Oyewo v. Shekoni & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ABDU ABOKI, J.S.C. (Delivering the Lead Judgment)

This appeal is against the judgment of the Court of Appeal, Lagos Division, delivered on the 5th day of May 2016.

The facts leading to this appeal are that the Appellant, was Solicitor to the Respondents in SUIT NO. ID/49/84, which he took over in 2009, after his father, who had been representing the Respondents in the matter, died. The matter was about the ownership of a large parcel of land (about 102 acres).

After taking over the matter, the Appellant entered into a retainership agreement dated 19th January, 2012 with the Respondents. Clauses 1, 2, 3 and 4 of the Retainership Agreement state as follows:

1. The Clients contracted the Counsel to take over the prosecution of Suit No. ID/49/84 (ALHAJA N. SHEKONI & ORS V. G. A. LAWAL & ORS) pending before Hon. Justice Oke-Lawal, sitting at the High Court, Ikeja, Lagos, from the Chambers of late Chief Kunle Oyewo.
2. The Counsel was contracted to represent all the Claimants in the said suit, and to conduct all proceedings on their behalf until final judgment is delivered by the High Court.
3. The Clients have agreed to assign to the Counsel, an area of land measuring one acre, out of the 102 acres of land in dispute in the said suit, in lieu of his professional fees, should judgment eventually be delivered in their favour.
4. The Clients have also agreed to pay to the Counsel, a sum representing five (5%) of any proceeds accruing to them from the disputed land, after the judgment has been delivered.
   (See page 11 of the Record).

Judgment was entered against the Respondents at the trial Court. Their appeal to the Court of Appeal in Appeal No: CA/L/967/2012 however, was successful, as that Court set aside the judgment of the trial Court and entered judgment in favour of the Respondents. (See page 72 of the Record.) The losing party, (G.A. Lawal & Ors), then further appealed to this Court, in Appeal No: SC.343/2014.

​Shortly after the Court of Appeal judgment was delivered, the Respondents recovered an acre of the disputed land from one of their adversaries. The Appellant was insistent upon his being entitled to that acre of land, pursuant to Clause 3 of the Retainership Agreement. The Respondents disagreed, and maintained that the Retainership Agreement was limited to the High Court and not to the appellate Court and that in any case, they had paid the Appellant all that was due him.

​The Appellant was aggrieved by this turn of events, and after repeated demands on the Respondents for the assignment of the one acre of land as covenanted by them in Clause 3, which demands were unfulfilled, he sought redress at the High Court of Lagos State, Ikeja Judicial Division, wherein he filed an Originating Summons against the Respondents, claiming the following reliefs:

1. A declaration that the Defendants are in breach of the Retainership Agreement between the parties dated 19/01/2012.
2. A declaration that the Defendants are obligated to assign to the Claimant, the one acre of land situate at Tigbegbe Street, Ijaiye, Ojokoro, Lagos State and shown in Survey Plan No. LA/4/1268/07A/2014, dated 14/10/2014, in lieu of the Claimant’s professional fees for the successful prosecution of SUIT NO: ID/49/84 and APPEAL NO: CA/L/967/2012 as stipulated in Clause 3 of the Retainership Agreement dated 19/01/2012.
3. A mandatory order compelling the Defendants to assign the said parcel of land to the Claimant,

forthwith.

4. An Order for possession of the said parcel of land.
5. An order of perpetual injunction restraining the Defendants, their servants, agents and privies from selling, i.e passing, assigning, alienating or trespassing on the said parcel of land.
6. N2,000,000.00 (Two Million Naira), being special and general damages for breach of the Retainership Agreement dated 19/01/2012.
   Particulars
   (a) Solicitor’s fees – N500,000.00K
   (b) Solicitor’s costs – N1,000,000.00K
   (c) General damages – N500,000.00K
   TOTAL – N2,000,000.00K
   (See pages 4-5 of the Record.)

In defence of the action, the Respondents filed a Counter Affidavit, a written address, as well as a Notice of Preliminary Objection, challenging the competence of the action, on the grounds that:

1. The cause of action was deceptively filed by the Claimant, as a result of concealment of material facts, which, if disclosed, would have shown that the instant Court lacks jurisdiction.
   Particulars of deception and concealment of material facts
   Throughout the length and breadth of all the processes filed in the suit, the Claimant never mentioned (even once), that the Res he is laying claim to in this suit (being one (1) acre of Land), situate at Tigbegbe Street, Ijaiye, Ojokoro, Lagos State), is part of the vast tract of land measuring one hundred and two (102) acres, which is still a subject of Appeal (as SUIT NO: SC/343/2014) in the Supreme Court of Nigeria.
2. The said appeal is still subsisting, as the Supreme Court has neither struck it out, nor dismissed it, nor has the Appellant therein filed a Notice of Discontinuance, nor has the appeal been entertained either by default, or on the merit, hence to sustain this Cause is to overreach the Supreme Court.
   (See pages 97 – 98 of the Record.)

Simply put, the main ground of the Notice of Preliminary Objection was that the Appellant concealed the fact that the “subject matter” or “res” which was alleged to be an “acre of land”, is the subject of subsisting litigation in this Court, (Appeal No: SC.343/2014). The Respondents contended that the trial Court lacked the jurisdiction to entertain the Originating Summons, as to do so would overreach this Court. The Appellant disagreed.

​Affidavits, Counter affidavits and written addresses were filed by parties on both sides, and the trial Court in its ruling delivered on the 10th of February, 2015, acceded to the Preliminary Objection of the Respondents, and struck out the suit, for want of jurisdiction, for constituting an infraction on the doctrine of lis pendens, and also for being an abuse of judicial process.
(See page 188-189 of the Record.)

Aggrieved by the decision of the trial Court, the Appellant appealed, albeit, unsuccessfully, to the Court below. (See page 282-296 of the Record.)

Still aggrieved, the Appellant has appealed to this Court, vide a Notice of Appeal, filed on the 29th of June, 2016, and containing two grounds of appeal. (See pages 297-299 of the Record).

In compliance with the Rules, and practice of this Court, parties filed and exchanged their briefs of argument, which they adopted and relied on, as their submissions in support of their respective stance, when the appeal came up for hearing on the 15th of March, 2022.