Alhaji Safiriyu Yinusa Shobajo V. Oluremi Ikotun & Anor (2002)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The appellant who was the plaintiff in the High Court of Lagos State holden at Lagos (Coram Adeniji, J.) claimed against the respondent who was the defendant in that court, the following reliefs:

(1) An order for the setting aside of the Certificate of Titles Nos. MO 12330 and MO 12331 issued by the Lands Registry Office in Lagos on the 28th of September, 1977 and on the 10th day of January, 1979 respectively, on the land in dispute with the building thereon situate, lying and being at No. 35 Vaughan Street, Ebute-Metta, Apapa Road on account of fraud.

(2) A declaration that the plaintiff is entitled to the grant of a Certificate of Occupancy in respect of that piece or parcel of land with the building thereon situate, lying and being at No. 35, Vaughan Street, Ebute-Metta, Apapa Road, Lagos in the Lagos State of Nigeria, more particularly described in the plan attached to the deed of conveyance dated the 22nd day of March, 1946 and registered as No. 96, at Page 96 in Volume 690 of the Lands Registry Office in Lagos.

(3) A perpetual injunction restraining the defendant and his servants/agents from continuing further acts of trespass on the said property.

The defendant, now the respondent also counter-claimed against the plaintiff now the appellant as follows:

(1) Possession of the said premises (namely 35, Vaughan Street, Ebute-Metta) from the plaintiff, his agents and/or servants thereof

(2) A perpetual injunction against the plaintiff and his agents And/or servants from collecting rents thereof.

(3) Mesne profits for use and occupation of the said premises at the rate of N4,000.00 per annum and from 1st day of January, 1979 until possession is given up.

The pleadings finally filed and exchanged between the parties, with the leave of court, are amended statement of claim and the amended statement of defence and counter-claim. The case then proceeded to trial at the end of which, the trial Judge, in a considered judgment delivered on 31st July, 1991 dismissed the plaintiff’s claims in toto; but granted the first and second reliefs sought by the defendant/respondent/cross-appellant in his counter-claim but dismissed the relief for mesne profit which is the third leg of the counter-claim.

Dissatisfied with the decision, the appellant has appealed there from to this court upon an amended notice of appeal that carries ten grounds. Also the defendant being dissatisfied with the part of the said judgment dismissing his counter-claim for mesne profit has cross-appealed to this court upon two grounds contained. From the ten grounds, the appellant has identified six issues for determination and as set out in his amended brief of argument filed on 27/7/99 they are as follows:

(1) Whether on the pleadings and the evidence led the learned trial Judge was right in refusing to make an order for rectification of the Register of Title No. 12331.

(2) Whether the learned trial Judge was right in holding that the appellant has not proved any of the allegations of fraud leveled against the respondent?.

(3) Whether the failure of the appellant to call in evidence Iyabo Olojo Kosoko his vendor was fatal to his case?.