M. A. Jolugbo & Anor V. Mrs O. A. Aina & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The consolidated action that culminated in this Appeal started as a simple case of recovery of possession, and snowballed into a tug of war between a married but estranged couple as to who owned the property – a three bedroom flat at Flat 5, Block A78, Phase 4, LSDPC Low Cost Housing Estate, Anikantamo, Lagos.

The husband, the 2nd Appellant, moved out of the matrimonial home in 1990, and sold the property to the 1st Appellant in 1991. The 1st Appellant perfected his title and was recognized by the 2nd Respondent [LSDPC] as the new owner.

The wife, who is the 1st Respondent, let the property to one Mr. Ferreira, and collected 4 years rent from him after she moved out of the house in 1990. He was in possession when the sale between the two Appellants was effected. It was an attempt to gain vacant possession from the said Mr. Ferreira that led to Suit NO.LD/3275/94 filed by the 1st Appellant at the Lagos State High Court wherein he claimed to be owner of the property through the purchase from the 2nd Appellant and backed by title documents issued by the 2nd Respondent.

The 1st Respondent applied to be made a party in Suit NO.LD/3275/94, and she was joined as 2nd Defendant on 2/6/1995. She later applied to have the 2nd Appellant, who sold the flat to the Claimant, joined as the 2nd Claimant. Mr. Ferreira as 1st Defendant was struck out as a Party on 18/9/2001 because he was no more relevant as his lease expired and he had vacated the property.

Processes were amended and further amended in said Suit NO.LD/3276/94. While this was on, the wife [1st Respondent] filed Suit NO.LD/769/97 – that was pending before another Judge against her husband [2nd Appellant], Mr. Jolugbo [1st Appellant] and LSDPC [2nd Respondent] wherein she claimed as follows –

1) A Declaration that the circumstances of the purchase of Flat 5 Block A 78 Dolphin Anikantamo Low Cost Housing Scheme the subject matter of this Suit gives rise to the relationship of trustee and beneficiary with the attendant duties and obligations between the 1st Defendant and the 1st Plaintiff respectively.

2) A Declaration that the purported sale of the premises, the subject Matter of this Suit by the 1st Defendant to the 2nd Defendant is a Breach of the trust and the

judiciary duty owed to the Plaintiff by the 1st Defendant for which the Plaintiff is entitled to the remedy of restitution,

3) A Declaration that the title of the 1st Defendant, if any at all, is defective and therefore the Defendant cannot obtain a better title from the 1st Defendant.

4) An Order of this Honourable Court setting aside the purported sale of the property by the 1st Defendant to the 2nd Defendant.

5) An Order of this Honouroble Court nullifying the purported consent given by the 3rd Defendant LSDPC to the voidable sale of the said property by the 1st Defendant to the 2nd Defendant.

6) An Order of this Honourable Court directing the 3rd Defendant to expunge from its record the purported sale of the said property.

7) An Order of this Honourable Court in exercise of its inherent and equitable jurisdiction compelling the 1st Defendant to execute the documents of transfer of title of the property from the 1st Defendant to the Plaintiff which documents are now prepared by the Plaintiff’s Solicitors and are ready for execution.