Ademola Adeyemi V. The Estate Of Dr. (Chief) Victor Awosika (Deceased) & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the interlocutory decision of Kumuyi, J., of the Ondo State High Court delivered on 7th September, 2010 in Suit No. HOD/78/2010.

In a statement of claim dated and filed on 19th July, 2010, the respondents herein as the claimants, sought for the following declaratory and injunctive reliefs. They are: –

“(a) A declaration that plaintiffs are the joint owners in occupation and holder of the appropriate Certificate of Title (Deed of Sublease) in respect of the parcel of land Plots 282 and 283 Block XXIV situate and being at Ondo State Development and Property Corporation Housing Estate, Ondo along Ondo/Akure Road which title is registered as No. 23 in Volume 307 at the lands Registry in the office at Akure dated 20th July, 1989.

(b) A Declaration that the entry, occupation, exploitation and use/destruction by defendant of plaintiffs’ land plots 282 and 283 Block XXIV housing estate Ondo situate and lying along Ondo/Akure road is illegal.

(c) Damages for illegal entry, occupation, use, exploitation of the land and destruction of the fixtures thereon property of plaintiffs herein Plots 282 and 283 Block XXIV lying and situate at Ondo State Development and Property Corporation Housing Estate, Ondo.

(d) An Order setting aside as void a purported deed of sublease issued in favour of defendant purportedly by Ondo State Development and Property Corporation in respect of Plot 283 Block XXIV Ondo State Development and Property Corporation, Housing Estate Ondo along Ondo/Akure Road and registered as No.32 at Page32 in Volume 768 at the land Registry in the office at Akure dated 10th November, 2009.

(e) Perpetual Injunction restraining defendant by himself or/and his agents(s) privy (ies), assign(s)r Froxy(ies) or any person(s) taking through or by him from entering or continue to enter, occupy or continue to occupy, use or continue to use, exploit or continue to exploit, destroy or continue to destroy property of Plaintiffs Plots 282 Block XXIV situate at Ondo State Development and Property Corporation Housing Estate Ondo along Ondo/Akure Road.”

This claim was accompanied by a motion on notice also dated and filed on 19/7/2010. It was brought pursuant to O. 8 Rule 1 and Order 33 Rule 1 of the Ondo State High Court Rules 1988. It is supported by a very copious affidavit and annexures. Upon what later appeared to be a purported service of these processes on the defendant/appellant, learned counsel entered appearance and filed a motion on notice. It is dated and filed on 17th August, 2010.

This motion was brought pursuant to Order 48 rule 5 (1) & (2) of the Ondo State High Court Rules 1988, and under the inherent jurisdiction of that Court. It seeks for 2 main reliefs. They are couched in the following terms viz: –

“(a) striking out suit No: HOD/78/2010 herein for lack of jurisdiction in that the originating processes in this case had not been served or personally served on the defendant/applicant up till now.

(b) That this action (suit No: HOD/78/2010 herein) is not justiciable (the court lacked jurisdiction) during the period of annual legal vacation as there is no urgency or real urgency in the case.

The grounds for this application were set out thus: –

“1. The defendant/applicant has not been served or personally served with originating processes in this case (the writ of summons), statement of claim and other court processes up till now.