Case Review is a publication by the Litigation and ADR Department of Perchstone & Graeys, a leading commercial law firm based in Lagos, Nigeria. The publication analyzes decisions of the Supreme Court and Court of Appeal on various aspects of the Law as they impact on contemporary issues.
When matrimony may not confer right to family property or joint ownership of property
A review of the decision in TRIMSKAY NIGERIA LIMITED v. MRS. MUTIAT BANKOLE-OKI.
The Court of Appeal of Nigeria, Lagos Judicial Division recently handed down judgment in a civil appeal whose underlying factual dispute, but for the state of pleadings and the ensuing arguments therein, is arguably reminiscent of the type of dispute for which the English courts have developed the equitable relief which Lord Denning, MR famously declared: “the deserted wife’s equity’. That is, the equitable protection afforded a spouse under the English Married Women’s Act of 1882 (a statute of general application in Nigeria) to assert her rights to marital property even when she has not contributed financial and material contribution to the building of the ‘family/matrimonial house’.
Be the above as it may, and as already hinted in the foregoing paragraph, the slant of the case at hand (decision rendered on the 25th day of March 2015) was argued, and decided on a different ground. It is apposite to examine the facts.
A fully developed real property identified as No. 54 Ladipo Labinjo Cerscent, Surulere, Lagos was conveyed/sold by Chief T.A Bankole-Oki SAN (deceased) to Trimskay Nig. Ltd, the claimant/appellant company. Unable to secure possession, the company brought an action against Mrs. Mutiat Bankole-Oki, who was in possession with her children from union with Late Chief Bankole Oki SAN.
Mrs. Mutiat Bankole-Oki, in turn, counterclaimed that the property in question, was a family property belonging to herself and the vendor and that she was in occupation of same at the time of sale. She accordingly argued that the property could not therefore have been sold without her knowledge or consent and urged the court to set aside the purported sale.
In sum, Mrs Bankole-Oki claimed that she was married vide native laws and custom to Chief T.A Bankole-Oki SAN (deceased), and that the said marriage produced two children, with whom she lived at the property in question at the time of ‘purported sale’ by the vendor (her husband) to the company. Although not specifically argued (or reportedly, argued along) these lines, in what appears reminiscent of the ‘deserted equity wife’s case’, she claimed that the property is a matrimonial home which could not have been transferred, or sold without her consent/knowledge. At the conclusion of the hearing, the learned trial Judge held that the company’s failure to exercise restraint in purchasing the property and securing vacant possession prior to purchase was fatal to its case. Dismissing the claim of the claimant’s company, the trial court noted that the property was a family property being occupied by the respondent and her children and these indications ought to have discouraged the appellant from buying a house without proper investigation. Suffice it to say that the court granted Mrs. Bankole-Oki’s counter- claim, with a consequential order that she should to remain in possession and occupation of the property.
The appellant company being dissatisfied with the decision of the trial court filed an appeal to the Court of Appeal.
At the Court of Appeal
Review of decisions of the lower courts, or courts of first instance on appeal is usually done within the strict compartment of complaints or issues emanating from the decisions appealed against. It was against this clearly defined territory that the Court of Appeal examined/adopted the following issues as arising for determination in this particular appeal:
Whether the fact that the Appellant purchased the property herein in issue when the vendor had occupiers in the property who have been shown not to have any title or interest whatsoever in the property in occupation can defeat the purchase of the Appellant from the Vendor who rather showed ample evidence of title in the property to the exclusion of all.
Whether the fact of customary marriage between the Respondent and CW2 precludes the Appellant's right to recovery and changes the status of the Respondent from being a tenant at will/licensee of the Appellant upon purchase and transfer of the property in which the Respondent is merely an occupier.
Whether the principle of lis pendente lite is applicable to the already concluded contract of sale before the suit by the Defendant/Respondent was filed as to preclude the Appellant from perfecting its property during the suit.
Whether a customary marriage with a vendor of a property can create a matrimonial home in such property bought by the vendor 13 years after such marriage as to vest the children to the marriage with right to inherit same after the owner and vendor had transferred same inter vivos.
Whether the trial court was right in imposing on CW2 an intention to create a permanent interest in the res litigiosa in favour of the Respondents children by his acts when he personally disposed of the property for valuable consideration to the Appellant.
Whether the trial court was not misdirected when it based its judgment on the first Amended Statement of Defence of the Respondent and the document annexed thereto but which were neither tendered in evidence by the Respondent at trial nor relied upon in final address and held in favour of the Respondent that the property aforesaid could not be otherwise known short of a family home for the Defendant and her two sons.
At the end of the day, the Court of Appeal reversed the decision of the trial court. The Court held that the particular property in question, in the given circumstances of this case, does not fall within the precincts of what can be classified as a family property which the vendor could not validly dispose of, and that the fact that Mrs. Bankole-Oki and her children lived in that house has not elevated that to the status of a family property in Law.
Clearly, this matter was argued within narrow, or restricted confines, and thus the strictures upon which the Court of Appeal easily found Mrs. Bankole-Oki and her children mere tenants-at will in relation to their occupation of the property in question. Put differently, it does not appear as if proper equities were pleaded, and/or argued.
It is instructive to recall that the lower court found that the property in dispute was occupied by the respondent at the time it was sold to the appellant. The respondent, who was married to the 2nd defendant to the counterclaim, argued that the said property was a family property since it was purchased by her husband and occupied by herself and her children. The respondent thus argued that appellant therefore ought to have exercised caution in purchasing a property which was not vacant and its failure to do so was fatal to its case.
Curiously, one of the central issues at the Court of Appeal is whether the property was a family property in law. The import of this question soon became the focal point on which the appeal was won/allowed, though on an arguably faulty premise clearly expressed in the body of the judgment thus: “The fundamental question which the trial court itself did not carefully look at is, the right of a vendor of the property who has a wife or children to whom he owes duty to provide accommodation, will that alone constitute an encumbrance on his property or limit his power to dispose of his property to his benefit?
The court accordingly held that “it was wrong on the part of the trial court to have decided that, the Appellant can be denied the purchase of the property he made, when the vendor had occupiers in the property, and even when it is shown clearly that the said occupiers have not been able to show any title or interest whatsoever apart from occupation. The property has not even been shown to be a family property within the definition of family property in Law”.
With reference to the foregoing finding of the Court of Appeal, it is submitted that even as there was no evidence of co-ownership of the property between the respondent, Mrs Bankole-Oki and her husband, the peculiar circumstance of this case does seem to avail an equity inuring for the benefit of the wife with regards to the property. It is a settled position that a wife, whether under customary law, sharia or under the Marriage Act can assert her rights to marital property upon a claim under constructive trusts (Reference: Hon. Justice Umezulike: ABC of Contemporary Land Law in Nigeria, pg. 511). It is a trust imposed by equity in order to satisfy the demands of justice and good conscience without reference to any express or presumed intention of the parties. Unfortunately, it does not appear as if this argument was put forward, or marshalled for the respondent.
Earlier, or much as the Court of Appeal case under review, the issue of constructive trust was equally not stated, argued or adumbrated when a case with similar facts came up at the Supreme Court of Nigeria in Adaku Amadi v Edward Nwosu (1992) 5 NWLR (Pt 241) 273. Here, the respondent claimed that he purchased the buildings situate at and known as No. 179 Tetlow Road, Owerri from the former owner Mr Godfrey F.A. Amadi and having obtained a statutory Certificate of Occupancy in relation to the said property, is entitled to the physical possession of the said 179 Tetlow Road, Owerri without any molestation from any quarters whatsoever.
The appellant on the other hand claimed that the property in dispute was family property allocated to her husband (that is, respondent’s predecessor in title), herself and her children. She also claimed that she contributed labour and sand to the building of the property and that she owned it jointly with the husband. What appears to be an evidence of her contribution towards to the building was not accepted by the Court on account of failure to specifically plead same, and the Court subsequently – with respect- erroneously deciding that she ought to lead particular evidence of the quality and quantity of her contributions.
On a comparative analysis, the English courts have developed this concept as not according monied right priority over social justice. The proposition is that a wife who contributes, directly or indirectly to the purchase money gets a share of the house. Her contribution, equity has further intervened, may be directly in form of cash, or in the performance of her domestic duties or functions (such as bearing and rearing children, or simply keeping the home-front) which enables the husband to perform his economic activities. Lord Denning also made a lucid pronouncement in this regard in Falconer v. Falconer (1970) 1 WLR 1333 at page 452, when he said the following:
“It the House of Lords stated the principles on which a matrimonial home, which stands in the name of husband or wife alone, is nevertheless held to belong to them both jointly (in equal or unequal shares). It is done, not so much by virtue of an agreement, express or implied, but rather by virtue of a trust which is imposed by law. The law imputes to husband and wife an intention to create a trust, the one for the other. It does so by way of any inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement on it. This inference of a trust, the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage installments. The financial contribution may be direct, as where it is actually stated to be a contribution towards the price or the installment. It may be indirect, as where both go out to work, and one pays the housekeeping and the other mortgage installments. It does not matter, which way round, it is. It does not matter who pays what.”
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Trimskay Nigeria Limited v. MRS. Mutiat Bankole-Oki