Mrs. Slyvia Salau & Ors V. Alhaja Kudiratu Para-koyi (2000)

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GALADIMA, J.C.A. 

This is an appeal against the ruling of Honponu-Wusu J. of the Lagos State High Court, Lagos Judicial Division delivered on 25th October, 1996 refusing to set aside the ex-parte Order of interim injunction restraining the appellant from allocating altering, leasing, renting, selling or dealing with all the assets and or properties of the estate particularly the property situated and lying at No.2 Lalupon Close, S.W. Ikoyi Lagos pending the determination of the motion on notice dated and filed by the respondent on 20/3/95.

The factual background relevant to this appeal is that the respondent as plaintiff claimed at the lower Court in Suit No. LD/4239/94 as follows:

“1. A declaration that Dr. Godwin Olatunji Balogun and Chief Odutola Balogun are not entitled to be co-administrators to the Estate of late Dr. H.O.O. Salau

2 A declaration that (1) Jareg Olufunmilayo Ekundayo Salau (male) (2) Miss Adetutu Salau (3) Miss Marian Omolara Salau and (4) Miss Omolabake Salau are the legitimate beneficiaries to the estate of Late Dr. H.O.O. Salau.

3. An order directing the 4th defendant to issue an amended letter of administration with (1) Mrs. Abosede Salau (2) Mrs. Sylvia Salau and Alhaja Kudiratu Parakoyi as co-administrators of the Estate of late Dr. H. O. O. Salau.
4. An order that Dr. Olatunji Balogun, Chief Tunde Odutola Balogun, Mr. Abosede Salau and Mrs. Sylvia Salau do render account of their stewardship or administration of the Estate of Late Dr. H.O.O. Salau and pay the proceeds if satisfied with that decision any accruing thereof to the beneficiaries of the said Estate”.

On 27/2/95 the lower Court entered trial Judgment against the appellants granting all the reliefs sought by the respondent. Dissan the appellants in their amended notice of appeal filed 5 grounds of appeal from which they formulated 5 issues in their brief of argument as follows:

2.1. Whether the Lower Court was functus officio on 27th February 1995 in suit No.LD/4239/4 before granting the Ex-parte order of interim injunction dated 18/4/95 restraining the appellant from leasing, renting etc. 2. Lalupon Close, Ikoyi subject of the contempt proceedings?.

2.2 Whether it is proper for the Lower Court to grant ex-parte Order of interim injunction restraining the appellants from leasing, renting 2 Lalupon Close, Ikoyi that was not specifically claimed on the writ of summons?.

2.3 Whether the contempt proceedings (including form 48 and 49 initiated against the appellant were steps taken to enforce the judgment of the lower court dated 27/2/95?.

2.4 Whether judgment in suit No.LD/802/92 constitutes res judicata ousting the jurisdiction of the lower Court in making ex-parte order of interim injunction in suit No. LD/4239/94?

2.5 Whether the appellants can be tried for contempt for alleged disobedience of the said ex-parte Order of interim injunction?.”

The respondent on the other hand formulated a single issue for determination which reads thus:

“1 Whether the learned trial Judge was in error by entering judgment for the respondent and granting the remedies as contained in the writ of summons and statement of claim in default of pleadings and without taking evidence?.”

The respondent did not specifically respond or react to each of the issue raised in the appellant’s brief of argument but based on the argument and reasons on this solitary issue formulated, urged that the appeal be allowed. Although it is conceded by the respondent that this appeal be allowed generally, I am bound by the Rules of this Court to carefully consider all the issues raised by the appellants so as to arrive at just determination of this appeal.