Larry Curry Limited v. Olumuyiwa Osho & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR SADIQ UMAR, JCA (Delivering the leading judgment)

This is an appeal against the ruling of the High Court of Lagos State delivered by L. B. Lawal-Akapo, J., on the 15th February, 2016 wherein the learned judge of the lower court dismissed the appellants application dated the 26th May, 2015.

Brief statement of facts

One Dupe Adelana deceased (who was substituted by the 1st respondent at the lower court and is herein subsequently referred to as the 1st respondent), the 2nd respondent and one Olusoga Adelana are the beneficiaries of the property situate at No.1, Birrell Avenue, Yaba, Lagos State in the last Will of their deceased father Pa Adelana. In the Will, 50% of the property was devised to Olusoga Adelana, the remaining 50% to be shared equally by the 1st and 2nd respondents.

The executors of the Will having died, the beneficiaries decided to sell the property and share the proceeds among themselves. Olusoga Adelana who has 50% and is said to be based abroad nominated the 4th and 5th respondents to be his agents.

Prospective buyers therefore interacted with the 1st and 2nd respondents as beneficiaries in their own right as well as the 4th and 5th respondents as agents of Olusoga Adelana. While there is a consensus that the property be sold for N14,000,000 (Fourteen Million Naira) only, there is no agreement among the stakeholders as to whom among the prospective buyers the property was sold.

While the 1st and 2nd respondents claimed that the property was unanimously sold to the 3rd respondent only that the 4th – 5th respondents backed out after the sale was concluded because the 4th – 5th respondents did not have control of the proceeds of the sale as they had wanted, the 4th – 5th respondents on their part claimed that the property was sold to somebody else whose name was not disclosed.

During this impasse, on the allegation that the 4th and 5th respondents resorted to self-help to take over the property and put some persons not known in possession. The 1st – 3rd respondents, on the 15th April, 2008, commenced suit no: ID/610/280 against the 4th – 5th respondents and the unknown persons – the 6th respondent as 1st – 3rd defendants at the lower court praying for some declaratory and injunctive reliefs principally to validate the sale of the property to the 3rd claimant/respondent.

One F. O. Adeniyi Esq., appeared, filed pleadings and conducted trial as a counsel representing all the defendants who are the 4th – 6th respondents in this appeal. After about seven years of proceedings, the lower court delivered judgment in the suit on the 5th May, 2015 granting the claimants/1st – 3rd respondents claim. The appellant then appeared on the scene vide its application dated the 26th May, 2015 in which it prayed the lower court to join it as a defendant and also to set aside the judgment delivered in the suit.

The 1st – 3rd respondents vehemently opposed the application by their counter-affidavit. The learned trial judge took argument on the application and in a reserved ruling delivered on the 15th February, 2016 dismissed the application on the grounds that appellant was aware of the pendency of the suit. The appellant is dissatisfied with the said ruling and has filed this appeal to ventilate its grievance.

In line with the rules and practice of this court, parties filed and exchanged their respective briefs. The appellants brief is dated the 19th January, 2018 and filed on the same date. For the determination of the instant appeal, the appellants counsel formulated four issues as follows:

1. Whether the learned trial Judge did not err in law when he held that the particulars of the alleged fraud were not given even as same were conspicuously given in the appellants affidavit in support of her motion seeking to set aside the honourable courts judgment delivered on the 5th May, 2015?
2. Whether the learned trial Judge did not err in law when he concluded in his ruling that 6th respondent (persons unknown) were served by substituted means without evaluating the affidavit evidence placed before him challenging that fact and when he refused to set aside its judgment even when it was clear that he lacked jurisdiction to conduct the trial proceedings and when his judgment was a nullity ab initio?
3. Whether the learned trial Judge did not err in law when he dismissed the appellants application seeking to set aside its judgment when allegations of fraud against the 4th, 5th and 6th respondents and their counsel were not controverted by any affidavit evidence despite the service of the said application on them through their counsel with an affidavit of service in the courts file?
4. Whether the learned trial judge did not err in law when he concluded that the appellant was aware of the pendency of the suit before him without considering all the relevant facts that may assist him in concluding otherwise as placed before him in the affidavit evidence and the exhibits attached. (Distilled from grounds 5 and 7)

On the respondents part, their joint brief of argument is dated and filed on the 18th March, 2020. The respondents in addition also filed Civil Form 11 i.e. notice to rely upon a preliminary objection dated and filed the same 18th March, 2020. In the respondents brief, learned counsel distilled alone issue for determination of this appeal thus;

Whether in the circumstances of this case and having regards to the facts herein, the lower court was right and proper in dismissing the appellants application dated the 26th May, 2015 seeking to set aside the judgment of the lower court dated the 5th May, 2015?”

Counsels arguments and submissions