Miss Tuttu Dawodu V. Mrs. Jokotade Isikalu & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M.A. DANJUMA J.C.A, (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Lagos State High Court delivered on 4th May 2006. The Record of Appeal thereof which was entered on 7th June 2010 contains the said Notice of Appeal filed on 7th June, 2006 and is found specifically at page 158 of the said record. The said record was entered out of time pursuant to the order of this Court for extension of time within which to transmit the said record, and upon a motion of 23rd March, 2010 moved and granted on 7th June 2010.

The Notice of Appeal was amended following a Motion filed on 25th of September 2008, which was granted on 10th June 2010. The Amended Notice of Appeal has 8 grounds.

The said Amended Notice of Appeal was accordingly filed on 11th June 2010.

The Appellant’s Brief of Argument was filed on 11th June 2010 and within time. Upon the said Appellant’s brief being filed and served, the Respondent on her part filed the Respondents’ Brief of Argument on 23rd June 2010. It is dated 21st June 2010. Be it noted that, upon a Motion on Notice filed on 29th July 2010, which was granted on the 8th of March 2011, the Appellant was granted an extension of time to file and serve the Appellant’s Reply Brief of Argument, the said Reply Brief of Argument filed on 27th July, 2010 was deemed properly filed on 8th March 2011 upon an Order to that effect on the said date.

The Brief facts of the case at the trial are as follows:-

The Suit leading to this appeal as can be gleaned from the Record of Appeal and the introductory facts as narrated by the Respondents in their Brief of Argument shows a case with a chequerred history of about 13 years in respect of the ownership of the property situate at No. 19, Igbosere Road, Lagos which originally belonged to the grand parent to the parties to this suit.

The Claimants and the Defendant’s mother originally jointly executed a deed of sub-lease for development of the subject matter of the suit, the father of the Claimants having predeceased the Defendant’s mother.

The Developer moved on to the site and commenced the development by demotion of some part of the existing dilapidated structure to give way for the new development.

The Defendant’s mother who was resident at the subject matter died suddenly. The Defendant chased out the developer’s workmen and claimed that at the death of her mother, the property belonged solely to her as the sole heir. Defendant/Appellant has since remained in sole occupation; collected rents on portion of the property let out and truncated development of the property.

The Defendant’s mother, in her Will, tendered in evidence at the trial, acknowledged the rights and interest of the Respondents in the said property, but Appellant denied the making of such a will and therefore the existence of any benefit thereon and in respect of that said property.

It is upon these facts that the Claimant now Respondent approached the High Court of Lagos State for some reliefs.

At the trial, the plaintiffs now Respondents had claimed per paragraphs 21, 22 and 23 of their Statement of Claim dated 10th day of November 2003 for the following reliefs:

1. A Declaration that the property No. 79 Igbosere Road, Lagos is family property vested in the Plaintiffs and the Defendant jointly.
2. A Declaration that the sublease dated the 31st of December 1992 is valid and subsisting.
3. An Order of specific performance of the sublease and general damages in the form of N250,000.00 from the Defendant.

The Defendant filed a 15 paragraphed Statement of Defence and counter-claim dated 28th November 2003, to which the Plaintiff filed a 7 Paragraphed Reply to Defence and Counter-claim dated 13th of January 2004 (See pages 61 – 64 of the Record of Appeal).