ALHAJI SAFIRIYU YINUSA SHOBAJO v. OLUREMI IKOTUN & ANOR(2002)

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ALHAJI SAFIRIYU YINUSA SHOBAJO v. OLUREMI IKOTUN & ANOR

2002)LCN/1221(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2002

CA/L/286/97

 

JUSTICES

GEORGE ADESOLA OGUNTADE   Justice of The Court of Appeal of Nigeria

SULEIMAN GALADIMA   Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria

Between

 

ALHAJI SAFIRIYU YINUSA SHOBAJO Appellant(s)

AND

  1. OLUREMI IKOTUN
    2. OLUSEGUN IKOTUN Respondent(s)

 

ADEREMI, J.C.A. (Delivering the Leading Judgment): The appellant who was the plaintiff in the High Court of Lagos State holden at Lagos (Coram Adeniji, J.) claimed against the respondent who was the defendant in that court, the following reliefs:
(1) An order for the setting aside of the Certificate of Titles Nos. MO 12330 and MO 12331 issued by the Lands Registry Office in Lagos on the 28th of September, 1977 and on the 10th day of January, 1979 respectively, on the land in dispute with the building thereon situate, lying and being at No. 35 Vaughan Street, Ebute-Metta, Apapa Road on account of fraud.
(2) A declaration that the plaintiff is entitled to the grant of a Certificate of Occupancy in respect of that piece or parcel of land with the building thereon situate, lying and being at No. 35, Vaughan Street, Ebute-Metta, Apapa Road, Lagos in the Lagos State of Nigeria, more particularly described in the plan attached to the deed of conveyance dated the 22nd day of March, 1946 and registered as No. 96, at Page 96 in Volume 690 of the Lands Registry Office in Lagos.
(3) A perpetual injunction restraining the defendant and his servants/agents from continuing further acts of trespass on the said property.
The defendant, now the respondent also counter-claimed against the plaintiff now the appellant as follows:
(1) Possession of the said premises (namely 35, Vaughan Street, Ebute-Metta) from the plaintiff, his agents and/or servants thereof
(2) A perpetual injunction against the plaintiff and his agents And/or servants from collecting rents thereof.
(3) Mesne profits for use and occupation of the said premises at the rate of N4,000.00 per annum and from 1st day of January, 1979 until possession is given up.
The pleadings finally filed and exchanged between the parties, with the leave of court, are amended statement of claim and the amended statement of defence and counter-claim. The case then proceeded to trial at the end of which, the trial Judge, in a considered judgment delivered on 31st July, 1991 dismissed the plaintiff’s claims in toto; but granted the first and second reliefs sought by the defendant/respondent/cross-appellant in his counter-claim but dismissed the relief for mesne profit which is the third leg of the counter-claim.
Dissatisfied with the decision, the appellant has appealed there from to this court upon an amended notice of appeal that carries ten grounds. Also the defendant being dissatisfied with the part of the said judgment dismissing his counter-claim for mesne profit has cross-appealed to this court upon two grounds contained. From the ten grounds, the appellant has identified six issues for determination and as set out in his amended brief of argument filed on 27/7/99 they are as follows:
(1) Whether on the pleadings and the evidence led the learned trial Judge was right in refusing to make an order for rectification of the Register of Title No. 12331.
(2) Whether the learned trial Judge was right in holding that the appellant has not proved any of the allegations of fraud leveled against the respondent?.
(3) Whether the failure of the appellant to call in evidence Iyabo Olojo Kosoko his vendor was fatal to his case?.
(4) Whether judgment granted in favour of the respondent in respect of his counter-claim can be justified having regard to the pleadings and evidence led?
(5) Whether the learned trial Judge properly evaluated the evidence of the respondent before entering judgment on his counter-claim?
(6) Whether the respondent has established his counter claim for mesne profit?.
The respondents, in one breath, through their amended respondent brief of argument filed on 12/6/2001 adopted the six issues formulated by the appellant. But, in another breath, in the same brief of argument, the respondents refused to adopt issue No. 3.01 on the ground that the issue was not raised at the lower court. With regards to the counter-claim, the only issue raised by the counter-claimant for determination is as follows:
“Whether the learned trial Judge was right, in law to have dismissed the defendant’s claim for mesne profit.”
Suffice it to say that whilst the appeal was pending before this court “SHAJUYIGBE IKOTUN” the original defendant died. By the order of this court dated 14th May, 2001, OLUFEMI IKOTUN Band OLUSEGUN IKOTUN were substituted for him.
The plaintiff/appellant’s case as revealed by his amended statement of claim is thus: the subject-matter of the suit – No. 35 Vaughan Street, Ebute-Metta, Apapa Road, Lagos was originally owned by the Oloto Chieftaincy Family. One late Adekunle Olojo- Kosoko bought the said property from the Oloto Chieftaincy Family.
The sale was evidenced by a deed of conveyance dated 22nd March, 1946 and registered as No. 96 at page 96 in Volume 690 of the Lands Registry in the Office at Lagos. The said late Adekunle OlojoKosoko thereafter went into possession of the property and erected building thereon. The said late Adekunle Olojo-Kosoko who died on the 23rd of May, 1972 had devised the said property by his WILL made on the 5th of August, 1952, to his daughter Iyabo Olojo Kosoko.
The plaintiff, sometimes in 1975 went into agreement with Iyabo Olojo-Kosoko for the sale to him of the said property. At the execution of agreement in his favour he made a partial payment of N6,000.00 to Iyabo Olojo-Kosoko who lodged an application at the Lands Registry for first registration in respect of the said property.
The first application dated 6th August, 1976 by Iyabo Olojo-Kosoko was objected to by the defendant. He further averred that the application was struck out due to the absence from the country of the applicant. Thereafter, the defendant lodged two applications dated 28th September, 1977 and 10th January, 1979 in respect of the same property with the Registry. According to the plaintiff, the Lands Registry, without complying with the requirement of sending notices, sent two Land Certificates to the defendant by fraud, in the absence of his vendor – Iyabo Olojo Kosoko. Sometime, in 1975, he got a Power of Attorney from his vendor to superintend the management of the said property. The firm of M. A. Yesufa & Co. Solicitors acted for him and his vendor in the transfer of the property to him.
Since the completion of the sale, he has been exercising acts of ownership on the property. Sometime in July 1983, according to him, the defendant forcibly went into the building to occupy a room and a parlour therein; hence this action.
The defendant, through his amended statement of defence, agrees with all material averments in the plaintiff’s pleadings up to the issue of the property in dispute been vested in Iyabo Olojo-Kosoko by virtue of the WILL of her late father – Adekunle Olojo Kosoko made on the 5th of August, 1952. However, his case as to his interest in the said property as explained in his pleadings is that the same Iyabo Olojo-Kosoko leased the said property to him for a period of fifty years with an option for renewal for ten years for the sum of N6,000.00 which he paid her. He was subsequently put in possession of the said property by Iyabo Oloko Kosoko who promised to execute a Leasehold agreement in his favour. He subsequently applied for registration at the Lands Registry, according to him, all notices required in respect of the property were made.
Sequel to the publication of the Notice only the Head of Oloto Chieftaincy Family raised objection to the registration through their solicitors one Mr. R. O. Dawodu. However, the Oloto Chieftaincy Family’s objection to the registration was withdrawn by a letter dated 18th August, 1978 written by their said solicitor – R. O. Dawodu.
He was subsequently registered and a Certificate was accordingly issued to him. As I have said supra, both sides called evidence in proof of the averments in their respective pleadings. In dismissing the appellant’s claim and partially, allowing the counter-claim of the respondent/cross-appellant, the learned trial Judge had held inter alia:
“The question that arises in this case is whether the case of the plaintiff has not the requirements of the law To be actionable, the plaintiff in this case, the Registrar of Titles, must have been influenced by the misrepresentation…. To entitle the plaintiff to succeed for fraud committed on the Registrar, it is not enough to show that it was followed by damage to him, he must show that one was the cause of the other, he must establish that in doing the act whereby he suffered damages, he was “adlubeus fidem” (six) relying upon the truth of the representation… In my view, the inducing pleaded does not amount to fraud.
There is therefore total absence of particulars of fraud from the pleadings and evidence led by the plaintiff.
This being so, the plaintiff’s case never got off the ground. Having examined them in the light of the evidence, I find that the facts pleaded in the paragraphs cannot by any stretch of imagination constitute particulars of any fraud. Let alone particulars of any fraud on which an order setting aside the Certificate of Titles Nos. 12330 and 12331 can be founded. The Registrar could not have been influenced by the facts pleaded which cannot qualify as material facts. Thus on the facts pleaded and evidence led this action must be dismissed.”
On the counter-claim of the respondents, the learned trial Judge said:
“By the exhibit D – the Power of Attorney, the plaintiff was given the power inter alia to sell, lease, assign and power to execute any Deed of Conveyance in respect of the same property already sold to the plaintiff.
The plaintiff’s vendor would have been in a position to clear the anomalies and discrepancies but she was not called by the plaintiff, and no evidence was led to clear the situation by the plaintiff why such a situation should have arisen.
In this case the evidence of title by the plaintiff and exhibits tendered by him have been effectively dislodged by the defendant/plaintiff and I prefer his version to that of the plaintiff/defendant.
I accept the evidence led for the defendant/plaintiff in this case and I hold that it is enough “Eo ipso” for his claim for declaration to be granted … and I therefore grant the declaration in the counter claim
On the defendant/plaintiff’s claim for mesne profit in his counter-claim …the plaintiff/defendant was occupying the premises under a bona fide claim to be the owner… So the defendant/plaintiff’s claim for mesne profit is hereby dismissed.”
As I have observed supra, the issues raised for determination in this appeal have been substantially adopted by the respondent/cross-appellant. From their pleadings, both sides are ad idem that title in the said land property was vested in Iyabo Olojo Kosoko.
Indeed, each of them claimed through her. Reading the issues formulated along with the pleadings, it seems to me that the crucial issue to be resolved in this appeal is which of the appellant and the cross-appellant did Iyabo Olojo-Kosoko transfer her title, right and interest in the said property to. If in the materials before the court below I am satisfied, in law, that the property passed to the appellant then the issue of an order rectifying the Register of Title No. 12331 will be effected subject to a legal issue. Where, however I find that property did not pass, in law, to the appellant then legs 1 and 3 of the counter-claim on the issues of possession of the property and mesne profits for use and occupation of the property by the appellant will be examined. I hasten to say that I have my reservation as to the validity of the second leg of the counter-claim, which is for perpetual injunction against the plaintiff/appellant. The reason for my reservation will be made manifest ANON.
As I have said above, both the appellant (plaintiff in the court below) and the cross-appellant (for reason of his counter-claim as defendant before the same court have the burden of proving that Iyabo Olojo-Kosoko has divested, in their favour, her ownership of the said property see Jarawu Adeleke v. Ajadi Aserifa (1986) 3 NWLR (Pt. 30) 575. Again, where, as in the instant case, it is common ground between the parties, that the legal title in a disputed property is vested in a common vendor, the interests of the adverse claimants will, prima facie, rank in the order of their creation based on the maxim-qui prior est tempore potior est jure – meaning: he who is first in time has the strongest claim in law. It must always be remembered that what is first in time is, generally, better in law see also Kari v. Ganaram & Ors. (1997) 2 NWLR (Pt. 488) 380. The law does not allow concurrent possession of the same landed property by two persons who claim adversely to each other. Lawful possession resides in him who shows better title see Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515. Having stated the principles of law that will guide me in the resolution of this appeal, it is my considered view that issues Nos. 1,2 and 3 can be taken together, issues Nos. 4 and 5 will also be taken together while I shall take issue No.6 on the appellant’s brief together with the only issue formulated by the cross appellant as contained in his brief of argument.
On issue Nos. 1,2 and 3 the appellant in his brief of argument has contended that since there is no evidence adduced by the defendant to show how the property came to be registered with two titles apart from the evidence of PW4 – the Land Registry Official the trial Judge ought to have made an order setting aside title No. MO 12331 since the evidence of the plaintiff/appellant was not challenged on it, and judgment ought to have been entered in favour of the appellant in respect of title No. MO 12331 because the receipts attached to the application of the respondent in respect of this title number refers to land behind 33, Vaughan Street, Ebute-Metta and not 35, Vaughan Street, Ebute-Metta – the location of the land in dispute. It was his contention that evidence was given of the essential facts pleaded by him on which his case for fraud was premised. The appellant was an occupier of the property at the time of registration through his tenants residing there and failure to serve the occupiers notice as required by law vitiates registration especially when it is clear from the evidence that the property was not unencumbered at the time the respondent filed his application. The act of the respondent to provide the Registrar of Titles with the particulars of the occupiers of the property and describing the property in dispute as unencumbered influenced the Registrar not to send notices to the tenants-the combination of the two amounts to fraud. On issue No. 3 it was the contention of the appellant that the law did not stipulate that a particular witness must be called to testify in a case once a party can successfully establish his adding that the oral and documentary evidence given was sufficient to sustain the plaintiff’s case. The respondent, in reaction to the submissions of the appellant, has in his brief of argument submitted that the land in dispute consists of two plots which were registered under Title Nos. 12330 and 12331.
He further contended that the issue of registration of the land under two titles was not raised at the court below it is therefore too late in the day for the appellant to now raise it, he further contended; reliance was placed on the decision in Fadiora v. Gbadebo (1978) 3 SC 219 at 247 and Order 6 rule 3 of the Court of Appeal (Amendment) Rules 1984. It was his further submission that the onus to prove that the Certificate No. 12331 is not part of the land in dispute was on the appellant. Particulars of fraud were not pleaded and neither did the appellant establish that Certificate of Title Nos. 12330 and 12331 were obtained by fraud, he further argued while calling in aid Order 16 rule 5(1) of the High Court of Lagos (Civil Procedure) Rules 1972 and the decision in Olufunmuse v. Falana (1990) 3 NWLR (Pt.136) 1. He further opined that Iyabo Olojo-Kosoko was a vital witness for the plaintiff to establish that the property passed to him plaintiff/appellant; the failure to call her was vital to the appellant’s case praying in support of this contention section 148(d) of the Evidence Act and Union Bank (Nig.) Ltd. v. Ajagu (1990) 1 NWLR (Pt. 126) 328.
As I have said above, since both sides recognize a common vendor as the root of their title, their interests in the said property will rank in the order of their creation. I shall now examine the evidence led to see who of the appellant and the cross-appellant has a better title to the property. The plaintiff/appellant was the first witness called in his side. In his evidence-in-chief he said:
“The property in dispute is at 35, Vaughan Street, Ebute-Metta, Apapa Road, Lagos, I own the property and land.
I bought the land and house in 1975 from Iyabo Olojo Kosoko. I bought the property for N13,000.00, I paid by two instalments first, N6, 000.00.”
The receipt was tendered as exhibit “A” continuing he said:
“Then we drew up our agreement (tendered as exhibit B). I then paid the balance of N7, 000.00 (The receipt for the said sum was tendered as exhibit “C”.
Later, he (sic) took me to the house and introduced me to the tenants as the new landlord. She gave me Power of Attorney in respect of the property. (tendered as exhibit D).
She informed me that she had lodged documents in the Lands Registry for registration of the property and as soon as that is completed she would transfer to me. The application was struck out as she was absent appointed agents to collect rents on my behalf. No one had challenged me in the property.”
Under cross-examination he said:
“I have 28 tenants in the house … I know Iyabo Olojo applied for registration at the Land Registry. I do not know that the defendant made application for registration. It was in January, 1976 that Iyabo Olojo Kosoko put me into possession of the house. She sold the property to me and I paid her N13, 000.00.
The defendant/cross-appellant in his testimony-in-Chief said:
“I know the property in dispute. I am the owner I purchased it from Iyabo Kosoko for the sum of N3, 000.00 and N6, 000.00 for two properties. She issued me with receipts. I then applied for the registration of the two plots in the Registry; and I was duly registered exhibit E 10 is the Lands Certificate. One person objected to my registration – the Oloto Chieftaincy Family. It was withdrawn. Plaintiff did not object. Iyabo did not object. Plaintiff is entitled to collect rents from the tenants. I observed. He is not entitled to occupy the premises.
When cross-examined he said:
“I do not know where Iyabo Olojo was at the time I lodged my application. I filed the application in 1978.
The Title No of the application was MO 12330. It was submitted early in 1978 – exhibit E. I submitted the
sales Receipt, Copy of the Survey, Declaration. I did not submit a conveyance deed of lease (sic) She gave me documents in support of the sale which I did pay cheque.
There was a mud structure on the land at the time of purchase. There were tenants on it. I met them there.
I have two certificates in respect of the two plots – and Nos. 12330 and 12331. The vendor was in her house in United Kingdom. The tenants do not pay rents to me. I am in possession. The receipts are not bogus. I see exhibit E8. the payment was post-dated.”
Exhibit A is the receipt dated 8/7/75 for the sum of N6,000.00 being the first instalment of the purchase price paid by the appellant to Iyabo Olojo Kosoko for the said property. Exhibit “C” is the receipt dated 29/11/75 for the sum of N7,000.00 being the balance of the purchase price paid by the appellant to Iyabo Olojo Kosoko.
Exhibit B is the agreement for sale dated 30th October, 1975 signed by Iyabo Olojo Kosoko as vendor of the said property and also executed by the appellant as the purchaser of the said property.
The defendant/cross-appellant had, in his viva voce said he purchased the two buildings on the land from Iyabo Olojo Kosoko for N3, 000.00 and N6,000.00 and he was issued with receipts for the sums of money paid. I have searched the records of proceedings nowhere could I find the copies of the receipts which the cross-appellant alleged he received from Iyabo Olojo Kosoko for the sums allegedly paid by him to her. All I could find is exhibit E captioned “Declaration of Titlesworn to by the cross-appellant himself. In it, the cross appellant deposed as follows:
(1) That I am the Lessee of a house and landed property at 35, Vaughan Street, Ebute-Metta.
(2) That the original owner, my lessor, Miss Iyabo Olojo Kosoko gave me a fifty-year lease with ten years option on the bases (sic) of 5 years advance payment of a sum of six thousand naira (N6, 000.00)
(3) That the above contracted payment is backed up with a receipt after payment by me.
(4) That her inability to execute a valid document to me is due to her present predicament with the United Kingdom Government Law Enforcement Agency.
(5) That this declaration is required for record purposes.
There is no evidence as to the date the payment was made by the cross-appellant to Iyabo Olojo Kosoko. In exhibit E7 captioned “DECLARATION OF TITLEsworn to by the cross-appellant on the 28th of September, 1977 he deposed as follows:
(1) That I am the buyer of a piece of land at the back of No.33, Vaughan Street, Ebute-Metta.
(2) That the original owner, Miss Iyabo Olojo Kosoko now residing in the United Kingdom sold the said parcel of land to me.
(3) That the said vendor from my understanding of her present predicament is undergoing some original charges with her Majesty Government Law Enforcement Agency.
(4) That I obtained a valid receipt of purchase over the said property from her before her departure.
(5) That every efforts made to have a valid document in respect of the said property had proved abortive.
However, the application forwarded to the Lagos Lands Registry by the cross-appellant for registration of the property in his name and on which one Gbadamosi minuted on 1/2/78 as having inspected the subject-matter of the application referred to the property at No. 35, Vaughan Street, Ebute-Metta. Undoubtedly, No. 33 Vaugham Street, Ebute-Metta is quite different from No. 35, Vaughan Street, Ebute-Metta. As I have said earlier, I cannot find the receipt issued in favour of the cross-appellant by Iyabo Olojo Kosoko acknowledging the receipt of money allegedly paid for the leasehold.
On the other hand, there is copious evidence agreed sums of money as the purchase price of the property No. 35, Vaughan Street, Ebute-Metta to Iyabo Olojo Kosoko. There is also the evidence that the appellant was let into possession of the said property by Iyabo Olojo Kosoko, the vendor. This much, the cross-appellant admitted by implication when he said he met some tenants on the property and that the plaintiff/appellant was entitled to collect rents from them.
The law has long been settled that where a person pays for land and obtain receipt for the payment followed by his going into possession and remaining in possession of the property an equitable interest is created for him in the land such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable interest in the land; this was the principle laid down by the Federal Supreme Court in Orasanmi v. Idowu (1959) 4 ES.C. 40. Such a situation as stated here creates an agreement for sale. In Ogunbambi v. Abowab (1951) 13 WACA 222 per Verity Acting President, the West African Court of Appeal observed at page 224 thus:
“Such a document is an agreement for sale coupled with a receipt for purchase money and a covenant to execute a conveyance on demand:
Equity is said to look as done that which ought to be done.
Even if the cross-appellant had been a purchaser for value of the legal estate, which he is not on the face of the facts presented by him, he cannot lay claim to any title in the property for the simple reason that the estate is already encumbered by the prior equitable interest of the appellant. His interest, if it has any legal validity, must be postponed to the equitable interest of the appellant. The appellant has alleged fraud and set out the particulars of the fraud against the respondent/cross-appellant in his pleadings. The cross-appellant admitted that he did not forward valid title documents to the Registry. PW4 – Olatunji Adeyemo a Lands Registry Assistant 1 said in his evidence-in-chief:
“We did not send notices to all occupants of land in this case. Registration of title of applicant was based on exhibits E1 and E2”.
Exhibit E1 is the sworn affidavit of the cross-appellant for the registration of the property at No.35, Vaughan Street, Ebute-Metta, Lagos in his name. I have earlier said exhibit E7 another declaration of title sworn to by him says that the same Iyabo Olojo Kosoko sold the property styled as No. 33 Vaughan Street, Ebute-Metta to him.
The learned trial Judge reasoned in his judgment that fraud was not established. If the totality of the piece of evidence that I have highlighted will not translate to fraud or gross misrepresentation, I wonder what will be regarded as fraudulent misrepresentation.
Certainly, the cross-appellant did not approach the seat of Justice with clean hands. He did make false misrepresentation which he intended the registry to act on, the truth of which he did not believe in. Where fraud has been established, as in the instant case, the transaction by which the purchaser bought the legal estate will, by application of equity, be cancelled. That is in accord with the decision of the West African Court of Appeal in Rufus Adekunle Wright v. The Ahmadiyya Movement – In – Islam (WACA No. 2886 of 7th May, 1949) referred to with approval by the then Federal Supreme Court in Aboyade Cole v. Folami (1956) 1 FS.C. 66. Expounding the basis of this principle Aniagolu, J.S.C. observed in Owosho & Ors. v. Dada (1984) 7 Sc. 149 at pages 175-176 as follows:-
“It has its origins in the rules of law and equity by which moral obliquity and failure to maintain certain set moral standards were, respectively decreed against.”
The question now is can I make an order setting aside the Certificates of Titles Nos. Mo 12330 and MO 12331? In the first place, the appellant was not a party to the application for the registration of the titles. Secondly, from the evidence that I have reviewed supra, two Certificates of Title Nos. MO 12330 and MO 12331 are void. The law is now well settled that where a plaintiff seeks that transaction or an instrument be declared void and that it be set aside, it will only be declared void, if it is found to be void but will not be set aside because there is nothing to set aside. Indeed it is inappropriate to set aside what is void for ex nibilo nihil venit – if at the end of the trial it is found that the transaction complained of is void, a declaration to that effect might issue but is absolutely wrong thereafter to make an order to set it aside. In the case of Rufus Adekunle Wright Cited supra, the West African Court of Appeal put it more succinctly when it was observed thus:
“The appropriate relief in the case of a third party in relation to the execution of a deed of conveyance by which one party purports to convey the plaintiff’s land to a second party, is not by way of the equitable relief of conciliation of the deed but by a declaration of title or where there has been trespass an action for damages.
It is only in an action in which can properly be pleaded mistake, misrepresentation or fraud, actual or constructive that cancellation will be the appropriate and effective remedy.”
The above dictum was followed by the Supreme Court in Ayanboye & Ors v. Balogun (1990) 5 NWLR (Pt. 151) 392 when Agbaje, J.S.C. observed at pages 413 and 414 as follows:-
“As I have said above, the plaintiff’s pleadings show that he was not a party to the deed of conveyance which he is asking the court to declare void or voidable and which he is also asking the court to set aside. It is also clear that the deed of conveyance was not entered into by the vendors therein on his behalf. ..
The case of Foko v. Foko (1968) NMLR 441 is authority for the proposition that where a transaction is void a claim for it to be set aside will be misconceived.
See on the same point Tikatore Press Ltd. & Ors v. Ajibade Abina & Ors. (1973) 4 SC 63.”
A similar view was expressed again by the Supreme Court in Lahan and Ors. v. Lajoyejan & Ors. (1972) 1 All NLR (Pt. 2) 217. Flowing from the judicial authorities that I have thus reviewed, It is my judgment that the appeal is meritorious. The judgment of the court below dismissing the plaintiff/appellants suit is set aside, subject to my not setting aside the Certificate of Titles Nos. MO 12330 and MO 12331, rather I declare them null and void. In the place of the order of dismissal, I hereby enter judgment in favour of the plaintiff/appellant in the following terms:
(1) It is hereby declared that the plaintiff is entitled to the grant of Certificate of Occupancy in respect of that piece or parcel of land with the building thereon, situate, lying and being at No. 35 Vaughan Street, Ebute-Metta, Apapa Road, Lagos in the Lagos State of Nigeria more particularly described in the plan attached to the deed of conveyance dated 22nd day of March, 1946 and registered as No. 96 at page 96 in Volume 690 of the Lands Registry Office in Lagos.
(2) An order of perpetual injunction is hereby made restraining the defendant and his servants/agents from
continuing further acts of trespass on the said property.
For the avoidance of doubt, the counter-claim of the defendant/counter-claimant which is adjudged to be unmeritorious is hereby dismissed. The appellant is entitled to the cost of the appeal which I adjudge in his favour at N7,500.00.

OGUNTADE, J.C.A.: I have had the advantage of reading in draft the lead judgment by my learned brother Aderemi, J.C.A. He has fully and comprehensively dealt with the issues raised for determination in the appeal. I agree with his reasoning and conclusion. I would also allow the appeal and dismiss the cross- appeal. I award N7,500.00 costs in favour of the appellant.

GALADIMA, J.C.A.: I had the privilege of reading the draft of the leading judgment prepared by my learned brother Aderemi, J.C.A.  He has adequately dealt with all the issues raised in this appeal. I agree with his reasoning and conclusion that the appeal is meritorious. I would also set aside the judgment of the lower court dismissing the plaintiff’s suit. I also agree that the counter-claim of the defendant is unmeritorious. It is dismissed. I find the cost of N7,500.00 in favour of the appellant quite appropriate and adequate.

Appeal allowed.
Cross-appeal dismissed.

 

Appearances

Williams Arorote, Esq.For Appellant

 

AND

  1. O. Adefala, Esq.For Respondent

 

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