Taofik Disu & 13 Ors. V Alhaji Silifat Ajilowura (2006)

LAWGLOBAL HUB Lead Judgment Report

MUKHTAR, J.S.C.

This appeal is against the decision of the Division of the Court of Appeal which affirming the ruling of the High Court of Justice, Lagos State. In that ruling, the learned trial Judge dismissed a Motion on Notice in which the defendants/appellants had sought the striking out of the action filed by the plaintiff/respondent in which she claimed the following reliefs against the defendants/appellants:-

“(a) A declaration that the deed of gift dated 17th day of May, 1975 purportedly made between Tawakalitu Ajiun, Aminatu Abeke and Momodu Lawani Ishola is null and void and of no effect.

(b) A declaration that the late Momodu Lawani Ishola (Father of the 1st and 2nd defendants) had no legal or equitable interest/title in both No. 48, Aroloya Street, Lagos and 60, Smith Street, Lagos.

(c) An Order of perpetual injunction restraining the defendants (particularly the 1st and 2nd defendants) either by themselves, agents or privies from further interfering in any manner whatsoever and with the rights of the plaintiff and her co-beneficiaries over the control and management of both 48, Aroloya Street, Lagos and 60, Smith Street, Lagos.

(d) An Order directing the 3rd to 5th defendants to produce their last rent receipts to the plaintiff and her co-beneficiaries and to desist from further payment of rents to the 1st and 2nd defendants or to any person other than the plaintiff and her co-beneficiaries or their accredited agents.

(e) An Order directing the 1st and 2nd defendants to render account of all rents collected from 48, Aroloya Street, Lagos from October, 1979 to October, 1989.

(f) An Order directing the 1st and 2nd defendants to render account of all rents collected from 60, Smith Street, Lagos form October, 1979, to the date of judgment.”

The case put forward by the plaintiff as per her Statement of Claim is that she and the 1st and 2nd defendants are the great children and grand children of the original owner of the properties in dispute, while the 3rd -15th defendants are tenants. According to her, the late Disu Dada was survived by three children, including her grandmother when he died. He devised his real properties which were not specifically devised in his Will to her grandmother and Animotu Abeke. Both authorized Momodu Lawani, their brother to collect rents from the properties as their agent for an agreed fee. This arrangement continued until he died. Thereafter, his widow and 1st and 2nd defendants took over the collection of the rents, but did not remit same to Tawakalitu Ajiun and/or Animotu Abeke, despite complaints by them. The widow of the late Momodu Lawal and her children, 1st and 2nd defendants claimed that the properties belonged to Momodu Lawal, hence a search was conducted at the lands registry where the plaintiff discovered a deed of grant purportedly made between Momodu Lawal and his sisters conveying the properties to him as gift. The plaintiff maintains that this deed of gifts was a fraud. Consequently, the plaintiff instituted this action.

The defendants did not file a Statement of Defence, but filed a Motion on Notice, urging the High Court to strike out the Writ of Summons, Statement of Claim and the plaintiff’s action for lack of jurisdiction, and that the grounds upon which it was brought was that the plaintiff has no right, capacity or title to institute the action, or alternatively that the action is incompetent. The Motion on Notice was supported by an affidavit, the pertinent depositions of which are as follows:

“2. I have perused the Writ of Summons, Statement of Claim and all other processes filed in this action which form part of the records of the Honourable Court.

3. My perusal of the processes revealed that the plaintiff’s claim is in respect of the proprietary interest, rents, accounts (amongst other reliefs) relating to the properties known as 48, Aroloya Street, Lagos and 60, Smith Street, Lagos.
4. My perusal of the processes do not reveal the authority which enables the plaintiff to institute this action.”

Learned counsel for the two sides made submissions on the motion, and the learned trial Judge considered the submissions, and found no merit in the application and dismissed if after observing thus:-

“If the defendants are desirous of raising the issue of the locus standi of the plaintiff in instituting this action, they ought first to file their defence in which that issue is pleaded and thereafter file a notice of preliminary objection to complain about the capacity of the plaintiff to institute this action.”

Aggrieved by the dismissal of the motion, the defendants appealed to the Court of Appeal on four grounds of appeal. The Court of Appeal found no merit in the appeal, it dismissed it and affirmed the decision of the trial court. Again, dissatisfied, the defendants appealed to this court on six grounds of appeal from which they distilled two issues for determination in their brief of argument which they exchanged with the plaintiff/respondent and which were adopted at the hearing of this appeal. The appellants’ issues are as follows:-