MR. Okedinachi Nelson-moore & Anor V. Medicine Plus Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling delivered by Lufadeju J, of the Lagos State High Court on the 15th day of June 2007 directing parties to file pleadings. In brief the facts are that the Appellants in this appeal, commenced action at the lower by Originating Summons under Order 3 rule 5 of the Lagos State High Court Civil Procedure Rules 2004. The Appellants as Claimants submitted the following questions for determination:

1. Whether the area of that portion of Plot 1282 at Saka Tinubu Street, Victoria Island, otherwise known as No. 45, Saka Tinubu Street, Victoria Island, Lagos, measuring 618.105 square metres, stated in and assigned under the DEED OF ASSIGNMENT now, registered under Title No. LO 8580 at the Lagos State Land Registry had, by virtue of Plan No. LS/D/LA 1063, annexed to the DEED, which letter the area of the said portion as measuring 700.299 square metres, in law been modified, enlarged, extended or added to.
2. If the answer to QUESTION No. 1 is in the negative, whether the 1st Defendant is entitled in law and equity, using the instrumentality of Plan No. LS/D/LA 7063 and/or any enabling instrument from 2nd Defendant its Assignor (and the ASSIGNEE in the DEED registered under title No: LO 8580) to lay claims to, or continue further occupation of the frontage of the Claimants, own No.45A, Saka Tinubu Street, Victoria Island, Lagos (otherwise known as Plot 1282c) comprising the portion delineated by pillar numbers S 41255, S 41256 and 41257.
3. Whether Plan No. LS/D1672 has not superseded Plan No. LS/D1063 and consequently delineated the true, proper and contractual boundary of the sub-division of Plot 1282 into Plots 1282A (No. 45) and No. 45A at Saka Tinubu Street, Victoria Island, Lagos.
4. It the answer to QUESTION NO. 3 is in the affirmative, whether the Lagos State Land Registry shall not be rectified by withdrawing Plan No. LS/D/LA 1063, registered under title No. LO 8580 and substituting it with Plan No. LS/D/LA 1672 to align with the grants made by Chief BABATUNDE OROBIYI RHODES to the 2nd Defendant under the DEED registered under title No. LO 8580.

Upon answering the questions submitted for determination Appellants prayed the lower Court for the following:

1. A DECLARATION that, that portion of Plot 1282 at Saka Tinubu Street, Victoria Island, Lagos otherwise known as Plot 1282A (No. 45 Osaka Tinubu Street, Victoria Island) comprises an area of 618,105 square metres, as stated in and assigned under the DEED OF ASSIGNMENT now registered under Title No. 8580 at the Lagos State Land Registry.
2. A DECLARATION that Survey Plan No. LS/D/LA 1063 annexed to the DEED OF ASSIGNMENT now registered under Title No. LO 8580 did not and will not per se, modify, enlarge, extend or add to the grant of Plot 1282A (No. 45) at Osaka Tinubu Street, Victoria Island, and Lagos made under the said DEED OF ASSIGNMENT.
3. A DECLARATION that so much of the area of the projectile as drawn in Plan No. LS/D/LA 1063 bounded by pillar numbers S 41255, S 41256 and S 41257, delineated as plot 1282A, is an integral part of Plot 1282c (No. 45A) more particularly delineated in Plan No. LS/D/LA 1672,
4. A DECLARATION that the sub-division of Victoria Island Scheme, Plot 1282 in Lagos State Government Survey Plan No. LS/D/LA 1672, as between Plots 1282A and 1282C therein, supersedes and preponderates over, the subdivision in the, Lagos State Government Survey Plan No. LS/D/LA 1963.
5. A DECLARATION that true, proper and contractual boundary of the sub-division of Plot 1282, into Plots 1282A (No. 45) and 1282C (No. 43A) at Saka Tinubu Street, Victoria Island, Lagos is as traced and lettered in Plan No. LS/D/LA 1672.
6. AN ORDER of this honourable court enjoining the Registrar of title, Lagos State Land Registry to rectify the registry by withdrawing survey plans No. LA/D/1063 ATTACHED TO THE DEED OF ASSIGNMENT registered under title No. LO 8580 and substituting it with survey plan No. LS/D/LA 1672.
7. AN ORDER of this honorable court prohibiting the registrar of title Lagos State Land registry from registering in the registry the Deed with consents No. LU/GC/30307 to which Survey Plan No. LA/D/1063 was annexed or referred to save if the said deed has annexed or referred in it survey plan No. LS/D/LA 1672 delineating Plot 1281A (No. 45, Saka Tinubu Street, Victoria Island, Lagos) as measuring 618.141 square metres.

OR ALTERNATIVELY:

7(a) AN ORDER of this honourable court enjoining the 4th Defendant to further rectify the registry by withdrawing survey plans No. LA/D/1063 or any other survey plan whatsoever, attached to the DEED with consents NO. LU/GC/30307 and substituting it with Survey Plan No. LS/D/LA 1672, already before this honourable court.

OR ALTERNATIVELY

7(b) AN ORDER of this honourable court enjoining the 4th Defendant to further rectify the Registry by deleting from the DEED with consents No. LU/GC/30307, any reference to Survey Plan No. LA/D/1063 referring to plot 1282A (No. 45, Saka Tinubu Street) as an area comprising 700.299 square metres.

8. AN ORDER against the 1st Defendant, its agents, privies, assigns, tenants or occupiers of No. 45, Saka Tinubu Street, Victoria Island,Lagos to vacate and deliver up the occupation of so much of the area of the projectile as drawn in Plan No. LS/D/LA 1063 bounded by Pillar No. S 41255, S 41256 and S 41257, delineated as plot 1282A, but now traced and lettered as an integral part of Plot 1282C and more particularly delineated in Plan No. LS/D/LA 1672, or so much of the 1st Defendant’s burglar bar enclosing an electricity transformer and the generator house brazenly entrenched in the frontage of No. 45A and resting upon it into and to the pillar with the inscription “45A”
9. AN ORDER of this honourable court enjoining the 4th Defendant, subject to payment of applicable fees, to register in the Land registry at Alausa, Lagos State, the Claimants DEED with consent No.LUS/GC/38387 to which Plan No. LS/D/LA 1672 is attached.
10. GENERAL DAMAGES in the sum of N5 Million against the 1st and 2nd Defendants jointly or severally.

The 1st Respondent upon being served the originating summons filed a motion on Notice praying the lower Court to order pleadings. The 2nd Respondent filed counter affidavit and written address challenging the originating summons. The learned trial Judge took written addresses from parties and delivered ruling on the 15th day of June 2007, granting the prayer by the 1st Respondent, and consequently made an order directing parties to file pleadings, the ruling is at page 106-109 of the record of appeal.

This ruling did not go down well with the Claimants, having felt aggrieved by the ruling, they applied for and obtained leave of Court to appeal against the ruling, on the 15th day of April 2013 Appellants therefore filed notice of appeal found at page 110-112 of the record of appeal, the grounds of appeal without their particulars are therefore reproduced as follows;

GROUND ONE

The learned trial Judge erred in law when he held “that in various State High Court Rules, suits can be commenced by Originating Summons where there is unlikely to be any substantial dispute of facts”.

GROUND TWO

The learned trial Judge erred in law when she held that proceedings can only be commenced by Originating Summons where there is unlikely to be any substantial dispute of fact.

GROUND THREE