Mr. Caleb Adetunji Bodunrin Kuju V. Mr. Victor Eka (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Candide Johnson J. of the High court of Lagos State in suit no.ID/1145/2005 delivered on the 1st of December 2006 striking out the appellant’s suit as an abuse of court process.

The facts of this case are as follows: In a previous action (suit no.ID/2146/99), the Appellant by a writ of summons dated the 13th of August 1999, sued the Respondent at the High court of Lagos state in the Ikeja Judicial Division claiming as follows:

i. A Declaration that he is entitled to the statutory Right of occupancy of all the large piece or parcel of rand being at Block N12 Ogudu G.R.A. in the Kosofe Local Government Area of Lagos state and covered by certificate of occupancy dated 7th day of February 1979 Deeds kept the Lands Registry Lagos.

ii. Perpetual Injunction restraining the Defendant by himself, his servants, agents, privies and otherwise howsoever from continuing to trespass on the parcel of Land.

iii. Damages in the sum of N500,000.00 (Five Hundred Thousand Naira only) for the trespass committed by the Defendant on the said Land.

By an Amended statement of Defence dated the 16th of April 2003, the Respondent defended the action on the grounds that there was a valid contract between the Appellant and the Respondent in respect for the sale of the land. After the conclusion of the trial, Obadina J of the High court of Lagos state in a judgment delivered on the 24th of March 2004 held that there was no consideration and therefore no valid contract capable of being enforced by the parties.

He further held that the Appellant was entitled to the Statutory Right of Occupancy of ail the large piece of land being at Block N, Plot 12, Ogudu G.R.A. in Kosofe Local Government Area of Lagos state and covered by certificate of occupancy dated the 7th of February 1979 and registered as No.13 at page 13 in volume 1800 of the Register of Deeds kept at the Lands Registry, Lagos.

Dissatisfied with the judgment,the Respondent herein appealed against the decision by a notice of appeal dated and filed on 17/5/04.

After the judgment of Obadina J, the Appellant herein brought a Motion for a “Consequential” order for Possession dated the 22nd of April 2004 seeking to regain possession of the property. By a Ruling dated the 28th of January 2005, Obadina J refused to grant the “Consequential” Order for Possession on the ground that the relationship that existed between the parties is that of Licensor and Licensee and that issue of possession was not contested at the trial of the action. Following the refusal of Obadina J. to grant the consequential order for possession, the Appellant served on the Respondent a Notice of Owners Intention to recover possession and thereafter commenced an action (Suit No.ID/1145/2005) against the Respondent in the High court of Lagos State claiming inter alia as follows:

i) Possession of the piece or parcel of land Ogudu known as Block N plot 12 Ojota GRA in the Kosofe Local Government Area of Lagos state covered by Certificate of Occupancy dated 7th February 1979 and registered as No.13 at page 13 Volume 1800 of the Register of Deed kept at the Lands Registry, Alausa.

ii) Payment for occupation and use at N100,000 per annum from December 1988 till date of judgment herein.

The Respondent filed a statement of Defence and Counter-claim in which he claimed inter alia a declaration that there is a valid contract of sale of the land in dispute between him and the Appellant. The Respondent also filed a Preliminary objection dated 10/5/06 challenging the jurisdiction of the High court of Lagos state to entertain the grounds Appellant’s action on the inter alia that that the Appellants application for consequential order of possession had been refused by Obadina J, a court of coordinate and concurrent jurisdiction and that he, the Respondent filed an appeal against the judgment of Obadina J in suit No ID/2146/99 which appeal is still pending. He contended therefore that the suit was an abuse of court process.

The Appellant filed a Defence to the counterclaim and thereafter filed a Motion dated 9/6/06 praying the court to dismiss the Respondents counter-claim on the ground inter alia that the subject matter of the Respondent’s counter-claim had been determined in favour of the Appellant in the judgment of Obadina J. in Suit No.ID/2146/99.