MR. BABATUNDE HARDING & ANOR. V. ADMINISTRATOR GENERAL AND PUBLIC TRUSTEE OF LAGOS STATE & ANOR. (2016)

Background

This appeal arose from the judgment of the High Court of Lagos State, Ikeja Judicial Division, delivered on 17 June 2011 in Suit No. ID/655M/2009. The appellants, Mr. Babatunde Harding and Mr. Olufemi Sokenu, claimed to be lineal descendants and beneficiaries of the residual and reversionary estate of the late Williams Richmond Harding. The estate was governed by a Will dated 16 June 1921, which was probated in 1927. In an earlier judgment delivered by Gbaja-Biamila J. in Suit No. ID/800M/2001, the appellants had been declared beneficially entitled to the residual estate, and the Administrator General and Public Trustee was said to have been divested of its administration and trusteeship.

The dispute concerned property known as No. 8, Alli Street, Lagos. The appellants asserted that the property was vacant and unsold and that, following the earlier judgment, they were entitled to its reversionary interest. By originating summons, they sought declarations of entitlement, an order directing the 1st respondent to execute a vesting deed in their favour, and an order directing the Registrar of Titles to rectify the register. The 1st respondent denied that the property remained in its custody, contending that it had allegedly been transferred or sold to Sir Kofo Abayomi. The trial court considered Sir Kofo Abayomi, or his estate, to be a necessary party and dismissed the appellants’ claims because he had not been joined.

Issues

1. Whether the non-joinder of Sir Kofo Abayomi, described as an interested or purported purchaser, was capable of defeating the appellants’ claims against the named respondents.
2. Whether the principle protecting an equitable interest in land acquired through payment and possession applied to the alleged purchaser in the circumstances of the case.

Ratio Decidendi

The Court of Appeal held that non-joinder of a necessary party is generally an irregularity and does not deprive the court of jurisdiction or render an otherwise competent action incompetent. Under Order 13 of the High Court of Lagos State (Civil Procedure) Rules, 2012, where the presence of a person is necessary for the effectual and complete determination of the questions in dispute, the court may add that person as a party. Alternatively, the court may strike out the proceedings to enable the claimant to relist them after joining the necessary party. Dismissal of the claimant’s substantive claims solely for non-joinder is not the proper course.

The court further held that although a judgment ordinarily cannot adversely affect a person who was not a party to the proceedings, an exception exists where that person is a privy of a party. A purchaser claiming through a party who allegedly transferred the same property may be bound by a judgment against that party, particularly where the subject matter is identical. Sir Kofo Abayomi was therefore a privy of the respondents and was not a necessary party whose absence could defeat the action.

The court also reaffirmed that uncontroverted facts in affidavit evidence must ordinarily be accepted as true unless they are palpably false, unreasonable or frivolous. Since the respondents did not controvert the appellants’ depositions that the property was vacant and that the appellants had taken possession through their tenants, those facts ought to have been acted upon. The burden of proving the affirmative assertion that the property had been sold rested on the respondents, who made that assertion.

Court Findings

The appellate court found that the trial judge improperly raised and determined the issue of non-joinder without giving the parties an adequate opportunity to address it. A court must not decide a case on a point raised suo motu without hearing the parties, nor rely on extraneous matters not supported by the evidence. Although the evaluation and assessment of evidence primarily belong to the trial court, an appellate court may re-evaluate evidence on the printed record where the lower court’s conclusions do not flow from the established facts or are perverse.

The Court of Appeal also found significant inconsistency in the respondents’ position. On one hand, the 1st respondent denied having custody or further dealings with the property; on the other, it relied on an alleged transaction through which an equitable interest had supposedly passed to Sir Kofo Abayomi. The court held that a litigant must be consistent in its pleadings and evidence and cannot advance contradictory positions in order to defeat a claim.

On the issue of equitable interest, the court explained that payment for land, a receipt evidencing payment, and physical possession followed by continued possession may create an equitable interest capable of defeating a subsequent legal purchaser with notice. However, each of these conditions must be established by evidence. There was no evidence that Sir Kofo Abayomi or his representatives had physical possession of No. 8, Alli Street when the action commenced. Conversely, the appellants’ evidence of possession was unchallenged. The trial court therefore misapplied the equitable-interest principle by assuming that the alleged purchaser’s interest was protected without proof of possession.

Conclusion

The appeal was allowed. The judgment of the High Court of Lagos State dismissing the appellants’ claims was set aside. The originating summons was answered in the affirmative, and the appellants’ declaratory and consequential reliefs, including the vesting and rectification orders sought in respect of No. 8, Alli Street, Lagos, were granted in their entirety. No order was made as to costs.

Significance

The decision confirms that non-joinder ordinarily does not affect the competence or jurisdiction of a suit. It also clarifies that a court faced with non-joinder should add the necessary party or strike out the action for relisting, rather than dismiss the substantive claims. The judgment is important for litigation involving estate property, registered title, trusts and alleged purchasers. It emphasises the binding effect of unchallenged affidavit evidence, the rule that the person asserting an affirmative fact bears the burden of proof, and the limits of appellate intervention in factual findings. It further demonstrates that an equitable interest based on payment and possession cannot be presumed; the foundational facts must be proved before the protection is invoked.