MR. ADEBOWALE REAL ESTATE LIMITED V ONIYIBANKATA AJANWACHUKWU

CORAM

TIJJANI ABUBAKAR    JUSTICE, COURT OF APPEAL

PARTIES

MR. ADEBOWALE REAL ESTATE LIMITED APPELLANTS

ONIYIBANKATA AJANWACHUKWU

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The appeal is a consolidation of appeals Nos. CA/L/959/10 and CA/L/451/10. The first appeal ensued from the interlocutory decision of the trial Court in which the Defendant/Appellant’s notice of preliminary objection on the ground that the Claimant/Respondent did not have the locus standi to institute an action having not obtained Letters of Administration as Personal Representative and/or Executor of the Estate of his deceased father regarding the disputed plot of land was dismissed by the trial Court. Dissatisfied with the trial Court’s ruling, the Defendant/Appellant appealed to the Court of Appeal.

The appeal No. CA/L/451/10  ensued from the decision of the trial Court in which the Court dismissed the Defendant/Appellant’s objection that the Claimant/Respondent’s suit was caught by the statute of limitation and entered judgment for the Claimant/Respondent as the owner of the land in dispute and in addition. Dissatisfied with the trial Court’s decision, the Claimant/Appellant appealed to the Court of Appeal.

HELD

Appeal Dismissed

ISSUES

1. “Whether or not the Claimants/Respondents can maintain an action on the supposedly Real Estate of Late Onyiba Aja Nwachukwu who the Claimants/Respondents claimed is the owner of the property situate at plot 435 No. 3, Olokun Close South West, Ikoyi – Lagos and the said property was the property subject matter of the suit and the plaintiffs/Respondents are not Executors or Administrators neither do they have a Vesting Deed on the Estate of Late of Onyiba Ajanwachukwu?”

2. Whether or not the suit of the claimants/Respondents is not caught by the provision of section 16 and section 17 and 21 of the Limitation Law of Lagos State 2003.Whether or not, the two (2) bedrooms flat situated at plot 435 Olokun Close, South West Ikoyi, Lagos was the main issue between the Appellants and the Respondents in the suit in the lower courts. If yes, is the Appellants not entitled to the said two (2) bedroom flat”.?

RATIONES DECIDENDI

JUDGMENT BY TRIAL COURT-WHEN THE JUDGMENT BY A TRIAL COURT IN LAND MATTERS CAN BE REVERSED ON APPEAL

“It is well established that the judgment in a land case in which the court of trial saw and heard the witnesses and viewed the disputed area with the disputants, as in the instant case, should not be lightly/readily reversed on appeal, unless it is clearly demonstrated on appeal that the judgment is wrong, which is not the case here”. PER IKYEGH, JCA

PLEADINGS-EFFECT OF EVIDENCE LED ON UNPLEADED FACTS

“It is trite that any material fact not pleaded goes to no issue even if extracted under cross – examination. The arguments on the unpleaded will, accordingly, go to no issue and are hereby rejected”. PER IKYEGH, JCA

LIMITATION OF ACTION-DETERMINATION OF WHEN A SUIT IS FILED OUT OF TIME

“It was raised in the appeal as a threshold issue considering the plea of time bar or limitation of action, it is the time frame between when the claim of the plaintiff accrued and when the suit was filed that is looked at to ascertain whether the suit was filed out of time”. PER IKYEGH, JCA

CASES CITED

Achah V. Bendentu 11 5 W. A. C. A. 1 at 3Dina V. New Nigerian Newspapers (1986) 2 NWLR (pt. 22) 353 at 364,Gagarau V. Pashiri (2006) 1 NWLR (pt. 962) 521 at 540,Gbedu V. Itie (2010) 10 NWLR (pt. 1202) 253Hassan V. Aliyu (2010) 17 NWLR (pt. 1223) 547,JFS Inv. Ltd. V. Brawal Line Ltd. (2010) 18 NWLR (pt. 1225) 495.John Amponay of Kpeme V. Martin Teyi of Kpeme 3 W.A.C.A. 182;Kuma V. Kuma 5 W. A. C. A. 4 at 9.Oladipo V. Moba Local Government Authority and ors. (2010) 5 NWLR (pt. 1186) 117 at 162 -163.Tanko V. Echendu (2011) 18 NWLR (pt. 1224) 253;Woluchem V. Gudi (1981) 5 SC 291 at 320 – 321

STATUTES REFERRED TO

1. Administration of Estate Law of Lagos State Cap. 2 1973

2. Limitation Law cap 67 Laws of Lagos State, 2003

3. Evidence Act, 2011

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