Alhaja Morufa Disu V. Alhaja Silifat Ajilowura (2000)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A. 

The respondent, as plaintiff instituted an action at the Lagos State High Court in suit No. LD/1807/94 seeking for the following reliefs:

“(a) A declaration that the deed of gift dated 17th day of May, 1975, purportedly made between Tawakalitu Ajiun, Aminatu Abeke and Momodu Lawani Ishola is null and void and of no effect.
(b) a declaration that late Momodu Lawani Ishola (father of the 1st and 2nd defendants) had no legal or equitable interest/title in both No.48, Aroloya Street, Lagos and 60, Smith Street, Lagos.
(c) An order of perpetual injunction restraining the defendants (particularly the 1st and 2nd defendants) either by themselves, agents or privies from further interfering in any manner whatsoever and however with the rights of the plaintiff and her co-beneficiaries over the control and management of both 48, Aroloya Street, Lagos.
(d) An order directing the 3rd to 15th defendants to produce their last rent receipts to the plaintiff and her co-beneficiaries and to desist from further payment of rents to the 1st and 2nd defendants or to any person other than the plaintiff and her co-beneficiaries or their accredited agents.
(e) An order directing the 1st and 2nd defendants to render account of all rents collected from 48, Aroloya Street, Lagos from October, 1979 to October, 1989.
(f) An order directing the 1st and 2nd defendants to render account of all rents collected from 60, Smith Street, Lagos from October, 1979 to the date of judgment.”

These reliefs in the respondent writ of summons was followed by a 28 paragraphs statement of claim. On service on the defendants now the appellants with the above claim, instead of filling a statement of defence, their counsel filed an objection based on S.8 of the Administration of Estate Law, Cap. 2 Laws of Lagos State, 1973 (now 1994) and Order 22 rule 4 of the High Court Rules wherein they prayed for striking out of the plaintiff/respondent’s court processes. The respondent on the other hand filed a 6 – paragraphs counter-affidavit.

Hon. Justice F.A. Owobiyi took arguments in respect of the appellant’s preliminary objection and subsequently dismissed their objection in a considered ruling dated 13/5/99.

Dissatisfied and aggrieved with the ruling of the learned trial Judge, the appellants have appealed to this court upon 4 grounds of appeal.

In their brief of argument filed pursuant to the rules of this court, the appellants formulated the following two issues for the determination of this appeal, to wit:
“(a) Were the appellants obliged to file a statement of defence before complaining about the capacity of authority of the respondent to institute the action?
(b) Did the respondent have capacity to bring the action?

The respondent in her brief formulated two issues for the determination of this court as follows:
(a) “Has the defendant/appellant in raising his objection to the plaintiff’s case complied with the relevant rules of court i.e. Order 23 rules 2 and 3 of the High Court Rules relating to demurrer?
(b) Has the plaintiff established her locus standi in this suit.”

I shall be guided by the two issues formulated by the appellants. They are similar to the two issues raised by the respondent in her brief of argument.

However in considering, the first issue I will make reference to the relevant rules of High Court of Lagos State (Civil Procedure) Rules, which is Order 22 rule 4 1972, now Order 23 rule 1 of 1994 rules (hereinafter referred to as the “Rules”).

The Rules stated thus:
“Proceedings in LIEU OF DEMURRER
1. No demurrer shall be allowed.
2. No party shall be entitled to raise by his pleading any point of law, unless the court or a Judge in Chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after trial.
3. If, in the opinion of the court or a Judge in Chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim or reply therein, the court or a Judge may thereupon dismiss the action or make such other order therein as may be just.
4. The court or a Judge in Chambers may order any pleading to the struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or a Judge in chambers may order the action to be stayed or dismissed or judgment to be entered as may be just. (italics mine for exphasis)
5. No action or proceedings shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed, or not”

It is pursuant to this Order that the appellant moved the lower court to strike out the writ of summons, statement of claim and the plaintiff’s action for lack of jurisdiction. The grounds upon which this action motion was brought is that the respondent has “no right, capacity or title to institute the action. The appellants by their notice filed on 11/10/95 indicated that they would rely on Sections 8 and 10 of the Administration of Estates Law, Cap. 2, Laws of Lagos State, 1973, the aforesaid High Court Rules and the inherent jurisdiction of the court in support of their motion.

In support of their application the appellants filed a 5-paragraphs affidavit. In paragraph 4 of the affidavit deposed to on behalf of the appellants it was stated
“4 My perusal of the processes do not reveal the authority which enables to (sic) the plaintiff to institute this action”

In paragraph of the counter-affidavit deposed to on behalf of the respondent it was stated that:
“5 That I know that defendant (sic) have no defence to this action hence their delay tactics through vexatious objection.”