TOKUNBO SHOGBOLA & ORS v. ALHAJA B. KUDAISI
In The Court of Appeal of Nigeria
On Monday, the 28th day of February, 2000
ATINUKE OMOBONIKE IGE Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
IFEYINWA CECILIA NZEAKO Justice of The Court of Appeal of Nigeria
TOKUNBO SHOGBOLA & ORS. Appellant(s)
ALHAJA B. KUDAISI Respondent(s)
IFEYINWA CECILIA NZEAKO, J.C.A. (Delivering the Leading judgment): In the suit in the Court below, there were two defendants against whom the Plaintiff brought her action. Judgment was on 11/6/93 delivered in favour of the plaintiff against the two defendants. Only the 1st defendant appealed to this Court. The 2nd defendant did not appeal.
The claim of the plaintiff filed at the High Court of Lagos State in suit ID/576/90 on 20/3/90 was as follows:-
Possession of the house and premises situate at 1A Olorogun Street, Surulere, Lagos State which were let out by the Plaintiff to the defendants as tenants – at will which said tenancy was determined by Notice to quit given by the plaintiff on the 10th of January 1990 to 1st defendant and on the 23rd of February 1990, the Plaintiff did serve on the defendants Notices in writing of her intention to apply to recover possession of the premises/house (duplicate of which notice are hereby annexed) by serving same personally on the defendants and that notwithstanding the said notices the defendants refused and neglected to deliver possession of the house/premises and still detain same.
The plaintiff claims;
Possession and mesne profits from 1st March 1990 at the rate of N100.00 per month until possession are given up.
Grounds for Possession:
(1) Personal Use
(2) Substantial Repairs
The 1st defendant filed a Statement of Defence to which the Plaintiff flied a Reply.
The 2nd defendant also filed a Statement of Defence.
The 1st defendant later filed an Amended Statement of Defence on 3/6/92 and another on 24/9/92. Significantly the 1st defendant had put title in issue in his defence.
Trial proceeded on these pleadings, after which the learned trial Judge, Sotuminu J. delivered judgment as aforesaid, against which the 1st Defendant appealed.
His only ground of appeal originally was as follows:-
“The judgment is against the weight of evidence.”
Subsequently 3 further grounds were filed as follows:-
“1. The learned trial Judge erred in her judgment by saying that the property in question – 1A, Olorogun Street, Surulere, Lagos was not a family property even after resorting to the two cases in the Judgment – Ogundairo v Abeje 1967 LLR 9 and Coker v Coker 1938 14 NLR 83 which are of contrary opinions.
2. The learned trial Judge erred in law by saying the house in dispute is not family property even though the evidence and judgment showed that the original tenant was the later Alhaji Ayinde Salami who had not diverted his interest (nor purchased the house in dispute from the LEDB the original owner) before his death.
3. The Court below lacked jurisdiction to try the case as proper parties was not before it.”
In order to place in proper perspective the case made by each party, I shall set out the most relevant averments in the pleadings of the plaintiff and 1st defendant.
For the Plaintiff, there are the following:-
“2. The 1st defendant is Nephew of the plaintiff and was a Tenant-at-will of the Plaintiff in respect of the House/Premises including big yard at the said 1A, Olorogun Street, Surulere.
4. On or about the month of January 1982, the plaintiff became the owner of the House/Premises at 1A, Olorogun Lane (Now Street) in Surulere Housing Scheme No. I by virtue of purchase from the Lagos State Government and she was issued with Certificate of Sales dated 26th of January, 1982. The Plaintiff would found and rely on the trial of this action on the said Certificate of Sale in proof of her title.
6. The 1st defendant being the plaintiff’s nephew was allowed to live in the House/Premises at the said 1A, Olorogun Street, without payment of rent to the plaintiff.
8. That the 2nd defendant is sub-tenant of the 1st defendant and they were also informed of the plaintiff’s intention to return back from Kaduna and to live in Lagos at the said 1A, Olorogun Street, Surulere.
9. That the Plaintiff’s Sister, one Mrs. Wusa Jacob of 7, Oyerokun Street, Surulere being the mother of the 1st defendant was informed and was also prevailed on to inform her son, the 1st defendant to vacate the premises.
10. That the plaintiff later learnt that the 1st defendant and or his Mother, the said Mrs. Wusa Jacob has been collecting rent from the 2nd defendant for the yard of the premises let to the 2nd defendant by the 1st defendant.
16. That the 1st defendant was tenant-at-will of the plaintiff of the said House/Premises; but the Plaintiff on the 23rd of February 1990 duly determined such Tenancy and demanded for possession of the said House/Premises; yet the defendants refused to deliver up possession thereof to the plaintiff.”
Paragraphs 11 – 15 plead issues relating to Service of Statutory Notices to quit on the defendants by the plaintiff and her Solicitors.
The 1st defendant/appellant’s amended statement of defence had the following relevant averments:-
“1. The 1st Defendant admits paragraph 1 of the Statement of Claim only to the extent of the name borne by the plaintiff; but categorically denies the allegation that the Plaintiff is the owner and landlady of the House/Premises comprising of one room and parlour with big yard at 1A, Olorogun Street, Surulere, Lagos State.
2. The 1st Defendant admits being a newphew of the plaintiff; but denies being at any time a tenant-at-will of the plaintiff at 1A, Olorogun Street, Surulere or anywhere else.
3. The 1st Defendant says categorically that the property 1A, Olorogun Street, Surulere, is the property of 1st Defendant’s maternal grandfather, the late Alhaji Ayinde Salami and on the death of the said Alhaji Ayinde Salami on 31st January, 1978 became family property, the Ayinde Salemi family, comprising of the direct children of the late Ayinde Salami and all his descendants.
4. The plaintiff is entitled to one room on the premises No. 1A, Olorogun Street, Surulere, by virtue of IDI IGI (per stirpes) distribution of Estate under the Yoruba Customary Law consequent upon the fact that 1st defendant’s later maternal grandfather had children through two wives.
5. The 1st Defendant occupies the room that belongs to the branch of his mother, Mrs. Wusamotu Jacob.
7. The 2nd Defendant is not tenant or sub-tenant of 1st Defendant in respect of any space at No. 1A. Olorogun Street, Surulere, but tenant of Alhaji Ayinde Salami family.
11. The 1st Defendant is not tenant-at-will of the plaintiff and denies all the claims put up by the plaintiff.
12. The 1st Defendant avers that when the Lagos State Development Property Corporation (hereinafter referred to as L.S.D.P.C.) decided to sell houses in their Surulere Estate, a meeting of the Alhaji Ayinde Salami Family was summoned.
13. At the said meeting presided over by Mr. R. A. Salami (Head of the Family) it was decided that funds should be raised to buy the house subject-matter of this suit from the L.S.D.P.C.
14. At the time, there is one other family house at No. 13, Murtairu Ijaiye Street, Itire from which the family collects rents from tenants.
16. At a stage in 1982, Mr. R. A. Salami informed the 1st Defendant and his mother, Mrs. Wusa Jacob, that he (R. A. Salami) had borrowed money from the plaintiff to purchase the house from the L.S.D.P.C.
18. The 1st Defendant’s mother, in the presence of the 1st Defendant told Mr. R. A. Salami that he ought not to have borrowed money from any member of the family since all that need be done was to add more money to the rents collected from the family property at 13, Mutairu Ijaiye Street, Itire.
27. The 1st Defendant maintains that the property subject-matter of this suit is property of the Alhaji Ayinde Salami family and not personal property of the plaintiff.
28. Furthermore, consequent upon the L.S.D.P.C. advice, Wusamotu Jacob and Ayisat Onabiyi on 28th February, 1990 reminded Mr. R. A. Salami to call the family meeting but he would not reply. The 1st Defendant will rely on the letter at the trial of this Suit.
30. The Plaintiff has not the authority or instruction of the 1st defendant and his mother to purchase the said property in her name. And the 1st Defendant will rely on copy of Ex-Governor Jankande broad case speech of 26th January, 1982 as authority that the plaintiff could not lawfully purchase the property subject-matter of this suit.
31. WHEREOF the 1st Defendant urges on this Honourable Court to dismiss the plaintiff’s claim in its entirety and DECLARE the property that of ALHAJI AYINDE SALAMI FAMILY.”
Plaintiff averred in her Reply to the Statement of defence as follows:-
“2. As to paragraphs 3, 4, 5, 12 and 13 of the Statement of Defence, the Plaintiff admit that Alhaji Salami is the maternal Grandfather of the 1st defendant, that the said Alhaji Salami died on the 21st of January, 1978, and that at the time of the said Alhaji Salami’s death he was living at 1A, Olorogun Street, Surulere otherwise the plaintiff deny the other averment contained in paragraph 3 of the Statement of Defence and the 1st defendant is put to strict proof of the averment contained therein.
3. The plaintiff in further answer of the said paragraphs 3, 4, 5 and 13 of the Statement of Defence avers and would contend that Alhaji Salami as at the time of his death was a tenant of the Lagos State Development Property Corporation in respect of the property at 1A, Olorogun Street, Surulere and therefore had no interest of the nature that would make 1A, Olorogun Street, Surulere family property.
4. That Alhaji Salami was one of the many others displaced by Slum Clearance in Lagos Island about 1957 and were rehoused at Surulere Housing Scheme.
5. That before 1957, Alhaji Salami was living as tenant of late C. F. Joseph at 16, Richards Lane, Lagos with four of his children namely (1) Adisa (2) Wusa, the 1st defendant’s mother (3) Waidi and (4) Bolaji, the plaintiff herein, otherwise known as Nimota.
6. That Alhaji Salami had surviving him when he died five children of which the four herein before mentioned are of the same mother.
7. That Ayisatu, who is the fifth child and the third in order of seniority was by a different mother.
8. That when displaced persons from the Slum Clearance area were being rehoused, the following children of the deceased were allocated the respective houses against his or her name.
(1) Adisa: 6, Ifelodun Street, Surulere where he still resides and he has since purchased it under the Civilian Governor Jakande house ownership Scheme.
(2) Wuse: 17, Onatoro Street, Surulere but she gave back to LEDB the flat, because she was unable to pay her rent, that although she had given birth to the 1st Defendant she was not married to the 1st defendant’s father she later got married to Mr. Akin Jacobs who was also allotted house during the rehousing period, and both Wusa and her husband are living at 7, Oyerokun Street, Surulere which property has been purchased by Wusa’s husband during the Civilian Governor Jakande house ownership Scheme.
(3) Ayisatu was already married, and has since before 1957 been living with her husband.
(4) Waidi: was allotted 31A, Olorogun Street, Surulere and Waidi lived in the house with her family until he died. Waidi also purchased 31A, Olo Olorogun Street, Surulere pursuant to Governor Jakande House Ownership Scheme.
(9) That it was only the plaintiff who lived with Alhaji Salami at 1A, Olorogun Street, Surulere until she moved with her husband to Kaduna from where she now want to return home.
(10) That Alhaji Salami was tenant of Lagos State Development and Property Corporation to the time of his death and therefore at death has no other right in 1A, Olorogun Street, Surulere than that of tenant of L.S.D.P.C.
(11) That when purusant to Alhaji Jakande Governor of Lagos State electoral pledge the house 1A, Olorogun Street, Surulere was offered for sale none of the plaintiff’s sibling or Ayisatu in any manner what-so-ever requested for or offered to purchase it, and it was almost being sold out to other applicant before Adisa, and to the knowledge and consent of other siblings of the plaintiff and Aylsatu advised the plaintiff to apply and purchase it. The plaintiff would found and rely at the trial of this action on the certificate of sale dated 26th of January, 1988 issued to her as evidence of ownership of the property.
(12) That since purchase she has been in effective possession and it was the plaintiff that allowed the 1st defendant to live in the house as her tenant.
(13) That the plaintiff will contend that the property at 1A, Olorogun Street, Surulere is her property and not Alhaji Ayinde Salami family property as alleged by the 1st defendant or at all and the 1st defendant and or another persons has no interest what so ever in it.
From the foregoing it can be seen that the 1st defendant/Appellant had challenged the title of the Respondent to the property in question. He had put title in issue and the trial and the, decision in the lower Court turned on this major issue, whether the Respondent had title to the property and therefore entitled to recover possession thereof as claimed.
Evidence led by the parties at the trial went along those lines, mainly to establish if the property was family property, or it belonged to the respondent as claimed, in which case she would be entitled to possession. I will at this stage deal with the judgment appealed from. After considering the pleadings of the parties, their evidence and the submission of their counsel, the learned trial Judge in his judgment identified 4 issues which arose in the suit as follows:-
1. Was the property in dispute family property?
2. Has the plaintiff established ownership?
3. Are the defendants tenants within the definition of Tenants in Section 40 (1) of the 1976 Edict?
4. From the pleadings of both parties and the evidence led by them, are the defendants entitled to take advantage of the 1976 Edict.
The learned trial Judge decided each of these. She said:-
“In answering question 1, it is necessary to refer to the definition of family property in Ogundairo VS. Abeje (1967) LLR. page 9, family property was defined as property which devolves from father to children and grand children under Native Law and Custom and which no individual child or member of the family can dispose of in his or Will until the property is partitioned, and each child or member of family has his or her separate share of the whole. Similarly, Family house is defined in the Case of Coker vs. Coker (1938) 14 NLR page 83 as a house set aside by a father for his wives and children to occupy jointly after his decease together with wives of married sons and their children.
Therefore for a house to be family house or family property it must possess ownership. In the present case there is evidence that Late Alhaji Salami did not purchase the house in dispute from the LEDB the original owner. I therefore hold that the house in dispute is not family property. In answering question 2, it was decided in the leading case of Nwosu V. Udeaja (1990) 1 NWLR part 125 page 188 at page 218 that one of the five ways of proving title is by production of a document of grant or title. The Supreme Court found that purchase was established in that case as one of the five ways. By producing Exhibit ‘A’, the certificate of Sale, it is my view and I so hold that the Plaintiff had established ownership of the premises in dispute.
In deciding question 3 it will be necessary to refer to Section 40(1) of the Recovery of Residential Premises Edict 1976 which provides as follows:-
“Tenant includes a sub-tenant or any person occupying any premises whether on payment or rent or otherwise but does not include a person occupying premises under bona-fide claim to be the owner of the premises.”
In the case before me the case of the Defendants show clearly that they did not recognise the plaintiff as the owner of the premises but as family property belonging to every member of the family including the Defendants which amount to denying the Plaintiff’s title. In such a situation the Defendants cannot be classified as Tenants within the1976 Edict cited above and they have incurred forfeiture and that by that forfeiture they forfeit their interest in the premises and the Plaintiff is entitled to possession, See Eletu & Ors. Vs. Omojewoniya and Anor. (1962) 2 ALL NLR page 13. Assaf VS. Oyinloye (1951) 20 NLR page 1. I therefore hold that the Plaintiff has established her claim against the Defendant and I make the following orders:-
1. The Defendants are to give possession on or before the 31st day of July, 1993.
2. The Defendants shall pay N100 per month being mesne profit from the 1st day of March, 1990 until possession is given up.”
All of the foregoing background to this appeal shows what the issues pleaded and canvassed in the Court below were what the judgment now being challenged on appeal was, the grounds of appeal and the complaint of the Appellant in the appeal.
Parties filed and exchanged briefs of argument which they adopted at the hearing. For the Appellant, 3 issues distilled from the grounds of appeal, were as follows:-
1. Was the trial Court right to have held that the property… was not family property?
2. Can death terminate a tenancy?
3. What is the effect where there was no proper plaintiff in the lower Court?
For the Respondent, two issues were identified thus:
1. Whether the finding by the trial Court that the property… was not family property was not established by sufficient credible evidence by the plaintiff.
If the answer was in the positive:-
2. Whether the plaintiff having established her title which has accrued since the letting of the premises was not as owner/landlady entitled to possession and mesne profit as ordered by the trial Court, the defendants not, having shown good cause to the contrary.
It seem to me that the Appellant’s issue No. 1 is more to the point than the respondent’s course of the determination of Appellant’s issue 1, so can appellants issue No. 2.
I shall therefore take them together. But, I will treat separately Appellant’s issue which raises the issue of locus standi of the plaintiff, based on whether executors had been appointed to the estate of Alhaji Salami. It will be issue 2 but I will take it first due the flavour of jurisdiction which the issue conjures up. For, where a plaintiff lacks locus standi, it goes to the root of the action. It affects the jurisdiction of the court.
The issues will therefore be determined as follows:-
(1) Whether the proper plaintiff was before the Court.
(2) Was the trial Court right to have held that the property at 1A Olorogun Street, Surulere, was not family property?
On the issue of proper plaintiff or locus standi, learned appellant’s Counsel’s premise as his submission shows, was that the tenant of the property in question was Alhaji Salami who died intestate on 21st January 1978 and that under the law the property was rested in his administrators. He submitted that there was no evidence before the lower Court that Letters of Administration of the estate of Alhaji Salami was taken out and that the proper plaintiff legally competent to take any action concerning late Alhaji Salami’s property should be his administrators and the plaintiff /respondent was not one of the administrators. He concluded that the plaintiff had no locus standi to institute the action in the light of this submission and that the judgment was null and void, there being no proper plaintiff and that the action ought to have been struck out by the lower Court.
The learned Counsel for the Respondent did not address this issue for reasons which I do not wish to speculate on.
Upon considering the issue and the submission of the Counsel for the Appellant. One thing struck one however. It was also necessary to see what the Court below decided.
It is that the records of proceedings show that the issue and the premise upon which the issue was by the appellant did not arise from the trial and the decision in the Court below. No one ever raised any issue in the pleadings, in evidence or at all at the lower Court about locus standi which is a special defence and must be pleaded. No issues were raised about Alhaji Salami dying intestate or not or whether letters of administration had been taken out, or anyone, including the plaintiff, was ever appointed as the administrator of the estate of Alhaji Salami.
As no issue of locus standi to bring the action in the Court below was raised, trial Court made no pronouncement on it.
In Short, the appellant is raising these issues for the first time on appeal.
The law requires that before raising such issues as locus standi etc even in the Court below, they must be pleaded. Evidence may need to be adduced to establish the basis. Before raising them on appeal, they must have been raised and decided upon by the Court below. It is a firmly established principle that an appeal is a review of the decision of the trial Court in terms of the grounds of appeal filed by the parties.
An appeal is not a medium for raising issues which a party might have missed or forgotten to raise at the lower Court or which he may have conjured up after the trial and the judgment at the trial Court.
A trial Court can only determine claims brought before it upon the pleading of the parties to the suit, and an appellant is not allowed to raise on appeal a question not raised, tried or considered by the trial court – see (1) Akpena vs Barclays Bank (1977) 1 SC 47 (2) Shonekan VS Smith (1964) ALL NLR 168 at 173.
Issues not raised in the lower Court cannot be raised on appeal unless with leave of the Court. Sande VS. Abdullahi (1989) 4 NWLR (pt 116) 387.
I find it necessary to emphasis that the powers which any Court, be it a Court of first instance or an appellate Court has is restricted to issues or matters brought before it for determination Ejiowhomu VS. Edok-Eter Mandilas Ltd (1986) 9 SC 41 at 66 (per Coker JSC).
Therefore where an issue has not been brought before a Court, the Court cannot be blaimed, and parties cannot complain that the Court failed to address it or to take this or that decision, as the appellant complains in its submission, when he stated that the plaintiff had no locus standi… and that the action ought to have been struck out by the lower Court.
In the case of Vor vs. Loko (1988) 2 NWLR (pt 77) 430 the Supreme Court clearly expressed the application of these principles already settled in many cases. They showed that an appeal is a complaint against the judgment of the Court below, a challenge of the correctness of that judgment on grounds of law, mixed law and facts or on facts simpliciter. Before an Appellate Court can therefore make a pronouncement on the judgment, the Appellant must show in the judgment that the view expressed by the Court below is wrong. It is those views which are appealed against and which the Appeal Court may affirm or reverse as the case may be. See Karibi-Whyte JSC at p. 441, where he said this:-
“Indeed, any judgment of an appellate Court founded on grounds not canvassed in the Court below and not adverted to and pronounced upon in the judgment appealed against ideally is not an appeal against such a judgment…”
In this matter, the appellant’s case at the Court below was based entirely on the defence that the property in question was the family property of the Alhaji Salami Family, of which his mother (D.W.1) was member and that the 1st defendant now Appellant was occupying same as the son of a family member and descendant of Alhaji Salami.
The statement of defence even averred to the rights under the Yoruba Customary law of “idigi”, which according to him entitled his mother’s branch of the Salami family to the room occupied by him. No issue of letters of administration or appointment of administrators was ever raised or adjudicated upon. I am therefore unable to see how the appellant can impugn the judgment of the Court on the issues now raised by him.
In coming to this decision, I have warned myself concerning the principles in Sande v Abdullahi (supra) and noted that no leave of this Court was sought or obtained by the Appellant to raise these issues. For all these reasons, this issue cannot be entertained. It is determined against the Appellant.
The vital issue as to whether the property in issue was family property as determined by the lower Court will now be considered.
In his written submission, the learned Counsel for the Appellant still insists that the property at 1A Olorogun Street, Surulere Lagos is family property, after the death of Alhaji Ayinde Salami who was the tenant of LSDPC. He said that death did not terminate a tenancy. This same Counsel, accepted the law and the definition of family property as set out by the trial Court from the case of Ogundairo v Abate and Coker v Coker (1938) 14 NLR 83 as “a house set aside by a father for his wives and children to occupy jointly after his death together with wives of married sons and their children. Therefore for a house to be family house or family property it must possess ownership.” (See page 4(b) of Appellant’s brief of argument).
He however submitted that the Court below misapplied the ratio in the judgment.
The judgment of the lower Court as set out earlier has shown the basis for its decision.
It is difficult to see how the learned trial judge misapplied the ratio, in the cases as submitted for the Appellant.
There is no evidence that the deceased, Alhaji Salami set aside the property of which he was tenant of LSDPC “for his wives and children” etc. All the evidence there was, shows that Alhaji Salami was the tenant of LSDPC before he died. Whether a tenancy subsists after the demise of a tenant depends on the terms of the tenancy. There is however no evidence as to the terms of this tenancy relied on by the Appellant.
What other evidence there was about this tenancy after the demise of the tenant Alhaji Salami, in 1978 was that the eldest son and head of his family, who testified at the trial as PW2, was paying the rent to LSDPC for some time. Parties were agreed on this. The same witness, PW2 established by his testimony, the plaintiff’s averments in paragraphs 10 and 11 of the Reply to the Statement of defence of the 1st defendant – Appellant (reproduced above) to that effect.
Further, PW2 Rasaki Adisa Salami is the brother (of full blood) of the Appellant’s mother. DW1 who testified on Appellant’s behalf it is through DW1 the appellant purports to claim his right of possession to the property. I must at this stage point out that DW1 has not a different branch of family from the plaintiff and PW1 all three of them being of the some father and mother. Therefore the assertion of the Appellant that he was entitled to the property under the “Idigi” custom does not avail him, since his mother DW1 is not from a different wife or branch of Alhaji Salami, deceased’s family.
It must be noted also that PW2 testified at the Court below that the property was not family property but that the said property was purchased by the plaintiff. He said: It is not correct that No. 1A Olorogun Street, Surulere is the family house. The family house is at Itire”.
After he testified that it was the plaintiff who bought the house, he also said in cross – examination:
“The plaintiff did not buy the family LSDPC house. The family house, is at Muteiru, Lane Surulere, Itire”
I did not see any evidence on record, contradicting all this evidence, given by the head of the family to which all the parties and their witnesses belong. Who else is in a better position to know which family house is and which is not than the head of the family? Significantly the contending parties are of the same parents. Only DW2 is of another mother.
The testimony of PW2, Adisa seems to me to be the best evidence against the claim that the property is family property. This Court can take a bearing from the case of Anyabunsi v Ugwunze (1995) 6 NWLR (pt 401) 255 at 273. There, the Supreme Court held that where in a land matter; a party’s Kith and Kin testified against him to the effect that the alleged family land in dispute belongs to the party’s adversary, that testimony constitutes an admission against the party’s own interest under Section 20(1) of the Evidence Act.
The learned trial Judge correctly came to the decision which he did, that the property in controversy was not family property.
For these reasons, this issue is also decided against the Appellant.
It remains to state that there was sufficient evidence before the trial Court which enabled him come to the right decision.
It showed that Alhaji Salami deceased did not purchase the property but was only the tenant of LEDB/LSDPC till his demise in 1978.
The respondent was the person who paid LSDPC to purchase the property.
A landlord who collects rent from his tenant is the dejure occupier of the land. Although he is not in physical possession, he is entitled to dispose of the land LSDPC did precisely that. In the light of this, the Respondent legally purchased the land from LSDPC which issued her with the Certificate of Sale tendered before the Court below.
The Appellant had put title in issue and the Respondent had, established better title than that asserted by the Appellant as required in the case of Kponugbo v Kodaja 2 WACA 24 and Amakor v Obiefuna (1974) All NLR 119 or 1974 SC 67.
It follows that the Respondent is entitled to recover the property from the Appellant as determined by the learned trial Judge.
Apart from the issue of locus standi earlier dealt with, the foregoing also disposes of any other basis for raising the issue of locus standi by the Appellant. That is also in the premises misconceived. The proper parties were before the Court.
All the issues having been determined against the Appellant, it follows that this appeal lacks merit and is hereby dismissed.
The decision of the High Court of Lagos State delivered on 11th June 1993 in favour of the plaintiff is affirmed.
There will be N3, 000.00 costs to be paid by the Appellant to the Respondent.
ATINUKE OMOBONIKE IGE, J.C.A.: I agree.
PIUS OLAYIWOLA ADEREMI, J.C.A.: I agree
- O. Akinduro Esq.For Appellant
- B. Joseph Esq.For Respondent