Abraham Folorunso Ajayi V. Madam Esther Osunuku & Ors. (2008)

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CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the judgment of the Lagos State High Court delivered on the 30th June, 1995 by Justice Moni Fafiade sitting at High Court No.6 Ikeja Division.

The claim of the Plaintiff/Appellant as endorsed in his writ of summons was for:-

(i) A declaration that he is entitled to the Certificate of Occupancy In respect of the piece of land and the building thereon situate at and known as 24B Olowu Street, Bariga and contained in the Deed of Conveyance dated the 28th day of February 1978 and registered as No.95 at page 95 in Volume 1687 of the Lands Registry in the office at Lagos and delineated on the Survey Plan NO.LSED12/77 attached thereto.

(ii) An account of all the rents collected from tenants in respect of the said building known as 24B, Olowu Street, Bariga, Lagos State from the 1st of January, 1979.

(iii) Perpetual injunction restraining the defendant from further parading herself as the Landlady of the said house built on the land and from collecting further rents in respect thereof.

The action was first commenced against one Madam Kaiza Sampson Odiowei. She died intestate at Lagos on the 4th day of December, 1986; her five children who are the respondents herein were substituted in place of the deceased defendant by the order of the High Court made on 25th May, 1987.

Pleadings were filed and exchanged but were eventually settled by the plaintiffs’ Amended Statement of Claim dated 2nd day of May, 1989 and the 2nd Amended Statement of Defence dated 23rd May, 1990.

On the one hand the facts of the plaintiffs case briefly stated, were that he bought the land in dispute known as No. 24B Olowu Street, Bariga from one Abdul Ganiyu Salami Alli and was given a purchase receipt dated 19th November, 1976. That the land sold to him was subsequently conveyed to him by a Deed of Conveyance dated the 28th day of February 1978 and registered as No.95 at page 95 in volume 1681 of the Lands Registry, Lagos. That the land in dispute formed part of the land demised to the original defendant by his vendor for a term of 20 years from May 1956 which lease expired in May 1976. The plaintiff/appellant’s case further was that the structure (a building) on the land in dispute was sold to him by one Sunday Odiowei to whom the original defendant, Madam Kaiza Sampson Odiowei had granted the same.

On the other hand, the defendants/respondents’ case was that their mother Madam Kaiza Sampson Odiowei owned 24 Olowu Street and that 24B Olowu Street has nothing to do with 24 Olowu Street, Bariga. That the land was leased to her in 1956 and by a subsequent agreement the lessor agreed to sell the said land to her for the sum of N600.00kout of which she paid the sum of N200.00; by way of deposit. That on presentation of the balance of N400.00k the lessor refused to accept same even though he did not refund the deposit paid.

In her judgment and having heard the case of both parties, the learned trial judge dismissed the plaintiffs claim in its entirety. Urked and dissatisfied with the decision as it were, the plaintiff/appellant filed an initial notice of appeal on the 13th July, 2005, containing two grounds of appeal. Pursuant to a motion dated 27th July 2008 leave of this court was obtained to amend the original notice and same was granted on the 15th April, 1999 with a further order that the amended notice be filed within 14 days of the order made. The amended notice was filed on the 26th April, 1999 and containing three grounds of appeal.

On the said 15th April, further leave was obtained to file an appellant’s brief of argument, which same so filed on the 26th April, 1999.

On the 23rd September, 2008 when the appeal came up for hearing, the learned appellant’s counsel Mr. S. O. Anipasan adopted and relied on their said brief and urged that the appeal be allowed.

Mr. A. A. Oyewole representing the’ respondents also adopted and relied on the joint respondents amended brief of argument dated 22nd and filed 30th March, 2006 but deemed properly filed and served on the 26th September, 2006. The learned counsel urged for the dismissal of the appeal therefore.