Abayomi Fabunmi V. The Registered Trustees Foursquare Gospel Church In Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Onibokun J. of the Osun State High Court, Ile-Ife Judicial Division delivered on the 21st day of May 2009 in an undefended and uncontested originating summons filed by the respondent herein. The facts of the case are that the respondent Church bought a piece of land from one Chief Ayo Martins (deceased) in the year 2001 and went into possession but was challenged by a sitting tenant who filed an action against the respondent, Chief Ayo Martins and two others to protect his tenancy. The present appellant initially represented the respondent and Chief Martins in the suit until the respondent found out that the appellant was working hand in gloves with the tenant and then briefed another counsel.

According to the respondent, the tenant later left the premises long after his tenancy expired and abandoned the suit which was struck out. Along the line Chief Martins died. The appellant claiming to be an executor of the will of Chief Martins decided to take over the property on the land alleging that the property earlier sold to the respondent, a sale which the appellant defended at a point is now part of the estate of Chief Martins in his will. The respondent then filed this originating summons against the appellant as executor of the estate asking the lower court to interpret both the agreement for the sale of the land and the will and to determine the following questions of law:

(a) Whether having voluntarily entered the agreement of sale made between himself and the plaintiff on 24th April 2001 upon consideration furnished by the plaintiff the late Chief Ayo Martins or anyone claiming through him could further deal with the said property.

(b) Whether the defendant is by law entitled to take possession of the aforementioned property or deal with same in any manner prejudicial to the plaintiff by the sole (assumed) privilege of being named an executor in the purported will of late Ayo Martins.

In consequence of answers to the above questions, the respondent as plaintiff in the lower court claimed the following reliefs:

1. A declaration that the plaintiffs are entitled to take possession of the property lying, being and situate at No. 38 Chief Ayo Martins Close, off Ebenezer Baptist Church Road, opposite Ife Girls High School, Eleyele, Ile-Ife consisting of a bungalow building and an open land demarcated by the Plaintiffs’ survey pillars no. SAP 7216, SAP 7217, SAP 7218 and SAP 7219 dated 22/3/2001.
2. A declaration that the defendant is not entitled to deal with the aforesaid property in any manner prejudicial to the interest of the plaintiffs.
3. An order that as successor of late Chief Ayo Martins the defendant shall specifically perform the agreement of sale dated 24th April, 2001 by taking all/any steps required at law equity or statute to carry out the intentions of the parties expressed in the said agreement.

A written address in support of the originating summons was filed by the plaintiff/respondent on 14/4/08. The defendant/appellant did not file a counter affidavit or written address by way of defence to the originating summons. Rather on 12/3/07, he filed a preliminary objection, praying the court to strike out the suit on three grounds: (1) that the suit has the same features as suit no. HIF/34/05 between himself and (a) Commissioner of Police Osun State, (b) Mr. Olaoluseni Osho (Area Commander Moore Police Station Ife) (c) Pastor Ife Adwunmi (Pastor Four Square Gospel Church Ile-Ife); (2) that this suit (originating summons) was commenced by wrong procedure; (3) that the determination of suit no. HIF/34/05 which was first filed would resolve all the issues being raised in this suit, so that this suit is an abuse of court process. After the parties had joined issues on the preliminary objection, the learned trial Judge gave a considered ruling on 4/12/08 dismissing the objection on the ground that the plaintiff in this suit is not a party in HIF/34/05 as the Registered Trustees of Foursquare Gospel Church is a distinct legal personality from Pastor Ife Adewunmi and that the reliefs are not the same. On the procedure for commencing the suit, the learned trial judge ruled that what he had before him in the originating summons is the construction of the agreement and the will and that the suit is not an abuse of court process. Thereafter, the suit suffered several unnecessary adjournments, all at the instance of the appellant. At a point, the appellant moved a motion to adjourn the case sine die which was opposed by the respondent. The judge wrote a short ruling refusing the application and ordered the appellant to file his written address to the originating summons and adjourned the case for the adoption of his address. The appellant did not file his counter affidavit and address; and further frustrated the hearing of the case by failing to attend court on other adjourned dates. Finally, the Judge fixed a definite date for judgment in the matter. On that date, the appellant brought applications to arrest the judgment and to have the case transferred to another Judge.

The trial judge after hearing the appellant dismissed the applications and delivered judgment in the originating summons. The learned Judge answered the two questions in the originating summons in the negative and granted reliefs 1 & 2 in the originating summons. The appellant has now appealed to this court against the judgment. Out of his 7 grounds of appeal, the appellant formulated the following issues for determination:

(1) Whether the originating summons procedure is suitable to decide title to land when the facts are seriously disputed and the proceedings are hostile and controversial proceedings so called. Ground 1.

(2) Whether it is not abuse of court process for the respondent (plaintiff at the lower court) to file this case originating summons on appeal at the lower court, high court 2, Ile-Ife Osun State when the suit No HIF/34/2005; writ of summons and statement of claim was still pending before the same court, seeking to decide title on the same bungalow building, at the same time and between the same parties. Ground 2.

(3) Whether it is not denial of fair hearing to the appellant for the lower court to decide this suit on appeal HIF/M61/05, between The Registered Trustees Foursquare Gospel Church in Nigeria v. Abayomi Fabunmi before Suit No. HIF/34/2005, between Abayomi Fabunmi v. Commissioner of Police and 2 ors which was filed earlier; both suits seeking to decide title on the same bungalow building at the same time, and between the same parties. Ground 3.

(4) Whether it is right for the lower court to assume jurisdiction to deliver judgment in this case on the 21st of May 2009 after objection had been raised to the court assuming further jurisdiction via an application dated the 20th of May 2009.

Ground 4.

(5) Whether the lower court was right to grant the respondent relief at the lower court to the effect of granting orders on the house No 38 Ayo martins close, off Ebenezer Baptist Church Road, opposite Ife Girls High School, Eleyele, Ile-Ife, the disputed bungalow building with its adjoining frontage, while the respondent’s prayers were actually on the house No 1 and 2, Chief Ayo martins Close, off Ebenezer Baptist Church Road, Ile-Ife which is a non-existing house. Ground 7.