Alhaja Muinat Adufe Ashorobi V. Alh. Musediku Abudu Akinole & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the ruling of the Lagos State High Court, holden at Lagos delivered on 17th April, 2014. The appellant had, by a motion on notice dated 17th August, 2011 prayed for an order amongst other reliefs, that the Court should set aside the order it made on 18th May, 2011, which was sequel to the ex-parte application of the respondents dated 1st March, 2011. The appellant’s motion on notice was anchored on the ground amongst others, that the ex-parte order obtained by the respondents at the Court below was tainted with material misrepresentation, misstatements and concealment of facts by the respondents and also to set aside the warrant of possession dated 4th August, 2006 and the writ of possession issued on the 7th October, 2010 for noncompliance with the provisions of Order 53 Rule 7(1) of the High Court of Lagos State (Civil Procedure) Rules, 2004. The appellant in her motion on notice aforesaid, had urged the Court below to exercise the power of review conferred on it pursuant to the provisions of Order 53 Rule 8(1) of the 2004 of the Lagos State High Court

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(Civil Procedure) Rules, to review the orders it earlier made in Suit NO: ID/923M/99, since the proceedings in the same suit were conducted under the aforementioned Order 53. The respondents filed a counter affidavit against the appellant’s application.

The respondents vide a motion on notice dated 18th October, 2011 objected to the hearing of the aforesaid appellant’s motion on notice, for want of jurisdiction, on the ground that the motion was caught by issue estoppel per rem judicatam by virtue of the Court of Appeal’s decision in CA/L/649/M/2006, dated 26th April, 2007. The appellant filed a counter affidavit against the respondents’ application. The parties in compliance with the direction of the Court below, filed and exchanged written addresses in respect of the applications at the instances of both parties. In his ruling, the learned trial judge upheld the respondents’ objection and consequently the appellants’ motion on notice was dismissed, for want of the Court’s jurisdiction to entertain it. The appellant, not unnaturally, was piqued by the decision against her, which prompted this appeal.

This matter has a checkered history. The facts as

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narrated by either side, are rehashed for ease of appreciation. On the part of the appellant, it is stated thus:
The Lagos State Government by Government Notice No. 236 of 1969 published in the Official Gazette No. 26 Vol. 2 dated 24th October 1969 compulsorily acquired 7,300 acres (2.954 Hectares) of land North of the Airport in Ikeja Division of Lagos State, including Agidingbi for overriding public interest. The notice of acquisition was attached as Exhibit ?A? to the affidavit in support of the motion dated 17th August 2011. The Lagos State Government formally had the title to the 7,300 acres Global acquisition including the land the subject matter of this suit vested in it by Legal Notice No. 8 of 1976 published in the Extraordinary Gazette, No. 25, vol. 9 of 18th June 1976. The Legal Notice was attached as Exhibit ?B? to the affidavit in support of motion. The Lagos State Government subsequently and by a Notice of Excision published as Notice No. 92 in the Official Gazette No. 15 vol. 10 dated 31 March 1977 released 14. 54 hectares (about 30 acres) to the original owners in the community. Exhibit ?C? is

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a copy of the said Notice of Excision to the affidavit in support of motion.

At a meeting of the Agidingbi Community held on the 28th March 1978, the Community unanimously agreed to allot to the appellant plots 13-17 in the Community layout plan No. OGEK1O3O/78 in appreciation of her immense contribution to the progress of the Community. Exhibit ?D? in the affidavit in support of motion is a copy of the allocation letter to the appellant signed by the Chairman of the Agidingbi Community. The appellant was in peaceful possession of the said plots of land without any disturbance, let or hindrance from anybody.

?On the 25th February 2008, the Lagos State Government withdrew and consequently revoked the notice of excision of all the 14.54 hectares of land described as parcel H in the Notice of excision. The said notice also contained a declaration that any land transaction by any family or individual on the land at Agidingbi without the Governor?s consent is unlawful, invalid, null and void. Exhibit ?C? in the affidavit in support of motion is a copy of the said notice of withdrawal of excision/revocation published in the Punch

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Newspapers of Monday 25th February 2008. In view of the withdrawal and revocation of the excision of 1977 by the Lagos State Government by which the ownership or title of the land in Agidingbi reverted to the Lagos State Government, the appellant applied to the Governor of Lagos State to regularize her occupation of the land and the Governor of Lagos State subsequently issued a Certificate of Occupancy number 88 at page 88 in volume 2011E dated 5th April 2011 to the appellant in respect of the land that she inherited from her father which is situate along Isheri Road now Lateef Jakande Road, Agidingbi, Ikeja. Exhibit ?H? the affidavit in support of motion dated 17th August 2011 is a copy of the said certificate of occupancy.