Mrs. Adebimpe Balogun & ANOR V. Agbara Estates Limited (2007)

LawGlobal-Hub Lead Judgment Report

Augie, J.C.A.

The Appellants were the proposed Administrators for the Estate of late Mr. Francis Olarewaju Balogun, who died intestate in Lagos on the 18th of October 1995, and who was a Sub-lessee of the Respondent in respect of property at No, 2 Kainji Close, Agbara Estate, which was registered as No. 55 at Page 55 in Volume 420 at the Ogun State Lands Registry, Abeokuta. The Respondent issued a “Notice of Re-Entry and Forfeiture of Subleases” in the Guardian Newspaper of Monday the 27th of August 2001, and the 4th paragraph reads-

We hereby give notice that we have this day re-entered the leased land and taken possession thereof pursuant to Clause 4 of the respective subleases. The terms granted in the respective subleases have thereby been forfeited”. (Underlining mine)

Although their application for Letters of Administration was being processed at the Probate Registry in Lagos, the Appellants took out a Writ of Summons dated 5th September 2001 at the Otta High Court of Ogun State wherein they claimed – a Declaration that the said Notice of Re-entry and Forfeiture issued by the Respondent in the Guardian Newspaper is illegal, unlawful, null and void and of no effect”; a Declaration that the purported forfeiture of the sublease” and the purported re-entry” on the said property is unlawful, illegal, null and void”; and an order of perpetual injunction restraining the Respondent, it’s servants, etc., from re-entering, acquiring, trespassing, selling whether by public auction or in any other manner the said property.

They also filed the following processes on the same 5th of September 2001 –

(1) Motion Ex-Parte praying for – leave to sue in a representative capacity; an order of interim Injunction against the Respondent, etc.; and leave to serve their Motion on Notice along with the Writ of Summons;

(2) Motion on Notice for an Order of Interlocutory Injunction; and

(3) An Affidavit of Urgency and Summons for Hearing during Vacation.

The Application for urgent hearing of the Ex-Parte Motion and Motion on Notice during the Court’s Vacation was heard by Lokulo-Sodipe, J., of the High Court, Otta and in refusing it on the 11th of September 2001, he held –

“I do not see any averment in the affidavit in support that has established the need for urgent hearing of this matter. Accordingly, the orders sought in the summons before tile Court are refused. The two Motions pending in this case are fixed for 19/10/2001.”

On the 12th of November 2001, the Respondent filed a Notice of Preliminary Objection praying for an order dismissing the suit on the following Grounds-

The property subject-matter of the suit is part of the Estate of Late Francis Olanrenwaju Balogun who died intestate and Plaintiffs did not obtained (sic) any Letters of Administration on the estate before Instituting this suit; pending the grants of such administration, the said Estate (including institution of proceedings) is by law vested in the Chief Judge; and the case is not properly constituted and the Court has no jurisdiction to entertain it”.

When the matter finally came up for hearing before Ogundepo, J., on the 13th of June 2002, the Appellants’ counsel urged him to hear their Motion first as it seeks to regularize the position of the Plaintiff”. The Respondent’s counsel however submitted that its Notice of Objection challenges the Court’s jurisdiction and for now the only jurisdiction the Court has is to enquire whether it has jurisdiction”. Ogundepo, J., agreed and held as follows –

“The Notice of Preliminary Objection is challenging the Court’s jurisdiction. The Law is indeed quite settled that in a situation such as this the Court should take that application first and enquire whether or not it possesses jurisdiction. I shall therefore proceed to hear the Notice of Preliminary Objection first’: (Italics mine)