Alh. Tajudeen Ibrahim Olagunju V. Alhaja Habibat Yahaya (2003)

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JA’AFARU MIKA’ILU, J.C.A.

This is an appeal against the decision of Kwara State High Court presided over by J. F. Gbadeyan delivered on 12th day of November, 1999, in suit No. KWS/267/94, Alhaji Tajudeen Ibrahim Olagunju v. Alhaja Habibat Yahaya & Anor.

At the trial court the appellant, who was the plaintiff, instituted the action against Alhaja Habibat Yayaha, the 1st respondent. Later on, one Mr. Makanjuola Ayoola was joined as the 2nd defendant. As per the amended statement of claim, particularly paragraph 19 thereof, the appellant/plaintiff claimed against the defendants as follows:-
“(1) A declaration that the plaintiff is bona fide purchaser for value without notice of all that piece of parcel of land with all the developments thereon situated, lying and being at Geri-Alimi round-about (known as Ayoola Estate) along Ilorin, Lagos Road near Ilorin Grammar School, Ilorin and covered by permit to alienate land No. 0024 dated 16/11/74 as well as by customary right of occupancy No. 245 dated 14/9/94 issued by the Ilorin West Local Government of Kwara State.

(2) An order of perpetual injunction restraining the 1st defendant either by herself, agents, servants, privies or through any person(s) howsoever from further trespassing and/or disturbing the plaintiff on the said property situated, lying and being at Geri-Alimi Roundabout (known as Ayoola Estate) along Ilorin Lagos Road near Ilorin Grammar School, Ilorin and covered by permit to alienate land No. 024 dated 16/11/74 as well as by customary right of occupancy No. 245 dated 14/9/94 issued by the Ilorin West Local Government of Kwara State.

(3) An order of the court compelling the 2nd defendant to give to the plaintiff possession of the said premises in dispute situate and lying and being at Gari-Alimi roundabout (known as Ayoola Estate) along Ilorin – Lagos Road near Ilorin Grammar School, Ilorin and covered by permit to alienate land No. 0024 dated 16/11/94 as well as by customary right of occupancy No. 245 dated 14/4/94 issued by the Ilorin West Local Government of Kwara State.

(4) An order of the court for the two defendants jointly and severally to account for and pay over to the plaintiff all rents collected at the premises in dispute from the date of deed of transfer from the 2nd defendant to the plaintiff to date of giving possession to the plaintiff.

(5) N1,408.069 (One million, four hundred and eight thousand and sixty nine naira against the 1st defendant being the cost of the 3 bedroom bungalow demolished by her on the property.

(6) General damages for loss of use, trespass, pains and humiliation suffered by the plaintiff in the hands of the defendants.

The 1st respondent denied the claim of the appellant/plaintiff and in her amended statement of defence counter-claims against the plaintiff as follows:-

(i) A declaration that as between the plaintiff and herself she is the prior and bona fide purchaser for value and or without notice of any interest of the plaintiff of all that piece or parcel of land and all the appurtenances thereon situate, lying and being at Geri-Alimi round-about, Ilorin-Lagos Road which has been styled, known and called Alhaja Habibat Yahaya Estate since November, 1993 and long before the purported negotiation between the plaintiff and the 2nd defendant on the said estate.

The respondent/1st defendant further counter-claim against the plaintiff and the 2nd defendant jointly and severally as follows:-
(i) A declaration that all (if any) transaction or negotiations between the plaintiff and the 2nd defendant relating to or connected with the estate of the defendant situate, lying and being at Geri-Alimi round-about, Ilorin-Lagos Road and otherwise known and called as Alhaja Habibat Yahaya Estate after the 27th day of November, 1993 when the 2nd defendant collected from the defendant a sum of N1 million (One million naira) being the purchase price of the said estate is illegal, immoral, questionable, condemnable, and therefore, null and void and of no effect whatsoever.

(ii) An order of perpetual injunction restraining each of the plaintiff and the 2nd defendant either by himself, agents, solicitors, servants, privies or through any person or persons howsoever, from trespassing on the said estate or from disturbing the defendants peaceful or peaceable enjoyment of the said estate which is popularly, commonly and legally known as Alhaja Habibat Yahaya Estate.

(iii) A sum of N1 million (One million naira) being general damages for the embarrassment, pains, inconveniences and disturbances suffered by the defendant in the hands of the plaintiff and the 2nd defendant.

The second defendant filed his statement of defence and his reply to 1st defendant counter-claim.
At the trial, the appellant testified and called three other witnesses who also testified. The 2nd defendant also testified and called one other witness who also testified. However, the respondent/1st defendant neither testified nor called any witness. At the end of the trial the trial court in its judgment dismissed the claim of the appellant/plaintiff and gave judgment for the respondent/1st defendant granting the first three reliefs counter-claimed. A sum of N200, 000 (Two hundred thousand naira only) as general damages was ordered in favour of the respondent/1st defendant against the appellant and the second defendant.