Salawu Ajide V. Kadiri Kelani (1985)

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M. BELLO, J.S.C. 

The present Respondent was the plaintiff in the High Court of Lagos State wherein he claimed jointly and severally against the present Appellant and one Karimu Ayinla as the 1st and 2nd defendants respectively for:

“(i) a declaration that the Plaintiff and the Defendants are and remain the co-owners in equity of all that piece or parcel of land situate, lying and being at Awoyokun Street, Odi-Olowo, Mushin District which land is bounded by straight lines joining survey pillars marked DB7, Wk 1752 and Wc 5912:

(ii) an account of all the rents and profits collected by or on the direction of the defendants in respect of the said property from February, 1967;

(iii) an ORDER compelling the defendants to pay to the Plaintiff any money found to be due to the plaintiff after the rendering of such account.

During the trial of the case the 2nd defendant died and the trial proceeded against Appellant only. After having heard the evidence, the trial judge dismissed the claim. The Respondent successfully appealed to the Court of Appeal which set aside the decision of Adebiyi J. dismissing the Respondent’s claim and made the following orders:

“(i) a declaration that the Plaintiff and the defendant are co-owners in equity of all the three storey building with the land situate at Awoyokun Street, Odi Olowo and which is bounded by straight lines joining survey pillars marked DB7, WK 1653, WK 1752 and WC 5912.

(ii) an account of all the rents and profits collected by or and the direction of the defendants in respect of the property since 3rd September 1968, such account to be filed and served on the Plaintiff/Appellant within 3 months from date of this judgment.

(iii) That the Plaintiff shall be a liberty within 6 weeks after service on him of such account to falsify and surcharge same.

(iv) That the High Court of Lagos State do make all necessary and consequential orders, against the defendants including filing of a survey plan of the land in Court and to enter judgment for any amount whatever that is found due to the Plaintiff.”

The Appellant has now appealed to this Court against the decision of the Court of Appeal.

Having regard to the admission made by the Appellant in his pleading that the property in dispute was originally a partnership property and his subsequent change of stand during his testimony that it had never been a partnership property but has always been his personal property, I consider it necessary to set out in full the pleadings of the parties. In his Statement of Claim the Respondent averred:

“2. The Plaintiff and the Defendants together with one Mohammed Nuru Ayuba at one time carried on business in partnership under the business name and style of FOUR BROTHERS STORES.

3. The said business name was duly registered by the Plaintiff and the Defendants are proprietors on 25th April, 1957 under the Registration of Business Names Act but without the said Mohammed Nuru Ayuba who had by then relinquished the of the respondent in the previous suit and the copy of the dissolution agreement which formed part of the proceedings in the said suit to be inadmissible in the circumstances of the present case. The Court of Appeal concluded its judgment with the following observations:

“It is our view that the defendant (now the Appellant) having admitted that the property was at one time that of the partnership he must prove how he became the exclusive owner; see Maji v. Shaft (1965) N.M.L.R. 33 at 36 (Supra ubi).