Nimota Oluwo & Ors V. R.o. Adebowale (1964)

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MBANEFO JSC 

The plaintiffs in the Court below, as the executors of the estate of one C. J. Oluwo (deceased) sued the defendant in the High Court of Lagos for:-

(1) An order setting aside a deed of Assignment of Lease dated the 20th July, 1955 and duly registered in the Lands Office, Lagos;

(2) An order that the aforesaid registration be expunged; and

(3) An injunction restraining the defendant and his servants and/or agents from acting under the said Deed.

The facts were shortly as follows. The deceased was a grantee of an area of land known as Plot 10 in Block 29 for a term of ninety nine years from the last day of February 1940. He had erected a substantial building on same which is known and referred to as No. 99 King George Avenue, Yaba. On the 5th February, 1955 the deceased mortgaged the property to one Mr Ibikunle Dada to secure a loan of £2,060 with interest; the deceased was unable to repay this loan on account of his illness which kept him confined to his bed, with the result that Mr Dada was desirous of exercising his powers of sale under the mortgage.

The plaintiffs, and this is where the dispute arises between the parties, say that the defendant offered to take over the mortgage of Mr Dada by advancing the deceased a total sum of £3,200, and that this was in fact done. The defendant, on the other hand, says that the transaction between himself and the deceased was one of sale and not mortgage. The principal documents on this point are exhibits ’25’, the deed of Assignment, and ’30’, the purchase agreement. The plaintiffs say with respect to these deeds in their Statement of Claim as follows:-

’11. That on 21-6-55, while the late Clement Jaiyesimi Oluwo was seriously ill on his sick bed, the Defendant brought some documents to him to sign which the defendant described to him as a receipt for the loan given to him by the Defendant and the Mortgage Deed for the said Loan.’

’14. That by a purported Deed of Assignment of lease dated the 20th day of July, 1955 and registered in the Register of Leasehold Titles in the Lands Registry Lagos as No. M00134, the said property known as 99 King George Avenue Yaba was purported to be assigned to the Defendant.’

’21. The Plaintiffs aver that the said assignment was not the act of the late Clement Jaiyesirni Oluwo: that it was not genuine: that it is a fraud and an utter nullity and ought in the interest of justice to be set aside.’

A defence was filed to this, but at no time before the hearing of the action was any application made on behalf of the defendant for particulars with regard to the allegations made in paragraph 21 above. In paragraphs 8 and 12 of the Statement of Defence it is averred that:-

‘8. With reference to paragraph 14 of the Statement of Claim the defendant states that the Deed of Assignment of the lease dated the 20th day of July, 1955 and registered as No. MOO 134 was duly executed by Clement Jaiyesimi Oluwo and attested by a witness after the former had read same. The said Jaiyesimi Oluwo could read and understand English.’

12. The Defendant says that the Plaintiffs ought not to be admitted to say that the said Assignment was not genuine or that it is a fraud and utter nullity because …. ‘

It seems quite clear from the state of the Pleadings that the Plaintiffs were setting up, and the defendant understood the plaintiffs as setting up, with relation to the Deed of Assignment, two contentions