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AYODELE ILORI & ORS v. ALHAJA RISIKAT ISHOLA & ANOR

(2018) LPELR-44063(SC)

In The Supreme Court of Nigeria

On Friday, the 23rd day of March, 2018

SC.228/2005


Before Their Lordships

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

1. AYODELE ILORI
2. MRS. TEMITAYO DARAMOLA
3. MRS. MODUPE ADEITE
4. OLADAPO ILORI
(for themselves and on behalf of the children of Festus Olanipekun Ilori (deceased) - Appellant(s)

AND

1. ALHAJA RISIKAT ISHOLA (nee Raji)
(for herself and on behalf of the children of Alhaji Sule Raji (deceased) (Substituted for late Alhaji Sule Raji, the 1st defendant, by the Order of the Court of Appeal, Lagos dated 6th July, 2000)
2. Registrar of Lands
(By order of Court dated 25th April, 2016) - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Land Law.
FACTS:
This is an appeal against the decision of the Court of Appeal sitting in Lagos. The appellants being the children of one Festus Olanipekun Ilori (deceased), sued one Alhaji Sule Raji before the High Court of Lagos State, Ikeja Judicial Division, vide their writ of summons and statement of claim filed on 9/11/92 for various declaratory and injunctive reliefs challenging the purported assignment of their late father's property situate, lying and being at 12/14 Oludegun (formerly Olanipekun) Street, Isolo, Lagos, covered by certificate of occupancy No. 98 at page 98 in Volume 1981F of the Lands Registry at Lagos, to the said Sule Raji. The said Festus Olanipekun Ilori died intestate on 26th January, 1983.  According to the plaintiffs, before his death, he had constructed four buildings consisting of fourteen flats on the land. There was also an undeveloped portion of the land, which was being used as a car park. His intention was to live in one of the four flats with his family and let out the remaining three to tenants. However, he died before he could move in. When he died, his wives and children moved to Shagamu, Ogun State, where they stayed for about a year. Sometime late in 1983, on a visit to the property, it was discovered that there were tenants in occupation. Upon enquiry, it was discovered that they were let into possession by Sule Raji who was collecting rent from them as their landlord.  

They discovered that sometime in April 1993, the said Sule Raji, through his Solicitor had applied to the Lands and Housing Department of Lagos State for the Governor's consent to the assignment of the buildings to him by their late father. The Governor's consent was granted "in principle" vide a letter dated 25th November, 1993 but purportedly endorsed on the deed of assignment on 4th November 1993. It was the appellants' contention that it was Sule Raji and not their late father who applied for the Governor's consent and to that extent, the Governor's consent is null and void for offending the provisions of the Land Use Act, 1978. It was their contention that the signature on the deed of assignment purporting to be that of their late father is not his true, correct and usual signature. They also contended that the Governor's consent was not obtained prior to the transaction as required by the Land Use Act. Another grievance was that purported Governor's consent was obtained after Sule Raji had been served with the writ of summons, statement of claim and an application for injunction in this suit. Despite efforts to convince the tenants of the true ownership of the land and buildings thereon, they insisted that Sule Raji was the only person they recognised as their landlord. The appellants claimed that under Yoruba native law and custom, the deceased's property devolved on his children after his death and that in the present case, the rent derived from the property was required for the maintenance and education of his children, who were minors when he died. 

Sule Raji, reacted by filing a Statement of Defence dated 7/4/93 to which the plaintiffs filed a Reply dated 17/6/93. Subsequently the Registrar of Lands was joined as 2nd defendant with the leave of the High Court. The plaintiffs sought and were granted leave to file an Amended Statement of Claim to reflect the joinder. It was filed on 15/4/94. The  plaintiffs filed a 2nd Amended Statement of Claim on 5/6/96. The suit was fought on the 2nd Amended Statement of Claim.  ???In his defence, the 1st defendant pleaded that sometime in 1982, the deceased, who was his friend, came to him at Osogbo and offered to sell the land in dispute and the uncompleted buildings thereon to him for the sum of N165,000.00. In September 1982, he handed over the Certificate of Occupancy in respect of the property to him. By a deed of assignment executed on 17th September, 1982, Festus Olanipekun Ilori assigned all his interest in the property to him for the unexpired period of 99 years. In the said deed of assignment, he acknowledged receipt of the agreed sum of N165,000.00. It was his contention that the 1st appellant, a son of the deceased, witnessed his father's signature on the deed. That the deed of assignment was duly stamped in 1983, at a time when no litigation was anticipated. The deed of assignment along with the Certificate of Occupancy surrendered by the late Ilori were deposited by him with Merchant Bank for Africa Ltd. to secure a facility granted to him. According to the averments in his Statement of defence, it was the bank, in order to protect its equitable interest in the property, that processed the registration of the deed of assignment and application for the Governor's consent. He asserted that the Lands Registry was informed orally and by affidavit that the assignor was already dead at the time of the application and that the Governor's consent was given in full appreciation of this fact. It was therefore his contention that the Governor's consent was lawfully and regularly obtained in accordance with the provisions of the Land Use Act.  ???In their reply to the statement of defence the appellants maintained that their father never sold his property to Sule Raji and did not execute a deed of assignment in his favour. They averred that he did not surrender his C of O to Sule Raji. 

At the trial, three witnesses testified in support of the plaintiffs' claims while Sule Raji testified on his own behalf and called three other witnesses. The 2nd defendant did not participate in the trial. At the conclusion of the trial, in a considered judgment delivered on 20/11/97, the High Court entered judgment in favour of the plaintiffs granting all their reliefs. Sule Raji was dissatisfied with the judgment and appealed to the Lagos Division of the Court of Appeal. 
Shortly after the filing of the appeal, Sule Raji died. He was substituted by the present 1st respondent. On 24/3/2004, the Court of Appeal allowed the appeal and set aside the judgment of the High Court. The appellants were aggrieved by this decision and therefore appealed to the Supreme Court.

ISSUES:
The apex Court determined the appeal on the issues raised by the Appellants and couched as follows:

1. Whether the Court of Appeal was right in setting aside the judgment of the High Court in toto and so disturbed the finding of fact that the late Festus Olanipekun Ilori did not sell his property at No. 12.14 Oludegun Street, Isolo, Lagos State to late Alhaji Sule Raji when the onus of proof of that sale was not discharged by the 1st respondent who alleged it.
2. Whether the Court of Appeal rightly disturbed the finding of the trial Court that the 1st respondent herein failed to discharge the onus of proof that late Festus Olanipekun Ilori signed the Deed of Assignment admitted as Exhibit 2 in the proceeding.
3.  Whether the Court of Appeal was right in holding that due execution of Exhibit 2 was not necessary. 
4. Whether the Court of Appeal was right in setting aside the judgment of the High Court in which the transaction between the appellants and the 1st respondent was declared null and void having regard to the overwhelming evidence that it contravened Sections 22 and 26 of the Land Use Act 1978.
5. Whether the Court of Appeal was right in holding that the appellants were not entitled to the declaratory reliefs sought on their Amended Statement of Claim.

DECISION/HELD:
On the whole, the Supreme Court found no merit in the appeal and accordingly dismissed same.


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