Appeal Court validates firm’s claim of ownership to Bankole-Oki’s property

HAVING failed to show document justifying any claim of joint ownership of a Lagos prime property, Mrs. Mutiat Bankole-Oki, wife of a legal luminary, late Chief Tanimose Abioye Bankole-Oki can no longer lay claim to No. 54, Ladipo Labinjo Crescent, Surulere, Lagos, the Court of Appeal, Lagos, has said.

With the verdict delivered recently, the court, which upturned the verdict of the trail court, held that, the appellant, Trimskay Nigeria Limited, has proved its case and therefore allowed its ownership claim to the disputed property.

As at press time, it could not be ascertain whether the family of the late legal icon had appealed the Court of Appeal’s decision or not.

Following disagreement between the duo, the firm had commenced the action before the trial High Court on May 19, 2005 to recover the property.

The respondent, Mrs. Mutiat Bankole-Oki, as defendant on August 3, 2005 filed her Defence, had responded with amended statement of defence and a counter-claim. The respondent further brought an application to amend her defence and counter-claim and filed an intention to defend that possession against the whole world, except, sometimes the true owner.

In the said second amended counter-claim, Bankole-Oki claimed that the disputed property is her matrimonial home.

To this, the appellant filed an amended reply and defence to counter-claim.

On March 11, 2011, the trial court delivered its judgment dismissing the claims of the appellant but granted the counter – claim of the respondent.

Dissatisfied, the appellant sought intervention by the Court of Appeal where it sought: 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…vivos among others.

On the other hand, the respondent formulated the following nine issues including whether a relationship of husband and wife had existed between her and her late husband, Chief T. A. Bankole – Oki (SAN) and whether the respondent had proved the existence of the marriage between herself and her deceased husband under Native Law and Customs

She also wanted the court to determine whether her husband had not evinced an intention to designate No. 54, Ladipo Labinjo Crescent Surulere, Lagos asa matrimonial/family home for the benefit of his children, the Respondent and himself and whether an equitable interest and in the alternative a resulting trust had not been created by the conduct of Chief T. A. Bankole – Oki (SAN) (deceased) in favour of his children and the respondent in respect of No.54, Ladipo Labinjo Crescent, Surulere, Lagos?

Also she asked “Whether Chief T. A. Bankole-Oki (SAN) (deceased) can unilaterally alienate the interest in said property without infringing in the rights of his children and the respondent and whether the findings of fact that the respondent is entitled to the use, occupation and possession of the property can be overturned on appeal when the appellant had not established special circumstances for this relief?

According to the appellant’s counsel, the fact that a woman is married to a man does not operate as a restriction on the man’s right to dispose of his property more so when the property in issue is shown to be a personal property of the man. “Marriage under the customary law does not ipso facto lead to a creation of matrimonial property as sought to be raid down by the trial court in the judgment under appeal.”

In reply, counsel to the respondent submitted that the issue of customary marriage between late Chief Bankole – Oki (SAN) and the respondent had been proved strictly by evidence in the trial court.

In the instant appeal, this court has examined the three issues one, two, three complained of vis-a-vis the contention of the Appellant on the fact of existence of customary marriage between the Respondent and CW2, does not ipso facto create a matrimonial property for the learned trial judge to have awarded the subject matter of this suit to the respondent.

“In the opinion of this court, there is nexus between the respondent’s efforts in the issues raised to establish the existence of the customary marriage first between her and the Chief Bankole-Oki, which is sine quonon to whether or not that relationship had created a matrimonial property allegedly awarded the respondent by the trial court. The existence of the customary marriage serves as the foundation, which cannot be separated from the contention of the appellant.

On issue one, the appellate court held: “From the facts and evidence adduced herein, I cannot find any evidence of co-ownership.” Having found that there is no evidence of ownership or co-ownership from the respondent, the sword held by the trial judge was that the family live in, or are in occupation of the disputed house the learned trial judge in her judgment, did not go further, to define what is meant by family living in there.

“I have gone into this depth to show that from the settled law on what family property stands for, the property situate and lying at No.54 Ladipo Labinjo Crescent Surulere, Lagos, the subject of this suit is not a family property.

The court continued: “The fact that the respondent and her children live in that house as held by the trial court in its judgment, has not elevated that to the status of a family property in law. It is difficult therefore to see how the living in the house by respondent and children has created an encumbrance to the vendor to transact on the said property.

It then concluded that, it was wrong on the part of the trial court to have decided that, the appellant could be denied the purchase of the property he made, when the vendor had occupiers in the property, and even when it was 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.