Joe Best Estate Development & Properties Limited V. Mrs Grace A. Nzegwu & Ors (2015)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)
This is an appeal against the order of Bode Rhodes-Vivour J of the Lagos High Court made on the 26th day of February 2003 in suit No LD/3652/99 staying the execution of the consent judgment of Shitta-Bay J in LD/2220/99 on the ground that the consent judgment was obtained by fraudulent misrepresentation. The facts leading to the making of the order are as follows:
The property known as and called Plot 13034 Akin Adesola Street Victoria Island Lagos State, the subject matter of the suit was registered in the name of Late Engr. Theophilus Ifeanyi Nzegwu under Title No. LO. 7816 of the Register of Deeds kept at Lagos State Lands Registry Alausa Ikeja, Lagos State. The 1st respondent is the wife of Late Engr. Theophilus Ifeanyi Nzegwu and was in actual possession of the property in dispute.
Parts of the property were let out to the 4th and 5th respondents. The 2nd respondent claimed that by virtue of a Deed of Assignment dated 29/7/96 the said late Engr. Nzegwu assigned the said property to her. The 2nd Respondent was a party to two separate pending suits in which her interest in the property was being disputed. During the pendency of these suits she purportedly sold the property to the appellant.
The appellant and the 2nd respondent procured the entry of judgment in suit LD/2220/99 by obtaining a consent judgment vesting the property in the appellant and in the pre that the 2nd respondent was in possession of the property, a writ of possession was issued against the 2nd Respondent for the delivery up of possession of the premises to the appellant.
Upon the execution of the said consent judgment by the appellant against 1st, 4th and 5th respondents who were in actual possession of the property, the said 1st, 3rd and 4th Respondents become aware of the consent judgment. The 4th Respondent filed a motion ex-parte in suit no LD/2220/99 seeking the following orders.
“1. An order joining Primlaks Financier Consultants Ltd, as an interested party in this suit No LD/2220 /99 pending the hearing of the Motion on Notice.
- An interim order arresting/staying execution of the judgment in Suit No LD/2220/99 pending the hearing of the Motion on Notice.
- An interim order reinstating the occupants of the entire premises at Plot 1303A Akin Adesola Street, Victoria Island, Lagos State, Victoria Island, Particularly Primlaks Financiers Consultant Ltd into possession of the property unimpeded or unmolested pending the hearing of Motion on Notice.
The learned trial judge (Shitta – Bey J.) heard and granted the said motion ex parte as prayed on 3/12/99 and the 1st-3rd and 4th Respondents were immediately put back in occupation of the premises. On 9/12/99 they filed a fresh suit LD/3652/99 claiming as follows:
(1) An order setting aside the sale of plot 13034 Akin Adesola Street, Victoria Island, Lagos State, Victoria Island by the second Defendant to first Defendant
(2) An order setting aside the consent judgment entered in No. LD/2220/99 by the Lagos High Court on September 20, 1999.
(3) An order setting aside the Writ of Possession issued in No LD/2220/99 out of the Lagos High Court Registry on November 11, 1999, which writ was sought to be executed on Friday December 1999.
(4) Aggravated and/or exemplary damages in such sum as may be assessed by the court for the damage caused to the Plaintiff and her goods and chattels as a result of the attempted execution by the first Defendant of the writ of possession issued out of the Lagos High Registry on November 11, 1999.
(5) Cost upon a full indemnity basis.
In the course of trial of the suit, Rhodes-Vivour J made the order that “No party shall levy execution on the premises in furtherance of suit No LD/2220/99 pending the hearing and determination of this case which is going on from day to day.”
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