Mrs. Olayide Okelola V. Adebisi Adeleke (2004)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

In the High Court of Lagos State, the plaintiff, who is now the appellant filed an action against the respondent and her agents, servants and privies who therein were the defendants, claiming as follows:

“(i) A declaration that the property situate, lying, being and known as 12, Patey Street, Ebute-Metta, Lagos belonged in fee simple to Madam Christiana Subulade Oyeteju Ejide who was deemed to have died on 20th February, 1976.

(ii) A declaration of absolute title to the said property, namely, 12, Patey Street, Ebute Metta, Lagos in favour of the plaintiff by virtue of the last Will and testament of the late Christiana Subulade Oyeteju Ejide which Will was admitted to probate on 14th August, 1985.

(iii) Possession of the said property to the plaintiff.

(iv) Damages of N10,000.00 against the defendant for unlawful detention of and denial of the plaintiffs absolute title and interest in the said property.

(v) Perpetual injunction against the 1st defendant, her agents, servants or privies from further staying and/or remaining on the said property.

(vi) For such further or other reliefs as this Honourable Court may deem fit in the circumstances.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses.

The plaintiff’s case as pleaded and testified to is that the landed property in dispute known as and called No. 12, Patey Street, Ebute Metta, Lagos originally belonged to one Dada Adegbite by virtue of a crown grant. Dada Adegbite, according to the plaintiff, had only one issue, to wit Christiana Subulade Oyeteju Ejide, nee Adegbite. On the death of Dada Adegbite, his said property devolved under customary law on his only child, Christiana Ejide, who inherited the same.

The plaintiff was a niece of the said Christiana Ejide and her close relation. Because of her advancing age, Christiana Ejide, by exhibit P2, appointed the plaintiff her lawful attorney on the 22nd March, 1975. By her last Will and Testament, exhibit P3, she also devised the property in dispute absolutely and in fee simple to the plaintiff. According to the plaintiff, on or about the 20th February, 1976 Christiana Ejide left her home for an unknown destination and had not been seen since then. As a result, court order, exhibit P1, for leave to swear to an affidavit for the presumption of her death was obtained on the 20th December, 1983. Probate, exhibit P4, in respect of the Will, exhibit P3, was subsequently obtained as a result of which the plaintiff claimed absolute ownership of the land in dispute.

The 1st defendant who is the daughter of Bolaji Adegbite, for her own part, admitted that the property in dispute originally belonged to the late Dada Adegbite but stressed that the said Dada Adegbite died intestate on the 10th December, 1932 and was survived by three children to wit, Madam Seliatu Adegbite: Christiana Ejide Adegbite and Bolaji Adegbite. The said three children of the late Dada Adegbite inherited the property in dispute on his death in accordance with customary law. Madam Seliatu Adegbite died in 1936 without any issue. The 1st defendant testified that sometime in 1976, Christiana Ejide Adegbite and Bolaji Adegbite applied to the Land Registry by exhibits D1 and D2 for the registration of their names as owners of the property in dispute. Christiana Ejide Adegbite died after exhibits D1 and D2 were made. Exhibit D3 is her death certificate. It shows that the late Christiana Ejide Adegbite died on the 14th July, 1981 of high blood pressure, that it was Dr. M. B. Labode of Kano Street Clinic who certified her death and that she was buried at Attan Cemetery. The 1st defendant, testified that it was on the death of Christiana Ejide Adegbite that her father, Bolaji Adegbite, obtained the Letters of Administration of the estate of the late Dada Adegbite. She stated that it is not true that Christiana was at any time missing and asserted that she died at No. 12 Patey Street, Ebute-Metta. She added that her father, Bolaji Adegbite, had been collecting rents in respect of the property without interference from anyone whatsoever and she tendered the counterfoil of the receipts, exhibit D5. At the conclusion of trial, the learned trial Judge, Adeyinka, J. (as he then was) after an exhaustive review of the evidence dismissed the plaintiffs claims in their entirety on the 3rd day of September, 1990. Being dissatisfied with the said judgment, the plaintiff lodged an appeal against the same to the Court of Appeal, Lagos Division. The Court of Appeal in a unanimous decision affirmed the decision of the trial court and dismissed the plaintiff’s appeal on the 1st day of December, 1998. Aggrieved by this decision of the Court of Appeal, the plaintiff has further appealed to this court. I shall hereinafter refer to the plaintiff and the 1st defendant in this judgment as the appellant and the respondent respectively.

Four grounds of appeal were filed by the appellant against this decision of the court below. It is unnecessary to reproduce them in this judgment. It suffices to state that the appellant pursuant to the rules of this court filed her brief of argument in which two issues were identified for the determination of this appeal. These are as follows: