Lagos State Development Property Corporation V. Chief J. O. Adeyemi-bero & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the High Court of Lagos State, in the Lagos Judicial Division, sitting at Lagos, the plaintiff by an action commenced by originating summons which was subsequently amended sought the following reliefs:

“1. A declaration that under and by virtue of Decree No. 21 of 1996 the judgment delivered by His Lordship, Honourable Juctice S.O. Ilori in suit No. M/415/95 between Chief J.O. Adeyemi-Bero and the Military Administrator & 2 Ors. in which judgment the court transferred interest in the properties to Chief J. O. Bero, is null and void and of no effect whatsoever.

2. A declaration that under and by virtue of Decree No. 21 of 1996, the provisions of Decree No. 54 of 1994 are longer applicable to the properties known as:

(a) Plot 177 Victoria Island, Lagos (also known as Block B Eko Court Complex).

(b) No. 25 Cooper Road, Ikoyi (both hereinafter referred to as “the properties” and that the ownership status of the properties remains as it was prior to the promulgation of Decree 54 of 1994 by the Federal Military Government.

3. A declaration that the provisions of the determination contain interests in Land Edict No.3 of 1976 which vested the properties in the plaintiff and Lagos State Notices No.9 and 23 of 1976 are still valid and subsisting.
4. A declaration that the effect of Decree No.21 of 1996 on Decree No. 54 of 1993 is that the properties still remain vested in the plaintiff under the Lagos State Notices No.9 and 23 of 1976 respectively.
5. An order of perpetual injunction restraining the first defendant, his servants, agents, privies etc., whosoever or whatsoever from dealing with the property in any manner or form or dealing with any of the tenants residents in any of the properties.
6. An order of perpetual injunction restraining the first defendant through his agents, privies or anyone deriving title under him from exercising or purporting to exercise any right or shape in respect of the properties aforesaid.
7. An order of perpetual injunction restraining the Registrar of Titles either by his agents, servants, privies or anybody whatever and whosoever claiming interest with them from effecting any change in the ownership of the property as vested in 1976.
8. Further and other reliefs.
9. That provisions be made for costs of this application.”

The originating summons is supported by an affidavit and a further and better affidavit. Two documents, the judgment of Ilori, J., and a copy of Decree No.21 of 1996, were exhibited to the affidavit in support of the originating summons. It is exhibited to the further and better-affidavit a certified true copy of a certificate of occupancy. On the other hand, the first defendant deposed to a counter as well as further counter-affidavit. The learned trial Judge, after reviewing the evidence as well as the submissions of learned counsel for the parties, particularly the defence, concluded as follows –

“It is my judgment that the judgment in suit No. M/415/95 operates as an estoppel per rem judicata to prevent the plaintiff in this case from making the downs as contained in legs 2, 3, and 4 of the amended originating summons dated 2nd July, 1998.

The plaintiff is estopped from making those claims.

Claims 5, 6 and 7 in the amended originating summons are ancillary claims which arise from the substantive claims.

A court cannot adjudicate over ancillary claims if it has no jurisdiction to entertain the main claim and if the ancillary claim inevitably involves a discussion of the main claim. By the same token, an accessory claim can only be determined by the court with jurisdiction to decide the principal claim. See the case of Tukur v. Govt. of Gongola State (1989) 1 NWLR (Pt. 117) page 517. Therefore the 5th, 6th and 7th legs of claim have no merit whatsoever.

In the result, the originating summons lacks merit. It is accordingly dismissed.

Costs assessed at N2,000.00 is awarded in favour of first defendant against the plaintiff only.”

The plaintiff was unhappy with the decision and being dissatisfied and aggrieved has appealed to this court on a notice of appeal carrying only one ground of appeal. Subsequently an amended notice of appeal containing 3 grounds of appeal was filed. Pursuant to the provisions of Court of Appeal Rules, briefs of argument were consequently settled. In accordance with the provisions of Order 6 rules 2, 3 and 4 of the Court of Appeal Rules they exchanged briefs, which were settled as appellant’s, respondent’s and appellant’s reply briefs of argument. Issues were framed in both briefs of argument. The issues identified as calling for determination in the appellant’s brief are three and are as follows:

“2.1 Whether the learned trial Judge was right to hold that the lower court did not possess the jurisdiction, inherent or otherwise to grant the plaintiff/appellant’s declaratory relief that the judgment of S.O. Ilori, J., in suit No.M/415/95 is null and void, on the sole ground that to exercise such jurisdiction would be tantamount to sitting on appeal over the judgment of a court of co-ordinate jurisdiction, since it would necessarily involve making a pronouncement on the said judgment?.