Zenith Bank Plc V. Dr. Solomon Omorodion & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling delivered on 29/6/2010 by the High Court of Edo State holden in the Benin Judicial Division at Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice Oseyi Okojie-Oigbokie (hereafter simply referred to as “the learned trial Judge”).

In its ruling the lower court made an order relisting the ruling delivered in this Suit on 21/1/2010, for the purpose of setting it aside for reason of being a nullity and duly proceeded to set aside the said ruling of 21/1/2010.

The events leading to the order made by the lower court in its ruling of 29/6/2010 are that the Respondents as Plaintiffs before the said court commenced an action against the Appellant and another, by a Writ of Summons. A joint Statement of Claim dated 20/2/2009 accompanied the Writ of Summons. The reliefs claimed by the Respondents jointly and severally, as set out in the Statement of Claim read thus: –

“1. A declaration that the purported sale and transfer by the second defendant to the First defendant of the property known as No 135 Uselu Lagos Road, Benin measuring 100 feet by 200 feet and registered as 15; 15; 217 at Lands Office Benin City is fraudulent, invalid and therefore null and void.

2. A declaration that a purported Deed of Gift made on 31st day of October, 1979 by Late Edwin Ada Iyare Omorodion to Master Francis Esemuede Omorodion and registered 27 years thereafter on 21st day of April, 2006 as 14; 14; 966 at the Lands office Benin City is a bare-face forgery and therefore a nullity.

3. An order setting aside the purported Deed of Gift registered as 14; 14; 966 at the Lands Office Benin City as a forgery and therefore null and void.

4. An order of perpetual injunction restraining the Defendants their agents, privies and representatives from further trespass on the said land.

5. An award of one hundred million naira (N100, 000,000.00) in favour of the plaintiffs as general damages for trespass.”

Before the lower court, the Respondents brought a motion ex-parte dated 13/2/2009 and filed on the same date in which they sought for: –

“1. An Order granting leave to the Plaintiffs/Applicants to effect service of the Writ of Summons and other Court processes on the First Defendant out of jurisdiction and in Lagos being its registered place of business.

2. An Order for substituted service on the Second Defendant by putting the notice of the Writ of Summons and other Court processes at No 135 Uselu-Lagos Road, Benin City being the last known place of business of the Second Defendant before he went into thin air.”

The lower court presided over by Hon. Justice A.N. Ehigiamusoe entertained the motion ex-parte on 17/2/2009, and granted the orders sought therein, in the following manner: –

“(1) Leave is hereby granted the plaintiffs/Applicants to effect service of the writ of summons and other court processes on the 1st Defendant out of jurisdiction of this court at plot 84 Ajose Adeogun Street, Victoria Island Lagos.