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Shobajo vs. Ikotun

ALHAJI SAFIRIYU YINUSA SHOBAJO

V

OLUREMI IKOTUN

OLUSEGUN IKOTUN

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

SULEIMAN GALADIMA, JCA

PIUS OLAYIWOLA ADEREMI, JCA ( Read the Lead Judgment )

CA/L/286/97

MONDAY, 10TH JUNE, 2002

CONTRACT - Illegality - Effect of on an agreement - Ex turpi causa non oritur actio applied

EVIDENCE - Witnesses - Whether a particular witness must be called

FRAUD - Fraudulent misrepresentation - Inference of where evidence abound that a party did not approach court with clean hands

JUDGMENT AND ORDERS - Declaration that an instrument or transaction is void - Whether order setting aside can also be made ex nihilo nihil venit

LAND LAW - Agreement for sale - Where illegal - Effect - Ex turpi causa non oritur actio applied

LAND LAW - Agreement for sale of land - When or how created

LAND LAW - Deed - Cancellation of - When will be the appropriate and effective remedy in land transaction

LAND LAW - Fraud - Effect of on land transactions

LAND LAW - Interests of adverse claimants to land - How to rank where the legal title is vested in a common vendor - Qui prior est tempore potior est jure applied

LAND LAW - Possession - Concurrent possession of land by adverse claimants - Whether allowed

LAND LAW - Purchase receipt coupled with going into possession of land

-  Interest created thereby

LAND LAW - Void instrument or transaction - Whether can be set aside

MAXIM - Ex nihilo nihil venit - Applied to whether a void transaction or instrument can be set aside

MAXIM - Ex turpi causa non oritur actio - Applied to the effect of illegality in matter or purpose of an agreement

PRACTICE AND PROCEDURE - Witnesses - Whether a particular witness must be called

Issues:

1.            Which of the appellant and the cross-appellant did Iyabo OlojoKosoko (their common vendor) transfer her title, right and interest in the said property to.

2.            Whether the failure of the appellant to call in evidence Iyabo Olojo Kosoko his vendor was fatal to his case.

3.            Whether judgment entered in favour of the cross-appellant in respect of his counter-claim can be justified.

Facts:

The plaintiff/appellant commenced this action claiming an order setting aside certificates of title issued to the defendant on the land in dispute; declaration of entitlement to certificate of occupancy over the disputed land and injunction. The defendant/cross-appellant counter-claimed for possession, injunction and mesne profits.

In their pleadings and evidence before the trial court both parties agreed to having acquired their respective interests from a common vendor, Iyabo Olojo-Kosoko. The said Olojo-Kosoko was not called to testify.

At the conclusion of trial, plaintiffs case was dismissed while judgment was entered for the defendant on his counter-claim but for the relief for mesne profits.

Aggrieved by the decision, the plaintiff appealed while the defendant cross-appealed against the decision on mesne profits.