Mrs. Florence Omotayo Labode V. Dr.godfrey Otubu & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N

This is an interlocutory appeal from the decision of the Court of Appeal, Lagos Division. The appellant was the plaintiff in a suit brought in the High Court of Lagos State, sitting in Lagos; while the respondents were the defendants. The plaintiff’s claim in the suit was for:

(a) An Order directing the defendants to surrender to the plaintiff forthwith the Original Land Certificate Title No. MO 9143 registered at the Lands Registry, Lagos and covering property lying, being and situate at No.6, Calabar Street, Surulere, Lagos.

(b) N100,000.00 being general damages against the defendants jointly and severally for the wrongful refusal to release to the plaintiff the said Land Certificate Title No. M09 413 “.

The writ of summons which was taken out on the 28th day of September, 1988 was accompanied with the statement of claim. A motion ex-parte was brought jointly, on the 21st day of December, 1988, by the defendants under Order 13 rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1972, for the plaintiffs previous solicitor C. O. Fadipe, Esq. to be joined in the suit as a third party. It appears from the record of the proceedings of the 9th day of May, 1989 that the motion ex-parte was granted, for the learned trial Judge – Adeyinka J. after being addressed by J. A. Badejo, Esq., learned counsel for the plaintiff, ruled as follows:

“COURT: -Suit is sat (sic set) down for trial” November,1989. H/N (sic Hearing Notice) to issue to the defendant (sic) and 3rd Party”.

On the 27th day of January, 1989, Alade A. Akesode, Esq. of solicitors to the defendants issued out, a third-party notice under Order 13 rule 23 of the High Court of Lagos State (Civil Procedure) Rules, 1972 addressed to C. O. Fadipe, Esq., directing him to enter appearance in the suit within 8 days and that in default of doing so, he would be deemed to have admitted the issues between him and the defendants and be liable to the judgment of the High Court. The issues raised against C. O. Fadipe, Esq., by the third-party notice are:

“(i) the repayment of the deposit N150,000.00 paid by the 1st defendant to you as consideration for the sale or assignment of the property, No.6 Calabar Street, Surulere, Lagos, (which sale or assignment you failed or neglected to perfect), along with interest at the rate of ten percent (10%) – per annum,

(ii) the entitlement of the 1st defendant to purchaser’s lien on the original Land Certificate title No. MO 9413 covering the property known as No. 6 Calabar Street, Surulere, until the said amount of N150,000.00 with interest thereon at the rate often percent (10%) per annum has been paid together with costs should be determined not only as between the plaintiff and the defendant but between the plaintiff and the defendant and yourself’.

The third-party notice was eventually served on C. O. Fadipe, Esq. by substituted service, by pasting it on the door of his chambers at No. 38, Kano Road, Ebute-Metta East, Lagos.

On the 31st day of October, 1989, the defendants took out a summons for direction under Order 22 rule 4 and Order 26 rule 6 (3) of the High Court of Lagos State (Civil Procedure) Rules, 1972 seeking an order of the trial court to strike out the plaintiff’s statement of claim on the ground that

“(a) it discloses no cause of action in that the reliefs sought by the plaintiff are not such that the court can grant against the defendants herein;

(b) that the necessary parties are not before the Court; and

(c) that the action is an abuse of process of this Honourable Court”.