Alhaji Olorunkemi Ajao v. Mrs. L. E. Sonola & Anor (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C.

The appellant is the defendant in the action instituted against him in the High Court, Lagos, (Lagos State) in which the plaintiffs’ claims, according to their statement of claim are as follows:

“(a) Declaration of title in fee simple to the said parcel of land situate at 49 Arolawun Street, Ikorodu Road (and comprising the portion edged “Green” on the plan attached hereto) in the Lagos State.

(b) 150 (one hundred and fifty pounds) damages for trespass committed by the defendant on the said piece or parcel of land.

(c) Possession of the said land edged “Green” in the plan filed with this statement of claim. ”

The plaintiffs in the High Court are the present respondents and as designated on the writ and the pleadings they have sued as “Administratrices of the Estate of E. O. Aiyede (deceased)”. The land concerned is situate at Arolawun Street, off Ikorodu Road, in the Lagos State. In describing the plaintiffs, paragraphs 1 and 2 of their statement of claim aver as follows

‘1. The plaintiffs sue as the administratrices of the estate of Emanuel Oke Aiyede late of 10 Abeokuta Street, Ebute Metta, in the mainland of Lagos who died intestate at Lagos on 30th January, 1960.

2. By the letters of administration dated 30th August, 1960 the plaintiffs were granted letters of administration in respect of the deceased’s property. ”

The other paragraphs of the statement of claim deal with the claims of the late E. O. Aiyede to the title and possession of the land concerned, the trespass alleged against the defendant and eventually the claims as already set out earlier on in this judgment. The defendant’s statement of defence puts all the facts contained in the statement of claim in issue and claims the land as the property of the defendant. The case went to trial and the parties gave evidence and at the end of the day the learned trial judge gave judgment in favour of the plaintiffs on all their claims against the defendant with costs.

The defendant has appealed to this Court against that judgment and before us had sought and obtained leave to argue a number of additional grounds of appeal. One of such grounds of appeal relates to the competency of the present plaintiffs ever to institute the action and before us it was contended on behalf of the defendant that the action was not competent inasmuch as the plaintiffs are not competent to institute same. We stopped learned counsel for the defendant at this point, for we are of the view that if the plaintiffs were incompetent to institute the present action, it would be doing injustice to their case to throw into the hotchpot of argument whatever merits their case may possess. We then made the following order at the hearing;

“Judgment is reserved. If we hold against Lardner, then he would continue his further argument on the appeal. If otherwise, our judgment will make the necessary and final orders.”

Before reserving judgment however, we called on learned counsel for the plaintiffs to reply to the argument attacking the competency of the action and the capacity of the plaintiffs to maintain the present action. Learned counsel for the plaintiffs submitted, relying on section 1 of the Land Transfer Act, 1897 (of England) and a number of decided cases, that the plaintiffs as personal representatives are vested with the property in question being one of the properties purchased by the late E. O. Aiyede himself. We point out that on this point learned counsel for the defendant relied on and referred us to section 2 of the Administration (Real Estate) Act, Cap. 2 Laws of Nigeria, applicable in Lagos State and to the present case.

Section 1 of the Land Transfer Act, 1897, so far as it is material to the case provides as follows:

1. (1) Where real estate is vested in any person without a right in any other person to take by survivorship it shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time as if it were a chattel real vesting in them or him.

(2) This section shall apply to any real estate over which a person executes by will a general power of appointment, as if it were real estate vested in him.”

Undoubtedly the Land Transfer Act, 1897 is a statute of general application, which has been rightly held to apply in Nigeria. See the observations of Brett, F.J. in Lawal & Ors. VS. Younan & Sons & Co. (1961) All N.L.R. 245 at page 254; see also Olabode Renner & Ors. vs. Albert Renner (1961) All N.L.R. 233. In Lawal’s case supra the Federal Supreme Court explained the application of the Act and it was made clear the purposes and the conditions of such vesting.