Mobil Oil (Nigeria) Limited V. Abolade Olatunji Coker (1975)

LawGlobal-Hub Lead Judgment Report

A. G. IRIKEFE, J.S.C.

Before the High Court of the Ibadan Judicial division in suit I/80/68, the plaintiff/appellant’s writ was indorsed against the defendant/respondent in the following terms:-

“The plaintiff’s claim against the defendant is for the refund of the sum of 6,500 (Six Thousand, Five Hundred Pounds) being money paid by the plaintiff to the defendant in respect of the lease of a piece of land at Ibadan and in respect of which said piece of land the Privy Council in 1964, on appeal from the Supreme Court of Nigeria, refused to grant declaration of title to the defendant. The plaintiff claims that there has been a total failure of consideration.”

The small parcel of land in dispute in this case, with an area of some 846.53 square yards is situated at the junction of Oke Padre and Onireke Street, in Ibadan. The land appears to have had a chequered history. The evidence produced at the trial of this action shows that the appellant was using the land as a petrol filling station for the sale of the products, and that it had been put in possession thereof by the United Africa Company of Nigeria Limited who held under a sub-lease from one Faweze Moukarim (See Exhibit A) The sublease (Exhibit “A”) which was executed on 27th June, 1960 is stated to be for a term of 50 years, effective from 1st January, 1959. At the time of execution, the sum of 4,000 (Four Thousand Pounds) representing an advance payment of 20 years rent was made by the lessee to the lessor.

It would appear that, on 27th March, 1957, the plot of land in dispute had been the subject of an earlier conveyance between the Balogun Ibikunle family of Ibadan as grantors and the respondent as grantee of an estate in fee simple free from incumbrances. The particulars of this conveyance are recited in Exhibit “B”, a conveyance dated 3rd February, 1962 and executed by the respondent in favour of the appellant.

As the respondent, in spite of the conveyance from the Balogun Ibikunle family was unable to go on the land in dispute, he brought an action in the Ibadan High Court claiming a declaration of title and injunction against F. Moukarim and two others. We have stated earlier on, that the appellant was placed on the land by the United Africa Company of Nigeria Limited, who held under a sub-lease from Moukarim.

This action, Suit I/300/57, was dismissed and the respondent appealed against the dismissal to the Federal Supreme Court in Suit No. FSC. 218/1960. On 15th March, 1967, the Federal Supreme Court upheld the respondents appeal and awarded him title and injunction against Moukarim as originally claimed at the High Court, Ibadan. After the decision of the Federal Supreme Court, the respondent went on the land, ejected the appellant and took possession of its installations thereon. Being faced with this new situation, the appellant was obliged to take a new lease from the respondent as evidenced by Exhibit “D”

There is evidence that the appellant knew that Moukarim had, after the Federal Supreme Court judgment in FSC. 216/60, obtained final leave to appeal to the Privy Council in October, 1961. The respondent was at pains to draw attention to his root of title to the disputed land and did so in the following recital in the deed of lease, Exhibit “B”:-

“Whereas under and by virtue of a deed of conveyance dated the 27th day of March, 1957 and registered as No. 6 at page 6 in Volume 190 of the Register of Deeds kept in the Lands Registry of Ibadan, and executed by (1) Olatunde Akanmu, Mogaji Balogun Ibikunle family, (2) Gbadamosi Olasupo, (3) Raji Oduola and (4) Bello Lahan in favour of the lessor, the lessor became well and truly seized in fee simple free from incumbrances of the hereditaments hereinafter intended to be conveyed in fee simple absolute free from all incumbrance. And whereas the Federal Supreme Court of Nigeria on the 15th day of March, 1961 in suit No. FSC. 218/60 entitled A. O. Coker versus F. Moukarim, Johnson Aina and Ibadan District Council confirmed the title of Balogun Ibikunle family.”

The deed of lease, Exhibit “B” executed on 3rd February, 1962 is stated to be for a term of 10 years effective from 2nd May, 1961 at an annual rent of 1,300 (One Thousand, Three Hundred Pound). Rents totaling 6,500 representing advance payment for 5 years were paid to the respondent by the appellant at the execution of Exhibit “B”. The respondent’s success before the Federal Supreme Court would appear to have been short-lived for, on 7th April, 1964, the Judicial Committee of the Privy Council allowed Moukarim’s appeal and restored the decision of the High Court, Ibadan which had earlier dismissed the respondent’s action in Suit I/300/57. As the respondent’s title to the disputed land was rendered useless by the decision of the Privy Council, the appellant instituted the present action before the High Court, Ibadan. In the course of a trial in which the respondent called no evidence, the learned Judge, (Aguda J., as he then was), after a very careful examination of the authorities cited entered judgment in favour of the appellant as claimed. The respondent later appealed to the Western State Court of Appeal, which court, on 2nd March, 1973 upheld the appeal and dismissed the appellant’s claim. This appeal has been brought against the decision of the Western State Court of Appeal aforesaid.

Before setting out the grounds of appeal relied upon by learned counsel for the appellant before us, we should like to draw attention to those matters on which issues were joined between the parties at the court of trial, in order to make for an easy grasp of the case as a whole.The respondent in paragraph 2 of this statement of defence admitted paragraphs 1 to 3 of the statement of claim. These paragraphs aver as follows:-

“1. The plaintiff is a company incorporated in Nigeria with Limited liability under the Companies Act and had its registered office at No. 60 Broad Street, Lagos and a district office in Ibadan.

2. The defendant is a licensed surveyor and is resident in Ibadan.
3. By a deed of lease dated 3rd day of February, 1962 and registered as No. 17 at page 17 in volume 511 of the Register of Deeds at Ibadan, the plaintiff became owner of lease hold interest in the property described in the recited deed of conveyance dated 27th March, 1957, registered as No. 6 at page 6 in volume 190 of the Register of Deeds at Ibadan for a term of 10 years commencing from the 2nd day of May, 1961.
4. As a result of the afore recited deed of lease, the plaintiff paid the defendant the sum of 6,500 which represents the first 5 years rent under the said lease.
5. Before the execution of the lease recited in paragraph 3 above, the plaintiff had been in lawful occupation of the area covered by the lease by virtue of a sub-lease between one F. Moukarim and United African Company of Nigeria Limited dated 27th June, 1960 and registered as No. 34 at page 34 in volume 373 of the Register of Deeds at Ibadan for a term of 50 years, commencing from 1st January, 1959.

“6. In Suit No. I/300/57: A. O. Coker v. F. Moukarim and Others, the present defendant who was the plaintiff in suit I/80/68, claimed the property which is the subject matter of lease referred to in paragraph 3 above. The claim in Suit No. I/300/57, was dismissed.

7. The present defendant who was the plaintiff in Suit No. I/300/57, successfully appealed against the decision of the Ibadan High Court in FSC. 218/60 and judgment was entered in favour of the present defendant i.e. the plaintiff in I/300/57, for declaration of title and for injunction retraining one F. Moukarim the sub-lessee of lease registered as no. 34 at page 24 in volume 373 of the register of deeds at Ibadan.
8. By virtue of the success in appeal No. FSC. 218/60 the defendant entered and took possession of the petrol station of which the plaintiff was in lawful occupation. The plaintiff then entered into the lease referred to in paragraph 3 of the statement of claim.

9 Mr. Moukarim who was the respondent in FSC 218/60 appealed to the Privy Council against the decision of the Federal Supreme Court in FSC 218/60”