Nurudeen Adio Olufunmishe V. T. E. G. Labinjo & Ors (1972)

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defendants claiming:

“an order rectifying the Register of Titles by expunging therefrom the name of the 4th defendant as registered proprietor of No. 20 Glover Street, Lagos, under Title No. LO 1004 and L0 03659 and substituting the names of the plaintiffs as proprietors thereof.”

The 1st to 3rd defendants were sued as the executors and trustees of the deceased.

Pleadings were ordered and duly delivered. In their Statement of Claim, the plaintiffs averred that they were the two children of the deceased; that the deceased died testate on the 6th of March, 1946, when the plaintiffs were about 9 and 4 years old respectively; and that probate of the will of the deceased dated the 18th of December, 1945, was granted to the 1st to 3rd defendants. The main grounds upon which the plaintiffs founded their case were contained in paragraphs 4, 6 and 7 of the Statement of Claim which read as follows:-

“4. By Clauses 6, 11 and 32 of his said Will, A.A. Labinjo made the following devises:

“I direct that if the matter of the sale of No. 20, Glover Street, Lagos, Nigeria, is settled with the Vendors and the building is completed as I shall direct later in this Will Alphonsia Ibironke Da Costa should occupy a room and parlour there; but if not yet, I give devise and bequeath unto Aphonsia Ibironke Da Costa portion of my house and land of brick walls at No. 65 Hawley Street, Lagos, Nigeria, for her life and after her death the said portion shall revert and form portion of my estate; that is to say if Alphonsia Ibironke Da Costa occupies a room and a parlour at 20, Glover Street, Lagos then she is not entitled to any portion at 65, Hawley Street, Lagos and vice versa for the term of her natural life.

The Vendors of the remaining portion of new building back of No. 20 Glover Street, Lagos, have agreed to sell the said portion to me for 200pds. The money is ready. My Executors and Trustees shall settle with the said Vendors and complete the said building now in progress. It shall not be sold but remain as family house according to native law and custom.

I direct my Executors and Trustees shall not sell my property at No. 18A, Glover Street, Lagos, in front of No. 20 Glover Street, Lagos but the rooms shall be put to rent and the money or monies to be collected therefrom shall be deposited in the Bank of British West Africa Ltd., Lagos Branch. In Witness whereof I have hereunto set my hand to this my Will written on five pages this 18th day of December, 1945.”

6. The plaintiffs aver that the 1st, 2nd and 3rd defendants in fraud of the plaintiffs and in breach of trust and of the provisions of the said Will sold and conveyed the whole of the property situate and known as Nos. 18 and 20 Glover Street, Lagos.
7. The plaintiffs aver that they were not put on notice by the Registrar when the purchasers applied for the registration aforesaid.”

For their part, the 1st to 3rd defendants filed a Statement of Defence denying the allegations of fraud. The 4th defendant also filed a Statement of Defence in which he denied the allegations of fraud and spelt out his defence to the action as follows:

“6. The defendant admits paragraph 10 of the Statement of Claim save and except the allegation that the plaintiffs have “just recently discovered the facts” as contained in the said paragraph.

7. The defendant further avers as follows:-

a. That he is a purchaser of value without notice of the property namely No. 20 Glover Street, lagos, the subject matter of this action.

b. That the property, the subject matter of this action, has passed through various persons by way of mortgages and sales before being finally purchased by him. The defendant will, inter-alia, at the trial of this action rely on the previous transactions in respect of the said property.

c. That he is neither a party nor privy to any fraud (if any) in respect of any transaction whatsoever relating to the said property.

8. The defendant also avers that the plaintiffs’ action, apart from being an after-thought, is misconceived, mischievous, scandalous and is an abuse of the process of the court and should be dismissed with costs.

9 The Defendant will also rely, at the hearing of this action on all the legal and equitable defences open to him particularly the following:-