Mrs. Olufunmilayo Akiboye & Anor V. Ishola Adeko (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Lagos State High Court in Suit No. TD/1200/94 delivered by A. O. Williams, J. on 13th February, 2004. The Appellants who were Plaintiffs at the court below, had claimed against the Respondent herein as follows: –

“(a) A declaration of title to all the portions of land known as No.55/57, Ipaja Road, and more particularly described as portion marked “B” in Survey Plan No. SW/L/1145/IB, measuring 6,747.188 sq. meters as Ebenezer Bankole Beckley’s family property,

(b) A declaration that any purported sale, if any to the Defendant is null and void and of no effect whatsoever,

(c) An injunction restraining the Defendant, h is servants, agents or privies from remaining or laying claim to the said parcel of family land and;

(d) Cost”.

The defendant filed a defence and counter claim to the action. At the trial, the 1st Appellant told the court that the land in dispute belongs to her having been given to her by her grandfather, the late Ebenezer Bankole Beckley who died in 1965. It was however in 1981 that she noticed that the Respondent had trespassed into the land. She waited till 1994 when she filed this suit. On his part, the Respondent led evidence to prove that he purchased the land, the subject matter of this suit from the Ebenezer Bankole Beckley’s family in 1975 but that the Federal Government of Nigeria compulsorily acquired the entire land in the neighbourhood including the land in question. The Respondent thereafter regularized his holding and became a lessee of the Federal Government of Nigeria.

At the conclusion of the trial and address of counsel the learned trial Judge entered Judgment for the Respondent and granted all the reliefs sought in the counter claim. The claim of the Appellants, were thus dismissed. The Appellants, being dissatisfied with the stance of the court below, filed this appeal. In an amended Notice of Appeal filed on 2/6/06 by the leave of a this court granted on 31/5/06, six grounds of appeal were filed out of which the learned counsel for the Appellant has formulated four issues for the determination of this appeal. The issues, as contained in the brief settled by J. O. Usama Esq. of counsel for the Appellants, are: –

“( 1) Whether the learned trial Judge was right in holding that the sale of Plaintiff’s family land as evidence (six) in Exhibit D5 is voidable,

(2) Whether the learned trial Judge was right in holding that mere existence and/ or admission of the existence of the publication of Notice to acquire land Exhibit D1 without more, determines the interest of the Plaintiff’s family in the land in dispute,

(3) Is Exhibit D12(1) (the lease) not void being caught by the doctrine of lis pen de ns.

(4) Whether the pleadings and evidence before the court justify the findings and holding of the learned trial Judge that the defendant’s counter claim succeed “.

Four issues are also distilled by Folami Fashe Esq., the learned counsel for the Respondent as contained in the brief filed by him. They are:-

“1. Whether the learned trial Judge was wrong in holding that the Defendant had established a prima facie grant or alienation of the land on dispute to him by the Beckley family through Exhibit D5 (the Beckley family Purchase Receipt) Grounds 1 & 2 of the Appellants Amended Notice of Appeal.