Alhaji Nurudeen Ashorobinija & Anor V. Alhaja Muyinot Labinjo & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

The instant appeal is against the ruling of the Lagos State High Court of Justice delivered on May 7, 2007 in suit No. LD/192/94 by the Hon. Justice O.A. Taiwo. By the said ruling, the lower court dismissed the Appellants’ application, dated January, 2007 seeking to dismiss the Respondents’ suit No. LD/192/94, for being an abuse of court process.

FACTS AND CIRCUMSTANCES SORROUNDING THE APPEAL:

On January 13, 1994 the Respondents filed a writ of summons, dated 12/01/94, seeking two declaratory reliefs against the Appellants.

However, by the further amended statement of claim thereof, filed on 13/6/05, the Respondents sought the following reliefs against the Appellants:

1. A declaration that the Claimants’ are entitled to the exclusive use of their kitchen and toilet facilities situate within the property known as No. 7, Apatira Street Lagos; and the toilet facilities is the joint property of both the Claimants’ and the Defendants’ families and that the Defendants family is not entitled to rebuild the entire structure pulled down thereat and or any part thereof without providing in the building a kitchen and toilet space/facilities thereat for the Claimants’ use as they had undertook so to do.
2. A declaration that the common passage in the entire compound is an easement to which both the Claimants’ and Defendants’ have acquired an enforceable right of easement and are thus entitled to its continued existence and unhindered usage;
3. A Mandatory Order of injunction directing the Defendants’ to restore to the Claimants’ their exact kitchen, toilet facilities & the use of the common passage passing through the Claimants’ Faji Street side of the Compound through the Defendants’ Apatira Street portion of the compound.

On the other hand, the Appellants not only denied the claim, but also counter claimed against the Respondents. By the statement of defence and counter claim thereof, the Appellants claimed the following reliefs:

(i) A Declaration that the Defendants are the beneficial and absolute owners of the property lying and being at No. 7, Apatira Street, Lagos and devoid of all encumbrances.

(ii) A Declaration that the Defendants are the Owners of the one room otherwise known as Bankole room at No. 2 Faji Street, Lagos.

(iii) General Damages of N400,000.00.

However, on January 11, 2011 the Appellants filed a motion, dated 08/01/07, seeking to dismiss the Suit, on the grounds that it was “frivolous, scandalous and an abuse of the process of the …. court.” By the ruling thereof, dated May 7, 2007, the lower court accordingly dismissed the application in question. Thus, dissatisfied with the said ruling, the Appellants filed this appeal.

On 25/8/10 along with the Record. The Respondents’ brief, on the other hand was filed on 27/9/10. The Appellants’ reply brief was filed on 20/10/10.

At pages 3 -5 of the brief thereof, the Appellants have formulated a total of five issues, viz:

4.1 whether the learned Trial judge was right having held that by the said judgment in Suit No. 254/45 there had already been a partition of the Oyedemi compound and then to contradictly hold that there was also an allocation of some rooms to the Claimants Idewu Olawoyin branch in respect of No. 7 Apatira Street, Lagos and that it was therefore necessary to determine “whether the two rooms now referred to as kitchen and toilet form part of the said allocation to each or whether they are jointly owned.”

4.2 whether having regard to the proceedings and circumstances of Suit No. 254/45 and the evidence contained therein, and the provisions of Section 115 (b) of the Evidence Act, the learned Trial Judge was right in concluding that since the said Suit 254/45 was in respect of Nos. 1 – 7 of Apatira Street, and the present suit involves only No. 7 Apatira Street, Lagos “in my humble view not all the constituent elements of the doctrine of “Estoppel per rem judicatem” have been established by the defendants/Applicants” i.e. in effect that the subject matter 1- 7 Apatira Street does not include No . 7, Apatira Street.