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(2020) LPELR-49539(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of March, 2020


Before Their Lordships

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria


6. ONOCHIE OTIGBAH - Appellant(s)



Other Citations

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This appeal borders on Land Law.

This is an appeal against the decision of the High Court of Lagos State in Suit no. ID/1174/2011 delivered on 30th June, 2015.

The parties in  this ??? appeal are children of the late Paul Dawson Otigbah. He birthed them from two different women. The Appellants and the 2nd Respondent are children of the same mother while the 1st Respondent has a different mother. The common denominator between the parties is their late father. The root of the contest in this appeal is the property left behind by their father. The property is situate at No 3 Otigbah Street, Ikeja, Lagos. In his lifetime, their father by a Deed of Assignment dated 2nd June, 1977 assigned the said property to his children, the parties herein. The said Deed of Assignment was admitted at the trial as Exhibit C1. Subsequently, a Deed of Partition was executed between the 1st Respondent and the 2nd Respondent partitioning the property. There is also a Development Lease by which the 1st Respondent was to develop and take control of the property. The Deed of Partition and the Development Lease are both dated 23rd June 2008. Furthermore, there is a Purchase Agreement, it is between the original owners of the land and the 1st Respondent. By the said Purchase Agreement, the property was sold to the 1st Respondent as the outright sole owner of the property.

Now, the Appellants contending that the Deed of Partition and Development Lease Agreement are illegal and that the 1st Respondent had failed to give an account of rents collected from the tenants at the property instituted proceedings before the High Court of Lagos State wherein they claimed several reliefs among which was a declaration that the purported Deed of Partition between Mrs. Agatha Adetutu Uwanaka (Nee Otigbah) and George Ifeanyi Otigbah dated 23rd June, 2008 is illegal, unlawful, null, void and of no legal effect, that the purported Development Agreement/Lease between George Ifeanyi Otigbah and Mrs. Agatha Adetutu Uwanaka (Nee Otigbah) purportedly signed on 3rd April, 2009 is illegal, unlawful, null, void and of no legal effect and compelling the 1st Defendant to pay over to the Claimants all funds due to them as joint owners of the property in dispute.

The 1st Respondent set up a counter-claim and she claimed the following reliefs:
"1. A DECLARATION that what the late Pa Dawson transferred to his children was his unexpired residue in the leasehold of and the 1st defendant having converted it to a freehold by buying the said property in dispute, she is now the owner of the said property and can partition, develop, lease and do with it as she pleases.
2. A DECLARATION that the said Deed of Partition and Development Agreement/Lease is legal and valid and should stand as per terms in it.
3. The sum of One Million Naira (N1,000,000) being the cost and Professional fees for this Litigation be charged against the Estate."

The matter was subjected to a full hearing at which testimonial and documentary evidence was adduced by the parties. In its judgment delivered on 30th June, 2015, the trial Court dismissed the Appellants' case and entered judgment for the 1st Respondent in terms of her counterclaim. The Appellants being dissatisfied with the said judgment appealed against the same to the Court of Appeal.

The Court determined the appeal based on the following issues for determination:
1. Whether the Lower Court, having found that the Appellants and the Respondents were joint owners of the leasehold interest in No. 3, Otigba Street, Ikeja, Lagos as per Exhibit C1, was not wrong in refusing to grant the order directing the 1st Defendant/Respondent to render account of the rents collected by her in respect of the said property to the other co-owners.
2. Whether the lower Court was right in holding that the Deed of Partition and the Development Agreement made between the 1st and 2nd Defendant/Respondents were legal and valid in law and not liable to be set aside.
3. Whether the lower Court was right in holding that the 1st Defendant/Respondent had become the sole owner of No. 3 Otigba Street, Ikeja, Lagos by virtue of the purchase receipts dated 6th March, 1996, 2nd October, 1996 and the Purchase Agreement dated 10th February, 1977.

In the final analysis, the Court of Appeal held that the appeal was meritorious. The decision of the trial Court dismissing the Appellants' claim and entering judgment for the 1st Respondent on her counterclaim was set aside. In its stead, the 1st Respondent's counterclaim was dismissed in its entirety and judgment was entered for the Appellants

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