rule as to estoppel by silence or standing by was laid down in the case of Caincross v. Lorimer (1860) 3 L.T. 130. It is as follows “it is a rule of universal law that if a man ‘either by word or by conduct has intimated that he consents to’ an act which has been done and that he will offer no opposition to it, although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word, or to the fair inference to be drawn from his conduct. In such cases, proof of positive assent or concurrence is unnecessary; it is enough that the party had full notice of what was being done and the position of the other party is altered.”
Ramsden v. Dyson (1866) L.R. 1 H.L. 129 it was held that “if a stranger begins to build on land supposing it to be his own and the real owner perceiving his mistake abstains from setting him right and leaves him to persevere in his error a court of equity will not afterwards allow the real owner to assert his title to the land.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
For it is settled law that under Yoruba customary law it is only the children of the deceased who are entitled to inherit his estate. (See Adisa v. Ladokun (1973) 9 and 10 S.C. 55). – Agbaje, JSC. Yusuff v. Dada (1990)
In their place, I enter judgment in favour of the defendant/appellant against the plaintiffs/respondents as it will be both unconscionable and inequitable having regard to the facts and circumstances in this case, to allow the plaintiffs/respondents to assert their claim of title to the land in dispute. – Wali, JSC. Yusuff v. Dada (1990)