Madam Latifat Amoke Olagun V. Mr. Mufutau Akerele (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A (Delivering the Leading Judgment)

The claimant now appellant issued a Writ of Summons dated 18th July 2002 against the Defendant now Respondent claiming the following reliefs:-

(a) A declaration that the Plaintiff is the owner by purchase and therefore entitled to possession of the property consisting the ONE BEDROOM UNIT at BL Street, House 11 Federal Low Cost Housing Scheme Ipaja, Lagos State.

(b) Possession of the said ONE BEDROOM UNIT at ‘BL Street, House 11 Federal Low Cost Housing Scheme, Ipaja Lagos State.

(e) The sum of N250, 000.00 being damages for the illegal and unlawful detention of the said property as damages for use and occupation of same from 5th April, 2000 until possession is given up.

The Defendant filed a Statement of Defence incorporating a Counter claim dated 29th March, 2005. This process was amended twice with the leave of court. The 2nd Amended Statement of Defence and Counter Claim is dated 28th June, 2007. In the said amended Statement of Defence the Defendant claimed that he bought the property prior to its being sold to the Claimant/Appellant from the same vendor. He asked for the following declaratory reliefs in the Counter – Claim:-

“(a) A Declaration that the Defendant is the owner by purchase of the property, being lying, situate and known as House II BL Street Federal Low Cost Housing Scheme Ipaja Lagos State.

(c) A Declaration that the action is Statute barred under the Limitation Law of Lagos State.”

The Claimant filed a Reply to the Defence and Counter Claim dated 19th April, 2005.

The claimant called two witnesses and tendered seven exhibits while one of the documents front loaded and proposed to be relied upon as a purchase receipt and pleaded in paragraph 7 of the Statement of Claim was rejected by the learned trial Judge

In his judgment the learned trial judge dismissed the Claimant’s case for want of evidence of purchase. It is against this decision that the claimant appealed asking this Court to set aside the decision of the lower court and enter judgment in her favour.

The appellant formulated four issues for determination as follows:-

1. Whether the document captioned “Deed of Assignment” but which was actually pleaded as a “Receipt” (paragraph 7 of Statement of Claim page 4 of record) and deposed to in first witness deposition as receipt (page 102 paragraph 1) was not wrongly rejected as evidence of purchase and had therefore affected the decision of the learned trial Judge which had occasion (sic) a miscarriage of justice? Ground 5.
2. Whether from the pieces of evidence tendered by claimant and already admitted before the court (i.e. exhibit A & B, E2 to E4) and the legal admissions against interest therein contained coupled with the positive assertions of the two witnesses called in this case by the Claimant it can seriously be said that there is no evidence upon which conclusion of sale could be made in favour of the Claimant to justify the declaration sought in contrast to the Defendant’s claim Ground 1, 4 and 6.
3. Whether mere assertion in Statement of Claim in Suit ID/1377/00 can be metamorphosed (sic) into evidence to reach the conclusion that the claimant’s vendor was still laying claim to the property even after giving undertaken (sic) to give vacant possession to the claimant and whether claim of ownership by claimant’s vendor was an issue submitted for adjudication before the learned trial fudge Ground 2.
4. When in equity was property redeemed? Was it when Exhibit E4 dated 27/3/2000 was paid discharging all obligations on the mortgage or when Certificate was issued by the mortgagor to the borrower (Exhibit E Ground 3).

The respondent had five issues for determination which are:-

1. Whether the Deed of Assignment (the rejected document) can metamorphose into a purchase receipt evidencing sale of subject matter of dispute from the alleged common vendor to the appellant so as to confer on the appellant a legal title to the property.
2. Whether apart from this rejected document referred to above, there were other pieces of evidence or sufficient evidence to establish a better title in favour of the Claimant/Appellant in respect of the property in issue: A one bedroom unit flat situate at BL Street, Housing 11, Federal Low Cost Housing, Ipaja, Lagos State.
3. Whether in consideration of the demise of the vendor, there exists any nexus between the Claimant/Appellant suing the Defendant/Respondent as to warrant the Claimant/Appellant suing the Defendant/Respondent more especially in the light of the Order of a competent court dismissing the claim of the Vendor /Plaintiff in the Suit No. ID/1337/2000.
4. Whether the suit No. ID/1237/2002 leading to this appeal is not statute barred.
5. Whether issue No. 4 (paragraph 2.04) of the Appellant’s brief of argument is ever in issue and even if it was, whether it is material in this appeal.

Arguments