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28TH APRIL, 1972.

SUIT NO. SC 82/1966.

3PLR/1972/23  (SC)



(1972) 4 S.C. 180

(1972) All N.L.R 367









(for and on behalf of BADARU ANIMASHAWUN)




(for themselves and on behalf of Mgbelekeke family of OnItsha)


VINCENT OBIKE substituted for SOLOMON OBIKE (Deceased)



Land Law – Kola tenancy – No partial forfeiture.

Civil procedure – Interpretation of documents – Binding force of pleadings.

Family law – Authority of family head to institute action as regards family property.



  1. Ofodile Esq., for the Appellant.
  2. C. I. Obanye Esq. and F. O. Anyaegbunam Esq., for the 1 stand 2nd Respondents
  3. C. Anyadugba Esq., for 3rd Respondent.


FATAI-WILLIAMS, J.S.C. (Delivering the Judgment of the Court):   Some time in the year 1906, one Badaru Animashawun obtained from the Mgbelekeke family of Onitsha, the right to the use and occupation, under what is known in Onitsha as a “kola tenancy”, of a piece of land in Onitsha verged green in plan No. SE.29/63 of 10th June, 1963, (Ex. “A”) Badaru Animashawun later built houses on the land which he occupied with the members of his family. In 1928, he leased the portion verged pink in the plan (Ex “A”) to one J. M. Stuart-Young.


Four years later, the Mgbelekeke family, being of the opinion that Badaru Animashawun had sold his rights in the portion in question to Staurt-Young and had thereby forfeited his kola tenancy, granted another lease of the same portion to Stuart- Young. Being dissatisfied with this action of the Mgbelekeke family, Badaru Animashawun brought an action against both the the family (represented by one Michael Obanye) and Stuart-Young in Suit No. 4/32 (Ex. “B”). At the hearing of that suit on 26th February, 1934, Mr. Clinton who appeared for the family (who were the 1st defendant) agreed to begin “as his case is that the plaintiff was a kola tenant and forfeited his rights of such by selling house to 2nd Defendant”. Evidence was then adduced by the family. When the case of the family dosed, learned counsel for Stuart-Young (who was the second defendant) informed the court that he was not calling evidence on behalf of 2nd defendant. Whereupon learned counsel for Badaru Animashawun opened the case for the plaintiff and called Stuart Young (2nd Defendant) as his witness. After the witness had been cross-examined, the case was adjourned to the following day 27th February, 1934. The following are the notes made by Graham Paul, J. at the hearing on the following day –


“Court adjourned for ten minutes to enable parties to consider as to an extra judicial settlement. On resumption counsel intimate that a settlement has been arrived at.


The terms of settlement are that the plaintiff and his successors are to be entitled to two thirds of the rent under the lease by the first Defendant to the second defendant and that this applies to arrears as well as to future rents. Order by consent accordingly.”


Pursuant to this consent judgment, Badaru Animashawun and the Mgbelekeke family, as lessors, executed a lease of the land in question in favour of Stuart Young as lessee. This lease (Ex. “C,) executed on 1st January, 1937 (fifteen months after the coming into force of the Kola Tenancies Ordinance Cap. 98 of the Laws of Nigeria, 1948) was for a term of twenty five years at an annual rent of £10. It is significant that the name of Animashawun came before that of the Mgbelekeke family in the said deed of lease. The lease also provides that –


‘the above named rent of ten pounds per annum is to be divided £6.13.4d. to Badaru Animashawun and M. 6. 8d. to the Mgbelekeke family.”


Among the covenants entered into by the lessee is one in clause 5(2) which read


“At the expiration or sooner determination of these presents to deliver up the said piece of land peaceably to the lessors.” (Emphasis ours).


In 1939, Stuart-Young died. After his death, one Solomon Obike (who was the 3rd defendant in the present action) after obtaining Letters of Administration in respect of the estate of Stuart- Young stepped into his shoes as lessee under the said lease and continued to pay the rent to both lessors in the agreed proportion – £6. 13. 4d. to Badaru Animashawun and £3. 6. 8d. to the Mgbelekeke family. In 1943 Badaru Animashawun died and this agreement continued after his death.


In 1962, the lease to Stuart-Young expired. Isiaka Badaru Animashawun (the present plaintiff) who is the eldest son of the late Badaru Animashawun and is also the head of the family came to Onitsha and invited Solomon Obike (3rd defendant) to one Chief Bakare’s house. At the hearing of this action Isiaka Animashawun narrated what transpired at that meeting as follows:


“I told him that the lease has expired and I would like to know what he was prepared to do. He said that Mgbeleke people have sold the house to him for £1000. He is still occupying the house and he has not been paying me any rents. It is not correct that he has sought for me to negotiate for the land with me.”


Eventually, the plaintiff, on 4th January, 1963, took out a writ in the Onitsha High Court in which he claimed –


“(a)    Recovery of possession of the premises occupied by the 3rd defendant through the 1st and 2nd defendants at Onitsha which premises is known and described as No. 41 New Market Road, Onitsha to be more particularly delineated in a plan to be filed in this case.


(b)     Injunction to restrain the defendants their heirs, successors, servants, agents and assigns from further interfering with the plaintiff’s possessory right to the premises aforesaid.”


Paragraphs 14 and 15 of the plaintiff’s statement of claim read


“14.   When the lease to Mr. J. M. Stuart-Young expired in 1962 the plaintiff sought to know from the 3rd defendant whether he proposed to renew permission to stay on the land or alternatively to deliver possession thereof. The 3rd defendant ignored the plaintiff and unknown to plaintiff, treated with the Mgbelekeke family and paid a large sum of money to them and has ever since remained on the land without any reference whatever to the plaintiff and inspite of plaintiff’s protestations.


  1. The 1st and 2nd defendants have no right to put the third defendant or anybody in occupation of the land without reference to the plaintiff and neither has the third defendant the right to be on the land without the knowledge and consent of the plaintiff.”


In reply, the 1st and 2nd defendants averred in paras. 13 and 14 of their joint statement of defence as follows:


“Part of paragraph 14 of the statement of Claim as regards the expiration of the lease is hereby accepted but the defendants deny the rest of paragraph 14 of the statement of claim. Furthermore, the 1st and 2nd defendants contend that owing to the breach of one of the conditions of the Kola Tenancy that the land was not to be leased to an expatriate and the fact that it was agreed by both the plaintiff’s father and the Mgbelekeke family that the plaintiff’s Interest in the land will be determined once the lease expired, the Mgbelekeke family had no other option than to transfer their interest in the land to the 3rd Defendant who is a native i.e. A Nigerian citizen.


  1. Paragraph 15 of the Statement of Claim is hereby denied and the defendants will require a strict proof thereof.”


The reply of the 3rd defendant is in paragraphs 10 and 11 of his own statement of defence. It reads


“10.   Ref. para. 14 S/Claim – 3rd defendant denies allegation in para. 14 of S/Claim and state further that he dealt with the Mgbeleke family when all efforts to get the Animashawun family to co-operate failed.


  1. Ref. para. 15 S/Claim – 3rd Defendant in answer to this para. will plead that he was lawfully put on the land by the 1st and 2nd Defendants family as of right on valuable consideration paid by virtue of a Deed of Grant dated 13th day of July, 1961, and registered as No. 37 at page 37 of Volume 257 of the Lands Registry at the Office at Enugu. 3rd Defendant will rely on this grant.”


All the parties gave evidence in support of the averments in their pleadings. Testifying as to what made the Mgbelekeke family give a conveyance (Ex. “G”) to the land to the 3rd defendant, Joseph Akwukalia (2nd D/W) and the only witness called by the 1st and 2nd defendants) stated –


‘The plaintiff’s father then brought an action against us and at a stage during the proceedings the Judge advised that we go and settle out of court. We went to Obanye’s house and there Mr. Young appealed to us to allow Mr. Badaru to join in the lease but that at the end of the lease he could leave the land for us. We agreed and the lease Ex. “C” was made. When the lease expired the plaintiff did not approach us so we gave the land to the 3rd defendant on kola tenancy.”


In his own defence, the 3rd defendant (D/W) testified as follows:


“I approached the plaintiff in 1961 and told him that the Mgbelekeke family had promised to give me a grant of the land as a kola tenant. He said he would know what to do when the lease expired. I did not approach him since the lease expired and he did not demand any rent from me.”


Under cross-examination the 3rd defendant agreed that he obtained the conveyance (Ex. “G”) from the Mgbelekeke family before the expiration of the lease (Ex. “C”).


After reviewing the evidence, the learned trial Judge summarised the contention of the parties as follows:


The plaintiff’s contention is that after the settlement in Ex. “E”, the parties were reverted to their former status quo that is to say that the plaintiff’s father continued to be the kola tenant for the Mgbelekeke family with regard to the land in dispute and that when the lease contained in Ex. “C” expired the land reverted to him as a kola tenant. The contention of the 1st defendant is that the plaintiff’s father agreed to forfeit the holding when the lease expired hence he agreed to be taking two-thirds of the rents of the lease between the first defendant and Mr. J. M. Stuart-Young and did not insist that the lease should be set aside in his action Ex. “B” and that when the lease contained in Ex. “C” expired, the land reverted to Mgbelekeke family and not to the plaintiff and that the 1st defendant was therefore entitled to sell the land as they did in Ex. “G”.”


He then non-suited the plaintiff after finding as follows:


“I am of the opinion that there is much in the contention of each party. The defendant’s father did not insist in his action Ex. “B” that the lease by the Mgbelekeke family to J. M. Stuart-Young should be set aside and his own lease to him restored. He only agreed to be taking two-thirds of the rents. He was however brought in the deed of lease Ex. “C” and here again he agreed to execute the lease with the Mgbelekeke family as joint lessors and the document stated that the Mgbelekeke family has no interest in the land which they can transfer to the second defendant but what that interest is, I cannot from the claim before the court say for the plaintiff has not asked that the document Ex. “C” be judicially interpreted. I may also add that the conduct of the plaintiff’s father appear to lend credibility to the first defendant’s story that he agreed that the land be forfeited at the expiration of the lease. I may also add that at the time the dispute arose in 1932 and the Kola Tenancy Ordinance had not been enacted and therefore the parties were not bound by it.


I am also of opinion that since the plaintiff know about the sale of the land in dispute by the 1st defendant to the second defendant before he brought his action, he should have sought for a declaration that the sale be declared null and void and the deed of conveyance set aside before asking for possession and Injunction. At present the 2nd defendant is on the land by virtue of this deed of conveyance Ex. “G” and until it is set aside 1 am of the opinion that he cannot be dispossessed of the land and there is no claim before the court that he is a trespasser and as far as the plaintiff is concerned it may also be contended that the 3rd defendant is at least a tenant holding over after his lease has expired in which case possession against him may be sought under the Recovery of Premises Law.


There is also nothing before this court to show that the plaintiff applied to the court under Order 4 rule 3 of the High Court Rules for the approval of the court to sue for the benefit of or on behalf of all the members of Badaru Animashawun family.”


In the appeal now before us against that decision, learned counsel for the plaintiff made a number of complaints about the findings of the learned trial Judge. Firstly, it was submitted that by declining to interpret the provisions of the deed of lease (Ex. “C’), the learned trial Judge failed to direct his mind to the legal position of the plaintiff and the Mgbelekeke family at the expiration of the term in the said lease and thereby also failed to determine whether the land in dispute reverted to the plaintiff as a kola tenant and the Mgbelekeke family as their landlords or simpliciter to the Mgbelekeke family. It was further submitted that since it was provided in Ex. “C” that the property should revert to the lessors at the expiration of the lease it could only revert to the plaintiff as joint lessor in his capacity as a kola tenant and that was why, it was pointed out, that at after the expiration of the lease Obike still regarded the plaintiff as one of the lessors. Thirdly, it was contended that the terms of settlement in the judgment (Ex. B) showed clearly that the plaintiff’s father had not forfeited his rights as a kola tenant. Moreover, as the plaintiff’s father was a kola tenant of an area of land of which the one in dispute forms only a portion, he could not forfeit his holding in respect of only a portion of the whole land so held. With respect to the capacity in which the plaintiff brought the action, learned counsel contended that the head of a family in order to preserve family property can bring an action on behalf of the family without authorisation and referred to the case of Sogunle v. Akerele and ors. (1967) N.M.L.R. p.58 in support.


For the Mgbelekeke family, it was submitted that there was evidence that the lease (Ex “C”) was a formal representations of the terms of settlement agreed to in Ex B. Learned counsel, however, agreed that if parties went to court and agreed to settle the matter and terms were also agreed, there was nothing to prevent such parties from varying the terms of the agreement later. He also explained that ff the plaintiff had approached the Mgbelekeke family at the expiration of the lease (Ex. C), the family would have made him a fresh grant of the land as a kola tenant but as he did not, they granted the land to the third defendant. Learned Counsel then asked this court to read ‘lessor” for the word “lessors” used in clause 5(2) of the lease (Ex. C) as to why the plural should be construed as singular. Finally learned counsel for the Mgbelekeke family submitted that what transpired between the parties during the proceedings in Ex. “B” was essential to the construction of the terms of Ex “C” and that Ex “C^ should be construed to give effect to Ex. “B^. Dealing with the capacity in which the plaintiff had sued, learned counsel submitted that as the approval required under Order 4 rule 3 Of the High Court Rules was not obtained. the plaintiff was not competent to bring` the action and that the learned trial Judge was not in error in non-suiting the plaintiff for that reason.


Learned counsel for Obike (3rd Defendant) in his own reply submitted that since the plaintiffs contention, based on Ex. ‘C’, was that he was still a kola tenant and therefore never out of possession, he could not bring an action for possession. As the 3rd defendant was validly put in possession by a co-lessor as shown in Ex “G”, the plaintiff’s claim should not have been one for possession. He should, instead, have brought an action for a declaration that his family was still a kola tenant of the Mgbelekeke family. Learned counsel then observed that as long as they were left in possession they would be prepared to attorn tenant to whoever won this case. Finally, he submitted that the plaintiff not being authorised by the family lacked the capacity to bring this action. In support he referred to Adegbite v. Lawal 12 W.A.C.A. 398 but had to concede that that case dealt only with the capacity of defendant to defend the action. He also referred us to the case of Chapman v. C.F.A.O. 9 W.A.C.A. 181 on the same point.


To our mind, there is a number of glaring errors both of law and of construction in the finding of the learned trial Judge in this case.


Firstly, the terms of settlement in the judgment (Ex. B). by giving Badaru Animashawun and his successors two-thirds of past, present and future rents payable by Stuart-Young, in respect of the disputed portion, showed clearly that the Mgbelekeke family still recognised Badaru Animashawun’s right to the use or occupation of the said portion as a kola tenant. It must be remembered that the area In dispute both in Ex.B and in the instant case is only a small portion of the area of land of which Badaru Animashawun was the acknowledged kola tenant of the Mgbelekeke family. If he had incurred forfeiture of this kola tenancy it would have been in respect of the whole area not just a portion thereof. That is why we cannot conceive of any other reasonable explanation for allowing him to keep twothirds of the rent than that the Mgbelekeke family still regarded him as their kola tenant.


Secondly, the view which we had aired above explained why the deed of lease Ex. “C” (in which Badaru Animashawun was shown as the first lessor) coming about three years after the terms of settlement, was executed by both Badaru Animasha wun and the Mgbelekeke family as co-lessors. The whole case, to our mind, hinged on the construction of the said deed of lease (Ex. ‘C”). It was pleaded in para. 10 of the plaintiffs statement of claims which reads –


“10.   The rent was paid and shared accordingly and in 1937 a formal deed of lease was executed by the plaintiff’s father to Mr. Stuart-Young for a term of 25 years in respect of the area which measured 217.117 square yards at a rent of £10 per annum to be shared in proportion aforesaid. The Mgbelekeke family was made joint lessors as a mark of their consent to the lease.”


The 1st and 2nd defendants’ reply in para. 9 of their statement of defence reads


‘S. Para. 10 of the statement of claim is not correct. The 1st and 2nd defendants agree, that rents were shared as stated in paragraph 10 of the statement of claim but further maintain that the reason why the Mgbelekeke family was made joint lessors was to ensure that the piece of land was not disposed of by the plaintiff in future and also to give effect to one of the conditions of the settlement as stated in paragraph 8 of the statement of defence.”


It is, therefore, dear even from the pleadings that each party had put in issue his own interpretation of the provisions of this lease. The learned trial Judge was therefore clearly in error in stating that the “plaintiff has not asked that the document Ex. “C” be judicially interpreted.” As we had pointed out earlier, it is provided in Clause 5(2) of Ex. “C” that –


“At the expiration or sooner determination of these presents to deliver up the said piece of land peaceably to the lessors.”


Manifestly, the premises should have reverted to the plaintiff as well at the expiration of “C”.


In what capacity could Badaru Animashawun and his heirs have taken delivery of the said land in those circumstances other than as a kola tenant? As the words used in Clause 5(2) are clear and unambiguous they must be given their ordinary meaning.


It is one of the established cannons of construction that no gloss should be put on any of the words use. The function of the court is to ascertain what the parties meant by the words which they have used. (see Thames and Mersey Marine Insurance Co. v. Hamilton Fraser and Co. (1887) 12 A.c. 484 (H.L.) at p. 491. In ascertaining what the parties meant, the court must declare the meaning of what is written in the instrument, not what was intended to have been written. (see Marshall v. Berridge (1881) 19 Ch. D. 233 C.A.). It is also the duty of the court to give effect to the intention as expressed in the deed and in this respect it is not permissible to guess at the intention of the parties and substitute the presumed for the expressed intention Smith v. Lucas (1881) 18 Ch. D. 531 at p.542).


A lessor is one who lets any property to another by lease for an agreed term which is less than his own estate and who is entitled to the reversion of the property at the expiration of that agreed term. It must be remembered, however, that where the same words, such as the word “lessors” in the lease (Ex. “C”) have for many years received a judicial construction, it is not unreasonable to suppose that parties have constructed upon the accepted sense; (As per observation of Lord Halsbury, LC. in Thames and Mersey Marine Insurance Co. v. Hamilton, Fraser and Co. (supra) at p. 490). Therefore, in the instant case, the only interpretation that can be put on the provisions of clause 5(2) of Exhibit “C”, and which we now put, is that at the expiration of the term in the deed of lease Ex. “C’; the land thereby demised should delivered to the co-lessors. The 3rd defendant (Solomon Obike) was quite aware of the position and that was why he testified that before the expiry of the lease in 1962, he approached the plaintiffs in 1961 and told them that the Mgbelekeke family had promised to make a grant of the land to him as a kola tenant.


The learned trial Judge was also in error in holding that instead of claiming possession of the land, the plaintiff’s family should have sought a declaration that the sale is null and void and that the deed of conveyance (Ex. “G”) be set aside. In the first place, when a party believes or has reason to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that that transaction is null and void. Moreover, we observe, with respect that a void transaction cannot be set aside because being void ab initio there could be nothing to set aside. Finally, in an action to set aside a deed (also known as a claim for rescisssion), the possible parties to the proceedings are ordinarily the persons who were or who are deemed to have been, parties to the deed. In this case, the plaintiff’s family are not a party to the deed (Ex. ‘G”). They are therefore, not competent to bring an action to set aside the said deed.


The next point which calls for determination is this: what is the effect of the deed of conveyance (Ex. “G”) whereby the Mgbelekeke family conveyed the land in dispute to the 3rd defendant? In the first place, the deed was executed on 13th July, 1961, while the deed of lease (Ex. “C”) was still in force. As we have found earlier, the plaintiff’s family, at that date, were, as kola tenants, one of the two lessors of the 3rd defendant. When the lease expired on 31st December, 1961, the land reverted as well to the plaintiff’s family as the kola tenants. Before the Mgbelekeke family could deal exclusively with the land, as they had done by executing the conveyance (Ex. “G”) they must terminate this kola tenancy of the plaintiff’s family.


It was not contended, or even suggested, before us that the Mgbelekeke family had determined the kola tenancy of the Animashawun family in the whole land and, that being the case, they were at all material times and still are the kola tenants of the Mgbelekeke family with respect to the land in dispute. The Mgbelekeke family had therefore no such interests in the land to sell to the 3rd defendant and it must follow that the deed of conveyance (Ex. “G”) conveyed nothing to him and consequently he has no right to be on the land after the expiration of the lease (Ex.


The learned trial Judge also observed that it could also be contended that the 3rd defendant was a tenant holding over after his lease (Ex. “C”) had expired in which case an action for possession might lie under the Recovery of Premises Law. The answer to this is that it was not the 3rd defendant’s case that he was a tenant holding over. Paragraph II of his statement of defence and the evidence given in support showed, without doubt, that he relied solely on the deed of conveyance (Ex. “G”) for his possession of the land. As we had pointed out on a number of occasions, it is not the function of a court of trial to raise for the parties issues which they had neither pleaded nor relied upon. The case should be decided on the issues properly raised in the pleadings.


There is one final point to which we must advert. The defendants contended that the plaintiff in bringing “the action for and on behalf of the family of Badaru Animashawun” lacked “capacity” because he could not bring the action without the authority of the family and that as he had produced no such authorisation to sue in a representative capacity, the trial Judge was right in non-suiting the plaintiff. In support of this contention, we were referred to three cases – Efiom Duke v. Henshaw 6 W.A.C.A. 200; Adegbite v. Lawal 12 W.A.C.A. 398; and Chapman v. C.F.A.O. 9 W.A.C.A. 181. The first two of these cases dealt with the representative capacity of the plaintiffs had not established their authority to sue in a representative capacity, nevertheless gave judgment in their favour. In the instant case, the plaintiff brought the action as head of the Badaru Animashawun family. His testimony was clear on this point. From this, it is apparent that none of these cases is in pari materia. A case in point, to which we have been referred by learned counsel for the plaintiff is that of Sogunle v. Akerele and Ors. (1967) N.M.L.R. 58. There we held that a member of a family may take steps to protect family property or his interest in H; if he has not the authority of the family to bring the action, the family would, of course, not be bound by the result unless for some reason the family was estopped from denying that the action was binding. Thus If an ordinary member of a family can take steps to protect family property without the family’s authority, the head of the family, such as the plaintiff, is in a much stronger position. It is our view, therefore, that he can take steps to protect family property, and indeed it is his duty to take such steps, with or without the prior authority of the other members of the family. The learned trial Judge was therefore in error in holding that the plaintiff lacked the capacity to bring the action.


The appeal succeeds on all the points argued and it is allowed. The plaintiff should have succeeded in his claims in the court below. The judgment of Kaine, J. delivered in the Onitsha High Court in Suit No. 0/2/63 on 27th September, 1965, including the order as to costs, is hereby set aside. We accordingly order:

(1) (a) that the third defendant do give up possession of the parcel of land with the buildings thereon known and described as No. 41 New Market Road, Onitsha, (and verged pink in plan No. SE.29/63 of June, 1972;


(b)     that save with respect to the landlord’s right under the kola tenancy, the three defendants, their heirs, successors, servants, agents and assignees be restrained, and are hereby restrained, from any further interference with the customary rights under the kola tenancy of the plaintiff and his family in the said land;


(2)     that this shall be the judgment of the court.


(3)     that costs to the plaintiff in the court below against all the defendants be assessed at 50 guineas and in this court at 66 guineas.


Appeal allowed.


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