Alhaja Barakat Alafia & Ors V. Gbode Ventures Nigeria Limited & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal emanated from the judgment of the Court of Appeal Lagos Division delivered on 15th day of December, 2004. By that Judgment, the Court below allowed the Respondents’ appeal herein against both the interlocutory and final Judgment of the trial High Court of Lagos State delivered respectively on 18th June, 1998 and 4th October 1999.

Dissatisfied with the said judgment of the Court below. Appellants have appealed to this Court on fourteen grounds of appeal.

It is noteworthy to state here that the appeals giving rise to the judgment of the Court below are consolidated appeals both filed by the Respondents herein. Appeal No CA/L/297/2001 was filed against the interlocutory Ruling of the learned trial Court delivered on 18th June, 1988 while Appeal No. CA/L/43/2000 was filed against final judgment of the trial Court delivered on 4th October, 1999.

The following are the relevant facts set out from the records for the determination of issues relating to appeal No.CA/L/297/2001. At the institution of this suit on 6th April, 1998, an ex-parte motion for several orders, including an order of

1 interim injunction was filed by the Appellants along with the Writ of Summons and Statement of claim. On the 16th April, 1998, arguments of the learned counsel for the plaintiffs (Appellants herein) were taken and on the same day, the learned trial judge granted the orders sought including an order of injunction restraining all the Defendants (Respondents herein) whether by themselves or by their servants, agents, privies collaborators, or any other persons, howsoever from demolishing constructing and/or further trespassing on the property known as No.45 DocemoStreet, Lagos, pending the hearing and determination of the Motion On Notice already filed.

However, on the 28th May, 1998, consequent upon the ex-parte orders granted as aforesaid, the Appellants filed in Form 49, a Notice to show cause why the order of attachment should not be made against the Respondents. It should be noted that earlier on, on 11th May, 1998 the Court Registrar had issued Form 48 in respect of the orders made on 16th April, 1998. In reaction, the Respondents filed a Notice of preliminary objection against Form 49 contending that there was noncompliance with the mandatory provisions of

2 Sheriff and Civil Process Act and the Judgment (Enforcement) Rules On 18th day of June, 1998, ruling on the Notice of Preliminary Objection was delivered, sustaining it in part, stating that there was compliance with the rules in the case of the 2nd Respondent only. That the Court was vested with jurisdiction to entertain the Form 49 application in respect of the said 2nd Respondent but declined jurisdiction in respect of the 1st, 3rd and 4th Respondents’ application. Having struck out the Form 49 application in respect of the 1st, 3rd and 4th Respondents, the learned trial Judge ordered the arrest of the 2nd Respondents and committed him to prison for disobeying the order of the trial Court until he purged himself of the contempt.

As stated earlier, Appeal No.CA/L/43/2000 was filed against the final judgment of the trial Court. Briefly, in the suit, the property in dispute was originally owned by one PA SUBERU ADEDEJI ALAFIA. When he died intestate on 28th day of November, 1944, his properties including No.45 Docemo Street devolved on the seven branches of his family, amongst whom are the present 3rd and 4th Respondents and 1st, 3rd and 4th Appellants herein

3 as family properties and each had its own share. Exhibit 6 tendered at the trial, and the records show that each child or descendant of this patriarch has his or her separate title, interest, right, possession, as a result of partition of the properties. One crucial finding of the Court below was that the 1st – 6th Appellants who are from different branches of the said Late Pa Suberu Adedeji Alafia family have no common interest, title, possession or otherwise after partitioning in suit No. M/4/57.

In the course of time, the representatives of the family requested that the 3rd Respondent look for a suitable Developer to develop No.45 Docemo Street. Agreement was reached with the 1st and 2nd Respondent after several Developers were approached and considered by the 3rd Respondent herein.

Evidence led by the Respondents at the trial shows that the 3rd Respondent was the head of Suberu Adedeji Alafia family while the 4th Respondent was the principal member of the said family. However, on the 4th October, 1999, the learned trial judge gave judgment in favour of the Appellants and dismissed the counter-claim of the Respondent. This judgment was upturned upon appeal

4 filed by the Respondents to the Court of Appeal. Both the Rulings of 18th June, 1998 and the Judgment of 4th October, 1999 delivered by the trial Court were set aside. The Committal proceedings and the eventual committal order made against the 3rd Respondent were set aside. It also found that the original suit filed by the Appellants at the trial Court was incompetent and same was Struck-out.

Dissatisfied with this judgment, Appellants have appealed to this Court vide their Notice of Appeal containing six grounds of Appeal. Appellants subsequently applied to the Lower Court vide their motion of 19th January, 2005, wherein they sought leave of the Court of Appeal to appeal against its judgment delivered on 15th December, 2004.