SHONEKAN V. SMITH

• Pages: 129-134

SHONEKAN V. SMITH

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129

SHONEKAN V. SMITH

5

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MRS MOTUNDE SHONEKAN

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APPELLANT

V

10 MRS GLADYS AYODELE SMITH

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RESPONDENT

SUIT NO. FSC. 368/1962

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

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BRETT,

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J.S.C.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

24th April, 1964

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Legislation - Supreme Court Rules, 0.7 R.5(1) Proviso - England - Law of Property

Act, 1925, s.60(1)

Civil Actions - Appeals in Civil cases - Persons apparently interested in subject

matter not a party in the suit - not made a party in the appeal - Application

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to be joined in the appeal by persons disclosing no interest - Ground of

appeal on point not taken at trial - point of interpretation of deed

Practice and Procedure - Estoppel - res judicata - Finding in another suit -

evidence in another suit

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Real Property - Settlement deed - interpretation - Joint tenancy - tenancy in

common.

ISSUES:

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1. Whether the judgment in a suit can be used as

res judicata

in a later suit, where

the parties to the later suit were not the parties in the earlier one.

2.

Whether a point on the interpretation of a document not taken in the lower court

can be made a ground of appeal.

3.

What type of interest is passed by the operation of a trust or conveyance where

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there are no words of limitation after the Trust or in the conveyance?

FACTS:

The dispute related to the deed of settlement made by Rufus Alexander Wright

conveying his land to Trustees in trust for his son Williams Joseph Ladipo Wright,

and if he has no issue, in trust for the settlor's other children at the date of the son's

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death. The trial judge held that upon Ladipo Wright's death without issue, the set-

tlor's other children took the land in fee simple as joint tenants, and the plaintiff

being the sole survivor took the settled land in fee simple absolute for herself and

her heirs. Before the trial Judge was argued for the defendant that they took it

as tenants in common and on appeal she argued that if they took as joint tenants,

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they took a life interest only. Laclipo died and was survived by a sister (whose

child the defendant was) and by a brother called Adekunle, who died leaving a

widow but no children of the wedlock. Adekunle's children out of wedlock ap-

plied to be joined in the appeal, but their affidavit disclosed no interest. The trus-

tees had sued someone to whom Adekunle had sold a piece of land, and on the