Abibatu Folami & Ors Vs Flora Cole & Ors (1990)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

The appellants were the plaintiffs in the trial court of High Court of Lagos State. The suit they took to that court concerned a piece of land at Oja village, Oshodi district which area is now called Ilupeju. The land containing the plot now in question was acquired by one Madam Adisatu Aina and it was registered in the land registry, Ibadan (when that area was part of the defunct western Nigeria) as no.45 page 45 vol. 751 on 8th day of September, 1947.

The land was laid out into plots in the approved layout plan no. CT/I44/A,B, and C. The plot referred to in the dispute leading to this appeal is Plot No.6. It is now called No.6 Ilaka Street, Ilupeju, Lagos, perhaps it was named after the 3rd respondent. The land was conveyed to Madam Adisatu Aina in fee simple free of all incumbrances.

In 1951, Adisatu Aina died and left five daughters, to wit, Flora Cole (1st respondent), who was the eldest of the children, Abibatu Folami (the first appellant), Safuratu Ajike, Morinatu Tomori Eletu (the 3rd appellant) and Seliatu Ashabi Openibo (2nd appellant). There were grandchildren of Adisatu Aina, including Nathaniel and Edward Marsh (children of Flora Cole), and also children of Ajatu, who pre-deceased Adisatu Aina.

According to the plaintiffs, as Adisatu Aina left no male issue, all her estate devolved on the five children, who were all female including the children of Ajatu, who pre-deceased her. Safuratu Ajike died in 1961 intestate, leaving surviving children including the 4th appellant, Adolphus Alade Bailey.

In their Statement of Claim, the plaintiffs averred inter alia, first in paragraph 9, 10, 11, 12, 13 and 14:

‘(9) The 1st defendant alone is alleged by her children Edward Marsh and Nathaniel Marsh to have given them a power of attorney dated the 2nd day of September, 1961 and registered as no.26 at page 26 in volume 466 of the lands registry, Ibadan (now kept in the lands registry, Lagos) without the consent and knowledge of her sisters and that of the 2nd and 4th plaintiffs.

(10) The 1st defendant alone through and by her children Nathaniel Marsh and Edward Marsh acting on the power of attorney recited in paragraph 9 above, sold to the 2nd defendant the piece or parcel of land whose survey plan is attached to the deeds of cvonveyance sought to be set aside by the action without the knowledge and consent of the plaintiffs.

(11) The said power of attorney recited above was fraudulently made by the 1st defendant and was also fraudulently obtained by her children.

(12) The 1st defendant had no right or authority from the plaintiffs and from all the children and family of the said Adisatu Aina to give or execute the said power of attorney in favour of her sons.

(13) The plaintiffs will show at the trial that the donees of the said power of attorney i.e. Messrs Nathaniel Marsh and Edward Marsh fraudulently and without any authority of the plaintiffs and the entire members of the family obtained the said power of attorney.

(14) The purported power of attorney was fraudulently executed without the knowledge and consent of the plaintiffs.”

and then in paragraphs 16-22:

“(16) The sons of the 1st defendant who are the donees of the said power of attorney and who sold on behalf of their mother are now dead.