Mr. Kolawole Oronti Vs Alhaji S. A. Onigbanjo (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal from the Judgment of the Court of Appeal, Lagos Division delivered on the 8th day of June, 2004 dismissing the appeal from the Ruling of his Lordship Hon. Justice Adebayo Manuwa of the High Court of Lagos State, Ikeja Division delivered on the 9th day of October, 1998, wherein the Honourable trial Court dismissed the application of the Defendant now Appellant seeking inter alia, an order of court dismissing the Plaintiffs action on the ground that the disposition of or sale of the portion of land, the subject matter of this appeal pending the determination of suit No. LD/326/71 to the plaintiff on the 8th day of October, 1974 is null and void by virtue of the principles under the doctrine of lis pendens.

The Defendant, now Appellant dissatisfied with the said judgment filed 2 grounds of Appeal which are all grounds of law. The facts briefly stated for the back ground information are as follows:-

The land in dispute forms part of a larger portion of land situate at Opeifa crescent, Anthony Village, Lagos. The plaintiff/Respondent commenced this suit against the Defendant/Appellant claiming the following:-

(i) A declaration that the plaintiff is the person entitled to the right of occupancy over a piece of land situate lying and being at Opeifa crescent, Anthony Village, Lagos state, more particularly described and delineated in the plan attached to the certificate of occupancy No. 7/7/1991/M of 28/9/91 registered as No. 7 at page 7 in volume 199/M of the Lagos State of Nigeria Land Registry, Ikeja, Lagos.

(ii) Damages in the sum of N100,000.00 (One Hundred Thousand Naira Only) for trespass committed on the said land by the Defendant, his servants, agents and privies.

(iii) Perpetual injunction restraining the Defendant, his servants, agents or privies from committing further acts of trespass on the said land.

By the Statement of Claim filed by the plaintiff in support of the claim, the Plaintiff/Respondent averred in paragraphs 3, 4, and 5 and I quote:

“Para 3: The piece of land is at Opeifa crescent, Anthony village, Lagos state and edged red in Plan No. AOAT/LA/98/1989 of 16/6/89 prepared by A. Apatira, a licensed surveyor, originally belonged to one Edward Akintola Campbell (now deceased) by virtue of a Deed of conveyance dated 20/1/71 and registered as No. 2 at page 2 in volume 1243 of the Lands registry, Lagos between the Late Edward Akintola Campbell and heads of the Alashe Chieftaincy Family of Ojuwoye.

Para 4: The Plaintiff avers that he was introduced to the late Edward Akintola Campbell by his estate agent, one Alhaji M. A. Calfos (also deceased).

Para 5: The late Edward Akintola Campbell during his life time sold the land in dispute to the plaintiff for a sum of N10, 000.00 (Ten Thousand naira Only) and issue the Plaintiff with a receipt dated 8/10/74″. See page 3 of the printed records”

The Defendant/Appellant, thus became aware that the Plaintiff/Respondent purchased the land in dispute during the pendency of an earlier suit, suit No. LD/326/71 instituted by one Edward A. Campbell (the plaintiff’s predecessor in title) against S. A Opeifa and 6 Ors including the Defendand appellant herein and claiming several declaratory reliefs against all defendants in respect of a larger portion of land, of which the land in dispute formed a part. It is not in dispute that the Plaintiff/respondent bought the portion of land in dispute during the pendency of suit No. LD/326/71. It is also not in dispute the said suit instituted by the plaintiff/respondent’s predecessor in title was struck out after the sale.

Pursuant to the above stated facts, the defendant/appellant filed an application for summons for further direction at the Lower court praying the court inter alia for an order setting down and disposing of the point of law raised in paragraph 18 of the statement of defence, concerning the issue of the plaintiff’s title as pleaded in paragraphs 3, 4, 5 and 10 of the statement of claim in that the Plaintiff’s title (as pleaded) is null and void and an order dismissing the action in its entirety or striking out same on the ground that the land in dispute was purchased by the Plaintiff/respondent pendent lite. See page 85 – 89 of the printed record. The plaintiff/respondent filed a counter affidavit to the defendant/appellant’s summons for further direction admitting quite overtly that the land in dispute was purchased during the pendency of suit No. LD/326/71 but denying knowledge of the pending proceedings in the said suit and further argued that for the doctrine of lis pendens to apply there must be a successful termination of the action during whose pendency the land in dispute was alienated.

On the 28th day of February, 2012 of hearing, learned counsel for the Appellant, Mr. Olukayode Enitan adopted their Brief filed on 2/11/2010 in which was formed a sole issue viz:-