Miss Ivie Igbinedion V. Princess E. Olowu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the leading Judgment)

The present appeal is against the Ruling of the High Court of Edo State which was delivered on April 27, 2006 in Suit No. B/674/2003. By the said Ruling, the lower court coram A. N. Ehigiamusoe, J; dismissed the Appellant’s preliminary objection challenging the jurisdiction of the court to entertain and determine the suit.

Thus, dissatisfied with the vexed Ruling in question, the Appellant filed the notice of appeal thereof on June 28, 2006 in the court below.

The original notice of appeal was predicated upon three Grounds of Appeal.

BACKGROUND FACTS:

It is evident from the record of appeal that on December 2, 2003, the 1st Respondent, filed in the court below, the said Suit (No. B/674/2003) vide the Writ of Summons and 14 paragraph Statement of Claim against the Appellant, and 2nd to 7th Respondents, respectively. By the Statement of Claim thereof, the 1st Respondent has sought against the Appellant and 2nd to 7th Respondents the following reliefs:

WHEREFOR the Plaintiff claims as follows:

1. As against the 1st and 2nd defendants jointly or severally, forfeiture of the lease agreement dated 4th March, 1977 and registered as number 46 at page 46 in volume 249 of the Lands Registry in the office at Benin City by which the Plaintiff let the premises known and called No. 269, Murtala Mohammed Way Benin City to 1st Defendant for a period of 50 years.
2. A declaration that the deed of transfer dated 30th day of July, 2002 and registered as No. 24 in page 24 in volume 925 of the Lands Registry in the office at Benin City by which 2nd Defendant, UACN Property Development Company Plc purported to transfer the said premises known and called No. 269, Murtala Mohammed Way, Benin City to the 2nd Defendant without the consent of Plaintiff and in defiance of the subsisting order of the High Court of Edo State, in Suit No. B/184/97 restraining the 1st Defendant from underletting or parting with possession of the said premises without consent in writing of the Plaintiff, is null and void and of no effect whatsoever.
3. An order setting aside the said deed of Transfer dated 30th July, 2002 between 2nd and 3rd Defendants and registered as No. 24 at page 24 in Volume 925 of the Lands Registry in the office at Benin City and or deleting same from the Land Registry in the office at Benin City.
4. As against the Defendants jointly or severally possession of the said premises known and called No. 269 Murtala Mohammed Way, Benin City and comprised in the deed of lease dated 4th March, 1977 and registered as No. 46 at page 46 Volume 249 of the Lands Registry in the office at Benin.
5. As against the 1st Defendant N30,000,000.00 (thirty million naira) as damages for breach of covenant.
6. As against the 1st Defendant the sum of N587,743.33 (five hundred and eighty-seven thousand and seven hundred and forty-three naira, thirty-three kobo) being arrears of rent for the period 1st November 2002 to 31st October, 2003 which became due on 1st November, 2002.

Of all the seven Defendants, only the Appellant reacted to the said suit by filing in the court below the statement of defence thereof. On May 6, 2004, the Appellant equally filed a motion on notice seeking the following reliefs –

(1) An order to set down for hearing and determination of the following points of law pleaded in paragraph 3 (a) – (c) of the statement of defence.

(a) That the suit against the 3rd defendant/applicant is incompetent in that the condition precedent as provided by the rules of Court and law was not complied with before the institution of the action by virtue of Order 11 Rules 10, 12 and 13 of the Bendel State High Court (Civil Procedure) Rules 1988 as applicable in Edo State since the 3rd defendant/applicant is an infant who lacks the capacity to hold land as pleaded in paragraph 13 (ii)(c) of the statement of claim.

(b) That the Suit against the 3rd defendant/applicant is an abuse of court process in that as pleaded in paragraphs 9 and 10 of the statement of claim, that the 1st defendant/respondent has been restrained by the court on 20/2/1998 in Suit No. /184/97 filed by the Plaintiff in respect of the property in dispute which is registered as 46/46/249 of the Lands Registry in the office at Benin City to wit:

“The 1st defendant is hereby restrained from committing such breach as complained of in the future (i.e. under letting or parting with possession of part of the whole premises without the consent of the Plaintiff first had and obtained in writing which consent will not be unreasonable withheld.”

(c) There is no reasonable cause of action having regard to (a) and (b) above.

Consequent upon the close of argument of the respective learned counsel, the lower court delivered the vexed Ruling on April 27, 2006 to the conclusive effect, thus: