Mr. Babatunde Harding & Anor V. The Administrator General and Public Trustee of Lagos State & Anor (2016)

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BIOBELE ABRAHAM GEORGEWILL, J.C.A.

This is an appeal against the judgment of the Lagos State High Court sitting in the Ikeja Judicial Division in suit No. ID/655m/2009: Mr. Babatunde Harding & Anor Vs. The Administrator General and Public Trustee of Lagos State & Anor delivered on 17/6/2011 by Y, A. Adesanya J. in which the reliefs sought by the Appellants as Claimants against the Respondents were refused and dismissed.

The Appellants who were thoroughly dissatisfied with the said judgment had promptly appealed against the said judgment vide a Notice of Appeal filed on 18/7/2011 on four Grounds of Appeal. The Record of Appeal was transmitted to this Court on 2/11/2011 but deemed duly transmitted on 5/2/2013. The Appellants’ brief was filed on 14/8/2013 but deemed duly filed on 23/2/2016. The 1st Respondent’s brief was filed on 13/9/2013 but deemed duly filed on 23/2/2016. The 2nd Respondent, though duly served with the processes in this appeal did not file any brief and the appeal proceeded to hearing on the briefs of the Appellants and the 1st Respondent only.

?At the hearing of the

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Appeal on 26/9/2016, only the Appellants were represented by counsel, while the Respondents, though duly served with hearing notice on 15/8/2016 did not appear to participate at the hearing of the appeal. Ejeta Otuoniyo Esq., for the Appellant, appearing with Judith Kuforigi (Mrs) and Miss Adesina Ekewele, adopted the Appellant’s brief as their arguments in this appeal and urge the Court to allow the appeal, set aside the judgment of the Court below and in its stead grant all the reliefs claimed by the Appellants as Claimants against the Respondent before the Court below.
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The Court upon being satisfied that the Respondents had been duly served with hearing notice and that the 1st Respondent had filed its brief proceeded to invoke the provisions of Order 18(9) (4) of the Court of Appeal Rules 2011 and deemed the 1st Respondent’s brief as having been adopted as the arguments of the 1st Respondent in this appeal.
By an originating summons filed on 4/8/2009, the Appellants raised a sole question for determination before the Court below, namely;
“Whether sequel to the judgment of the Hon Justice O. Gbaja-Biamila in Suit No.ID/800m/2001 and the

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discovery that the property lying and situate at 8 Alli street is vacant and unsold, the beneficiaries of the Estate of Williams Richmond Harding Descendants family are not entitled to the reversionary Estate in the said No, 8, Alli Street, Lagos.”
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If the answer to the above is in the affirmative, the Appellants sought the following reliefs:
1. The Claimants being lineal descendants, heirs and persons beneficially residual and reversionary estate of William Richmond Harding suit No:ID/800M/2001 are entitled to the residual and reversionary interest in the property known as 8, Alli Street, Lagos.
2. An order directing the Defendant to vest the property known as 8, Alli Street, Lagos on the Claimants by executing a vesting Deed in the Claimants’ favour.
3 An order directing the Registrar of titles to rectify the Register by deleting the entries any other beneficiary other than the late William Richmond Harding, (Page 1 & 2 of the Records).

The gist of the Appellants’ case can be seen in the depositions in their 17 paragraph affidavit and further and better affidavit in support of the Originating Summons, attached to which were

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several documents marked as Exhibits BH1 – BH4. The Appellants stated that by a Judgment delivered on 28/6/2002, which is Exhibit BH1, the Lower Court per Gbaja – Biamila J., declared them beneficially entitled to the residual estate of the late Williams Richmond Harding, whose ?will? dated 16/6/1921 and probated by the Supreme Court on the 10/5/1927 contained some devises including the one under dispute between the parties. It was also their case that by the said Judgment, the 1st Respondent was completely divested of the administration and trusteeship of all properties and incomes in the residual estate and vested same on the lineal descendants, who are the Appellants in Exhibit BH1 claimed the return of three of the properties, namely; 8, Tinubu Square, Lagos registered as No.27/291, Lagos; B, Alli Bamgbose Street, Lagos registered as No. 30/120/44 at Lagos, which is the property in dispute; and 116, Denton Street, Ebute-Metta registered as No.138/46/275 at Lagos. On the other hand, the case of the 1st Respondent as can be seen in its counter affidavit was rather very simple and it was that the only property in its custody relating to the Estate

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of W.R Harding was 116, Denton Street, Ebute-Metta, Lagos and was thus not in position to vest any title in the Appellants as sought in the Originating Summons. See Pages 3-15; 28-34; 40 – 47 of the Records.

In the Appellant’s brief, four issues were distilled as arising for determination on this appeal namely:
1. Whether the joinder or non joinder of a purported ‘interested party’ was capable of defeating the determination of the legal issues raised in the Originating Summons against the named Respondents? (Ground 1)
2. Whether there were any facts before the trial Judge to come to the ‘Over riding’ conclusion that Chief Kofo Abayomi was a necessary party to the action? (Ground 2)
3. Whether a trial Judge is entitled to defeat an action on a non canvassed issue, notice of which was never given? (Ground 3)
4. Whether the principle of law protecting equitable title to property vide physical possession as held by the learned trial Judge was applicable to this case?
(Ground 4)