Joe Adolo Okotie-eboh & Anor V. Mrs Alero Jadesimi & Ors (1999)

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ADEREMI, J.C.A. 

By their application dated 4th May, 1999 filed on the same date, the defendants/appellants/applicants pray this court for the following orders:

1. An order granting a departure from the Rules of this court by allowing the appellants/applicants to compile the record of appeal and treating the bundle of documents already compiled by the appellants and annexed hereto as Exhibit “J.A.O.” as the Record of Appeal.
2. An order staying the execution of the order of the lower court made on 19th April, 1999 rending the hearing and determination of the substantive appeal.

ALTERNATIVELY

An -order of injunction restraining the Respondent herein Mrs. Akro Jadesimi whether by herself, her servants, agents, privies and/or representatives from ejecting or disturbing or harassing the 2nd appellant or any of its officers interfering in any manner whatsoever with the 2nd appellant’s tenancy and/or possession of the said property pending the hearing and determination of the substantive appeal.

3. An order staying further proceedings in the lower court pending the determination of the substantive appeal.
4. An order accelerating the hearing of the substantive appeal by abridging the time within which briefs of arguments are to be filed by the parties.

GROUNDS OF THE APPLICATION

(a) The 2nd appellant is presently in possession of the property known as 1, Milverton Road, Ikoyi under a 5 years tenancy commencing from 1st May, 1997 whereas the lower court has granted the respondent an order to have peaceful and uninterrupted access to and use of the property whilst the said tenancy is still subsisting.

(b) Unless this court intervenes urgently there will be two persons i.e. 2nd appellant and respondent claiming possession to the property in dispute adversely to each other which event is most likely to result in a breach of the peace.

(c) The ex-parte order of injunction made by the lower court has prejudicially determined the third relief on the Writ of Summons.

On the 11th of May, 1999 this court granted the first leg of the prayer by admitting the Record of Appeal compiled by the appellant but argument on the remaining legs could not be entertained because of power failure.

Satisfied that all the parties were served, this court entertained arguments on the remaining legs. Mr. Tayo Oyetibo, learned counsel for the applicants moving the application referred to leg 2. which is for an order staying execution of the order of the lower court made on 19/4/99, and submitted that since the appeal has been entered in this court there was nothing more to be taken to the court below; he cited Order 1 Rule 22 of the Court of Appeal Rules and the case of Ezomo v. A-G for Bendel State (1986) 4 NWLR (Pt.36) 448 at 460. Special circumstances to warrant the grant of the prayer have been shown in paragraphs 19 to 21 of the supporting affidavit he contended. He further added that the interim order granted by the court below has prejudicially disturbed leg 3 of the prayers as an uninterrupted access was granted to the plaintiff without first hearing the other side on the 19th of April, 1999. While citing In Re G. M. Boyo (1970) 1 All NLR 111, and Alero Jadesimi v. Victoria Okotie-Eboh & Ors. (1996) 2 NWLR (Pt.429) 128 and contending that there is a very serious issue to be looked into in this matter, he urged that the application be granted.

Mr. Ike Imo, learned counsel for the plaintiff/respondent while re-stating the principle that order of court must be obeyed, he referred to the Notice of Preliminary Objection filed on 6/5/99 and involving the provisions of Order 3 Rule 3(4) of the Court of Appeal Rules he submitted that the application ought to have been brought in the first instance at the court below since, according to him, there are no special circumstances that warrant the bringing of the application before this court in the first instance; paragraphs 14 and 21 of the supporting affidavit, he pointed out, do not constitute special circumstances placing reliance on Irukwu & Ord. v. Trinity Mills Insurance Mills Insurance Brokers & Ors. (1997) 6 NWLR (Pt.507) 100. The respondent as a beneficiary of the estate has the right to sue for the protection of the estates citing Ojukwu v. Kaine (1997)9 NWLR (Pt.522) 613. Balance of convenience, he again contended, is always construed in favour of the person in possession and he cited West Ajhca Oil Services v. Pelfaco Ltd. & Anor. (1994) 1 NWLR (Pt.319) 164. To grant the present application is to grant the substantive order prayed for and the court does not make a practice of doing that, he again contended while urging that the application be refused.

Mr. Adetona, learned counsel for the 7th and 10th respondents associated himself with the submissions of the learned counsel for the applicants. The plaintiff/respondent is not the only child of the deceased, indeed she is one out of 13 children and her interest cannot be greater than the interest of the remaining children. He urged that the application be granted.

On points of law only, Mr. Oyetibo submitted that an order does not take effect until it has been served.

I shall begin with the preliminary objection filed on 6/5/99. Order 3 Rule 3(4) of the Court of Appeal Rules which is the foundation of the objection provides:-