Lamulatu Shasi & Anor. V. Madam Shadia Smith & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M.S. MUNTAKA-COOMASSIE, J.S.C

The Respondents, who were the Plaintiffs at the trial court, in their writ of summons and statement of claim claimed against the Appellants as follows;-

“(a) DECLARATION that the property situate at No 6 Bridge Street, as shown in the plan attached was the property of Aliyu Enukunmi and that the three branches of the Enukunmi Family – Williams – Galubi. – Mustafa are entitled in equal shares to the said property.

(b) AN ORDER of possession against the 1st and/or 2nd Defendant to vacate and deliver up possession of rooms and appurtenances to the plaintiffs.

(c) AN ORDER that all accumulated rents and/or arrears of rent due and payable to the plaintiffs be paid.

(d) AND for such other Order/s as this Honourable Court may deem fit to make.

Both parties filed and exchanged their respective pleadings and called witnesses in support of same. At the close of the case the trial Judge found no merit in plaintiffs’ case and dismissed it. In reaching its conclusion, the trial court held as follows: – (On page 195 2nd paragraph):-

“Exhibit A showed that the plaintiffs’ parents declared that the property was the property of Sunmonu as averred by the defendants, that Sunmonu was the father of Amodu and Abudu Salami Sunmonu, and that is not all. Exhibit A also showed that Amodu was in fact the father of the plaintiffs’ parents namely, Jarinatu Williams, Selia, Senabu, Mutairu and Mustafa, as asserted by the defendants. This is corroborated by the PW1 when she said that Falilat, Mustafa 3rd plaintiff was member of the same Idi Igi. Exhibit A was an instrument executed in 1926 and registered as No. 15 at page 15 LR 24 vol. 409/34. I believe the contents of Exhibit A. that is no iota of truth in the evidence of the plaintiffs that Arriodu was not the father of the plaintiffs’ parents. In fact when construed properly Exhibit A showed that there were actually two Idi igi, i.e. that of Amodu and that of Abudu Salami Sunmonu.

I also believe the evidence of the 2nd defendant that Amodu was also the father of Ramotu Amodu and also maternal great – grand father of the 1st defendant, Airatu Aromire.

I found proved and I hold that it was as a result of the fact that the where about of Ramotu Amodu were unknown and that she was presumed dead that her name was not mentioned in Exhibit A. I also find that at the end of the proceedings in this action the defendants succeeded in establishing a better title than the plaintiffs. In the result the plaintiffs’ claim totally fails and it is accordingly hereby dismissed.”

Dissatisfied with the judgment of the trial court, the plaintiffs successfully appealed to the Court of Appeal Lagos Division hereinafter called the lower court. The court heard the appeal and allowed it. In the lead judgment of Aderemi JCA as he then was held thus :- See pp 424 – 434 of the record.

“I pause to say that on the state of the pleadings issue No 3 on the Appellants brief which relates to the correct application of the principle in Kojo II Vs Bonsie (1957) 1 WLR 1223 is non Sequitur. The defendants/Respondents have admitted being on the property indeed the 1st defendant/respondent admitted being on the property since 1945. They also by their paragraph 6 admitted that they have not being paying rents. Issues No. 1,2,4,5,6 and 7 of the Appellants’ brief of argument must be resolved in their favour. And I so resolve than. (sic) I have said issue No.3 is non sequitur. As a corollary all the seven issues raised by the respondents are already resolved against them. For all the reasons I have stated, this appeal is adjudged to be meritorious. It is accordingly allowed”.

This is a unanimous decision as Oguntade and Amiru Sunusi JJSC also concurred. The Plaintiffs won the battle before the court below. The defendants being dissatisfied with the above decision appealed to this court and filed a Notice of appeal containing five grounds of appeal and dated 4th February, 2002. They are reproduced hereunder as follows: –

GROUNDS OF APPEAL