Alhaji Nurudeen Olufunmise V.mrs Abiola Labinjo Falana (1990)

LawGlobal-Hub Lead Judgment Report

OBASEKI, AG. C.J.N.

This appeal is against the decision of the Court of Appeal sitting on appeal from the decision of the High Court of Lagos State in the consolidated suit LD/521/75 and LD/828/75.

The respondent was the plaintiff and the appellant was the defendant to the claim filed in suit no. LD/521/75. There, the plaintiff claimed:

“(1) a declaration that the plaintiff is entitled to a moiety of the house and landed property known and described as No.20 and 20A, Glover Street, Lagos and covered by Land Certificates Title No. LO.1004 and LO.3659 respectively;

(2) An account from the defendant of all rents collected by the defendant from September, 1970 to March, 1975

(3) Payment of half the amount collected from tenants and/or occupants of the said premises by the defendants.”

In suit LD/828/75, the appellant was the plaintiff and the respondent the 2nd defendant.

Therein the plaintiff claimed:

“(1) An order to set aside the judgment of Mr. Justice B.A. Kazeem delivered on 27th day of September, 1970 in suit No. LD/355/68, which was obtained by fraud;

(2) An order rectifying the registers of title by replacing the plaintiff’s name as the registered proprietor of Nos.20 & 20A Glover Street, Lagos, under title no. LO.1004 and LO.03659, which was expunged there from and replaced with the names of the defendants.

(3) The sum of N10,000.00 (Ten Thousand Naira) being special and general damages.”

This appeal is concerned with the judgment in this latter suit. Pleadings were filed and served and in paragraphs 8, 9 and 10 of the defendant’s/respondent’s Statement of Defence, the respondent raised issues pertinent to this appeal. These paragraphs read:

“(8) The second defendant will contend at the trial that the plaintiff was aware of all the facts now averred in his Statement of Claim when suit no. LD/355/68 was before the court and that the judgment in that suit was not obtained by fraud.

(9) The second defendant will take as a preliminary point that the plaintiff is estopped per rem judicatam as a result of the judgment in the said suit no. LD/355/68 and appeal thereon in suit no. SC.69/711.