IN THE HIGH COURT OF JUSTICE
OYO STATE OF NIGERIA IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP, THE HON. JUSTICE M. L. ABIMBOLA-CHIEF JUDGE
THIS THURSDAY, THE 28TH DAY OF FEBRUARY, 2019
SITTING AT HCT NO. 1 SUIT NO. I/ 169/2015.
MRS. TOYIN ARAJULU (formerly known and referred to } as Mrs. Toyin James)
MR. JAMES MONDAY
By a Writ of Summons and Statement of Claim dated and filed on the 8th May, 2015, the Claimant claims against the Defendant as follows:
(a) A Declaration that the one plot of landed property; the three (3) bedrooms flat and the uncompleted storey building thereon at No. 7, Fadama, Biala Estate, Olodo, Ibadan, Oyo State are jointly owned and possessed by the Claimant and the Defendant in this case.
(b) An Order that the one plot of landed property, the three (3) bedrooms flat and the uncompleted storey building thereon at No. 7, Fadama, Biala Estate, Olodo, Ibadan, Oyo State be sold and the proceeds of the sale be divided in two equal halves between the Claimant and Defendant in this case.
(c) An Order of perpetual injunction restraining the Defendant either by himself, agents, privies or whosoever called from humiliating, harassing, intimidating or assaulting the Claimant.
The defendant joined issues with the claimant by the general and specific traverses as contained in the Statement of Defence and Counter-Claim dated, and filed on the 19th June, 2015 in which the said defendant counter-claimed as follows:
(a) Declaration that the Receipts dated 15th January, 2011, 25th February, 2012 and 19th April, 2012 were forged so as to fraudulently use same to take over the Defendant/Counter Claimant’s property situate, lying and being at No. 7, Fadama, Biala Estate, Olddo, Ibadan.
(b) Vacant possession of the property situate, lying and being at No. 7, Fadama, Biala Estate, Olodo, Ibadan which the Claimant has refused to yield up despite service of Statutory Seven day’s owner’s intention to recover possession served on her.
(c) Perpetual Injunction restraining the Claimant, her servants, agents, privies and anyone claiming through her from further occupying or being in possession of the Defendant/Counter Claimant’s property situate, lying and being at No. 7, Fadama, Biala Estate, Olodo, Ibadan
The Claimant’s gave evidence before the court substantially in line with the facts deposed to in her statement of claim which evidence could be summarized as follows: That she was formerly known as Mrs. Toyin James, a name she bore as a result of marriage to the Defendant, her former husband. The union is blessed with four (4) children namely:
(i) Agnes James (14 years). (ii) Bidemi James (12 years). (iii) Samuel James (8 years), and (iv) Oluwadarasimi James (1 year).
That the parties got married under native law and custom in 1997 and the union was dissolved on 2nd July, 2014 pursuant to an order of the Grade ‘C’ Customary Court, Iyana-Offa, Lagelu LGA, Ibadan, Oyo State at the instance of the defendant in an action filed at the court.
That during the period of her marriage with the Defendant, they jointly put their resources together and built a two (2) flat property (comprising three (3) bedrooms each) at Ayedun, Akure, Ondo State in the year 2004. However, in the year 2006, the defendant sold the land which was under construction without her knowledge and for his personal benefit.
That in the year 2012, the Claimant and the Defendant jointly purchased one plot of land at No. 7, Fadama, Biala Estate, Olodo, Ibadan, Oyo State for the purpose of building their residential house, which they had completed and they started building another storey building, which is still under construction.
That the land was purchased for a sum of N400,000.00 (Four Hundred Thousand Naira) paid in three installments, of which she contributed N150,000.00 (One Hundred and Fifty Thousand Naira).
That at a point in time, she requested for a Purchase Agreement to be drawn up to show the joint purchase but the Defendant insisted that the receipts of purchase as obtained was enough and sufficient. During purchase and construction of the three (3) bedrooms flat and the uncompleted storey building, both parties as husband and wife then, did not keep a regular and specific record of expenses in respect of construction and building
However, a few receipts of their joint expenditure had been forcefully taken from her by the Defendant save for a few receipts which are in her custody.
That not less than the sum of N2,000,000 (Two Million Naira) of her money was contributed in good faith to the purchase of the land and the building jointly with the Defendant for the benefit of their four children. That before the final dissolution of the marriage in 2014, the Defendant moved out of the house at No.7, Fadama, Biala Estate, Olodo, Ibadan, Oyo State but comes to the house regularly to unleash violence on her and their four children in a desperáte determination to forcefully eject her and the children in order to sell off the building.
That on 15th August, 2014, the Defendant in Company of four hefty men arrived at the house and started beating, molesting and assaulting the Claimant and her four children; threw her belongings outside the house, broke bottles and even injured one of the Claimant’s son, Bidemi James in the process. The sum of N530,000.00 (Five Hundred and Thirty Thousand Naira) meant for the Claimant’s business, was also taken away.
That in Defendant’s desperate bid to eject her out of the property, in October 2014, the claimant was arrested and detained at the instance of the Defendant by the State Criminal Investigation Department, Iyaganku, Ibadan based on a petition by the Defendant dated 29th September, 2014 on allegations of threat to life, stealing and malicious damage made against the claimant. During the arrest, the Claimant was served with a “Seven days’ notice of owners intention to recover possession dated 3rd November, 2014, and in December 2014, was served with a ‘Summons for Possession’in a suit filed by the Defendant.
The claimant avers that the Defendant had concluded arrangements to sell off their joint properties at No. 7, Fadama, Biala, Olodo, Ibadan, Oyo State without her consent and approval hence the continuous victimization by the Defendant.
The Claimant in her additional Witness’ Statement of Oath by way of further evidence stated that she had been successfully established in her provision business at Akure, Ondo State before and during her marriage with the Defendant and she was never a full time house wife during their seventeen years of marriage; proceeds from Claimant’s business was used in paying rent of the one room and parlour house they first resided after marriage at Albert House, Ayedun, Oba-Adesida, Akure. She also stated that, joint payments of the plot of land at No. 7, Fadama, Biala, Olodo, Ibadan, Oyo State was first made to a vendor by name, “Mr. Olorunibe Adebowale Biala in December, 2011 and concluded payment in April, 2012, hence receipts were never forged as they were issued by the vendor. Land agreement was not issued at the time of purchase but was only procured for the purpose of this case. She also claimed the signature on the land agreement is not the Claimant’s signature as witness only as she did not sign any document.
The claimant stated further that she contributed substantially to the upkeep, feeding and education of the children as well as developing and building as their joint property, the subject matter of this case. However, most of the contributions were not documented. Items and materials of the building were purchased jointly at every point with the defendant.
The first sum of £400,000.00 was paid jointly by the parties but since it was a part payment, no receipt was issued; defendant only paid the balance of N10,000.00 to obtain receipt during the pendency of this case. That claimant did not lend the Defendant money to build their house but resources were pulled together. That the Police came to realize that the allegations by the Defendant were fabricated just to harass, humiliate and intimidate the claimant; the claimant thus was released unconditionally and the Defendant was subsequently reprimanded for using the Nigerian Police to harass and victimize the Claimant unlawfully.
The Defendant made attempts to remove the Claimant from the property in dispute by instituting an action in court asking the court to order Claimant to vacate the building which action was subsequently struck out. Despite the unsuccessful attempt at court, prospective buyers still come to the house regularly to inspect it and they even asked the Claimant and her children to vacate the house so as to enable them complete sales arrangement with the defendant; efforts to get their names proved abortive as they would not give their names. Consequent upon the visits for inspection, Claimant informed her solicitors and directed them to inform the court of the development and since the case was pending.
Claimant stated that, after the joint purchase of the land at Olodo, Ibadan, Oyo State and during construction, one Mr. Oyelere informed them that the land had previously been purchased by him from Chief Alfred O. Biala and two others who were family members to their former vendor, Mr. Olorunmbe Biala therefore asked them to vacate the land.
The parties refused to vacate the land because construction work had begun. The parties later decided jointly to make a refund of N300,000.00 in order to have peaceful possession. Despite the pendency of this matter, Defendant is still making efforts to sell the house and if the house is sold, it will cause hardship to the Claimant and her children as they will become homeless.
That in furtherance of jointly pulling resources together and contributions between Claimant and Defendant, they formed and registered a business enterprise in the name of the third child, Samuel James known as Sammy James Enterprises. She also stated that at no time has she stolen from the Defendant or she bought another land, the one she jointly purchased with Defendant is the only land she has for the benefit of their children. She stated that once she and her children are evicted, she would suffer untold hardship and her children school will be grossly affected as she had spent her money building the house hoping it will be for the benefit of her children. The Claimant also stated that, the Defendant’s witnesses have no means to know. How both of them manage their finances and even have criminal matters bothering on forgery and conspiracy at the Chief Magistrate Court, Iyaganku?
The above is the essence of the Claimant’s case. She gave evidence as CW1 but called no witness. She however tendered the following documents as prove of the joint ownership:
(1) The copies of receipts of purchase of land dated 15th February, 2011, 25th February, 2012 and 19th April, 2012 – Exhibits A1, A2 and A3.
(2) The copy of receipt showing part of the parties’ joint expenditure on the purchase of planks for the roofing of the building dated 15th December, 2012 – Exhibit A4.
(3) The copies of photograph pictures showing the buildings – Exhibit A5.
(4) The copies of photograph pictures of the wounded son, loads thrown out and bottles broken – Exhibit A7 and A8, A9 and A10.
(5) The copies of petition dated 29th September, 2014 written and signed by Adewale Oyesola, Seven Days Notice of Owner’s Intention to Recover Possession dated 3rd November 2014 and Summons for possession in the Suit No. MI/1069/2014 dated 1st December, 2014, claims dated 24th November, 2014 and the Affidavit in Support of Claims – Exhibit All
(6) Copies of photograph pictures indicating the pendency of this case – Exhibit A154, Exhibit A155
(7) Copy of receipt of the Claimant’s shop at Academy, Ibadan dated 1st June, 2014 – Exhibit A121
(8) Copy of photograph picture showing the stock of goods in the Claimant’s shop – Exhibit A122
(9) Copies of the school receipts of the Claimant’s Children showing part of the Claimant’s contributions to same – Exhibit A123, A125, A126, A127, A128, A129.
(10) Copies of photograph pictures of the demolished structures by Mr. Akinyoola Suaheeb Oyelere and of the day said three (3) bedroom building was roofed – Exhibit A15.
(11) Copies of the documents including the Certificate of Registration of Business name showing the particulars of Sammy James Enterprises – Exhibit A14.
(12) Copy of the Charge No: MI/1373C/2014 – Exhibit All.
After close þf her evidence, the defendant opened his case called four witnesses and testified as DW4. His witnesses are:
Mr. Akinyoola Suaheeb, a Surveyor testified as DW1. He testified that he knows the Defendant/Counter Claimant but does not know the Claimant. He testified further that in the year 2008, he purchased one plot of land from the head and principal members of the Biala family of Olodo under Native Law and Custom and receipts dated 12th February, 2008 and 28th August, 2008 were issued to him and a land sale agreement was also executed in his favour by Biala family. Sometime in 2011, he discovered the presence of the Defendant on the land, after challenging him, he said that it was one Olorunmbe Biala that sold the land to him. He showed the Defendant two receipts and the land sale agreement executed in his favour by the head and principal members of the Biala family. That the Defendant decided to repurchase the land from him by paying the sum of N300,000.00 (Three Hundred Thousand Naira) and he made a land Agreement for him in his hand writing and a land sale agreement was also executed in the Defendant’s favour where he signed as a vendor, the Claimant and one Aliu Kazeem signed as witnesses for him.
Babatunde Olawale Olanipekun, a land agent/insolvency practitioner testified as DW2. He testified that he knows both parties to this suit and has known them since they lived at Galilee Area, Olodo, Ibadan. He stated that during the period he knew both parties, Defendant was working while Claimant was a full time housewife. That in 2010, Mr. Olorunmbe Biala informed him that he wanted to sell the land partitioned to him by his family of which he subsequently informed the Defendant who had earlier told him he was looking for a piece of land to build his house.
That, he, Mr. Olorunmbe Biala and the Defendant went to the land at Fadama, Biala Estate, Olodo and the Defendant said he liked the land and wanted to buy it. Defendant said he cannot pay the purchase money at once but will pay for it three times. The Defendant paid the sum of $150,000.00 (One Hundred and Fifty Thousand Naira) as first instalment and he was instructed by Mr. Olorunmbe Biala to write the receipt and he signed it.
The second installment of N130,000.00 was paid by Defendant and he was further instructed by Mr. Olorunmbe Biala to write the receipt and she signed it. That she also signed as a witness to the land sale agreement executed in the Defendant’s favour while Claimant signed as witness in the agreement. He also stated that she was present when the land was handed over to the Defendant in the presence of Claimant and other witness.
Alhaji Jimoh Ademola, a bricklayer testified as DW3. He testified that he knows the parties in this suit and that he was commissioned by the Defendant to build his house at Fadama, Biala Estate, Olodo, Ibadan. He stated that all the materials used in building the two houses were bought by the Defendant and that Claimant occasionally came to supervise whenever Defendant was not around. He also stated that Claimant did not at any time give money to purchase material meant for the construction of the house.
He further stated that anytime they ran out of materials and the Defendant was not around, they used to wait for his return where he will give money to buy the needed materials or purchase it himself. He stated throughout the period he constructed the Defendant’s house, the Claimant was a full time housewife who was not working.
The Defendant then gave evidence as DW4. He testified that the Claimant is his former wife. That at the time he purchased the land situate at Block O, Plot 1A, 1B, 2 and 3 on Oba Adesida Layout, Oyemekun/Egbe Road, Akure, the Claimant was a full time housewife who was not working and did not contribute towards the purchase or construction of the land, he stated that the land was at Oba Adesida Layout, Oyemekun/Egbe Road, Akure and not at Ayedun as stated by the Claimant. He therefore purchased the land and constructed it from his sweat and sold same as of right and did not need the consent of the Claimant to dispose it off.
The Defendant testified that he purchased the plot of land situate at Fadama, Biala Olodo, Ibadan, Oyo State in the year 2010 under native law and custom and completed payment in the year 2011 and not 2012 as stated by Claimant. He was also issued receipts dated 31st December, 2010 and 24th February, 2011 by his vendof, Mr. Olorunmbe Biala and a land agreement was also made in his favour upon completion of payment. Defendant also stated that on the two occasions when payment was made, it was in the house of one Mr. Babawale Olanipekun who acted as the link man and even wrote the receipts on behalf of Mr. Olorunmbe Biala who then signed same.
The Claimant only signed as witness when the land was handed over to him in the presence of Mr. Bello Dariowo, Mr. Babatunde Olawale Olanipekun and Mr. Rasheed Alagbe. He testified that the Claimant wants to fraudulently take over his property situate at No. 7, Fadama, Biala Estate, Olodo Ibadan.
Defendant testified further that there was no joint contribution between Claimant and himself towards purchase or construction of the land in dispute and he did not forcefully take away any receipts as there was no receipt jointly issued to them.
Defendant made reference to the Grade ‘C’ Customary Court that dissolved their union during cross examination when he asked her if he borrowed money from her to build his house, of which the Claimant answered ‘NO’ He has also denied any form of violence against Claimant or their children or of selling the house as it was only a court bailiff that was executing judgment that was in the house and no amount of money was stolen by anybody. Owner’s intention to recover possession only came about as a result of dissolution of marriage with the Claimant
Defendant testified that one Mr. Olawale Olanipekun informed him that Mr. Olorunmbe Biala had a plot of land for sale at Fadama, Ibadan and all three went to inspect the land of which Defendant signified his interest to purchase the land. He paid the 1st instalment of N150,000.00 on 31st December, 2010 and receipt was issued on same date. Second instalment of A130,000.00 and the final payment was paid on 24th February, 2011 and a receipt was issued in the presence of Mr. Olawale Olanipekun and Mr. Olorunmbe Biala who signed the receipt and executed the agreement in his favour of which the Claimant signed as a witness and the land was handed over to him.
He testified that the claimant has never engaged in any form of business but has only been a full time housewife who depended on what was given to her by him. He said that he is a businessman who imports vehicles and travels from one country to the other.
Defendant testified further that he commenced building on the property in dispute even before he completed payment relying on the assurance received from his vendor that he could commence building. He also testified that he employed the services of Lofty Pillars Development Consortium to obtain building plan from Egbeda Local Planning Authority and paid N5,965.00 on the 22nd February, 2012 and the plan was approved on 14th March, 2012.
He has also been purchasing different building materials for his house before he completed payment. That one Mr. Akinyoola Oyelere claimed ownership of the house through receipts dated 12th February, 2008 and 28th August, 2008 issued by the Biala Family alongside a land sale agreement. Defendant therefore repurchased the said land with a hand written agreement and a land sale agreement from Mr. Akinyoola Oyelere for peace to reign as construction had reached an advanced stage.
Defendant stated that after the dissolution of the Marriage, Claimant started sending hired assassins to eliminate him hence his decision to leave the house and rent a house somewhere else. Sometime ago, he was attacked by hoodlums who destroyed his vehicle and he only managed to escape. These incessant attacks led the defendant to petition the Commissioner of police, Claimant was invited and interrogated and warned to desist from such attack, she was not prosecuted then because she was carrying a baby. Defendant testified further that where he moved to is not conducive and convenient, hence his decision to inform his solicitors to write a seven day’s owners’ intention to recover possession of the premises from Claimant since the marriage had been dissolved. But claimant refused to leave the house and that was why the case at the Magistrate Court was instituted to legally evict her from the premises.
Defendant stated that he usually follows any artisan to purchase building materials so as to append his signature on the receipt. Claimant only goes to supervise the building in his absence. He also paid for the cement used in building as it was one Yisau who brought the cement on his motorcycle.
He also testified that Claimant stole his money to purchase a land at Olodo and he stumbled on the land sale agreement made for her. He also stated that whenever materials was finished on the site and he was in the country, the artisans usually waited for him to return from his journey and at no time was receipt issued jointly in his name and Claimant’s name.
He also tendered several documents to support his case as follows:
(1) Copy of the agreement of sale of uncompleted building prepared by Hon. Ajinde Oluyemi Esq. – Exhibit D.
(2) Receipts dated 31st December, 2010 and 24th February, 2011 issued by Mr. Adebowale Olorunmbe Esq. – Exhibit G series.
(3) Land purchase agreement dated 24th February, 2011 prepared by S. Olakunle – Exhibit E.
– (4) Certified True Copy of the proceedings in Suit 32/2014, page 14 Local Government Grade ‘C’ Customary Court – Exhibit A13
(5) Revenue collector’s receipt number 402725T dated 22nd February, 2012 and approved building plan dated 14th March, 2012 – Exhibit F1.
(6) Various receipts issued to him where the Defendant purchased materials used in constructing the building – Exhibit G series.
(7) Receipts dated 12th February, 2008 and 28th August, 2008 issued to Mr. Akinyoola Suaheeb Oyelere by the Biala family – Exhibit E.
(8) Copy of Land Sale Agreement executed in favour of Mr. Akinyoola Suaheeb Oyelere by the head and principal members Biala family dated 2nd August, 2008 – Exhibit B2.
(9) Hand written agreement made for the Defendant by Mr. Akinyoola – Exhibit B3.
(10) Land Sale Agreement executed in the Defendant’s favour by Mr. Akinyoola – Exhibit B2, Exhibit H and Exhibit B4.
(11) Certified True Copy of the judgment in Suit 32/2014, Lagelu Local Government Grade ‘C’ Customary Court – Exhibit I.
(12) Copy of the Photograph of the Defendant’s car wind screen damaged by the Claimant’s hoodlums – Exhibit K.
(13) Land Sale Agreement executed in the Claimant’s name – Exhibit E.
That was the Defendant’s case before the court.
After close of the defence, learned counsel agreed to exchange and adopt written address.
In his final written address dated and filed on 29th August 2016, the Defendant’s counsel Mr. K. A. Oyesola formulated five issues for determination by this court to wit:
(1) Whether Exhibits A1, A2 and A3 tendered by the Claimant can validly confer joint ownership of the property situate at No. 7, Biala Estate, Fadama, Olodo on the Claimant and the Defendant.
(2) Whether Exhibits A1, A2 and A3 tendered by the Claimant were not forged in view of the discrepancies and alterations in the dates and signatures of the receiver.
(3) Whether Exhibits Al, A2 and A3 tendered by the Claimant were not forged in view of their distinct nature in form and character from Exhibits C and Cl.
(4) Whether from the totality of the evidence led before this Honourable Court, the Claimant is entitled to the reliefs claimed in paragraph 17 of her statement of claim.
(5) Whether the claimant is entitled to any injunctive order of this Honourable Court.
On issue 1, the defendant counsel submitted that the claimant failed to discharge the burden placed on her by the law. That the Claimant failed to tell this court how she came about those receipts or call the person who issued the receipts.
Defendant’s counsel referred to Exhibits B, B1, B2, B3 and B4, to say that the claimant failed to cross-examine the Defendant’s witnesses on these documents. He urged the court to resolve issue one in favour of the Defendant.
On issues 2 and 3, the Defendant counsel submitted that Exhibits AS1, A2 and A3 were forged by the Claimant to fraudulently confer joint ownership of the property in dispute on the parties.
He further submitted that the Claimant ought to have called Olorunmbe Adebowale Biala, the person whom she alleged issued Exhibits A1, A2 and A3 to come and clarify issues on the documents. The Defendant submitted that failure to call Olorunmbe Adebowale Biala is fatal to the Claimant’s case.
Also it is submitted further that he has been able to prove beyond reasonable doubt that Exhibits A1, A2, A3 and A4 tendered by the Claimant were forged
On Issue 4, it is submitted that apart from Exhibit A1, A2 and A3, the Claimant was unable to show or tender before the court any other document conferring joint ownership of the property on the parties.
Defendant counsel submitted further that it is ironical that it is only the Claimant who appended her signature on Exhibits A1, A2 and A3 despite her claim that they both contributed money to purchase the land.
The defendant counsel also submitted that the claimant failed to lead credible evidence of joint ownership of the disputed property as she failed to call any other person to buttress her deposition unlike the defendant who called DW1, DW2 and DW3 to lead credible evidence to his own depositions on how he single handedly purchased the land and built on it.
On issue 5, the Defendant submitted that relief 3 of the Claimant’s claims is not competent as the claimant cannot ask for this relief in the substantive suit. He urged the court to resolve the issue in his favour.
On the Defendant’s counterclaim, three issues were formulated thus:
(i) Whether Exhibits A1, A2 and A3 tendered by the Claimant were not forged in view of their distinct nature in form and character from Exhibits C1 and 22.
(ii) Whether the seven days notice of owner’s intention to recover possession served on the Claimant by the Defendant is not adequate and sufficient to eject the Claimant from the Defendant’s house after the dissolution of their marriage.
(iii) Whether from the totality of the evidence adduced before the court, the defendant Counter Claimant has not proved his case to be entitled to the reliefs claimed in paragraph 32 of his statement of defence and counter claim.
On issue 1, counsel to the Defendant adopted his argument on Issues 1, 2 and 3 of the main claim and urged the court to allow the counter claim.
On issue 2, the defendant/counter-claimant submitted that the refusal of the claimant to pack out of the property in dispute after the dissolution of her marriage to the Defendant has automatically turned her into a tenant at will who only requires seven days’ notice to recover possession. He referred to the decision in Sule y. Nig. Cotton Board (1985) 2 NWLR (Part 5) P.17
On issue 3, counsel adopted his arguments on Issues 1, 2, 3 and 4 of the main claim and Issues 1 and 2 of the Counterclaim. He urged the court to resolve these issues in favour of the Defendant and grant the counterclaim of the Defendant.
The Claimant counsel Mr. Victor Adewole in his final address dated and filed 14th September, 2016, formulated the following issues for determination:
1. Whether, from the evidence before this Honourable Court, both
the Claimant and the Defendant, are not joint owners of the one (1) plot of landed property, the three (3) bedroom flat and the uncompleted storey building built thereon at No. 7. Fadma, Biala Estate, Olodo, Ibadan, Oyo State, acquired during the 17 years of their marriage that produced four (4) children, but dissolved by the Grade ‘¢ Customary Court, Iyana-Offa, Ibadan on the 2nd July, 2014.
2. Whether, the Defendant/Counter-claimant’s allegations of forgery and fraud against the Claimant in respect of the receipts dated 15th January, 2011, 25th February, 2012 and 19th April 2012 in Exhibits A1, A2 and A3 respectively, have been proved beyond reasonable doubt by the Defendant/Counter-claimant as statutorily required.
3. Whether, this Honourable court has the discretionary power to
share the two (+) buildings (ile. the three (3) bedroom flat and the uncompleted storey building) on the one (1) plot of the landed property at No. 7, Fadama, Biala Estate, Olodo, Ibadan, Oyo State in the Exhibits A5, A6, A154 and A155 between the Claimant and the Defendant, as a consequential order in the alternative to the leg 2 of the Claimant’s prayers/claims in the interest of the children of the marriage whom have been living with the Claimant since 2014 and who should benefit from the properties as if It were jointly acquired by the parties.
The claimant counsel submitted on issue 1 raised, that the properties are jointly owned and acquired by both of them during the period of their seventeen years of marriage from their joint resources and ventures.
The claimant submitted further that it was because of the desperate determination of the defendant to evict the claimant, and her children from the subject matter, that was why he, the Defendant explored series of nefarious means to push them out of the properties to enable him sell same as he did to their property at Akure, Ondo State which he sold without the Claimant’s consent.
On issue 2, the Claimant submitted that the Defendant failed to prove the allegations of forgery and fraud beyond reasonable doubt against the claimant.
It was submitted on behalf of the claimant that it is only the maker of Exhibits A1, A2 and A3, Mr. Olorunmbe Adebowale Biala who was listed but not called, that can establish that Exhibits Al, A2 and A3 were or were not issued or made by him.
Counsel to the claimant submitted further that the Defendant’s testimonies on the allegations of forgery and fraud against the claimant are hearsay evidence which is inadmissible evidence in law, but where admitted, no evidential value shall be attached to it.
On issue 3, Claimant submitted that exhibits A123, A124, A125 and A126-11 tendered and relied on by the claimant show that she has been responsible for the upkeep of the children. He urged the court to share the property in dispute in the paramount interest of the children.
In reply to the counterclaim, the’ claimant’s counsel submitted that none of the Defendant’s witness testified that he knew how the claimant and the Defendant managed their financial affairs during the period of their marriage.
Counsel to the claimant urged the court not to ascribe any probative value to Exhibits C, C1 and E because the disclosed principal Adebowale Olorunmbe Biala was not called to testify. He urged the court to grant the claimant’s claims and dismiss the counterclaim.
I have given serious consideration to the respective averments in the pleading and the evidence proffered by the parties and witness called and documents tendered. I have equally considered the issues raised and argued by the respective counsels and cases cited, after a regurgitation and deep thought on the above, my view is that the core issue in context and apt for a resolution of this case and the point in dispute is on joint or exclusive ownership of the property within the content of previous marital relationship. Although the respective parties had tendered documents and called evidence in support of their respective contentions.
I am of the view that both parties contend contributions to the building. The claimant’s claim is to the effect that during the pendency of her marriage with the defendant, the land at No. 7, Fadama, Abiala Estate, plodo, Ibadan was purchased by both of them and 2 buildings were being constructed on it. One is completed and they stay therein. Also I am of the view that one should not overlook the interest of issues of the marriage. The issue relates to the determination of owner of the property built during marriage but the marriage later dissolved. What is the interest of issues of the marriage in consideration of the dispute? Must I overlook it? No.
The defendant admitted that yes it was during the pendency of the marriage that the land was purchased and the constructions took place, but the wife had no contribution to the purchase of land or the construction thereon. Thus since she had been divorced she must be evicted; she had made no monetary contribution to the purchase of the property. The property is his exclusively. However it is common ground that the subject matter of this dispute was purchased during the pendency of a subsisting relationship of husband and wife under Native Law and Custom between claimant and defendant. Also there is no dispute that both the husband, the wife (then) and the 4 children were living in one of the building the other being under construction before the dissolution of the marriage.
If the parties had agreed that the defendant built the house on his own effort before marrying the claimant, then absolutely there is no dispute at all as a wife claimant cannot under any law lay claim to any share of the property by reason of the subsequent marital relationship. Equally too a husband cannot claim exclusive ownership of property built by the wife before they were married, see section 16 of Married Women Property Law of Oyo State 2000. Section 20 however limits the application of the law to women married under the Marriage Act. But what is the position of the married woman under Native Law and Custom?. Can a woman be denied the ownership and title to her property acquired before marriage? I don’t think so. Because to so hold would be repugnant to natural justice equity and good conscience.
By the facts and circumstance of this case, when it is evidently clear that a building or property was purchased and built during the pendency of a union of husband and wife under native law and custom, my view is that the question of ownership of such property transcends the simple question relating to the principles of ownership of property and proof thereof. If a wife claims that she contributed in building the house together with the husband one way or the other although most contributions are not documented, that she paid children school fees and even performed wifely duties such as taking care of the children which are unquantifiable in monetary funds.
What consideration would be involved? The principle is settled that if a party leads credible evidence in support of a claim or relief such claimant would not be denied the relief or remedy merely for reasons of failure to state the law under which the relief is claimed. Where there is a wrong, there is a remedy. It is a law of remedy or proof. From the evidence proffered by the parties before me. I hold that the defendant by the evidence of the DW1, DW2 and DW.3 as well as the combined effects of Exhibit B2, Exhibit D, Exhibit E, Exhibit F. Exhibit C, Exhibit H, Exhibit G series and B4 and lastly Exhibit B3 purchased the plot of land upon which the building stands
However as to the building the defendant himself agreed in evidence as DW4 and the evidence of DW3 that the wife / claimant helped him in supervision whenever he is away. How do you quantify that supervisory contribution within the facts of her claim. Not that alone. I also believe and accept the evidence of the claimant that she made contributions in the building of the house one way or the other whether in cash or kind. She also had four children for the claimant and she stated which I agreed with her that she at the times pay school fees and responsible for upkeep of the children.
The school fees receipts are Exhibit A series and supports her assertion. This fact is not disproved by the Defendant that at no time did she pay the school fees of the children. The question that calls for consideration and resolution transcends the mere claim of ownership to property absolutely. It is a question that involves the right of a wife as to matrimonial home; the right to proprietary interest, the right of occupation during the marriage and the right to maintenance of children after dissolution of the marriage.
Therefore in claims such as this as to dispute between spouses, it cannot be determined by strict rules of ownership or proofed title but by equitable principles and the discretion of the court about what is fair having in mind the interest of the children, where will they live? Who takes care of them? I have evidence before me that the children are with the claimant in the disputed buildings. In fact one of them was shown to have sustained head injury inflicted by the defendant/husband in the process of trying to evict the claimant.
By virtue of the decision in Amadi Vs. Nwosu (1992) 5 NWLR 273, Married Women Property Act of 1881, statute of general application is held not to be applicable. However the principles and philosophy of the Married Women Property Act 1881 can be of persuasive guide line. This in my view is due to the fact that native law and custom could be applied if not repugnant to natural justice, equity and good conscience.
Moreover our native law and custom is dynamic and changes with modern concept as society becomes more civilized. Therefore the influence of English legal jurisprudence on rules of customary law cannot be totally ignored. This explain why I would be guided by those rules and the legislative intention in those provisions.
The principles of natural justice as enunciated in the Act when interpreting the provisions of and espousing family ownership of property where fairness is enjoined has actually guided my reasoning. Therefore a consideration of the facts put in contention by the parties to this case in my view encompasses a wide spectrum of rights pertaining to family properties, rights of the children, of the parents, of the wife or wives, it would not therefore be unfair to be guided by principles intended in the Married Women’s Property Law of Oyo State which confers a court with a wide discretionary power about what is fair just and equitable in determining claims on the property in question because the Married Women Property Act 1881 and the Married Women Property Law of Oyo State recognizes the validity of customary marriages and thus the rights therein even though Section 20 ‘of the latter law limits its application to marriages under the Act. See Section 35 of the Marriage Act Cap. M6 LFN 2004 that also gives statutory recognition to Customary Marriage.
Having the above at the background of my mind. I shall proceed to determine this case upon those principles. The Married Women Property Act espouses and identify 3 principles which I use as pathfinder in my consideration of this dispute (1) firstly that at the time of purchase of the plot and construction of the building, what was the intention of both parties, or do parties herein intended that once the property is completed it should belong to the one of them as absolute and exclusive owner or where parties are seen to have a common intention of joint ownership of the property as shown by the claimant in this case when she showed some receipts bearing Mr. and Mrs, in respect of the property, the court would undoubtedly give effect to those intention of joint ownership. Although the defendant alleged fraud, no fraud on those receipts the act of fraud is not actually demonstrated and this not proved on the receipts Exh. A3.
The heading showed that the receipt was issued by the vendor Mr. Biala. Exh. A4 shows purchase of materials. Where parties are held to have with joint efforts contributed in the purchase of land nor building of a property, it does not matter whether there is disproportional contribution, the court will infer a joint endeavour and an intention that each has equal shares; the presumption is that the beneficial interest belongs to both of them jointly. The question is if the husband claims that he made money available for the purchase and construction and the wife equally contend and state her contribution viz taking care of the children, paying their school fees and do other sundry duties which can never be monetarily quantifiable if so found by the court as I have done here, there is a presumption of beneficial interest to both, particularly as in this case when it is further undisputed that there are four issues of the marriage now living with the claimant.
The beneficial interest belongs to them jointly. This is what is known as “palm tree justice” as a principle under the principles and philosophy of the Married Women Property Act. It does not matter in whose name the property stands or who pays for what. It is within these principles that I am now going to determine the claims of the respective parties, i.e. both the claims and counter claims before me. The determination to me transcends strictly legal rights on property ownership but involves simply what is fair, just and equitable in the circumstances of this case. (See Hine Vs. Hine (1962) 1 WLR 1124 at 1128. Applying the rules within the proved facts as I find’above I hold that the accrued right of the claimant is not only proprietary by reason of her little contribution but also possessory and can be perpetual.
From the above findings I hereby grant the 1st claimant’s relief to the effect that it is hereby declared that the landed property at No. 7, Fadama, Biala Estate, Olodo, Ibadan, Oyo State together with the 3 bedroom flat and the uncompleted storey building thereon is jointly owned and possessed by the claimant and the defendant in this case
On the 2nd relief, the claimant claims that the 3 bedroom flat and the uncompleted storey building thereon be sold. I would not order such sale in respect of the two buildings on the Plot No. 7, Fadama, Abiala Estate, Olodo, Ibadan as no useful purpose would be served by the sale of the two houses.
The same construction and application of Section 17 Married Women Property Law of Oyo State Cap. 83 Laws of Oyo State, 2000 which gives a court the discretion to determine such issue of ownership as it thinks fit on issues of title or possession to the property when in dispute. The principles can be a source and guard for my consideration as to when parties are married under customary marriage since the Act and law does not treat such marriages as invalid marriages. S. 35 recognizes the validity of customary marriages, therefore the principles could apply and be persuasive in determining rights arising from marriages under native law and custom.
My order is to the effect that the completed three bedroom on the land be retained and the claimant and her children should stay therein and remain in possession and occupation as the matrimonial home and the four children are entitled as beneficial owners, by way of presumption of a resulting trust created by both for their children and the mother can remain in possession so long as she remain unmarried, she is directed to be in possession undisturbed in order to take care of the children therein.
The uncompleted storey building however is ordered to be sold by both parties and the proceeds divided in equal shares. The half share shall go to the Claimant for the maintenance of the children and their education but a divorced wife has no business to be maintained. She is not entitled to any maintenance allowance.
Lastly, the Defendant either by himself, agents, privies or whosoever claims through him is hereby restrained from disturbing the quiet possession of the claimant and the children or humiliating, harassing, intimidating or assaulting the claimant in any way whatsoever. The rational is that a husband who marries a woman and builds a house during the pendency of the marriage stands the risk of loosing that house if he later divorces the woman who had children for him and lay claims to joint ownership unless such woman of her own volition leaves the matrimonial home.
Also although a divorced woman is not entitled to any maintenance allowance but would be entitled to maintenance of the children by way of settlement if she has custody of the children of marriage.
I find no merit in the counter claims and it is dismissed in its entirety having regards to the facts and circumstances as proved before me and my reasoning and holden thereon.
This is my Judgment.
HON. JUSTICE M. L. ABIMBOLA
Parties: Parties are absent.
Counsel: Mr Victor Adewole for the Claimant. Mr K. A. Oyesola for the Defendant/Counter Claimant.
CERTIFIED TRUE COPY
K.O. LAMIDI HUSSEIN (MRS.)
DATE: March 20, 2019