Adekunle Asolo & Ors V. Tirimisiyu Asolo & Ors (2002)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

This appeal was heard on 17/4/02 on the briefs of the appellants and the 4th respondent only. The 1st – 3rd respondents did not file any brief. Initially all the respondents failed to file their respective briefs of argument after service, on them of the appellants brief filed on 16/5/01. It was on the application of the appellants/applicants counsel that the appeal be set down for hearing on the failure of all the respondents to file their briefs of argument that the 4th respondents counsel was gingered to apply for extension of time to file the 4th respondents brief of argument. This was granted by this court on 30/1/02 and the application of the appellant/applicant for setting down the appeal for hearing was consequently withdrawn and struck out on the same date. Thus the 1st – 3rd respondents did not file any brief and did not show any interest in the appeal which was eventually heard on 17/4/02. It is pertinent to point out that the 3rd respondent Alhaji. K.O. Are who died before the hearing of the appeal was substituted by the executors of his will by name Alhaji Amusa Adegoke Are and Alhaji Yinusa Ladejo (i.e. the 3rd and 4th respondents herein). So the 3rd and 4th respondents have the same interest in the appeal and the brief filed by or on behalf of the 4th respondent in this appeal can cater for them or for their interest. The appellants in this appeal were the plaintiffs at the trial court – High Court of Oyo State holden at Ibadan – while the respondents were the defendants. The plaintiffs/appellants claims at the trial court were as follows:

“(a) Declaration that the Deed of Assignment dated 7th June 1972 and registered as No 12 at page 12 in Volume 1632 in the register of Deeds at Land Registry, Ibadan made between the Plaintiffs and the Defendants in respect of the property situate and lying at No. 89/91 Lebanon Street, Gbagi, Ibadan, Oyo State is null and void and of no effect whatsoever.

(b) An injunction against the 3rd defendant, his servants and/or agents or any of his privies from further acts of interfering with the said property.

(c) Any other relief the court can give.”

(See the endorsed writ of summons (at page 1 of the records) read together with paragraph 19 of the statement of claim at page 5 of the said record). Pleadings were ordered, filed and exchanged on the above claims. The plaintiffs/appellants (hereinafter simply called “the appellants”) filed their statement of claim (see pages 3-5 of the records). The defendants/respondents (also hereinafter called “respondents”) filed their statements of defence. The 1st and 2nd respondents filed their joint statement of defence (pages 20-21 of the records) while the original third respondent filed his separate statement of defence (at pages 22-25 of the records). In support of their respective pleadings the parties gave evidence and called witnesses. The appellants gave evidence and called two (2) witnesses while the 1st and 2nd respondents called one (1) witness and the 3rd respondent called two (2) witnesses. At the conclusion of hearing the parties and their witnesses as well as the addresses of their respective counsel, the learned trial judge (Sijuade J) dismissed the appellant claims in their entity. The appellants being aggrieved by the judgment of the learned trial judge appealed against it in the court.

The facts leading to the appellant’s suit against the respondents at the trial court are as follows: –

The appellants and the 1st and 2nd respondents are children of one late Pa Jacob Asolo (deceased) to whom the land in dispute was originally leased by the Ibadan Municipal Government. By a Deed of Lease dated 22/11/40, and registered as No 7 page 7 in Volume 567 in the Deeds Registry, Ibadan, Pa Asolo on his own part leased the property to one Soubie Jaffar (a Lebanese) for 50 years with the consent of the Olubadan in Council Soubie Jaffar thereafter assigned the residue of his interest in the land to his country man by name Hassan Khalili (under a deed of assignment dated 8/3/44 and registered as No 34 page 34 in volume 634 of the Deeds Registry, Ibadan). After the death of Pa Asolo, one H.M. Suberu went behind and increased the duration of the lease by 20 years and upon the discovery of the increase, the appellants and the 1st and 2nd respondents as his children went to court and challenged the action of H.M. Suberu.

The High Court in suit No.1/264/73 set aside the 20 years increase. However pursuant to the assignment in his favour but without the approval or consent of the Olubadan, Hassan Khalil subsequently assigned or transferred the residue of his interest in the land to the 3rd respondent under a deed of assignment dated 7/6/72 and registered as No 12 page 12 in volume 1632 of the Deeds Registry, Ibadan. It was this latest assignment by Hassan Khalil that prompted this present action by the appellants.

Before his death, Pa Jacob Asolo, the original lessee of the land and the father of the appellants and the 1st and 2nd respondents, had given an express instruction in his will dated 20/6/44, that the land should not be sold or mortgaged. Rather the will prescribed that the first floor of the house build on the land should be used for residential purpose while the ground floor was to be used as shops. However contrary to the wishes of Pa J. Asolo as he expressed in the said will, the 3rd respondent Alhaji K.O.S Are (who is now deceased but was substituted by the present 3rd and 4th respondents) maneuvered and outsmarted the 1st and 2nd respondents to sell the reversionary interest on the land to him in 1972 without any payment to other members of Asolo family (including the plaintiffs) who continued to pay the ground rent in respect of the land to the Ibadan Municipal Government from 1972 to 1989. The vendors or lessors to the 3rd respondent who transferred the reversionary interest to him by name Soubie Jaffar and…

Hassan Khalil could not be located as they have left Nigeria after the transaction. Consequently, the appellants instituted the present action against the 1st and 2nd respondents (who took part in the transaction) as well as the 3rd and 4th respondents who were substituted for the original 3rd respondent Alhaji. K.O.S. Are (deceased).

The appellants initially filed one ground of appeal with their notice of appeal in which they indicated their intention to file more grounds on receipt of the records of proceedings (see page 88 of the record). This was effected by the appellants who subsequently filed a further amended notice of appeal on 16/5/01 with the leave of this court granted on 17/5/01. In this new notice of appeal, the appellants filed five (5) grounds of appeal (including their original ground). In their brief of arguments which was deemed by this court on 17/5/01 and adopted at the hearing of the appeal, the appellants formulated the following three (3) issues that arise and call for determination in this appeal:-

(i) Whether the learned trial judge was competent and had jurisdiction to dismiss the plaintiffs (appellants) case when the necessary and proper parties were not before him (Ground 4).

(ii) Whether the learned trial judge was right to have dismissed the plaintiffs (appellants) case after finding that the plaintiffs (appellants) were not competent parties to institute the action. (Ground 3).