Trimskay Nigeria Limited V. Mrs. Mutiat Bankole-oki (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Judgment)

The Appellant commenced its action before the trial High Court on May 19, 2005 to recover the property situate at No.54, Ladipo Labinjo Crescent, Surulere, Lagos and filed its originating frontloaded processes in that regard seeking, inter alia, possession of same and mesne profit.

The Respondent as Defendant responded on August 3, 2005 by filing her frontloaded Defence. She later filed an Amended statement of Defence dated February 3, 2006 with a counter-claim. The Respondent further brought an application to amend her Defence and counter-claim and did file a Second Amended Statement of Defence and counter-claim dated May 17, 2007 pursuant to the order of the High Court.

In the said second Amended counter-claim, the Respondent claimed property that the situate and lying at No. 54, Ladipo Labinjo Crescent, Surulere, Lagos is a matrimonial home of the counter-claimant and the 2nd Defendant to the counter-claim in the suit.

To this, the Appellant filed an amended Reply and Defence to Counter-Claim dated April 16, 2009.

Trial commenced on May 8, 2007 and was concluded on January 26, 2010 and on January 13, 2011 parties adopted their written addresses and the matter was adjourned to March 11, 2011 when the trial court delivered its judgment dismissing the claims of the Appellant and granting the counter – claim of the Respondent. The Appellant being dissatisfied with the decision of the trial court, now presents this appeal before this Honourable court for the determination of the following issues:

ISSUES FOR DETERMINATION

The Appellant hereby humbly submits the following issues for determination:

1). Whether the fact that the Appellant purchased the property herein in issue when the vendor had occupiers in the property who have been shown not to have any title or interest whatsoever in the property in occupation can defeat the purchase of the Appellant from the Vendor who rather showed ample evidence of title in the property to the exclusion of all (Grounds 1, 2 and 3 of the Notice of Appeal).

2). Whether the fact of customary marriage between the Respondent and CW2 precludes the Appellant’s right to recovery and changes the status of the Respondent from being a tenant at will/licensee of the Appellant upon purchase and transfer of the property in which the Respondent is merely an occupier. (Grounds 4, 5, 6, 7 and 8 of the Notice of Appeal)

3). Whether the principle of lis pendente lite is applicable to the already concluded contract of sale before the suit by the Defendant/Respondent was filed as to preclude the Appellant from perfecting its property during the suit (Grounds 9 and 10 of the Notice of Appeal).

4). Whether a customary marriage with a vendor of a property can create a matrimonial home in such property bought by the vendor 13 years after such marriage as to vest the children to the marriage with right to inherit same after the owner and vendor had transferred same inter vivos. (Grounds 11 and 13 of the Notice of Appeal).

5). Whether the trial court was right in imposing on CW2 an intention to create a permanent interest in the res litigiosa in favour of the Respondents children by his acts when he personally disposed of the property for valuable consideration to the Appellant (Distilled from Ground 12 of the Notice of Appeal).

6). Whether the trial court was not misdirected when it based its judgment on the first Amended Statement of Defence of the Respondent and the document annexed thereto but which were neither tendered in evidence by the Respondent at trial nor relied upon in final address and held in favour of the Respondent that the property aforesaid could not be otherwise known short of a family home for the Defendant and her two sons. (Distilled from Ground 14 of the Notice of Appeal).