Alhaji Yusuff Kadiri & Anor V. Otunba Chief (Dr) J. A. Ewuoso (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Lagos State delivered by I. O. Harrison J. On the 14th day of February 2012 whereby the 1st appellant’s application to dismiss the substantive suit on grounds of abuse of court process was refused.

The Respondent in this appeal had as a claimant in the lower court filed a writ of summons and a statement of claim dated the 20-5-2011 against the defendants (now appellants) wherein he claimed as per paragraph (i-iv) of the statement of claim as follows:-

i) A Declaration that the Claimant is entitled to exercise all the rights vested in him over the Defendant’s property situated at No. 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS as stipulated in the Agreement dated the 23rd day of August, 2010 without any obstruction or interference by the Defendant.

ii) A Declaration that the Defendant is not entitled to lease or let his property situated at No. 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS to any person or repossess the said property until the Agreement made between the Claimant and the Defendant on the 23rd day of August 2010 in respect of the property expires by effluxion of time.

iii) An order of perpetual injunction restraining the Defendant, his agents, servants or privies from interfering with the claimant in any manner whatsoever in the exercise of all the rights vested in him under the Agreement made on the 23rd day of August 2010 in respect of the property situated at 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS until the Agreement expires by effluxion of time.

iv) An order of perpetual injunction restraining the Defendant from leasing or letting to any person his property situated at No. 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS or from repossessing the said property or dealing with the same in a manner inconsistent with the rights of the Claimant as stipulated in the Agreement made on the 23rd day of August 2010 until the Agreement expires by effluxion of time.

The Respondent also filed a motion on notice dated 28/6/2011 seeking an order of Interlocutory injunction restraining the appellants from restructuring, further, restructuring, damaging, subleasing or subletting the Respondents property situate at No. 51, Iga Idugunran Street, off Idumagbo Avenue, Lagos.

The Appellants reacted by filing a memorandum of conditional appearance dated 11-7-2011 and followed it with their statement of defence dated 25-7-2011.

While the 1st appellant by an application dated 11-7-2011 sought for an order striking out his name from the suit on the ground that he was improperly joined as a party to the suit, the 2nd Appellant filed an application dated 11-7-2011 for an order of the court dismissing the suit for being an abuse of process as well as a counter affidavit in opposition to the Respondents motion for interlocutory injunction.

The Respondent also reacted to the appellants’ two applications by filing two counter affidavit to oppose the motion to dismiss the suit and the 1st appellant’s motion to strike out his name from the suit.

The three applications, that is to say, motion for interlocutory injunction; motion to dismiss for abuse of process and motion to strike out the name of 1st defendant came up for hearing on the 1-12-2011. They were all accordingly moved and the parties duly adopted their written addresses after which the three applications were adjourned to 19-12-11 for Ruling. The said Ruling was however not delivered until the 14th February, 2012 wherein the lower court held inter alia as follows:-

“The justice of the case will require that the substance of the dispute between the parties be determined on its merits and this will naturally entail proper service of the originating processes in the suit No: LD/941/11 on the claimant herein, consolidation of the case before any of the presiding judges and determination of pending interlocutory matters before a single judge.

It should be noted that 2 other applications were argued are for striking out the name of the 1st defendant and the other for interlocutory injunction. The court believes that the interest of justice will be better served if the said applications are either re-argued and/or ruling delivered on some by the judge who will eventually have conduct of the consolidated suit. For this reason an order of dismissal of the suit will not be granted in the light of the above peculiar situation the court in the interest of justice orders as follows:-