Marouf Adeleye Kasunmu V J.m. Scott And Others (1967)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

The appellant in this appeal was the plaintiff in the High Court of Lagos, when his writ read as follows:-

“The plaintiff claims against the defendants jointly and severally possession of the premises known as 141 Brickfield Road, Ebute-Metta which the defendants are occupying and of which premises the plaintiff is the fee simple owner.

The defendants have denied and continue to deny the title of the plaintiff.

There is no relationship of landlord and tenant between the plaintiff and the defendants.”

Crane Ag. J. on the 3rd of January, 1963, dismissed this claim with 25 guineas costs.

The plaintiff’s case was that the property in dispute vested in one G. O. Laja by a conveyance (exhibit A) on the 3rd of May, 1949 and this was admitted by all 4 defendants, the first, second and third defendants being subsequently tenants of G. O. Laja. On the 7th of April, 1960 G. O. Laja mortgaged the property for £7,500 to his sister-in-law, Maria Ade Peters by a deed (exhibit B) with a proviso for redemption. The fourth defendant alleged that this mortgage was in fraud of the creditors but the learned trial Judge said in regard to it-

“I should here say, that the allegation of its being a disposition in fraud of creditors is inconclusive, more especially since Okupe became Laja’s judgment/creditor on March 16, 1961 that is to say, after the date of the mortgage to Peters. Before that date however, is must be made clear that Laja was Okupe’s judgment/creditor by virtue of the judgment in the High Court of Lagos, on December 7, 1959, which was reversed by the Federal Supreme Court, on March 16, 1961. Unless of course it could be said that Laja had anticipated the reversal of the judgment of the High Court, it cannot be said in all probability that the mortgage to Peters was in fraud of Okupe.”

In May 1961, as a result of obtaining judgment against G. O. Laja there were proceedings by the judgment/creditor in the High Court of Lagos against G. O. Laja in respect of the property now in dispute and in those proceedings Maria Ade Peters interpleaded, but de Lestang C.J. dismissing the application of Maria Ade Peters said-

“In my view the applicant has no locus standi in this case. If she has a mortgage on the property her rights will not be interfered with. As regards the action before the court it is for the plaintiff in that action to take steps to prevent the sale of the property If he so desires.”

As a result on the 26th July, 1961, the property in dispute was sold by order of the court by the Deputy Sheriff to the 4th defendant as the highest bidder. In August 1961, Maria Ade Peters by virtue of her powers as mortgagee advertised the property for sale and on the 5th of October, 1961 the property was sold to the plaintiff/appellant and in December, 1961, conveyed to him. On the 12th March, 1962, the fourth defendant obtained a certificate of title from the court which, apart from the description of the property, reads as follows-

“I hereby certify that Samuel Adekunle Fisher of 23 Koseh Street, Lagos has been declared the purchaser of the right, title and interest of the above named defendant, G. O. Laja In the land, messuages, and tenements hereinafter mentioned.”

The issue before the learned trial Judge was, therefore, to determine what it was that the fourth defendant obtained when he bought the property by virtue of the order of the court on the 28th July, 1961.

Counsel for the fourth defendant argued that the fourth defendant got an absolute interest in the property whilst Chief Williams for the plaintiff submitted that all that the fourth defendant could get, was the right, title and interest of G. O. Laja and that at the time of the sale the property was subject to the mortgage to Maria Ade Peters. The learned trial judge in his judgment said one point that arose was that-