Dr. Charles Oladeinde Williams V Madam Olaitan Williams (2008)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

The appellant herein and one Alexander Odu Williams [now deceased] were parties to a lease. The appellant took the lease of the property situated at No. 31, Little Road, Yaba Lagos for 50 years. The lease was dated and was to commence from the 5th day of July, 1976. By clause 11 of the lease it was recognized that there were tenants on the demised property but the responsibility of ejecting the tenants was placed on the appellant. In suit No. 86/85, before the Magistrate Court of Lagos State, the appellant instituted a recovery of premises action against the respondent the only occupant remaining on the premises. The action was dismissed on the 29/8/1991 on the grounds of jurisdiction. On the 1st of June, 1992, the appellant herein filed an Originating Summons before the High Court of Lagos State claiming against the respondent herein the following reliefs:-

“1. A declaration that the applicant as against the respondent for herself and as heir of one late Odu Williams, is the person entitled to the possession of the property situate at and known as No. 37, Little Road, Yaba Lagos under the lease registered as Title No. 11879.

2. A declaration that the applicant has not forfeited his rights and any entitlement whatsoever under the lease registered as Title No. 11879.
3. An Order construing the lease and declaring that the lease registered as Title No.1 1879 in the Lands Registry in the office at Alausa, Ikeja is still valid and subsisting.”

The Originating Summons was supported by an affidavit attached to which were certified true copies of the lease agreement dated the 5/7/1976 and the judgment of the Chief Magistrate Court in suit 86/85. There was also a further affidavit in support of the Originating Summons filed on the 9/10/1992.

Upon the service of the Originating Summons on the respondent, she filed a Notice of Preliminary Objection under Order 22 Rules 3 and 4 of the High Court of Lagos State [Civil Procedure] Rules 1972 and asked the Court for the following orders:-

“1. That the case of the applicant/respondent be dismissed as Lagos State High Court has no jurisdiction, by virtue of sections 16 (2) (a) and 21 of the Limitation Law Cap 70, Laws of Lagos State.

2. That the action be dismissed as It is vexatious, oppressive and an abuse of the process of the Court.
3. That the judgment of the Chief Magistrate Court, Yaba in suit No. 86/85 constitutes a res judicata.”

The grounds upon which the respondent relied for the preliminary objection were;-

“i. Respondent/applicant as per Exhibit “WILLY B” attached to the application of the applicant/ respondent had been in possession since 1970, assuming her possession became adverse in 1976 which is not conceded (sic) by 1992, she had been in continuous adverse possession for 16 years, therefore this honourable court lacks jurisdiction as the action is statute barred.

ii. Claim for possession was refused at the Chief Magistrate Court Yaba on 29/8/1991 almost a year ago, no appeal court has set it aside, it constitutes (sic) a res judicata; expressing an intention to appeal is an abuse of the process of the Court.

iii That the applicant has not come to this Honourable Court with clean hands, and he who comes to equity must come with clean hands.

iv. That deponent does not have the authority of the applicant to swear to the affidavit.”

After hearing the learned counsel of the parties, the learned trial judge in his ruling delivered on the 17/3/1994 dismissed the objection. The respondent felt aggrieved with the dismissal of the preliminary objection and filed a Notice of Appeal.

In the meanwhile argument was heard by the learned trial judge on the main claim of the Originating Summons and in a judgment delivered on the 21/5/1995, the trial judge found merit in the Summons and accordingly granted the reliefs sought by the applicant, the appellant herein. The respondent felt unhappy also with the decision and has filed a second Notice of Appeal. The two appeals were later consolidated by an order of the Court of Appeal. After its consideration of the issues submitted in the two appeals, the Court of Appeal per Aderemi J.C.A [as he then was] who read the lead judgment which was concurred by Oguntade J.C.A. and Chukwuma-Eneh J.C.A. [both as they were then] concluded thus:-

“…… having regard to all I have been saying, the two appeals that have been consolidated by order of this court, are substantially, meritorious having regard to my treatment of the provision of the Statute of Limitation. They are therefore allowed. The ruling of the court below delivered on the 17/3/1994 whereby the trial judge held that it has jurisdiction to entertain the suit and consequently dismissed the preliminary objection is hereby set aside. In its place, I make an order upholding the preliminary objection and consequently, dismissing the action in toto. Similarly the judgment of the court below delivered on 21st March, 1995 granting the three reliefs claimed by the applicant/respondent per the Originating Summons is hereby set aside. In its place, is an order dismissing the suit in toto……”