Nidocco Limited V. Mrs. I. A. Gbajabiamila (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

At all times material to the proceedings from which this appeal arose, the appellant company was the registered owner of the property known as, and situate at, 26 Sobo Arobiodu Street, GRA, Ikeja, Lagos State. The appellant company and the property at No. 26, Sobo Arobiodu Street, Ikeja, Lagos shall hereinafter be referred to as the appellant and the disputed property respectively.

The Respondent herein, her former husband who testified at the trial Court as PW2 and a Mrs. Ebie who testified as PW1 constituted the entire shareholders and Directors of the appellant with the PW2 as its Managing Director at the institution of the suit in the High Court of Lagos State, Ikeja Judicial Division. The parties herein are in agreement on the facts stated above.

As a result of issues bordering on the finances of the appellant, its Board of Directors passed a resolution to sell the disputed property. Mr. N. K. Gbajabiamila, who testified as PW2 and his then wife, the respondent herein, both Directors of the appellant, offered to purchase the property. Pursuant to the acceptance of the offer, the parties, that is, the Respondent and the PW2 as the purchasers and the company as the vendor, executed a deed of assignment dated 21/6/1983 in which the payment of the sum of N150,000 as consideration was acknowledged. The deed of assignment was admitted in evidence at the trial and marked Exhibit D1-D5.

The parties did not seek to obtain the Governor’s consent to the deed of assignment as it was considered a waste of their financial resources. Meanwhile, the respondent persuaded the PW2, then her husband, to transfer his share in the joint property to her. To evade costs of obtaining the Governor’s consent, first, to the transfer of the property by the appellant to PW2 and Respondent and, second, from the PW2 to the respondent, the parties agreed to transfer the property direct from the appellant to the respondent, notwithstanding Exhibits D1-D5 between the appellant and PW2 and the Respondent as joint purchaser/owners.

Pursuant to the said agreement, the parties to Exhibit D1-D5 and their respective witnesses met at Sheraton Hotel where an entirely different deed of assignment was executed. This latter deed of assignment could not be tendered at the trial because it was no longer in existence. There is evidence that the PW2 who said he did not receive any consideration for the transfer of his share in the property to the Respondent after waiting for same for two years, retrieved the documents and destroyed them.

Above summary of fact was the state of affairs when the appellant commenced Suit No.ID/290/91 in the High Court of Lagos State holden at Ikeja, wherein it claimed against the Respondent as defendant as follows:

“(1) A declaration that Nidocco Limited is entitled to be granted certificate of occupancy in respect of the leasehold of all that piece of parcel of land situate, lying and being at No.26, Sobo Arobiodun Street, GRA Ikeja, Lagos State by virtue of a Deed of Assignment dated the 19th day of August, 1966 and registered as No.18 at page 18 in Volume 888 of the Lands Registry at Ibadan now in Lagos.

(2) Damages for trespass in respect of the said piece or parcel of land with all the appurtenances thereto.

(3) An order of injunction restraining the defendant, her servants, agents and privies from any further acts of trespass on the said land or dealing with the said piece or parcel of land in any manner whatsoever.”

The statement of claim was filed along with the Writ of Summons on 8/2/91. In her statement of defence filed on 2/3/92, the defendant denied the material averments in the statement of claim and counter-claimed against the plaintiff as follows:

“1. A declaration that the defendant is entitled to the grant of the Statutory Right of Occupancy in respect of the property situate, lying and being at No. 26, Sobo Arobiodun Street, GRA, Ikeja, Lagos, and

2. An order compelling the plaintiff to process the obtaining of the Governor’s consent, stamping and registration by the plaintiff in favour of the defendant, given to Messrs Burke & Co., Solicitors, to process.”

At the trial before His Lordship, Holloway, J. the plaintiff called three witnesses and rested its case. The defendant testified but called no other witness. In its judgment delivered on 19/5/95, the trial Court entered judgment for the plaintiff and dismissed the defendant’s counter claim.

Dissatisfied with the said judgment, the defendant (now appellant) appealed to the Lagos Division of the Court of Appeal. In its exhaustive judgment delivered on 27th June, 2002 the Court below concluded as follows: