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SUIT NO. SC 237/1964

8TH JULY, 1965.

CWLR (1965) 2


LN-e-LR/1965/10  (SC)



CHILDREN AND WOMEN LAW:- Women and Inheritance – Matrilineal devise of real estate via will – Property owned by deceased woman – Devolution of same to her children and heirs – Claim of her caretaker to ownership of a portion of the land – How considered









Mr. A. ADENIRAN for the Appellants.

A.K.I. MAKANJU for the Respondent.



  1. N.A. AGUSTO
  2. M.O. AGUSTO
  3. A. LA KANU





LAND LAW: – Title over land – Transfer of same via will to children and heir of testator – Rival claim of care-taker to portion of land under an alleged gift made by testator to care-taker under customary law – Need to prove same – When estoppel would arise as a bar to a suit over land

LAND LAW: – Conveyance of property – Where obtained in name of deceased testator to cover the whole property – Effect on claim that she has earlier given a portion of same land to defendant – How treated

ESTATE ADMINISTRATION AND SUCCESSION: – Inheritance – Entitlement to property in dispute, by virtue of a devise in a Will – Transfer of interest in portion of property to care-taker of same – Need for transfer to be pleaded and proved – Effect of failure thereto

WILLS AND ESTATE:- Interpretation of will – Language used in device – Need for trial court to pay attention to same – Extraneous claims contrary to or derogating from the clear provisions of a will – Need to prove claim strictly




COKER, J.S.C. (Delivering the Judgment of the Court):

The appellants and the respondent are the plaintiffs and the defendant respectively in Ikeja High Court Suit No. HKJ118/61, in which the plaintiffs’ claim was for possession of a piece of land situate at and known as No. 46 Ojo Street, Mushin. On the 11th October, 1962, Madarikan, J., gave judgment in the case and dismissed the plaintiffs’ claim with costs. There was a counter claim by the defendant for a declaration that he is the owner in fee simple of the land in dispute. For reasons stated in the judgment the counter-claim was also dismissed and there is no appeal from this dismissal.

The action was initiated by the plaintiffs in the Ikeja Magistrate’s Court and was commenced by writ framed in accordance with Form F in the Schedule F. to the Recovery of Premises Ordinance, cap. 110 (laws of Western Nigeria, 1959) for reasons which are not contained in the Record of Appeal, (but are obvious from the subsequent history of the case) it was transferred to the High Court for hearing by virtue of the Provisions of Section 39(1) of the Western Region Magistrates’ Courts Law, Cap. 74, Laws of Western Nigeria, 1959. Pleadings were ordered and filed and on the pleadings it is manifest that the case was fought on both sides on the issue of title to the land in dispute.

By their Statement of Claim the plaintiffs aver that they have become entitled to the property, that is the land in dispute, by virtue of a devise in the Will dated the 17th December, 1943, of one Madam Phoebe Dada-Cole who died on the 20th January, 1944, that the defendant is a tenant on the property and that he has refused to give up possession of same when requested to do so. The Statement of Claim also avers that some time in 1957, the defendant Instituted an action against the plaintiffs in the Ikeja High Court Suit No. Ab[79/57 – for declaration of title in fee simple to the land in dispute and that his action was dismissed. At the trial, the plaintiffs gave evidence in support of these averments and contended that the relevant devise in the Will of the late Madam Cole did not excise the land alleged by the defendant to have been given to him in 1933 and that in effect the defendant is estopped by the findings of facts and judgment in Suit No. AB/79/57 (produced in evidence as exhibit C) from re-litigating the issue of title to the land in dispute.

By his statement of defence the defendant admits that the land in dispute is one of six plots of land originally belonging to the late Madam Agusto (otherwise known as Madam Phoebe Dada-Cole) and further avers that the said Madam Agusto made a gift of the land in dispute to the defendant in 1933 in consideration of his agreeing to be the caretaker of the lands, that he has since entered and remained in undisturbed and uninterrupted possession of same and that the late Madam Agusto had no right to and could not devise the particular plot in dispute by her Will made in 1943. At the trial the defendant gave evidence in support of the gift of the land to himself by the late Madam Agusto and called a witness in support. He stated that when he was to be engaged by her as a caretaker of her lands he told her that he would only agree to work for her on condition that she gave him a plot out of the six plots of land and that Madam Agusto agreed to this, gave him a plot absolutely and indeed took him round the boundaries of the land given to him. He further said on the occasion Madam Agusto put some sand in the palm of his hand and prayed for him. He thereafter built a house on the land and has since lived therein. His witness, Abdul Lasisi, testified to the same effect.

As stated before, the learned trial judge dismissed the plaintiffs’ case and in the course of his judgment directed himself as follows:

“Did Phebean Dada Cole transfer the land in dispute (i.e. one plot measuring 25 feets by 100 feet) to the defendant prior to her death? It is not possible to say from the wording of the Will whether the testator intended to devise 6 plots (i.e. 75 feet x 100 feet) or only 5 plots. I have carefully considered the whole evidence and am satisfied that Phebean Dada Cole gave the land in dispute to the defendant in 1933 and that he has since been in possession of the land. I believe and accept the evidence of the defendant on this point. I am of the opinion that there was a valid transfer of the land under native law and custom by Phebean Dada Cole to the defendant in 1953.”

Before us on appeal it was submitted on behalf of the plaintiffs that the Judge misdirected himself on the proved facts of the case and that in particular having accepted the judgment in Exhibit C in which the defendant’s claim to declaration of title to the same land was dismissed by the same Court, the Judge was wrong to reopen the issue of title in favour of the defendant as against the same plaintiffs. We are of the view that both contentions are well founded. As between the plaintiffs and the defendant, the latter is estopped by the judgment in Exhibit C from claiming a declaration of title in fee simple to the land in question. The Judge stated this as one of the reasons why he dismissed the defendant’s counterclaim in the present proceedings. The learned trial Judge concluded that there was a valid transfer of the land to the defendant by Madam Agusto under native law and custom. With respect, neither in his pleadings nor in his evidence did the defendant claim ownership under native law and custom. He admitted that the defendant gave no evidence to establish that native law and custom approves the manner by which he sought to justify the transfer of the land nor indeed of the relevant native law and custom. It is manifest that he failed to prove that Madam Agusto had divested herself of the land in dispute to him and the Judge erred in finding as such.

Besides this, several other points evinced by the evidence supports the plaintiffs’ contentions. Madam Agusto bought the entire land in 1930 and entered forthwith into possession of it. She engaged the defendant as a caretaker of the lands and was alleged to have given him a plot measuring 25 feet by 100 feet in 1933. At that time, Madam Agusto herself obtained a conveyance (produced in evidence as Exhibit D) in her own name. That conveyance covered the whole land. On the 17th December, 1943, she made her Will (produced as Exhibit A.1) in which she included the following device in respect of her lands at Mushin:

‘A. I devise my real property situate at Ojuwoye Town via Idi-Oro, Mushin District, Nigeria absolutely UNTO and TO THE USE OF my son the said NARCIZIO ADJAI AGUSTO PEDRO and my daughters MRS. AMEIIA LAYINKA SIFERE and the said MARIA OKE AGUSTO PEDRO as tenants-in-common.”

She died on the 20th January, 1944 at Lagos. On these facts it is unlikely that Madam Agusto would have maintained her ownership of the entire property if she had, as claimed by the defendant, transferred a portion of H to him in 1933. Again, certain rent receipts were produced in evidence as Exhibits E, E1 – 4. In Exhibit C (that is judgment in Suit No. AB/79/57) R was stated that the defendant admitted paying rent to the plaintiffs in respect of the house on the land in question for some time after the death of Madam Agusto. Whilst Exhibit E (dated the 16th January, 1947) and Exhibit E.1 (dated the 15th March, 1947) referred to “rent due for room” Exhibit E.2 (dated the 5th September, 1947), E.3 (dated the 17th April, 1948) and E.4 (dated the 15th July, 1948) referred to rent for “a house”. These receipts support the case of the plaintiffs that after mud room in which the defendant lived had become dilapidated and fell down, the defendant built a two roomed house on the land at the request of the plaintiffs and at their expenses and he continued to pay rent on the house; the defendant’s contention that all the receipts relate to the rent of a single room on another plot of land let to him for the use of his mother appears untenable from the facts of the case.

We are clearly of the view that the Judge mis-directed himself on the effect of the proved facts on the evidence. Whilst the plaintiffs have abundantly proved their title to the land in question, the defendant has failed to show any right to the possession of the land let alone any kind of title to same and the facts proved in evidence negative the claims of the defendants.

This appeal must therefore succeed. The appeal is allowed. The judgment in Ikeja High Court, Suit No. HK/118/61, Including the order for costs, is hereby set aside and instead we make the following –

“Jugdment is hereby entered in favour of the plaintiffs against the defendant for possession of the piece of land situate at and known as No. 46, Ojo Street, Mushin”.

The defendant shall pay to the plaintiffs the costs of these proceedings in the Court below fixed at 45 guineas and costs in this Court fixed at 40 guineas.

Appeal allowed.


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