Monsuru Davies & Ors V. Prince Tajudeen Odofin & Ors (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Ruling of the High Court Of Lagos State, Coram: H. A. O. Abiru J., (as he then was, now JCA) in Suit No. IKD/55/2007: Prince Tajudeen Odofin (For himself and on behalf of the Allottees of Odofin Housing Estate Baiyeku) V. Chief Kehinde Ogunyera & Ors delivered on 23/9/2010, in which two of the Appellants’ three Applications were dismissed while the Appellants’ application for striking out of the 5th Applicant’s name and the 1st Respondent’s Application for committal of the 1st – 4th Appellants were granted and the 2nd and 4th Appellants were consequently convicted and sentenced to 21 days imprisonment for being in contempt of the orders of the Court below.

The Appellants were thoroughly dissatisfied with the said Ruling and had promptly appealed to this Court vide their Notice of Appeal filed on 20/12/2010 on three grounds of appeal. See pages 305 – 309 of the Main Record. The Main Record (Pages 1 – 313) and Supplementary Record (Pages 1 – 19) of Appeal were duly transmitted to this Court. The Appellants’ Amended Brief was

1

filed on 26/6/2015. The 1st Respondent’s brief was filed on 15/7/2015, while the Appellants’ Reply brief to the 1st Respondent’s brief was filed on 3/2/2016. The 1st Respondent filed a Notice of Preliminary Objection on 8/4/2015 but deemed properly filed on 22/11/2016. However, the 2nd – 4th Respondents did not file any briefs though they were duly served with all the processes in this appeal.

?At the hearing of this appeal on 22/11/2016, Boyede Ogun Esq., learned counsel for the Appellants adopted the Appellant’s brief and the Appellants’ Reply brief as their arguments in support of the appeal and urged the Court to allow the appeal. In reply, Miss I. O. Adesola, learned counsel for the 1st Respondent, with Ako Oluwaseun Esq., adopted the 1st Respondent’s brief as their arguments in opposition to the appeal and urged the Court to dismiss the Appeal. The 1st Respondent’s counsel who had filed a Notice of Preliminary Objection challenging the competence of the Appeal on grounds of abuse of Court’s process and of lack of jurisdiction did not argue same at the hearing of the appeal. The 2nd – 4th Respondents were not represented by counsel at the hearing

2

of the appeal though they were duly served with hearing notices.

By a Writ of summons together with statement of claim filed on 27/7/2007, the 1st Respondent as Claimant had commenced an action against Six Defendants made up of the 2nd – 4th Respondents, one Chief Kehinde Ogunyera, Toyin Maja and persons Unknown as the 6th Defendant claiming declaration of title to land measuring approximately 4,498 Hectares situate along Igbogbo – Baiyeku Road, Baiyeku, Ikorodu, Lagos State, perpetual injunction and N2,000,000.00 damages for trespass. At the conclusion of trial, the Court below had on 27/10/2008 entered judgment for the 1st Respondent in terms of the claims in the Writ of Summons and paragraph 24 of the Statement of Claim against the six Defendants, the sum of N500,000.00 as damages against the Defendants for their acts of trespass on the said land and the sum of N100, 000.00 as the cost of this action. See pages 1- 89; 91 – 105 of Main Record of Appeal.

?On 14/4/2009, the 1st Respondent as judgment creditor applied to the Court below for an order of possession of the land the subject matter of the judgment and same was granted and an order of

3

possession made in favor of the 1st Respondent on 15/6/2009. See pages 101 – 114 of the Main Record. The judgment was subsequently executed on 23/12/2009 on the uncompleted landed properties on the land the subject matter of the judgment, which properties later turned up as belonging to the Appellants. See pages 115 – 116 of the Main Record. Subsequently, on 18/1/2010, the 1st Respondent initiated committal proceedings against the Appellants vide the issuance of FORM 48 and caused same to be served on the Appellants. On 18/2/2010, the Appellants as Applicants filed a Motion on Notice seeking an Order setting aside the service of FORM 48 for committal of contempt proceedings against the Applicants in this Suit No. IKD/55/07: Between Chief Kehinde Ogunyera & 5 Ors V. Chief Kehinde Ogunyera & 5 Ors and also an Order striking out the Form 48 and served on the Applicants in this Suit. See Pages 155 – 181 of the Main Record.

On his part, the 1st Respondent responded to the Appellants’ application to set aside the service of Form 48 on them but proceeded to file an application for committal against the Appellants for contempt as in FORM 49 on

4