IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/1673/14
WEBB TOWERS LIMITED ----------------------------- PLAINTIFF/APPLICANT
AND
1. THE HON. MINISTER OF THE ENVIRONMENT,
HOUSING AND URBAN DEVELOPMENT
2. PRESIDENTIAL IMPLEMENTATION COMMITTEE
ON THE ALIENATION OF FEDERAL GOVERNMENT -------DEFENDANTS/RESPONDENTS
LANDED PROPERTIES
3. THE ATTORNEY GENERAL OF THE FEDERATION
AND MINISTER OF JUSTICE
4. COLONEL DAVID BINITIE (RTD) ------------------- DEFENDANT
4TH DEFENDANT’S COUNTER AFFIDAVIT AGAINST THE PLAINTIFF’S MOTION ON NOTICE DATED 5TH OCTOBER, 2014
I Col. David Binitie of 25 Ilabere Avenue Ikoyi Lagos, retired Military officer, Nigerian Citizen make oath and say as follows;
1. That I am the 4th defendant in this case and by virtue of my position, I am familiar with the facts of this case.
2. That the facts herein deposed to are within my personal knowledge or which I otherwise believe to be true and correct as indicated thereunder.
3. That uptill date I have not been served by the Court Bailiffs with the Originating processes nor the Motion paper.
4. That the Plaintiff instead left at my residence at 25, Ilabere Avenue, Ikoyi; photocopies of the originating process bearing the Suit No. in this case and along with photocopies of a Motion on Notice both marked “Advance Copy”.
5. That I subsequently made enquiries at the Federal High Court Registry on resumption from the Court’s Strike and found out that the suit has been assigned to the Court of Hon. Justice Abang; and fixed for 10th February, 2015.
6. That I was informed my Counsel of Messrs Layi Babatunde (SAN) & Co; of my findings whereby they wrote a letter on my behalf to Plaintiff’s Counsel requesting that I be served with the Court processes. A copy of the Letter is attached and marked exhibit “A”.
7. That the Plaintiff’s Counsel has not replied to the said letter nor caused me to be served with the processes till date.
8. That in the circumstance I am compelled to respond to the Advanced Copies left on my premises so as not to leave the suit undefended.
9. That I have read the Affidavit of Ihechi Chikezi, of Counsel in support of the Motion on Notice and hereby state as follows:
(a) That as the official and recognized sitting Tenant occupying the property known and called 25, Ilabere Avenue Street, Ikoyi; Lagos State; I am entitled to a right of first refusal based on a Federal Government policy on the disposal of such properties.
(b) That I have since exercised my right and clearly demonstrated my intention to purchase the said property by completing and submitting the required papers and paying the specified processing fees.
(c) That I am however waiting to be issued with the required offer letter and subsequent title document (Certificate of Occupancy) upon payment of required sum.
(d) That the Plaintiff in the interim approached me sometime in 2008 with a view to purchasing the property from me subsequent to my full acquisition of same from the Federal Government whereby a Memorandum of Understanding (MOU) dated 15th day of July, 2008 was executed with the Plaintiff.
(e) That the 1st – 3rd Defendants are not parties to the MOU.
(f) That pursuant to the said MOU the Plaintiff in further expression of its interest to purchase the property …… on it being secured advanced on Account the sum of N5,000,000.00 to me. A copy of the MOU is attached and marked Exhibit “B”.
(g) That under the said MOU, its PURPOSE was clearly stated as follows:
“PURPOSE
Party A, is therefore empowered by this Memorandum of Understanding to enter into negotiations with the Presidential Implementation Committee and or other legal means to secure Letters of Offer or a replacement of the subject property by one which is of the same value, size and dimension in the Ikoyi area of Lagos State, the success of which guarantees an assignment of the rights of Party B on the property to Party A.
This MOU addresses the rights, benefits and obligations of parties herein.”
(h) That prior to the execution of Exhibit “B”, the Plaintiff represented to me that it will facilitate my collection of the title documents within Six (6) months of the execution of the MOU; and that this promise induced me to execute the said MOU as I believed the Plaintiff’s to be capable of facilitating and accelerating the process of my completion with the 1st and 2nd Defendants.
(i) That Seven years down the line the Plaintiff has been unable to fulfill its promise.
(j) That instead the Plaintiff continues to complicate matters with the 1st – 2nd Defendants by making spurious and baseless allegations such that I am the only sitting tenant till date among such property occupiers in that axis who is yet to receive his title documents even though I have fulfilled the required conditions.
(k) That to the best of my knowledge information and believe there is no provision for any Trusteeship in the MOU as the Deed of Assignment referred to was obtained by deception as it s obvious that the recitals are untrue particularly paragraphs 5,6 and 7 thereof.
(l) That I had paid the processing fee to the 2nd Defendant in 2005 long before the Plaintiff’s expression of interest cheque of N5,000,000.00 in 2008.
(m) That these documents referred to under paragraph 22 of the Plaintiff’s Affidavit in support of the Motion on Notice authorizing the firm of JK Gadzama & Partners to collect the title papers on my behalf were executed because of the representation of the Plaintiff that doing so will expedite the process which has now proved to be incorrect.
(n) That I did not authorize the filing of Suit FHC/L/CS/5444/2008 said to have been discontinued as I continue to pursue administratively the processing of my title documents with the 1st – 2nd Defendants such that the Hon. Minister of the Environment, Housing and Urban Development visited the property on a working tour as with others on the avenue and assured me that the property will be sold to me as the sitting tenant and not part of any redevelopment plan.
(o) That I was not part of any petition to the National Assembly.
(p) That at no time did any “top officials” of other officials of 1st and 2nd Defendants send any emissaries to me with such offer as alleged in paragraph 31 of the Plaintiff’s Affidavit.
(q) That I am not aware at all of any such threat by officials of the 1st and 2nd Defendants nor the meeting between Okwu Ezezie Esq; of Counsel and Mr. Kola Adeyemi as deposed to in paragraph 32 and 33 of the Plaintiff’s Affidavit.
(r) That as the sitting Tenant I am the only one to which the 1st and 2nd Defendant’s can issue title documents including letter of offer on 25 Ilabere Avenue, Ikoyi as they are not even parties to the MOU and whoever I instruct to collect it can only do so on my behalf.
(s) That I have at no time instructed the 1st and 2nd Defendants to issue the letter of offer or any other document of title on 25 Ilabere Avenue, Ikoyi; or any other property to the plaintiff.
(t) That I verily believe in the circumstance that the 1st – 2nd Defendants will not dispose 25 Ilabere Street, Ikoyi to a stranger nor issue title documents to a stranger as I am the only recognised sitting tenant and still in full and effective occupation.
(u) That I verily believe that the Plaintiff’s suit is a further attempt to complicate matters and delay the issuance of my title documents by the 1st – 2nd Defendants which has been long overdue.
(v) That the MOU provides for how any dispute between the Plaintiff and myself shall be resolved as follows:
“DISPUTE RESOLUTION
In the event of dispute, difference, impasse, or deadlock arising in regard to this agreement, the parties shall attempt in good faith too settle such dispute by mutual discussions as soon as practicable after the disputing party gives notice of the dispute to the non disputing party. During such mutual discussions any resolution procedure instituted pursuant to this paragraph shall be pursued by both parties and parties shall thereafter faithfully continue to perform their respective obligations under this agreement.”
(w) That no settlement attempt has been initiated by the Plaintiff nor explored before rushing to file this suit.
10. That I swear to the affidavit in good faith believing the same to be true to the best of my knowledge information and belief and in accordance with the oaths Act of the Federal Republic of Nigeria.
____________________
DEPONENT
Sworn to at the Federal High Court
Registry, Lagos this …….. day
of ………………………… 2015.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE COURT OF APPEAL
HOLDEN AT LAGOS
APPEAL NO: CA/L/897M/2013
SUIT NO: LD/2727/2000
BETWEEN
1. ACCESS BANK PLC - APPELLANT
Substituted by an order of court
made on 2-5-2012
2. GLOBAL INVESTMENT & SECURITIES LTD
AND
CROWNWEALTH VENTURES LTD ………………. RESPONDENT
S
2. GLOBAL INVESTMENT & SECURITIES LTD
AND
CROWNWEALTH VENTURES LTD ………………. RESPONDENT
APPELLANT’S BRIEF OF ARGUMENT
Tuesday 18 August 2015
CLAIMANT’S WRITTEN ADDRESS AGAINST THE DEFENDANTS’ MOTION ON NOTICE DATED 29TH JANUARY, 2010
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO. LD/2055/09
BETWEEN:
THE NIGERIAN BULK OIL COMPANY LIMITED…………..CLAIMANT/APPLICANT
AND
1. PRACTOIL LIMITED
2. MRS. BOLA MUINAT SHAGAYA …..………………..DEFENDANTS
CLAIMANT’S WRITTEN ADDRESS AGAINST THE DEFENDANTS’ MOTION ON NOTICE DATED 29TH JANUARY, 2010
1.00 INTRODUCTION:
1.01 The Defendants Motion on Notice dated 29th January is the 3rd in the series of numerous Applications filed by them against the Claimant’s Suit. However, since they have evinced an intention to withdraw the previous two Applications, this address is limited to the Motion on Notice dated 29th January, 2009 which is the last in the series.
1.02 It is instructive to note that the Defendants’ Application was filed subsequent to being duly served with the Claimant’s Originating Processes, Motion on Notice for Injunction and the Interim Orders of Injunction of this Honourable Court. The Proof of the service is already in the Honourable Court’s File.
1.03 In reaction to the Defendants’ Motion on Notice dated 29th January, 2009, the Claimant herein has filed a Counter-Affidavit of 7 Paragraphs deposed to by Abdulhameed Abdullateef; a Manager with the Claimant’s Company. To the said Counter-Affidavit were attached four Exhibits i.e. Exhibits A, B, C and D. Reliance shall be placed on all the depositions contained in the said Counter Affidavit and the attached Exhibits. The kind attention of this Honourable Court is hereby drawn to Paragraph 6(i)–(xx) of the Counter-Affidavit.
2.00 STATEMENT OF FACTS:
2.01 The relevant facts germane and relevant to the determination of the Defendants’ Application are as contained in the Claimant’s Counter-Affidavit of 7 Paragraphs. Paragraphs 5(i) – (xxviii) of the said Counter-Affidavit are highly instructive.
2.02 However, it needs to be stressed herein that the Claimant in this Suit commenced this Suit after its Claims in its earlier Suit No.FHC/L/CS/537/09 was struck out for wants of jurisdiction on the part of that Court. This fact was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to in Paragraph 18 of its witness’s Written Deposition on Oath already before this Honourable Court. The Plaintiff herein has no other Claim filed or pending before any other Court over the subject matter of this Suit.
3.00 ISSUES FOR DETERMINATION:
The following issues are respectfully submitted for the Court’s kind consideration:
(i) Whether having regard to the manifest disobedience of the Orders of this Court and continuing disregard for its processes, the Defendants/Applicants ought to be indulged by hearing of its Application without first demonstrating its readiness to obey and respect Court’s Processes;
(ii) Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent;
(iii) Whether on the whole and having regard to the circumstances of this Application, same ought not be dismissed or struck out having being brought malafide.
4.00 ARGUMENT:
4.01 In arguing the above issues, it is apposite to point out that while the Defendants/Applicants claimed to have submitted a Solitary Issue for Determination, it in essence expanded the sole issue to Five (5) distinct issues in arguing the Application:
(i) abatement of the ex-parte Order of Injunction;
(ii) suppression of Material facts;
(iii) abuse of Court Process;
(ii) improper Constitution of the action; and
(iii) want of Jurisdiction.
4.02 Furthermore, we shall be urging the Honourable Court to expunge and/or strike-out the Depositions contained in Paragraphs 10(a) & (c) of the Affidavit of Kabir Akingbolu sworn on 28th January, 2010 in support of the Applicants’ Application in that those Depositions violate the provisions of Section 87 of the Evidence Act in that they are tantamount to Legal Argument and/or Conclusion. See: BAMAIYI VS. THE STATE (2001) 4 S.C. (Pt.I) 18 @ 32-33 Paragraphs 25-15.
4.03 ISSUE 1:
Whether having regard to the manifest disobedience of the Orders of this Court and continuing disregard for its processes, the Defendants/Applicants ought to be indulged by hearing of its Application without first demonstrating its readiness to obey and respect Court’s Processes;
The Applicants have submitted that the positive Interim Orders of this Court issued on 15/12/09 and renewed on 21/12/09 has lapsed. They deposed rather boldly in Paragraphs 6(iii), (iv) and (v) of their Affidavit in support of their Application all their acts of disobedience to the said Court Order. This is because as manifest from the Records of the Honourable Court, all those activities mentioned in those Paragraphs were carried out and still being carried out either during the pendency of a Suit and/or in the life of the ex-parte Order they alleged is now spent. These Depositions taken along with Respondent’s positive Deposition in its Counter-Affidavit to the effect that the Applicants have refused to obey the positive Order of this Honourable Court; the question is whether such conduct is conscionable.
4.04 It is respectfully submitted that in so far as no Court of competent Jurisdiction has pronounced the Interim Orders of this Honourable Court made on 15/12/09 and renewed on 21/12/09 and duly served on the Defendants on 21/12/09 invalid or otherwise incompetent the Applicants were duly bound to comply with same irrespective of their opinion regarding the said Order as to its validity. It is therefore a gross and manifest act of disrespect to the Orders and authority of this Honourable Court for the Defendants/Applicants to ignore the said Orders while it lasted only for them to turn round and claim that in any event the Order has lapsed and thereby proceed to seek the aid of the Court – See: MADAM MARGARET EZEOKAFOR (1999) 6 S.C. 1 @ 15 Paragraph 25-35. See further A.G. ANAMBRA VS. A. G. FEDERATION & ORS. (2005) 5 S.C. (PT.I) 73 @ 83 Para. 15-25 per Katsina-Alu, JSC; (now CJN); where it was held:
“It is now settled that the plain and unqualified obligation of every person against, or in respect of whom an Order is made by a Court of Competent Jurisdiction is to obey it unless and until that Order is discharged. It is so even in cases where the person affected by the Order believes it to be irregular or even void…….”
See also EZEKIEL-HART VS. EZEKIEL-HART (1990) 2 S.C. 1 @ 30-31 Para. 30-20-
“It is sad to observe that there is nothing on record to show that the Appellant has obeyed any of the above Orders of Court. I would like to state that obedience to Orders of Court is fundamental to the good Order, peace and stability of the Nigerian Nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, matchetes and guns or, now, even more sophisticated weapons of war. Disobedience to an Order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and Order in the Nigerian society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the Naion. This Court has made it abundantly clear that it will not lend its machinery in aid of a person who is, and continues, to be in contempt of an Order of Court by ordering a stay while the person is still in contempt.”
4.05 It is submitted further that the purpose of serving the Ex parte Order along with the Motion on Notice as provided for by the Rules of this Honourable Court is to keep the res intact pending the determination of Motion on Notice and not otherwise. – See MILITARY GOVERNOR OF LAGOS STATE & ORS VS. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1986) 1 NWLR (PT.18) 66@ 636-638 per Obaseki, JSC; (as he then was).
4.06 It will be an untenable argument to canvass as done by the Applicants’ Counsel that a party upon whom an Ex parte Order was served along with the Motion on Notice would be at libtery to deal with the Subject matter of the Suit as it pleases even during the life of said order only to return to Court under the guise that the Ex parte Order has lapsed, abated or spent. This sort of argument as put forward by the Applicant’s runs against and violates all known principles of Adjudication and same is tantamount to encouraging resort to self-help; an act which is sternly frowned at by our Courts.
4.07 It is submitted that all the activities of the Applicants herein since the hostilities between them and the Respondents began have been to taunt the Court and to anticipate the Order of the Court.
4.08 It is submitted with respect that, a Law abiding and prudent Defendant will restrain himself even if he only has Notice of the pendency of a Suit against him and without the Sanction of any Order of the Honourable Court.
In the American case of J. EDWARDS JONES VS. SECURITIES and EXCHANGE COMMISSION 80 L.Ed 1015 298 US1.3 which was adopted by the Supreme Court in OJUKWU’S CASE supra, it was held that:
“After a Defendant have been notified of the pendecy of a Suit seeking an Injunction against him, even though a temporary Injunction be not granted, he acts at his peril and subject to the power of the Court to restore the status wholly irrespective of the merits as may be ultimately decided.”
4.09 In summary, it is submitted that the Honourable Court will be right to decline hearing the Defendants/Applicants until it demonstrates a willingness to abide with the Orders of Court. Furthermore, the Honourable Court has unfettered powers to command the obedience of its Order and respect for its process before it can listen to the Applicants.
The Honourable Court, it is also submitted, has the power to direct the Applicants to undo all those things they have done since the pendency of this Suit in order for the Applicants to enjoy its discretion. On this, see: THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH VS. MRS EMMANUELA OLOWOLENI (1990) 6 NWLR (PT.158) @ 537-538 per Nnaemeka-Agu, JSC; (as he then was).
4.10 ISSUE II:
Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent.
The Defendants/Applicants up and until now are yet to file their Defence and have by their Application contrary to the provisions of Order 22 High Court of Lagos State (Civil Procedure) Rules 2004 raised an Application with is clearly in the Nature of Demurrer.
4.10 It is respectfully submitted that on the authority of LASISI FADARE & ORS. VS. A.G. OYO STATE (1982) 4 S.C. 1 (where a similar provision was considered), the Defendants/Applicants’ Application ought to be dismissed/struck out being incompetent.
4.11 ISSUE III:
Whether on the whole and having regard to the circumstances of this Application, same ought not be dismissed or struck out having being brought malafide.
It is submitted that having regard to the Records of the Court, the Respondents cannot be said to be guilty of the suppression of any material facts upon their Application for Injunction. On the issue of want of service of the Court Processes, it is instructive that the Applicants appears to be approbating and reprobating when on one hand they alleged in the Affidavit Evidence that both Defendants were not served and on the other that only the 1st Defendant was not served.
4.12 It is submitted with respect that the proof of service filed before the Honourable Court by the Court Bailiff should be conclusive of this matter and we urge the Honourable Court to rely on same – See OKESUJI VS. LAWAL (1999) 2 S.C. 25 @ 46 on purpose of Affidavit of Service. It will be stretching the demand of the Law to the point of absurdity to allege want of service in this instance, in which the Honourable Court has Photographic Evidence of Service on the Defendants at the property in dispute and which property the Applicants claim to be in occupation and WORKING. Besides the 2nd Defendant/Applicant is the alter ego of 1st Defendant. Indeed the two previous Applications filed by the Applicant and sought to be withdrawn gives a lie to this assertion. – See further PANACHE COMMUNICATIONS LTD. VS. AIKHOMU (1994) 2 NWLR (PT.327) 430 @ 431.
4.13 The Applicants have submitted that the Claimant’s Suit constitute an abuse of the process. The simple answer to this is provided by the case of CHRISTIAN OUTREACH MINISTRIES INC. & 2 ORS VS. COBHAM & ANOR. (2006) 15 NWLR (PT.1002) 283 wherein the Court of Appeal held that:
“It is not the Law that once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process. An act can give rise to different Suits. A subject-matter may verily well give rise to different rights. In other words, different Suits can emanate from the same subject-matter, but with different rights and reliefs;” and further that:
“It is not an abuse of Court Process for a Defendant who conceives that he has reliefs which are different from those claimed against him by the Plaintiff, to initiate separate proceedings in Court, seeking those reliefs even though his claims and those of the Plaintiff arise from the same facts and the same subject matter. In the instant case, the Appellants’ Suit was best describes as a cross-action in a different Court. It was not a case of two actions, which one party had sued the same Defendant.”
In any event issues, such as this ought to have being raised in the pleadings.
4.14 It is further submitted that in any event, having regard to the subject matter and the claims of the Claimants the Court vested with Jurisdiction is this Honourable Court – See: DR. OKOROMA VS. CHIEF CHRISTIAN UBA (1999) 1 NWLR (PT.587) 359 and AKAAER JOY VS. KUTUN DOM (1999) 7 S.C. (PT.II) 1.
The Affidavit Evidence before the Honourable Court shows conclusively that the Claimants have no other pending Claim before any other Court on the subject matter of this Suit and that the parties in the Claim before the Court and that of the Applicants before the Federal High Court are not the same.
4.15 It is further submitted on the question of non joinder as alleged by the Applicant that Order 13 Rule 16(1) of the Rules of this Honourable Court provides a clear answer to that submission. The Order provides:
“No proceedings shall be defeated by reason of misjoinder or non joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.” (Underlining supplied)
4.16 Finally it is submitted that having regard to the above, this Application cannot but have been brought malafide as same with respect is groundless in Law.
5.00 CONCLUSION:
On the whole, the Honourable Court will be urged to decline hearing the Application or otherwise dismiss/strike of the Defendant’s/Applicant’s Application because:
(i) The Applicants have shown and continue to show complete contempt for the Orders of the Court and its process;
(ii) By the Rules of this Court, the Application is incompetent, the Defendants having not filed any defence till date wherein any issues of Law as arising from the Application ought to have been lawfully raised;
(iii) The Applicants have not succeeded in showing that the Respondents abused the process of the Court nor hid facts from the Court;
(iv) The Law is trite that the Claimant could not have sued a party against whom they make no claims and in any event by the Rules of this Honourable Court non-joinder will not defeat any proceedings such as the Claimants;
(v) The Court is not bereft of Jurisdiction, because the Claimant’s claims before the Court is proper legally cognisable and the subject matter being Land is within the competence of the Honourable Court;
(vi) Having regard to the Records of the Honourable Court and the Bailiff’s proof of service, it is too late in the day for the Defendants to deny service.
Dated this…………….day of…………………………………2010.
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO. LD/2055/09
BETWEEN:
THE NIGERIAN BULK OIL COMPANY LIMITED…………..CLAIMANT/APPLICANT
AND
1. PRACTOIL LIMITED
2. MRS. BOLA MUINAT SHAGAYA …..………………..DEFENDANTS
CLAIMANT’S WRITTEN ADDRESS AGAINST THE DEFENDANTS’ MOTION ON NOTICE DATED 29TH JANUARY, 2010
1.00 INTRODUCTION:
1.01 The Defendants Motion on Notice dated 29th January is the 3rd in the series of numerous Applications filed by them against the Claimant’s Suit. However, since they have evinced an intention to withdraw the previous two Applications, this address is limited to the Motion on Notice dated 29th January, 2009 which is the last in the series.
1.02 It is instructive to note that the Defendants’ Application was filed subsequent to being duly served with the Claimant’s Originating Processes, Motion on Notice for Injunction and the Interim Orders of Injunction of this Honourable Court. The Proof of the service is already in the Honourable Court’s File.
1.03 In reaction to the Defendants’ Motion on Notice dated 29th January, 2009, the Claimant herein has filed a Counter-Affidavit of 7 Paragraphs deposed to by Abdulhameed Abdullateef; a Manager with the Claimant’s Company. To the said Counter-Affidavit were attached four Exhibits i.e. Exhibits A, B, C and D. Reliance shall be placed on all the depositions contained in the said Counter Affidavit and the attached Exhibits. The kind attention of this Honourable Court is hereby drawn to Paragraph 6(i)–(xx) of the Counter-Affidavit.
2.00 STATEMENT OF FACTS:
2.01 The relevant facts germane and relevant to the determination of the Defendants’ Application are as contained in the Claimant’s Counter-Affidavit of 7 Paragraphs. Paragraphs 5(i) – (xxviii) of the said Counter-Affidavit are highly instructive.
2.02 However, it needs to be stressed herein that the Claimant in this Suit commenced this Suit after its Claims in its earlier Suit No.FHC/L/CS/537/09 was struck out for wants of jurisdiction on the part of that Court. This fact was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to in Paragraph 18 of its witness’s Written Deposition on Oath already before this Honourable Court. The Plaintiff herein has no other Claim filed or pending before any other Court over the subject matter of this Suit.
3.00 ISSUES FOR DETERMINATION:
The following issues are respectfully submitted for the Court’s kind consideration:
(i) Whether having regard to the manifest disobedience of the Orders of this Court and continuing disregard for its processes, the Defendants/Applicants ought to be indulged by hearing of its Application without first demonstrating its readiness to obey and respect Court’s Processes;
(ii) Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent;
(iii) Whether on the whole and having regard to the circumstances of this Application, same ought not be dismissed or struck out having being brought malafide.
4.00 ARGUMENT:
4.01 In arguing the above issues, it is apposite to point out that while the Defendants/Applicants claimed to have submitted a Solitary Issue for Determination, it in essence expanded the sole issue to Five (5) distinct issues in arguing the Application:
(i) abatement of the ex-parte Order of Injunction;
(ii) suppression of Material facts;
(iii) abuse of Court Process;
(ii) improper Constitution of the action; and
(iii) want of Jurisdiction.
4.02 Furthermore, we shall be urging the Honourable Court to expunge and/or strike-out the Depositions contained in Paragraphs 10(a) & (c) of the Affidavit of Kabir Akingbolu sworn on 28th January, 2010 in support of the Applicants’ Application in that those Depositions violate the provisions of Section 87 of the Evidence Act in that they are tantamount to Legal Argument and/or Conclusion. See: BAMAIYI VS. THE STATE (2001) 4 S.C. (Pt.I) 18 @ 32-33 Paragraphs 25-15.
4.03 ISSUE 1:
Whether having regard to the manifest disobedience of the Orders of this Court and continuing disregard for its processes, the Defendants/Applicants ought to be indulged by hearing of its Application without first demonstrating its readiness to obey and respect Court’s Processes;
The Applicants have submitted that the positive Interim Orders of this Court issued on 15/12/09 and renewed on 21/12/09 has lapsed. They deposed rather boldly in Paragraphs 6(iii), (iv) and (v) of their Affidavit in support of their Application all their acts of disobedience to the said Court Order. This is because as manifest from the Records of the Honourable Court, all those activities mentioned in those Paragraphs were carried out and still being carried out either during the pendency of a Suit and/or in the life of the ex-parte Order they alleged is now spent. These Depositions taken along with Respondent’s positive Deposition in its Counter-Affidavit to the effect that the Applicants have refused to obey the positive Order of this Honourable Court; the question is whether such conduct is conscionable.
4.04 It is respectfully submitted that in so far as no Court of competent Jurisdiction has pronounced the Interim Orders of this Honourable Court made on 15/12/09 and renewed on 21/12/09 and duly served on the Defendants on 21/12/09 invalid or otherwise incompetent the Applicants were duly bound to comply with same irrespective of their opinion regarding the said Order as to its validity. It is therefore a gross and manifest act of disrespect to the Orders and authority of this Honourable Court for the Defendants/Applicants to ignore the said Orders while it lasted only for them to turn round and claim that in any event the Order has lapsed and thereby proceed to seek the aid of the Court – See: MADAM MARGARET EZEOKAFOR (1999) 6 S.C. 1 @ 15 Paragraph 25-35. See further A.G. ANAMBRA VS. A. G. FEDERATION & ORS. (2005) 5 S.C. (PT.I) 73 @ 83 Para. 15-25 per Katsina-Alu, JSC; (now CJN); where it was held:
“It is now settled that the plain and unqualified obligation of every person against, or in respect of whom an Order is made by a Court of Competent Jurisdiction is to obey it unless and until that Order is discharged. It is so even in cases where the person affected by the Order believes it to be irregular or even void…….”
See also EZEKIEL-HART VS. EZEKIEL-HART (1990) 2 S.C. 1 @ 30-31 Para. 30-20-
“It is sad to observe that there is nothing on record to show that the Appellant has obeyed any of the above Orders of Court. I would like to state that obedience to Orders of Court is fundamental to the good Order, peace and stability of the Nigerian Nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, matchetes and guns or, now, even more sophisticated weapons of war. Disobedience to an Order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and Order in the Nigerian society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the Naion. This Court has made it abundantly clear that it will not lend its machinery in aid of a person who is, and continues, to be in contempt of an Order of Court by ordering a stay while the person is still in contempt.”
4.05 It is submitted further that the purpose of serving the Ex parte Order along with the Motion on Notice as provided for by the Rules of this Honourable Court is to keep the res intact pending the determination of Motion on Notice and not otherwise. – See MILITARY GOVERNOR OF LAGOS STATE & ORS VS. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1986) 1 NWLR (PT.18) 66@ 636-638 per Obaseki, JSC; (as he then was).
4.06 It will be an untenable argument to canvass as done by the Applicants’ Counsel that a party upon whom an Ex parte Order was served along with the Motion on Notice would be at libtery to deal with the Subject matter of the Suit as it pleases even during the life of said order only to return to Court under the guise that the Ex parte Order has lapsed, abated or spent. This sort of argument as put forward by the Applicant’s runs against and violates all known principles of Adjudication and same is tantamount to encouraging resort to self-help; an act which is sternly frowned at by our Courts.
4.07 It is submitted that all the activities of the Applicants herein since the hostilities between them and the Respondents began have been to taunt the Court and to anticipate the Order of the Court.
4.08 It is submitted with respect that, a Law abiding and prudent Defendant will restrain himself even if he only has Notice of the pendency of a Suit against him and without the Sanction of any Order of the Honourable Court.
In the American case of J. EDWARDS JONES VS. SECURITIES and EXCHANGE COMMISSION 80 L.Ed 1015 298 US1.3 which was adopted by the Supreme Court in OJUKWU’S CASE supra, it was held that:
“After a Defendant have been notified of the pendecy of a Suit seeking an Injunction against him, even though a temporary Injunction be not granted, he acts at his peril and subject to the power of the Court to restore the status wholly irrespective of the merits as may be ultimately decided.”
4.09 In summary, it is submitted that the Honourable Court will be right to decline hearing the Defendants/Applicants until it demonstrates a willingness to abide with the Orders of Court. Furthermore, the Honourable Court has unfettered powers to command the obedience of its Order and respect for its process before it can listen to the Applicants.
The Honourable Court, it is also submitted, has the power to direct the Applicants to undo all those things they have done since the pendency of this Suit in order for the Applicants to enjoy its discretion. On this, see: THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH VS. MRS EMMANUELA OLOWOLENI (1990) 6 NWLR (PT.158) @ 537-538 per Nnaemeka-Agu, JSC; (as he then was).
4.10 ISSUE II:
Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent.
The Defendants/Applicants up and until now are yet to file their Defence and have by their Application contrary to the provisions of Order 22 High Court of Lagos State (Civil Procedure) Rules 2004 raised an Application with is clearly in the Nature of Demurrer.
4.10 It is respectfully submitted that on the authority of LASISI FADARE & ORS. VS. A.G. OYO STATE (1982) 4 S.C. 1 (where a similar provision was considered), the Defendants/Applicants’ Application ought to be dismissed/struck out being incompetent.
4.11 ISSUE III:
Whether on the whole and having regard to the circumstances of this Application, same ought not be dismissed or struck out having being brought malafide.
It is submitted that having regard to the Records of the Court, the Respondents cannot be said to be guilty of the suppression of any material facts upon their Application for Injunction. On the issue of want of service of the Court Processes, it is instructive that the Applicants appears to be approbating and reprobating when on one hand they alleged in the Affidavit Evidence that both Defendants were not served and on the other that only the 1st Defendant was not served.
4.12 It is submitted with respect that the proof of service filed before the Honourable Court by the Court Bailiff should be conclusive of this matter and we urge the Honourable Court to rely on same – See OKESUJI VS. LAWAL (1999) 2 S.C. 25 @ 46 on purpose of Affidavit of Service. It will be stretching the demand of the Law to the point of absurdity to allege want of service in this instance, in which the Honourable Court has Photographic Evidence of Service on the Defendants at the property in dispute and which property the Applicants claim to be in occupation and WORKING. Besides the 2nd Defendant/Applicant is the alter ego of 1st Defendant. Indeed the two previous Applications filed by the Applicant and sought to be withdrawn gives a lie to this assertion. – See further PANACHE COMMUNICATIONS LTD. VS. AIKHOMU (1994) 2 NWLR (PT.327) 430 @ 431.
4.13 The Applicants have submitted that the Claimant’s Suit constitute an abuse of the process. The simple answer to this is provided by the case of CHRISTIAN OUTREACH MINISTRIES INC. & 2 ORS VS. COBHAM & ANOR. (2006) 15 NWLR (PT.1002) 283 wherein the Court of Appeal held that:
“It is not the Law that once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process. An act can give rise to different Suits. A subject-matter may verily well give rise to different rights. In other words, different Suits can emanate from the same subject-matter, but with different rights and reliefs;” and further that:
“It is not an abuse of Court Process for a Defendant who conceives that he has reliefs which are different from those claimed against him by the Plaintiff, to initiate separate proceedings in Court, seeking those reliefs even though his claims and those of the Plaintiff arise from the same facts and the same subject matter. In the instant case, the Appellants’ Suit was best describes as a cross-action in a different Court. It was not a case of two actions, which one party had sued the same Defendant.”
In any event issues, such as this ought to have being raised in the pleadings.
4.14 It is further submitted that in any event, having regard to the subject matter and the claims of the Claimants the Court vested with Jurisdiction is this Honourable Court – See: DR. OKOROMA VS. CHIEF CHRISTIAN UBA (1999) 1 NWLR (PT.587) 359 and AKAAER JOY VS. KUTUN DOM (1999) 7 S.C. (PT.II) 1.
The Affidavit Evidence before the Honourable Court shows conclusively that the Claimants have no other pending Claim before any other Court on the subject matter of this Suit and that the parties in the Claim before the Court and that of the Applicants before the Federal High Court are not the same.
4.15 It is further submitted on the question of non joinder as alleged by the Applicant that Order 13 Rule 16(1) of the Rules of this Honourable Court provides a clear answer to that submission. The Order provides:
“No proceedings shall be defeated by reason of misjoinder or non joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.” (Underlining supplied)
4.16 Finally it is submitted that having regard to the above, this Application cannot but have been brought malafide as same with respect is groundless in Law.
5.00 CONCLUSION:
On the whole, the Honourable Court will be urged to decline hearing the Application or otherwise dismiss/strike of the Defendant’s/Applicant’s Application because:
(i) The Applicants have shown and continue to show complete contempt for the Orders of the Court and its process;
(ii) By the Rules of this Court, the Application is incompetent, the Defendants having not filed any defence till date wherein any issues of Law as arising from the Application ought to have been lawfully raised;
(iii) The Applicants have not succeeded in showing that the Respondents abused the process of the Court nor hid facts from the Court;
(iv) The Law is trite that the Claimant could not have sued a party against whom they make no claims and in any event by the Rules of this Honourable Court non-joinder will not defeat any proceedings such as the Claimants;
(v) The Court is not bereft of Jurisdiction, because the Claimant’s claims before the Court is proper legally cognisable and the subject matter being Land is within the competence of the Honourable Court;
(vi) Having regard to the Records of the Honourable Court and the Bailiff’s proof of service, it is too late in the day for the Defendants to deny service.
Dated this…………….day of…………………………………2010.
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUITNO.LD/2055/09
BETWEEN:
THE NIGERIAN BULK OIL COMPANY LIMITED…………..CLAIMANT/APPLICANT
AND
1. PRACTOIL LIMITED
2. MRS. BOLA MUINAT SHAGAYA …..………………..DEFENDANTS
CLAIMANT’S WRITTEN ADDRESS AGAINST THE DEFENDANTS’ MOTION ON NOTICE DATED 29TH JANUARY, 2010
1.00 INTRODUCTION:
1.01 The Defendants Motion on Notice dated 29th January is the 3rd in the series of numerous Applications filed by them against the Claimant’s Suit. However, since they have evinced an intention to withdraw the previous two Applications, this address is limited to the Motion on Notice dated 29th January, 2009 which is the last in the series.
1.02 It is instructive to note that the Defendants’ Application was filed subsequent to being duly served with the Claimant’s Originating Processes, Motion on Notice for Injunction and the Interim Orders of Injunction of this Honourable Court. The Proof of the service is already in the Honourable Court’s File.
1.03 In reaction to the Defendants’ Motion on Notice dated 29th January, 2009, the Claimant herein has filed a Counter-Affidavit of 7 Paragraphs deposed to by Abdulhameed Abdullateef; a Manager with the Claimant’s Company. To the said Counter-Affidavit were attached four Exhibits i.e. Exhibits A, B, C and D. Reliance shall be placed on all the depositions contained in the said Counter Affidavit and the attached Exhibits. The kind attention of this Honourable Court is hereby drawn to Paragraph 5(i) – (xxviii) of the Counter-Affidavit.
2.00 STATEMENT OF FACTS:
2.01 The relevant facts germane and relevant to the determination of the Defendants’ Application are as contained in the Claimant’s Counter-Affidavit of 7 Paragraphs. Paragraphs 5(i) – (xxviii) of the said Counter-Affidavit are highly instructive.
2.02 However, it needs to be stressed herein that the Claimant in this Suit commenced this Suit after its Claims in its earlier Suit No.FHC/L/CS/537/09 was struck out for wants of jurisdiction on the part of that Court. This fact was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to in Paragraph 18 of its witness’s Written Deposition on Oath already before this Honourable Court. The Plaintiff herein has no other Claim filed or pending before any other Court over the subject matter of this Suit.
3.00 ISSUES FOR DETERMINATION:
(i) Whether having regard to the manifest disobedience of the Orders of this Court and continuing disregard for its processes, the Defendants/Applicants ought to be indulged by hearing of its Application without first demonstrating its readiness to obey and respect Court’s Processes;
(ii) Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent;
(iii) Whether on the whole and having regard to the circumstances of this Application, same ought not be dismissed or struck out having being brought malafide.
4.00 ARGUMENT:
4.01 In arguing the above issues, it is apposite to point out that while the Defendants/Applicants claimed to have submitted a Solitary Issue for Determination, it in essence expanded the sole issue to Five (5) distinct issues arising therefrom, namely:
(i) abatement of the ex-parte Order of Injunction;
(ii) suppression of Material facts;
(iii) abuse of Court Process;
(ii) improper Constitution of the action; and
(iii) want of Jurisdiction.
4.02 Furthermore, we shall be urging this Honourable Court to expunge and/or strike-out the Depositions contained in Paragraphs 10(a) & (c) of the Affidavit of Kabir Akingbolu sworn on 28th January, 2010 in support of the Applicants’ Application in that those Depositions violate the provisions of Section 87 of the Evidence Act in that they are tantamount to Legal Argument and/or Conclusion. See: BAMAIYI VS. THE STATE (2001) 4 S.C. (Pt.I) 18 @ 32-33 Paragraphs 25-15.
4.03 ISSUE 1:
The Applicants have submitted that the positive interim Orders of this Court issued on 15/12/09 and renewed on 21/12/09 has lapsed the … …. in Paragraphs 6(iii), (iv) and (v) of their Affidavit in support of their Application all their acts of disobedience of the said Court Order. This is because as manifest from the Records of the Honourable Court, all those activities mentioned in those Paragraphs were carried out and still being carried out either during the pendency of a Suit and/or during the operation of the ex-parte Order they allege is now spent. With this, and coupled with the Respondent’s positive Deposition in its Counter-Affidavit to the effect that the Applicants have refused to obey the positive Order of this Honourable Court, the question is whether such conduct is conscionable.
4.03 It is respectfully submitted that in so far as no Court of competent Jurisdiction pronounced the Interim Orders of this Honourable Court made on 15/12/09 and renewed on 21/12/09 and duly served on the Defendants on 21/12/09 invalid or otherwise incompetent the Applicants were duly bound to comply with same irrespective of their opinion regarding the said Order as to its validity. It is therefore a gross and manifest act of disrespect to the Orders and authority of this Honourable Court for the Defendants/Applicants to ignore the said Orders while it lasted only for them to turn round and claim that in any event the Order has lapsed and thereby proceed to seek the aid of the Court – See: MADAM MARGARET EZEOKAFOR (1999) 6 S.C. 1 @ 15 Paragraph 25-35. See further A.G. FEDERATION (2005) 5 S.C. (PT.I) 73 @ 83 Para. 15-25 per Katsina-Alu, JSC; (now CJN);
“It is now settled that the plain and unqualified obligation of every person against, or in respect of whom an Order is made by a Court of Competent Jurisdiction is to obey it unless and until that Order is discharged. It is so even in cases where the person affected by the Order believes it to be irregular or even void…….”
See also EZEKIEL-HART VS. EZEKIEL-HART (1990) 2 S.C. 1 @ 30-31 Para. 30-20-
“It is sad to observe that there is nothing on record to show that the Appellant has obeyed any of the above Orders of Court. I would like to state that obedience to Orders of Court is fundamental to the good Order, peace and stability of the Nigerian Nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, matchetes and guns or, now, even more sophisticated weapons of war. Disobedience to an Order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and Order in the Nigerian society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the Naion. This Court has made it abundantly clear that it will not lend its machinery in aid of a person who is, and continues, to be in contempt of an Order of Court by ordering a stay while the person is still in contempt.”
4.04 We submit further that the purpose of serving the Ex parte Order along with the Motion on Notice as provided by the Rules of this Honourable Court is to keep the res intact pending the determination of Motion on Notice and not otherwise. – See MILITARY GOVERNOR OF LAGOS STATE & ORS VS. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1986) 1 NWLR (PT.18) 66@ 636-638 per Obaseki, JSC; (as he then was).
4.05 It will be an untenable argument to canvass as done by the Applicants’ Counsel that a party upon whom an Ex parte Order was served along with the Motion on Notice would be at libtery to deal with the Subject matter of the Suit as it pleases even during the life of said order only to return to Court under the guise that the Ex parte Order has lapsed, abated or spent. This sort of argument as put forward by the Applicants the Applicant runs foul against the well known Principle of lis pendis and same is tantamount to encouraging his Client to resort on to self-help; an act which is sternly frowned at by our Courts.
4.06 We submit that all the activities of the Applicants herein since the hostilities between them and the Respondents began have been to taunt the Court and to anticipate the Order of the Court.
4.07 We submit that, a Law abiding Defendant in a Suit will restrain himself even after he has been notified of the pendency of a Suit against him even without the Sanction of any Order of the Honourable Court.
In the American case of J. EDWARDS JONES VS. SECURITIES and EXCHANGE COMMISSION 80 L.Ed 1015 298 US1.3 which was adopted by the Supreme Court in OJUKWU’S CASE supra that:
“After a Defendant have been notified of the pendecy of a Suit seeking an Injunction against him, even though a temporary Injunction be not granted, he acts at his peril and subject to the power of the Court to restore the status wholly irrespective of the merits as may be ultimately decided.
4.08 In summary, it is submitted that this Honourable Court will be right to decline hearing the Defendants/Applicants until it demonstrates a willingness to abide with the Orders of Court. Furthermore, the Honourable Court has unfettered powers to command the obedience of its Order before it can listen to these Applicants.
Also we submit that this Honourable Court has the power to direct these Applicants to undo all those things they have done since the pendecy of this Suit. On this, we cite the Supreme Court’s case THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH VS. MRS EMMANUELA OLOWOLENI (1990) 6 NWLR (PT.158) @ 537-538 per Nnaemeka-Agu, JSC; (as he then was).
4.09 Finally on this point, it is respectfully submitted that these Applicants who are mere contemnors lack any basis to attack the Order of this Honourable Court which Order they have refused, neglected and/or/failed to obey. We urge this Honourable Court to reject their Counsel’s argument in this regard and decline their prayers in their Application before the Honourable Court.
5.00 ON ALLEGATION OF SUPPRESSION OF MATERIAL FACTS
5.01 We observed that the Applicants herein in their desperate bid to put the wool over the eyes of the Honourable Court and through the Deponent in their supporting Affidavit, have perjured in Paragraph 7(b) of the said Affidavit that the Respondent intentionally withheld and suppressed what they term all vital information to the case from the Court.
Also in their Counsel’s Written Address, the Learned Senior Counsel claimed albeit wrongfully at Paragraph 5.1 threat that the Respondent willfully suppressed the subsistence of a certain action before Lambo, J; of the Federal High Court from this Honourable Court.
We submit that this Claim of the Learned Senior Counsel is nothing but bogus and baseless.
5.02 The said vital and/or material facts of the subsistence of a Suit before Lambo, J; of the Federal High Court was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to positively at Paragraph 18 of the Claimant’s witness’s Written Deposition on Oath all before this Honourable Court prior to its grant of the Ex-parte Order of 15th December, 2009 and its renewal of 21st December, 2009 as well.
5.03 We submit further to the above that since the only facts alleged to have been suppressed was the fact of a case pending before the Federal High Court which fact has been shown to be before this Honourable Court prior to the Order of Injunction being attacked by the Applicants this Honourable Court would be right to discountenance the terse argument tied to that erroneous conclusion from this Senior Counsel. In this regard the Honourable Court would be urged to decline the prayer in Paragraph 5.3 of the Counsel’s argument and prayers 1 and 2 on the Motion Paper.
5.04 Also the Learned Counsel has also failed woefully to show how the fact that a case subsist before the Federal High Court would have adversely affected the grant and/or refusal of the Respondent’s Application Ex-parte were his bogus allegation to be true which in any event was not the case.
5.05 Equally under this heading, the Learned Senior Counsel raised the issue of non-service of the Motion on Notice on his Clients. Before this and at Paragraph 10(d) of their Affidavit in support the Applicants have alleged that the processes issued in this Suit were not served on the 1st Defendant/Applicant only.
5.06 We submit in answer to the two allegations aforesaid that such allegations underscore the importance of Affidavit of Service already before the Honourable Court. We submit and as it has been deposed to in the Counter-Affidavit that all the processes issued so far in this Suit by the Claimant/Respondent have been served on the two Defendants/Applicants in accordance with the Order of the Honourable Court to that effect as reflected in the Affidavit of Service deposed to by the Sheriff of this Honourable Court already before the Honourable Court.
5.07 What is more, authorities are legion and the Law is trite that once there is an allegation of non-service of the process of the Honourable Court, the Court concerned should look at its file for an Affidavit of Service to that effect and where one is found as in this case that will represent a prima facie evidence of service. On this, we refer the Court to the cases of OKESUJI VS. LAWAL.
5.08 We submit that with the Affidavit evidence backed by the photographic impression of the service carried out on the Defendants/Applicants in this case, the Honourable Court will be right to rely on the document to hold that the two Applicants were duly served as ordered by the Honourable Court in the circumstances of this Suit.
6.00 ON THE ALLEGED ABUSE OF COURT PROCESS
6.01 The mainground for the Applicants’ Legally unjustifiable assertion is that it has pending before the Federal High Court a Counter-Claim against the Claimant herein in its Suit which had been struck-out. We submit that the mere fact that the 1st Applicant’s Counter-Claim is still pending before Lambo, J of the Federal High Court would not be a bar to the Claimant herein to assert its rights before this Honourable Court over its landed property situate at Apapa within Jurisdiction of this Honourable Court.
6.02 What is more, judicial authorities are more than plethora while the Law has crystallized that when it comes to dispute over land or landed property the proper forum to ventilate same shall be the State High Court within which the subject matter is situate which in this case is the Lagos State High Court. On this, we cite the following cases to wit:
(i) ELDER SUNDAY OMOTESHO (Regent) & ORS. VS. ALHAJI ABUBAKAR ABDULAHI & ORS. (UNREPORTED) APPEAL NO: CA/L/418/04 delivered on 4th June, 2007;
(ii) FEDERAL MORTGAGE BANK OF NIG. VS. LAGOS STATE GOVERNMENT & 4 ORS (UNREPORTED) APPEAL NO:CA/L/240/06 decided on 23rd June, 2009; and
(iii) DR. OKOROMA VS. CHIEF CHRISTIAN UBA (1999) 1 NWLR (PT.587) 359.
6.03 We submit that even a cursory look at the Exhibits 1a and 1b and even 2 attached to the Applicants’ Affidavit will reveal that parties are not the same in the alleged two Suits being referred to by the Applicants.
6.04 Flowing from the above, we submit that the Law on what constitutes an abuse of the process of Court is not static and not restricted to what the Learned Senior Counsel posited at Pages 5-6 of his address. In the recent case of CHRISTIAN OUTREACH MINISTRIES INC. & 2 ORS VS. COBHAM & ANOR. (2006) 15 NWLR (PT.1002) 283 the Court of Appeal, Calabar Judicial Division held amongst others that..
“It is not the Law that once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process. An act can give rise to different Suits. A subject-matter may verily well give rise to different rights. In other words, different Suits can emanate from the same subject-matter, but with different rights and reliefs.”
6.05 In the same case of CHRISTIAN OUTREACH MINISTRIES INC. supra, the Honourable Court of Appeal also held further that:
“It is not an abuse of Court Process for a Defendant who conceives that he has reliefs which are different from those claimed against him by the Plaintiff, to initiate separate proceedings in Court, seeking those reliefs even though his claims and those of the Plaintiff arise from the same facts and the same subject matter. In the instant case, the Appellants’ Suit was best describes as a cross-action in a different Court. It was not a case of two actions, which one party had sued the same Defendant.”
We urge this Honourable Court to follow the above Court of Appeal’s decision and discountenance the hollow argument proffered by the Learned Senior Counsel as same is a non-starter.
6.06 Finally on this point the Honourable Court is urged to decline to hold this Suit as an abuse of its process as none of the ingredients making a Suit an abuse is present in the Claimant’s Suit. Infact, all the cases cited by the Learned Senior Counsel on what constitutes an abuse of Court process are not applicable to the Claimant’s Suit.
7.00 ON THE ALLGED IMPROPER CONSTITUTION OF ACTION
7.01 It is instructive to note that the Learned Senior Counsel predicated his argument under this heading on the non-joinder of the Nigerian Ports Authority as a party in this Suit. The Learned Senior Counsel also made heavy weather on the fact that the same Nigerian Ports Authority being a Federal Agency is only subjected to the Jurisdiction of the Federal High Court.
7.02 We submit with respect that the non-joinder of the Nigerian Ports Authority has no bearing in the validity of the Claimants’ Claim having regards to Order 13 Rule 16(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that:-
Order 16(1) “No proceedings shall be defeated by reason of misjoinder or non joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.” (Underlining mine)
The above mandatory provisions of the Rules of this Honourable Court knock off the bottom of any merit the argument of the Senior Counsel would have had. We urge this Honourable Court to discountenance Applicants’ Counsel Argument as same is retrogressive and archaic.
7.03 We submit further that it is not for the Applicants nor their Counsel to determine who will be a party in the Claimant’s Suit. The Claimant has deposed positively that t has no cause of action against the Nigerian Ports Authority as the relationship between it and the Authority is cordial after the Authority has restored the Claimant back to its premises.
7.04 In any event, the issue of privity of contract said to be lacking between the Claimant and the Defendant in this Suit is a non-issue. This is because the Claims against the Defendants are mainly on trespass and there is no Law where privity of contract is a pre-condition to an action in trespass. In fact, the want of privity of either contract or estate makes the Defendants trespassers on the Claimant’s leasehold property.
7.05 Flowing from the above, we submit that since the Federal High Court lack Jurisdiction on matters like Trespass to Land which is the cause of action in this Suit, the proper forum for the Claimant to litigate its claims is this Honourable Court irrespective of whether or not a Federal Agency is a necessary party. In any event no Application for joinder of the Nigerian Ports Authority is pending before this Honourable Court.
7.06 We submit further that the action of the Claimant herein which is grounded in Trespass on its property is not only reasonable but such that can be dealt with without joining the Nigerian Ports Authority. The Claimant herein has no cause of action against the Authority and in the event the Defendant feels that they cannot defend this Suit without the presence of the Nigerian Ports Authority they can bring their Application for joinder of the Authority under Order 13 Rule 16(3) and Rule 17 thereat of the Rules of this Honourable Court.
8.00 CONCLUSION
In conclusion, the Honourable Court is respectfully urged to discountenance all the Argument canvassed by the Applicants’ Counsel in support of the lone and sub issue(s) raised in his Written Address therein and resolves the said issue against the Defendants/Applicants for the following reasons to wit:
(i) The Defendants/Applicants have failed to show how the Ex parte Order they declined to obey till date could have said to be abated as against them;
(ii) Equally the Defendants/Applicants have not established their bare allegation of suppression of facts;
(iii) The Affidavit Evidence of “Poof of Service” before the Honourable Court establishes that the Defendants/Applicants were duly served with all the processes issued so far in this Suit including but not limited to the Ex-parte Order of Injunction;
(iv) The Claimant/Respondent has established that its Suit is not in Law and on fact an abuse of the process of this Honourable Court;
(v) By the mandatory provisions of the Rules of this Honourable Court, the allegation of improper Constitution of action has been shown to be baseless and otiose;
(vi) The Claimant/Respondent has established that its cause of action is not only reasonable but also justiciable before this Honourable Court;
(vii) The Defendants/Applicants’ Allegation of want of Jurisdiction on the part of this Honourable Court has been exposed to be a bare allegation lacking in substance.
Finally the Honourable Court is urged to dismiss the Defendants/Applicants’ Application dated 29th January 2010 with substantial cost in favour of the Claimant/Respondent as that Application is baseless, unmeritorious and tainted with malice.
Dated this…………….day of…………………………………2010.
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUITNO.LD/2055/09
BETWEEN:
THE NIGERIAN BULK OIL COMPANY LIMITED…………..CLAIMANT/APPLICANT
AND
1. PRACTOIL LIMITED
2. MRS. BOLA MUINAT SHAGAYA …..………………..DEFENDANTS
CLAIMANT’S WRITTEN ADDRESS AGAINST THE DEFENDANTS’ MOTION ON NOTICE DATED 29TH JANUARY, 2010
1.00 INTRODUCTION:
1.01 The Defendants Motion on Notice dated 29th January is the 3rd in the series of numerous Applications filed by them against the Claimant’s Suit. However, since they have evinced an intention to withdraw the previous two Applications, this address is limited to the Motion on Notice dated 29th January, 2009 which is the last in the series.
1.02 It is instructive to note that the Defendants’ Application was filed subsequent to being duly served with the Claimant’s Originating Processes, Motion on Notice for Injunction and the Interim Orders of Injunction of this Honourable Court. The Proof of the service is already in the Honourable Court’s File.
1.03 In reaction to the Defendants’ Motion on Notice dated 29th January, 2009, the Claimant herein has filed a Counter-Affidavit of 7 Paragraphs deposed to by Abdulhameed Abdullateef; a Manager with the Claimant’s Company. To the said Counter-Affidavit were attached four Exhibits i.e. Exhibits A, B, C and D. Reliance shall be placed on all the depositions contained in the said Counter Affidavit and the attached Exhibits. The kind attention of this Honourable Court is hereby drawn to Paragraph 5(i) – (xxviii) of the Counter-Affidavit.
2.00 STATEMENT OF FACTS:
2.01 The relevant facts germane and relevant to the determination of the Defendants’ Application are as contained in the Claimant’s Counter-Affidavit of 7 Paragraphs. Paragraphs 5(i) – (xxviii) of the said Counter-Affidavit are highly instructive.
2.02 However, it needs to be stressed herein that the Claimant in this Suit commenced this Suit after its Claims in its earlier Suit No.FHC/L/CS/537/09 was struck out for wants of jurisdiction on the part of that Court. This fact was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to in Paragraph 18 of its witness’s Written Deposition on Oath already before this Honourable Court. The Plaintiff herein has no other Claim filed or pending before any other Court over the subject matter of this Suit.
3.00 ISSUES FOR DETERMINATION:
(i) Whether having regard to the manifest disobedience of the Orders of this Court and continuing disregard for its processes, the Defendants/Applicants ought to be indulged by hearing of its Application without first demonstrating its readiness to obey and respect Court’s Processes;
(ii) Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent;
(iii) Whether on the whole and having regard to the circumstances of this Application, same ought not be dismissed or struck out having being brought malafide.
4.00 ARGUMENT:
4.01 In arguing the above issues, it is apposite to point out that while the Defendants/Applicants claimed to have submitted a Solitary Issue for Determination, it in essence expanded the sole issue to Five (5) distinct issues arising therefrom, namely:
(i) abatement of the ex-parte Order of Injunction;
(ii) suppression of Material facts;
(iii) abuse of Court Process;
(ii) improper Constitution of the action; and
(iii) want of Jurisdiction.
4.02 Furthermore, we shall be urging this Honourable Court to expunge and/or strike-out the Depositions contained in Paragraphs 10(a) & (c) of the Affidavit of Kabir Akingbolu sworn on 28th January, 2010 in support of the Applicants’ Application in that those Depositions violate the provisions of Section 87 of the Evidence Act in that they are tantamount to Legal Argument and/or Conclusion. See: BAMAIYI VS. THE STATE (2001) 4 S.C. (Pt.I) 18 @ 32-33 Paragraphs 25-15.
4.03 ISSUE 1:
The Applicants have submitted that the positive interim Orders of this Court issued on 15/12/09 and renewed on 21/12/09 has lapsed the … …. in Paragraphs 6(iii), (iv) and (v) of their Affidavit in support of their Application all their acts of disobedience of the said Court Order. This is because as manifest from the Records of the Honourable Court, all those activities mentioned in those Paragraphs were carried out and still being carried out either during the pendency of a Suit and/or during the operation of the ex-parte Order they allege is now spent. With this, and coupled with the Respondent’s positive Deposition in its Counter-Affidavit to the effect that the Applicants have refused to obey the positive Order of this Honourable Court, the question is whether such conduct is conscionable.
4.03 It is respectfully submitted that in so far as no Court of competent Jurisdiction pronounced the Interim Orders of this Honourable Court made on 15/12/09 and renewed on 21/12/09 and duly served on the Defendants on 21/12/09 invalid or otherwise incompetent the Applicants were duly bound to comply with same irrespective of their opinion regarding the said Order as to its validity. It is therefore a gross and manifest act of disrespect to the Orders and authority of this Honourable Court for the Defendants/Applicants to ignore the said Orders while it lasted only for them to turn round and claim that in any event the Order has lapsed and thereby proceed to seek the aid of the Court – See: MADAM MARGARET EZEOKAFOR (1999) 6 S.C. 1 @ 15 Paragraph 25-35. See further A.G. FEDERATION (2005) 5 S.C. (PT.I) 73 @ 83 Para. 15-25 per Katsina-Alu, JSC; (now CJN);
“It is now settled that the plain and unqualified obligation of every person against, or in respect of whom an Order is made by a Court of Competent Jurisdiction is to obey it unless and until that Order is discharged. It is so even in cases where the person affected by the Order believes it to be irregular or even void…….”
See also EZEKIEL-HART VS. EZEKIEL-HART (1990) 2 S.C. 1 @ 30-31 Para. 30-20-
“It is sad to observe that there is nothing on record to show that the Appellant has obeyed any of the above Orders of Court. I would like to state that obedience to Orders of Court is fundamental to the good Order, peace and stability of the Nigerian Nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, matchetes and guns or, now, even more sophisticated weapons of war. Disobedience to an Order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and Order in the Nigerian society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the Naion. This Court has made it abundantly clear that it will not lend its machinery in aid of a person who is, and continues, to be in contempt of an Order of Court by ordering a stay while the person is still in contempt.”
4.04 We submit further that the purpose of serving the Ex parte Order along with the Motion on Notice as provided by the Rules of this Honourable Court is to keep the res intact pending the determination of Motion on Notice and not otherwise. – See MILITARY GOVERNOR OF LAGOS STATE & ORS VS. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1986) 1 NWLR (PT.18) 66@ 636-638 per Obaseki, JSC; (as he then was).
4.05 It will be an untenable argument to canvass as done by the Applicants’ Counsel that a party upon whom an Ex parte Order was served along with the Motion on Notice would be at libtery to deal with the Subject matter of the Suit as it pleases even during the life of said order only to return to Court under the guise that the Ex parte Order has lapsed, abated or spent. This sort of argument as put forward by the Applicants the Applicant runs foul against the well known Principle of lis pendis and same is tantamount to encouraging his Client to resort on to self-help; an act which is sternly frowned at by our Courts.
4.06 We submit that all the activities of the Applicants herein since the hostilities between them and the Respondents began have been to taunt the Court and to anticipate the Order of the Court.
4.07 We submit that, a Law abiding Defendant in a Suit will restrain himself even after he has been notified of the pendency of a Suit against him even without the Sanction of any Order of the Honourable Court.
In the American case of J. EDWARDS JONES VS. SECURITIES and EXCHANGE COMMISSION 80 L.Ed 1015 298 US1.3 which was adopted by the Supreme Court in OJUKWU’S CASE supra that:
“After a Defendant have been notified of the pendecy of a Suit seeking an Injunction against him, even though a temporary Injunction be not granted, he acts at his peril and subject to the power of the Court to restore the status wholly irrespective of the merits as may be ultimately decided.
4.08 In summary, it is submitted that this Honourable Court will be right to decline hearing the Defendants/Applicants until it demonstrates a willingness to abide with the Orders of Court. Furthermore, the Honourable Court has unfettered powers to command the obedience of its Order before it can listen to these Applicants.
Also we submit that this Honourable Court has the power to direct these Applicants to undo all those things they have done since the pendecy of this Suit. On this, we cite the Supreme Court’s case THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH VS. MRS EMMANUELA OLOWOLENI (1990) 6 NWLR (PT.158) @ 537-538 per Nnaemeka-Agu, JSC; (as he then was).
4.09 Finally on this point, it is respectfully submitted that these Applicants who are mere contemnors lack any basis to attack the Order of this Honourable Court which Order they have refused, neglected and/or/failed to obey. We urge this Honourable Court to reject their Counsel’s argument in this regard and decline their prayers in their Application before the Honourable Court.
5.00 ON ALLEGATION OF SUPPRESSION OF MATERIAL FACTS
5.01 We observed that the Applicants herein in their desperate bid to put the wool over the eyes of the Honourable Court and through the Deponent in their supporting Affidavit, have perjured in Paragraph 7(b) of the said Affidavit that the Respondent intentionally withheld and suppressed what they term all vital information to the case from the Court.
Also in their Counsel’s Written Address, the Learned Senior Counsel claimed albeit wrongfully at Paragraph 5.1 threat that the Respondent willfully suppressed the subsistence of a certain action before Lambo, J; of the Federal High Court from this Honourable Court.
We submit that this Claim of the Learned Senior Counsel is nothing but bogus and baseless.
5.02 The said vital and/or material facts of the subsistence of a Suit before Lambo, J; of the Federal High Court was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to positively at Paragraph 18 of the Claimant’s witness’s Written Deposition on Oath all before this Honourable Court prior to its grant of the Ex-parte Order of 15th December, 2009 and its renewal of 21st December, 2009 as well.
5.03 We submit further to the above that since the only facts alleged to have been suppressed was the fact of a case pending before the Federal High Court which fact has been shown to be before this Honourable Court prior to the Order of Injunction being attacked by the Applicants this Honourable Court would be right to discountenance the terse argument tied to that erroneous conclusion from this Senior Counsel. In this regard the Honourable Court would be urged to decline the prayer in Paragraph 5.3 of the Counsel’s argument and prayers 1 and 2 on the Motion Paper.
5.04 Also the Learned Counsel has also failed woefully to show how the fact that a case subsist before the Federal High Court would have adversely affected the grant and/or refusal of the Respondent’s Application Ex-parte were his bogus allegation to be true which in any event was not the case.
5.05 Equally under this heading, the Learned Senior Counsel raised the issue of non-service of the Motion on Notice on his Clients. Before this and at Paragraph 10(d) of their Affidavit in support the Applicants have alleged that the processes issued in this Suit were not served on the 1st Defendant/Applicant only.
5.06 We submit in answer to the two allegations aforesaid that such allegations underscore the importance of Affidavit of Service already before the Honourable Court. We submit and as it has been deposed to in the Counter-Affidavit that all the processes issued so far in this Suit by the Claimant/Respondent have been served on the two Defendants/Applicants in accordance with the Order of the Honourable Court to that effect as reflected in the Affidavit of Service deposed to by the Sheriff of this Honourable Court already before the Honourable Court.
5.07 What is more, authorities are legion and the Law is trite that once there is an allegation of non-service of the process of the Honourable Court, the Court concerned should look at its file for an Affidavit of Service to that effect and where one is found as in this case that will represent a prima facie evidence of service. On this, we refer the Court to the cases of OKESUJI VS. LAWAL.
5.08 We submit that with the Affidavit evidence backed by the photographic impression of the service carried out on the Defendants/Applicants in this case, the Honourable Court will be right to rely on the document to hold that the two Applicants were duly served as ordered by the Honourable Court in the circumstances of this Suit.
6.00 ON THE ALLEGED ABUSE OF COURT PROCESS
6.01 The mainground for the Applicants’ Legally unjustifiable assertion is that it has pending before the Federal High Court a Counter-Claim against the Claimant herein in its Suit which had been struck-out. We submit that the mere fact that the 1st Applicant’s Counter-Claim is still pending before Lambo, J of the Federal High Court would not be a bar to the Claimant herein to assert its rights before this Honourable Court over its landed property situate at Apapa within Jurisdiction of this Honourable Court.
6.02 What is more, judicial authorities are more than plethora while the Law has crystallized that when it comes to dispute over land or landed property the proper forum to ventilate same shall be the State High Court within which the subject matter is situate which in this case is the Lagos State High Court. On this, we cite the following cases to wit:
(i) ELDER SUNDAY OMOTESHO (Regent) & ORS. VS. ALHAJI ABUBAKAR ABDULAHI & ORS. (UNREPORTED) APPEAL NO: CA/L/418/04 delivered on 4th June, 2007;
(ii) FEDERAL MORTGAGE BANK OF NIG. VS. LAGOS STATE GOVERNMENT & 4 ORS (UNREPORTED) APPEAL NO:CA/L/240/06 decided on 23rd June, 2009; and
(iii) DR. OKOROMA VS. CHIEF CHRISTIAN UBA (1999) 1 NWLR (PT.587) 359.
6.03 We submit that even a cursory look at the Exhibits 1a and 1b and even 2 attached to the Applicants’ Affidavit will reveal that parties are not the same in the alleged two Suits being referred to by the Applicants.
6.04 Flowing from the above, we submit that the Law on what constitutes an abuse of the process of Court is not static and not restricted to what the Learned Senior Counsel posited at Pages 5-6 of his address. In the recent case of CHRISTIAN OUTREACH MINISTRIES INC. & 2 ORS VS. COBHAM & ANOR. (2006) 15 NWLR (PT.1002) 283 the Court of Appeal, Calabar Judicial Division held amongst others that..
“It is not the Law that once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process. An act can give rise to different Suits. A subject-matter may verily well give rise to different rights. In other words, different Suits can emanate from the same subject-matter, but with different rights and reliefs.”
6.05 In the same case of CHRISTIAN OUTREACH MINISTRIES INC. supra, the Honourable Court of Appeal also held further that:
“It is not an abuse of Court Process for a Defendant who conceives that he has reliefs which are different from those claimed against him by the Plaintiff, to initiate separate proceedings in Court, seeking those reliefs even though his claims and those of the Plaintiff arise from the same facts and the same subject matter. In the instant case, the Appellants’ Suit was best describes as a cross-action in a different Court. It was not a case of two actions, which one party had sued the same Defendant.”
We urge this Honourable Court to follow the above Court of Appeal’s decision and discountenance the hollow argument proffered by the Learned Senior Counsel as same is a non-starter.
6.06 Finally on this point the Honourable Court is urged to decline to hold this Suit as an abuse of its process as none of the ingredients making a Suit an abuse is present in the Claimant’s Suit. Infact, all the cases cited by the Learned Senior Counsel on what constitutes an abuse of Court process are not applicable to the Claimant’s Suit.
7.00 ON THE ALLGED IMPROPER CONSTITUTION OF ACTION
7.01 It is instructive to note that the Learned Senior Counsel predicated his argument under this heading on the non-joinder of the Nigerian Ports Authority as a party in this Suit. The Learned Senior Counsel also made heavy weather on the fact that the same Nigerian Ports Authority being a Federal Agency is only subjected to the Jurisdiction of the Federal High Court.
7.02 We submit with respect that the non-joinder of the Nigerian Ports Authority has no bearing in the validity of the Claimants’ Claim having regards to Order 13 Rule 16(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that:-
Order 16(1) “No proceedings shall be defeated by reason of misjoinder or non joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.” (Underlining mine)
The above mandatory provisions of the Rules of this Honourable Court knock off the bottom of any merit the argument of the Senior Counsel would have had. We urge this Honourable Court to discountenance Applicants’ Counsel Argument as same is retrogressive and archaic.
7.03 We submit further that it is not for the Applicants nor their Counsel to determine who will be a party in the Claimant’s Suit. The Claimant has deposed positively that t has no cause of action against the Nigerian Ports Authority as the relationship between it and the Authority is cordial after the Authority has restored the Claimant back to its premises.
7.04 In any event, the issue of privity of contract said to be lacking between the Claimant and the Defendant in this Suit is a non-issue. This is because the Claims against the Defendants are mainly on trespass and there is no Law where privity of contract is a pre-condition to an action in trespass. In fact, the want of privity of either contract or estate makes the Defendants trespassers on the Claimant’s leasehold property.
7.05 Flowing from the above, we submit that since the Federal High Court lack Jurisdiction on matters like Trespass to Land which is the cause of action in this Suit, the proper forum for the Claimant to litigate its claims is this Honourable Court irrespective of whether or not a Federal Agency is a necessary party. In any event no Application for joinder of the Nigerian Ports Authority is pending before this Honourable Court.
7.06 We submit further that the action of the Claimant herein which is grounded in Trespass on its property is not only reasonable but such that can be dealt with without joining the Nigerian Ports Authority. The Claimant herein has no cause of action against the Authority and in the event the Defendant feels that they cannot defend this Suit without the presence of the Nigerian Ports Authority they can bring their Application for joinder of the Authority under Order 13 Rule 16(3) and Rule 17 thereat of the Rules of this Honourable Court.
8.00 CONCLUSION
In conclusion, the Honourable Court is respectfully urged to discountenance all the Argument canvassed by the Applicants’ Counsel in support of the lone and sub issue(s) raised in his Written Address therein and resolves the said issue against the Defendants/Applicants for the following reasons to wit:
(i) The Defendants/Applicants have failed to show how the Ex parte Order they declined to obey till date could have said to be abated as against them;
(ii) Equally the Defendants/Applicants have not established their bare allegation of suppression of facts;
(iii) The Affidavit Evidence of “Poof of Service” before the Honourable Court establishes that the Defendants/Applicants were duly served with all the processes issued so far in this Suit including but not limited to the Ex-parte Order of Injunction;
(iv) The Claimant/Respondent has established that its Suit is not in Law and on fact an abuse of the process of this Honourable Court;
(v) By the mandatory provisions of the Rules of this Honourable Court, the allegation of improper Constitution of action has been shown to be baseless and otiose;
(vi) The Claimant/Respondent has established that its cause of action is not only reasonable but also justiciable before this Honourable Court;
(vii) The Defendants/Applicants’ Allegation of want of Jurisdiction on the part of this Honourable Court has been exposed to be a bare allegation lacking in substance.
Finally the Honourable Court is urged to dismiss the Defendants/Applicants’ Application dated 29th January 2010 with substantial cost in favour of the Claimant/Respondent as that Application is baseless, unmeritorious and tainted with malice.
Dated this…………….day of…………………………………2010.
APPLICANT’S WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTICE
IN THE FEDERAL HIGH COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO. FHC/L/CS/75/2012
BETWEEN
OCEANIC HOMES SAVINGS & LOANS LTD ………… RESPONDENT
AND
SURU WORLDWIDE VENTURES NIG. LTD ………… APPLICANT
APPLICANT’S WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTICE
1.0 INTRODUCTION
This is a Motion brought pursuant to Order 7 Rule 1(1)(3) and Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 and under the inherent Jurisdiction of the Honourable Court.
The Applicant is praying the Honourable Court for an Order extending the time within which the Applicant may file and serve its Memorandum of Appearance and Counter Affidavit. The Applicant equally prays for an Order deeming the already filed and served processes as properly filed and served.
The Motion is supported by an Affidavit of Twelve Paragraphs deposed to by Anthony Aregbe, a Legal Practitioner in the Law firm of Messrs Layi Babatunde (SAN) & Co., Counsel to the Applicant.
2.0 ISSUES FOR DETERMINATION
Whether having regards to the circumstances of the Application, it will be in the interest of justice to grant same.
3.0 ARGUMENT
3.1 It is our submission that the Respondent’s Application dated 1st February, 2012 is an Originating process in the context of Order 3 Rule 1 of the Rules, to which the Applicant herein is required under Order 7 Rule 1 (1) to file its Memorandum of Appearance within thirty days at the Registry of this Court.
See also: Order 52 Rule 15 (j) Federal High Court (Civil Procedure) Rules 2009.
3.2 We submit as averred in paragraph 3 of the Affidavit that the Respondent’s Application was served on the Applicant on 2nd February, 2012 and the Applicant is expected by the Rules of this Court to enter appearance within 30 days being 3rd March, 2012. However the Applicant did not enter appearance until 2nd July, 2012.
3.3 However, by Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, this Honourable Court is empowered to extend the time for doing any act or taking any proceedings. Hence this application.
3.4 We respectfully urge the Court to accept the reason given in our Affidavit as material ground upon which the Honourable Court an exercise its discretion in favour of the Applicant.
3.5 On this, we humbly refer the Court to WILLIAMS & ORS V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC at Page 74 wherein the Supreme Court held that the Court is required to exercise its discretion to extend the time where some material upon which to base such exercise of discretion is placed before it. It is submitted with respect that the Affidavit in support has placed material reason before the Court for the delay.
4.0 CONCLUSION
We urge the Honourable Court to grant the prayers of the Applicant, as the delay was not meant to be a slight on the Court.
Dated ………………….. day of …………………. 2012
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO. FHC/L/CS/75/2012
BETWEEN
OCEANIC HOMES SAVINGS & LOANS LTD ………… RESPONDENT
AND
SURU WORLDWIDE VENTURES NIG. LTD ………… APPLICANT
APPLICANT’S WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTICE
1.0 INTRODUCTION
This is a Motion brought pursuant to Order 7 Rule 1(1)(3) and Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 and under the inherent Jurisdiction of the Honourable Court.
The Applicant is praying the Honourable Court for an Order extending the time within which the Applicant may file and serve its Memorandum of Appearance and Counter Affidavit. The Applicant equally prays for an Order deeming the already filed and served processes as properly filed and served.
The Motion is supported by an Affidavit of Twelve Paragraphs deposed to by Anthony Aregbe, a Legal Practitioner in the Law firm of Messrs Layi Babatunde (SAN) & Co., Counsel to the Applicant.
2.0 ISSUES FOR DETERMINATION
Whether having regards to the circumstances of the Application, it will be in the interest of justice to grant same.
3.0 ARGUMENT
3.1 It is our submission that the Respondent’s Application dated 1st February, 2012 is an Originating process in the context of Order 3 Rule 1 of the Rules, to which the Applicant herein is required under Order 7 Rule 1 (1) to file its Memorandum of Appearance within thirty days at the Registry of this Court.
See also: Order 52 Rule 15 (j) Federal High Court (Civil Procedure) Rules 2009.
3.2 We submit as averred in paragraph 3 of the Affidavit that the Respondent’s Application was served on the Applicant on 2nd February, 2012 and the Applicant is expected by the Rules of this Court to enter appearance within 30 days being 3rd March, 2012. However the Applicant did not enter appearance until 2nd July, 2012.
3.3 However, by Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, this Honourable Court is empowered to extend the time for doing any act or taking any proceedings. Hence this application.
3.4 We respectfully urge the Court to accept the reason given in our Affidavit as material ground upon which the Honourable Court an exercise its discretion in favour of the Applicant.
3.5 On this, we humbly refer the Court to WILLIAMS & ORS V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC at Page 74 wherein the Supreme Court held that the Court is required to exercise its discretion to extend the time where some material upon which to base such exercise of discretion is placed before it. It is submitted with respect that the Affidavit in support has placed material reason before the Court for the delay.
4.0 CONCLUSION
We urge the Honourable Court to grant the prayers of the Applicant, as the delay was not meant to be a slight on the Court.
Dated ………………….. day of …………………. 2012
AFFIDAVIT IN SUPPORT OF THE MOTION ON NOTICE
IN THE FEDERAL HIGH COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO. FHC/L/CS/75/2012
BETWEEN
OCEANIC HOMES SAVINGS & LOANS LTD ………… RESPONDENT
AND
SURU WORLDWIDE VENTURES NIG. LTD ………… APPLICANT
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 7 RULE 1(1)(3) AND ORDER 48 RULE 4 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT.
TAKE NOTICE that this Honourable Court will be moved on …………….. day of …………. 2012 at the Hour of 9 ‘O’ clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Applicant for:
1. AN ORDER of this Honourable Court extending time within which the Applicant may file and serve its Memorandum of Appearance and his Counter Affidavit filed on 2nd July, 2012 and 10th September, 2012 respectively.
2. AN ORDER of the Honourable Court deeming as properly filed and served the aforesaid processes.
AND for such further order as this Honourable Court may deem fit to make in the circumstance of the suit.
Dated ………………….. day of ………………..……. 2012
BETWEEN
OCEANIC HOMES SAVINGS & LOANS LTD ………… RESPONDENT
AND
SURU WORLDWIDE VENTURES NIG. LTD ………… APPLICANT
AFFIDAVIT IN SUPPORT OF THE MOTION ON NOTICE
I, Anthony Aregbe, Male, Christian, Legal Practitioner of 1A, Gbemi Oluwa Close, off Sule Abuka Crescent, Opebi, Ikeja Lagos State do hereby make oath and state as follows:
1. I am a Legal Practitioner in the Law firm of Messrs (SAN) & Co., Counsel to the Applicant in this matter, and by virtue of my position I am conversant with the facts of the case.
2. That I have the consent and authority of the Applicant and that of my employer to depose to this affidavit.
3. That the Respondent served on the Applicant, its Originating Application dated 1st February, 2012 on 2nd February, 2012.
4. That upon service of this Originating Application, the Applicant instructed its Counsel – Messrs Layi Babatunde (SAN) & Co., to respond to same.
5. That in prosecuting the Applicant’s assignment and in a bid to bring up a defence to the Respondent’s Originating Application, the Applicant’s Lead Counsel was constrained to review the bundle of documents made available to him by the Applicant and which documents are relevant to the transactions subject matter of this suit.
6. That the said review requires time to undertake to enable Counsel bring up a credible Defence.
7. That upon completion, the Applicant filed his Memorandum of Conditional Appearance and Counter Affidavit on 02/07/12 and 10/09/12 respectively, albeit out of time. Attached as EXHIBIT LB1 are copies of the aforesaid processes.
8. That the Applicant has paid the default fees for the late filling of the said Memorandum of Appearance and Counter Affidavit. Attached as EXHIBIT LB2 is the copy of the Revenue Receipt
9. That having filed out of time, the leave of the Honourable Court is required to regularize the Applicant’s processes in this matter.
10. That the delay occasioned in filing the Applicant’s processes is not out of disrespect to this Honourable Court but for reason averred in paragraphs 5 and 6 above.
11. That it will serve the interest of justice if this Application is granted as same will not prejudice the Respondent in any way.
12. That I depose to this Affidavit in good faith.
…..…………………………
DEPONENT
SWORN to at the Federal
High Court Registry, Ikoyi, this
……….day of……………………….2012.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO. FHC/L/CS/75/2012
BETWEEN
OCEANIC HOMES SAVINGS & LOANS LTD ………… RESPONDENT
AND
SURU WORLDWIDE VENTURES NIG. LTD ………… APPLICANT
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 7 RULE 1(1)(3) AND ORDER 48 RULE 4 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT.
TAKE NOTICE that this Honourable Court will be moved on …………….. day of …………. 2012 at the Hour of 9 ‘O’ clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Applicant for:
1. AN ORDER of this Honourable Court extending time within which the Applicant may file and serve its Memorandum of Appearance and his Counter Affidavit filed on 2nd July, 2012 and 10th September, 2012 respectively.
2. AN ORDER of the Honourable Court deeming as properly filed and served the aforesaid processes.
AND for such further order as this Honourable Court may deem fit to make in the circumstance of the suit.
Dated ………………….. day of ………………..……. 2012
BETWEEN
OCEANIC HOMES SAVINGS & LOANS LTD ………… RESPONDENT
AND
SURU WORLDWIDE VENTURES NIG. LTD ………… APPLICANT
AFFIDAVIT IN SUPPORT OF THE MOTION ON NOTICE
I, Anthony Aregbe, Male, Christian, Legal Practitioner of 1A, Gbemi Oluwa Close, off Sule Abuka Crescent, Opebi, Ikeja Lagos State do hereby make oath and state as follows:
1. I am a Legal Practitioner in the Law firm of Messrs (SAN) & Co., Counsel to the Applicant in this matter, and by virtue of my position I am conversant with the facts of the case.
2. That I have the consent and authority of the Applicant and that of my employer to depose to this affidavit.
3. That the Respondent served on the Applicant, its Originating Application dated 1st February, 2012 on 2nd February, 2012.
4. That upon service of this Originating Application, the Applicant instructed its Counsel – Messrs Layi Babatunde (SAN) & Co., to respond to same.
5. That in prosecuting the Applicant’s assignment and in a bid to bring up a defence to the Respondent’s Originating Application, the Applicant’s Lead Counsel was constrained to review the bundle of documents made available to him by the Applicant and which documents are relevant to the transactions subject matter of this suit.
6. That the said review requires time to undertake to enable Counsel bring up a credible Defence.
7. That upon completion, the Applicant filed his Memorandum of Conditional Appearance and Counter Affidavit on 02/07/12 and 10/09/12 respectively, albeit out of time. Attached as EXHIBIT LB1 are copies of the aforesaid processes.
8. That the Applicant has paid the default fees for the late filling of the said Memorandum of Appearance and Counter Affidavit. Attached as EXHIBIT LB2 is the copy of the Revenue Receipt
9. That having filed out of time, the leave of the Honourable Court is required to regularize the Applicant’s processes in this matter.
10. That the delay occasioned in filing the Applicant’s processes is not out of disrespect to this Honourable Court but for reason averred in paragraphs 5 and 6 above.
11. That it will serve the interest of justice if this Application is granted as same will not prejudice the Respondent in any way.
12. That I depose to this Affidavit in good faith.
…..…………………………
DEPONENT
SWORN to at the Federal
High Court Registry, Ikoyi, this
……….day of……………………….2012.
BEFORE ME
COMMISSIONER FOR OATHS
Claimant who resides in Nigeria is one of the Executors and Trustee of the Last Will
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: ……………………….
BETWEEN:
(1) DR MICHAEL BOLADE AKERELE
(2) MR. WENCESLAUS KOSHONIOLA AKERELE CLAIMANTS
AND
1. CHIEF MRS V.O. COKER
2. MR. BABAJIDE COKER
(carrying on business as Impey & Coker) - DEFENDANTS
3. MESSRS GKS REAL PROPERTIES LIMITED
STATEMENT OF CLAIM
1. The 1st Claimant is one of the named beneficiaries of the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased) who died testate on the 28th day of July, 1987.
2. The 2nd Claimant who resides in Nigeria is one of the Executors and Trustee of the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased).
3. The 1st Defendant is an Executrix of the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased).
4. The 2nd Defendant is the grandson of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased) and a legal practitioner carrying on business as Impey & Coker.
5. The 3rd Defendant is a Limited Liability Company that purportedly bought the subject property comprising of 2 No tenement building of 10 rooms and 4 rooms respectively and a single storey 2 bedroom apartment at No 2, Ayilara Street, Ojuelegba, Lagos without probate.
6. The Claimants aver that the late Chief Dr. Flavious Abiola Akerele had Six Children from his beloved wife late chief Mrs. Virginia Iyabode Olatilewa Akerele namely: Mrs Virginia Obafunke Coker, Dr. Flavious Abiola Babajide Akerele, Ms. Theresa Olayinka Akerele, Mr Wenceslaus Koshoniola Akerele, Dr Michael Bolade Akerele and Mr Domingo Bodunrin Akerele of which the Claimants are the 2nd and 4th Children respectively while the 1st Defendant is the 1st Child.
7. Both the 2nd Claimant and the Defendants along with one other child of the deceased who resides in the USA; are executors of the last will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief Dr. F. A. Akerele (deceased) who died testate on 28th day of July, 1987.
8. That one of the properties of the deceased and of which the Claimants are beneficiaries as Tenants-in-common is No 2, Ayilara Street, Surulere, Lagos. The Testator’s Will concerning the said property provide as follows:
“the Property at No. 2 Ayilara Street, Surulere, Lagos State to my Children by my wife Mrs. Virginia Iyabode Akerele as tenants in common”
9. The Claimants aver that the Defendant independently obtained probate in her sole name concerning the said property and caused same to be sold without recourse to the Claimants.
10. The Claimants aver that it is inappropriate and incompetent at Law of the Defendant to single handedly obtain probate to the said property in her sole name even when the 2nd Claimant was available within Jurisdiction and willing to act as executor.
11. The Claimants aver further to the above that the 1st Defendant lacks the vires nor legal capacity to act alone and cannot be acting alone being the Estate of the deceased testator by her unilateral dispositions of the testator’s estate i.e No 2 Ayilara Street, Surulere which is vested on the testator’s children including the Claimants as Tenants-in-common.
12. The Claimants further aver that being beneficiaries of No. 2 Ayilara Street Surulere, Lagos which is held as Tenants-in-common the unilateral disposal of the said property by the Defendant cannot but be void having discountenanced the interest of the Claimants.
13. However without probate, the 2nd Defendant by letter dated 16th November, 2010 informed the 2nd Claimant that the property was sold to Messrs GKS Real Properties Limited for the sum of N25,000,000.00 (Twenty Five Million Naira). The letter dated 16th November, 2010 is hereby pleaded.
14. The Claimants aver that when the probate was obtained on the 17th day of October, 2013 and on a perusal of the said probate, it was observed that the administration of the Real and Personal Property of the Estate of Chief (Dr.) Flavious Abiola Akerele (Deceased) was granted by the High Court of Lagos State to the 1st Defendant alone based on the fraudulent misrepresentation of facts by the 1st Defendant to the High Court of Lagos State.
PARTICULARS OF FRAUD
(i) As at when the 1st Defendant submitted the application form for probate to the High Court of Lagos State, the 2nd Claimant, resided in Nigeria.
(ii) From when the Application form for probate was processed up till when the Probate was eventually obtained, the 2nd Claimant resided in Nigeria.
(iii) The 2nd Claimant is always residing in Nigeria and is presently residing in Nigeria.
(iv) The attention of the 1st and 2nd Claimants was never drawn to the application for probate by the 1st Defendant.
(v) The consent of the Claimants were not sought and obtained by the 1st Defendant before and after the application form for Probate was submitted.
(vi) Therefore, the statement “power being reserved for the 2nd Executor Dr. Flavious Abiola Babajide Akerele and 4th Executor Mr. W. K. Akerele who both reside abroad to apply for similar grant on return to Nigeria” on the probate No. PHC/25,912was fraudulently inserted so as to shut out the Claimants who are also Executors of the last Will of Chief (Dr.) Flavious Abiola Akerele (Deceased) from being named as the administrators of the real and personal properties of the Deceased.
15. WHEREOF, the Claimants claim against the Defendants jointly and severally as follows:
(i) A Declaration that the issuance and grant of probate No. PHC/25,912 to Mrs. V. O. Coker concerning the last Will of Chief (Dr.) Flavious Abiola Akerele (Deceased) and power being reserved for the 2nd Executor Dr. Flavious Abiola Babajide Akerele and 4th Executor, Mr. W. K. Akerele purportedly said to both resided abroad whereas the said Executor, Mr. W. K. Akerele was residing in Nigeria at the material time of the application and issuance of the probate and is still residing in Nigeria, is unlawful in every circumstance.
(ii) A Declaration that the sale of the subject property comprising of 2 No tenement building of 10 rooms and 4 rooms respectively, and a single storey 2 bedroom apartment at No. 2 Ayilara Street, Ojuelegba before the grant of Probate No PHC/25,912 to Mrs V. O. Coker listing the said subject property and seeking to regularise the purported earlier sale is invalid and unlawful.
(iii) AN ORDER of the Honourable Court setting aside the grant of Probate No. PHC/25,912 concerning the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. Akerele (Deceased) as same was fraudulently obtained without the consent and approval of other Executors of the last Will of Chief (Dr.) Flavious Abiola Akerele (Deceased).
(iv) AN ORDER of the Honourable Court setting aside the fraudulent, invalid and unlawful sale of the subject property comprising of 2 No Tenement Building of 10 rooms and 4 rooms respectively and a single storey 2 bedroom apartment at No 2 Ayilara Street, Ojuelegba, subject property listed in Probate No. PHC/25,912 issued to Mrs. V. O. Coker concerning the Last Will of Chief (Dr.) F. A. Akerele (deceased).
(v) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, either by themselves or through their agents, men, servants, privies and/or officers howsoever described from selling, leasing, assigning or dealing in the subject property comprising of 2 No tenement building of 10 rooms and 4 rooms respectively and a Single Storey 2 bedroom apartment at No 2 Ayilara Street, Ojuelegba , Lagos without the consent and approval of the Claimants herein.
Dated this …………………… day of ………………………….. 2015
_
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: ……………………….
BETWEEN:
(1) DR MICHAEL BOLADE AKERELE
(2) MR. WENCESLAUS KOSHONIOLA AKERELE CLAIMANTS
AND
1. CHIEF MRS V.O. COKER
2. MR. BABAJIDE COKER
(carrying on business as Impey & Coker) - DEFENDANTS
3. MESSRS GKS REAL PROPERTIES LIMITED
STATEMENT OF CLAIM
1. The 1st Claimant is one of the named beneficiaries of the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased) who died testate on the 28th day of July, 1987.
2. The 2nd Claimant who resides in Nigeria is one of the Executors and Trustee of the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased).
3. The 1st Defendant is an Executrix of the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased).
4. The 2nd Defendant is the grandson of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele (Deceased) and a legal practitioner carrying on business as Impey & Coker.
5. The 3rd Defendant is a Limited Liability Company that purportedly bought the subject property comprising of 2 No tenement building of 10 rooms and 4 rooms respectively and a single storey 2 bedroom apartment at No 2, Ayilara Street, Ojuelegba, Lagos without probate.
6. The Claimants aver that the late Chief Dr. Flavious Abiola Akerele had Six Children from his beloved wife late chief Mrs. Virginia Iyabode Olatilewa Akerele namely: Mrs Virginia Obafunke Coker, Dr. Flavious Abiola Babajide Akerele, Ms. Theresa Olayinka Akerele, Mr Wenceslaus Koshoniola Akerele, Dr Michael Bolade Akerele and Mr Domingo Bodunrin Akerele of which the Claimants are the 2nd and 4th Children respectively while the 1st Defendant is the 1st Child.
7. Both the 2nd Claimant and the Defendants along with one other child of the deceased who resides in the USA; are executors of the last will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief Dr. F. A. Akerele (deceased) who died testate on 28th day of July, 1987.
8. That one of the properties of the deceased and of which the Claimants are beneficiaries as Tenants-in-common is No 2, Ayilara Street, Surulere, Lagos. The Testator’s Will concerning the said property provide as follows:
“the Property at No. 2 Ayilara Street, Surulere, Lagos State to my Children by my wife Mrs. Virginia Iyabode Akerele as tenants in common”
9. The Claimants aver that the Defendant independently obtained probate in her sole name concerning the said property and caused same to be sold without recourse to the Claimants.
10. The Claimants aver that it is inappropriate and incompetent at Law of the Defendant to single handedly obtain probate to the said property in her sole name even when the 2nd Claimant was available within Jurisdiction and willing to act as executor.
11. The Claimants aver further to the above that the 1st Defendant lacks the vires nor legal capacity to act alone and cannot be acting alone being the Estate of the deceased testator by her unilateral dispositions of the testator’s estate i.e No 2 Ayilara Street, Surulere which is vested on the testator’s children including the Claimants as Tenants-in-common.
12. The Claimants further aver that being beneficiaries of No. 2 Ayilara Street Surulere, Lagos which is held as Tenants-in-common the unilateral disposal of the said property by the Defendant cannot but be void having discountenanced the interest of the Claimants.
13. However without probate, the 2nd Defendant by letter dated 16th November, 2010 informed the 2nd Claimant that the property was sold to Messrs GKS Real Properties Limited for the sum of N25,000,000.00 (Twenty Five Million Naira). The letter dated 16th November, 2010 is hereby pleaded.
14. The Claimants aver that when the probate was obtained on the 17th day of October, 2013 and on a perusal of the said probate, it was observed that the administration of the Real and Personal Property of the Estate of Chief (Dr.) Flavious Abiola Akerele (Deceased) was granted by the High Court of Lagos State to the 1st Defendant alone based on the fraudulent misrepresentation of facts by the 1st Defendant to the High Court of Lagos State.
PARTICULARS OF FRAUD
(i) As at when the 1st Defendant submitted the application form for probate to the High Court of Lagos State, the 2nd Claimant, resided in Nigeria.
(ii) From when the Application form for probate was processed up till when the Probate was eventually obtained, the 2nd Claimant resided in Nigeria.
(iii) The 2nd Claimant is always residing in Nigeria and is presently residing in Nigeria.
(iv) The attention of the 1st and 2nd Claimants was never drawn to the application for probate by the 1st Defendant.
(v) The consent of the Claimants were not sought and obtained by the 1st Defendant before and after the application form for Probate was submitted.
(vi) Therefore, the statement “power being reserved for the 2nd Executor Dr. Flavious Abiola Babajide Akerele and 4th Executor Mr. W. K. Akerele who both reside abroad to apply for similar grant on return to Nigeria” on the probate No. PHC/25,912was fraudulently inserted so as to shut out the Claimants who are also Executors of the last Will of Chief (Dr.) Flavious Abiola Akerele (Deceased) from being named as the administrators of the real and personal properties of the Deceased.
15. WHEREOF, the Claimants claim against the Defendants jointly and severally as follows:
(i) A Declaration that the issuance and grant of probate No. PHC/25,912 to Mrs. V. O. Coker concerning the last Will of Chief (Dr.) Flavious Abiola Akerele (Deceased) and power being reserved for the 2nd Executor Dr. Flavious Abiola Babajide Akerele and 4th Executor, Mr. W. K. Akerele purportedly said to both resided abroad whereas the said Executor, Mr. W. K. Akerele was residing in Nigeria at the material time of the application and issuance of the probate and is still residing in Nigeria, is unlawful in every circumstance.
(ii) A Declaration that the sale of the subject property comprising of 2 No tenement building of 10 rooms and 4 rooms respectively, and a single storey 2 bedroom apartment at No. 2 Ayilara Street, Ojuelegba before the grant of Probate No PHC/25,912 to Mrs V. O. Coker listing the said subject property and seeking to regularise the purported earlier sale is invalid and unlawful.
(iii) AN ORDER of the Honourable Court setting aside the grant of Probate No. PHC/25,912 concerning the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. Akerele (Deceased) as same was fraudulently obtained without the consent and approval of other Executors of the last Will of Chief (Dr.) Flavious Abiola Akerele (Deceased).
(iv) AN ORDER of the Honourable Court setting aside the fraudulent, invalid and unlawful sale of the subject property comprising of 2 No Tenement Building of 10 rooms and 4 rooms respectively and a single storey 2 bedroom apartment at No 2 Ayilara Street, Ojuelegba, subject property listed in Probate No. PHC/25,912 issued to Mrs. V. O. Coker concerning the Last Will of Chief (Dr.) F. A. Akerele (deceased).
(v) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, either by themselves or through their agents, men, servants, privies and/or officers howsoever described from selling, leasing, assigning or dealing in the subject property comprising of 2 No tenement building of 10 rooms and 4 rooms respectively and a Single Storey 2 bedroom apartment at No 2 Ayilara Street, Ojuelegba , Lagos without the consent and approval of the Claimants herein.
Dated this …………………… day of ………………………….. 2015
_
RESPONDENTS’ COUNTER AFFIDAVIT AGAINST THE APPLICANT’S MOTION ON NOTICE DATED 19TH JULY, 2012
IN THE COURT OF APPEAL
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/962/2011
BETWEEN:
EMIRATES (Trading as Emirates Airlines) …… APPELLANT/APPLICANT
AND
1. MR. HENRY OMATSOLA ARAGHO
2. MRS. ROSALINE AMAJU ARAGHO
3. MASTER HENRY UTSEORITSELAJU ARAGHO ... RESPONDENTS
((An infant) suing by his- next of friend
Mr. Henry Omatsola Aragho)
4. MR. EMMANUEL ORU
5. MRS. MAGDALENE ADA IKOMI-ORU
RESPONDENTS’ COUNTER AFFIDAVIT AGAINST THE APPLICANT’S MOTION ON NOTICE DATED 19TH JULY, 2012
I, Mr. Henry Omatsola Aragho, Male, Christian, Nigerian of 7th Floor NIPOST Building Lafiaji Obalende, Lagos, hereby make Oath and state as follows:
1. That I am the 1st Respondent in this Application and have attended every proceedings before the trial Court in this suit.
2. That I have the consent and authority of other Respondents to depose to this Counter Affidavit.
3. That by virtue of my position I am very familiar with all the facts herein deposed to.
4. That I have seen and read the Affidavit in support of the Applicant’s Motion on Notice dated 23rd July, 2012.
5. That the Depositions in the Applicant’s Affidavit in support of this Application are not correct.
6. That the Writ of Summons, the Statement of Claim and other frontloaded processes in this suit were filed at the Court below on the 12th day of August, 2011.
7. That after the Ruling of the Court below on the 14th May, 2012, which Ruling is the subject matter of this application, trial continued in this suit at the Court below.
8. That the parties concluded giving evidence in this Suit on 12th day of June, 2013 and the Court below adjourned to 3rd October, 2013 for adoption of Final Written Address.
9. That instead of the Applicant filing its Final Address as ordered by the Court, it brought an application dated 5th September, 2013 praying the Court to allow it recall it’s Witness to tender a document.
10. That the Application was opposed by my Counsel as a ploy to delay the proceedings and increase parties cost and waste the time of the Court.
11. That Ruling on that Application is adjourned to 1st November, 2013 .
12. That but for the attitude of the Applicant, this matter would have proceeded to Judgment at the Court below.
13. That the time of this Honourable Court will be saved where this Application is refused and the Applicant await the outcome of the Final Judgment of the Court below in this suit.
14. That I verily believe in the circumstance that the issue covered by the Appeal can be raised in the substantive Appeal were Judgment to go against the Appellant.
15. That I was informed by Monday Udoh Esq; Counsel in the Chambers of Layi Babatunde (SAN) & Co, the Respondents’ Counsel, on the 2nd day of October, 2013 at 3:00pm in the Chambers meeting to review this case and I verily believe him as follows:
(a) That the facts contained in the Applicant’s Affidavit in Support of this Application does not disclose any good and substantial reasons as envisaged by the Rules of this Honourable Court in explaining the delay.
(b) That where any of the parties is dissatisfied with the outcome of the Final Judgment in this suit, such a party can appeal against the Final Judgment in which the issue which is the subject matter of this Application can still be conveniently dealt with.
(c) That this Honourable Court in the circumstance being a very busy Court ought to be saved this interlocutory Appeal; the non hearing of which does no harm to the Applicant.
16. That this Appeal will occasion delay in the proceedings and increase our cost as Plaintiffs unnecessarily and avoidably.
17. That I verily believe that it is in the best interest of Justice that this Honourable Court refuse this Application.
18. That I depose to this Counter Affidavit in good faith and in accordance with the Oath Act.
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/962/2011
BETWEEN:
EMIRATES (Trading as Emirates Airlines) …… APPELLANT/APPLICANT
AND
1. MR. HENRY OMATSOLA ARAGHO
2. MRS. ROSALINE AMAJU ARAGHO
3. MASTER HENRY UTSEORITSELAJU ARAGHO ... RESPONDENTS
((An infant) suing by his- next of friend
Mr. Henry Omatsola Aragho)
4. MR. EMMANUEL ORU
5. MRS. MAGDALENE ADA IKOMI-ORU
RESPONDENTS’ COUNTER AFFIDAVIT AGAINST THE APPLICANT’S MOTION ON NOTICE DATED 19TH JULY, 2012
I, Mr. Henry Omatsola Aragho, Male, Christian, Nigerian of 7th Floor NIPOST Building Lafiaji Obalende, Lagos, hereby make Oath and state as follows:
1. That I am the 1st Respondent in this Application and have attended every proceedings before the trial Court in this suit.
2. That I have the consent and authority of other Respondents to depose to this Counter Affidavit.
3. That by virtue of my position I am very familiar with all the facts herein deposed to.
4. That I have seen and read the Affidavit in support of the Applicant’s Motion on Notice dated 23rd July, 2012.
5. That the Depositions in the Applicant’s Affidavit in support of this Application are not correct.
6. That the Writ of Summons, the Statement of Claim and other frontloaded processes in this suit were filed at the Court below on the 12th day of August, 2011.
7. That after the Ruling of the Court below on the 14th May, 2012, which Ruling is the subject matter of this application, trial continued in this suit at the Court below.
8. That the parties concluded giving evidence in this Suit on 12th day of June, 2013 and the Court below adjourned to 3rd October, 2013 for adoption of Final Written Address.
9. That instead of the Applicant filing its Final Address as ordered by the Court, it brought an application dated 5th September, 2013 praying the Court to allow it recall it’s Witness to tender a document.
10. That the Application was opposed by my Counsel as a ploy to delay the proceedings and increase parties cost and waste the time of the Court.
11. That Ruling on that Application is adjourned to 1st November, 2013 .
12. That but for the attitude of the Applicant, this matter would have proceeded to Judgment at the Court below.
13. That the time of this Honourable Court will be saved where this Application is refused and the Applicant await the outcome of the Final Judgment of the Court below in this suit.
14. That I verily believe in the circumstance that the issue covered by the Appeal can be raised in the substantive Appeal were Judgment to go against the Appellant.
15. That I was informed by Monday Udoh Esq; Counsel in the Chambers of Layi Babatunde (SAN) & Co, the Respondents’ Counsel, on the 2nd day of October, 2013 at 3:00pm in the Chambers meeting to review this case and I verily believe him as follows:
(a) That the facts contained in the Applicant’s Affidavit in Support of this Application does not disclose any good and substantial reasons as envisaged by the Rules of this Honourable Court in explaining the delay.
(b) That where any of the parties is dissatisfied with the outcome of the Final Judgment in this suit, such a party can appeal against the Final Judgment in which the issue which is the subject matter of this Application can still be conveniently dealt with.
(c) That this Honourable Court in the circumstance being a very busy Court ought to be saved this interlocutory Appeal; the non hearing of which does no harm to the Applicant.
16. That this Appeal will occasion delay in the proceedings and increase our cost as Plaintiffs unnecessarily and avoidably.
17. That I verily believe that it is in the best interest of Justice that this Honourable Court refuse this Application.
18. That I depose to this Counter Affidavit in good faith and in accordance with the Oath Act.
HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT
NO: ……………………….
BETWEEN:
(1) DR MICHAEL BOLADE AKERELE
(2) MR. WENCESLAUS KOSHONIOLA AKERELE
CLAIMANTS
AND
1. CHIEF MRS V.O. COKER
2. MR. BABAJIDE COKER
(carrying
on business as Impey & Coker) - DEFENDANTS
3. MESSRS GKS REAL PROPERTIES LIMITED
STATEMENT OF CLAIM
1.
The 1st Claimant is one of the named beneficiaries of the Last
Will of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F.
A. Akerele (Deceased) who died testate on the 28th day of July,
1987.
2.
The 2nd Claimant who resides in Nigeria is one of the Executors
and Trustee of the Last Will of Chief (Dr.) Flavious Abiola Akerele
(otherwise known as Chief (Dr.) F. A. Akerele (Deceased).
3.
The 1st Defendant is an Executrix of the Last Will of Chief
(Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.) F. A. Akerele
(Deceased).
4.
The 2nd Defendant is the
grandson of Chief (Dr.) Flavious Abiola Akerele (otherwise known as Chief (Dr.)
F. A. Akerele (Deceased) and a legal practitioner carrying on business as Impey & Coker.
5.
The 3rd Defendant is a
Limited Liability Company that purportedly bought the subject property comprising
of 2 No tenement building of 10 rooms and 4 rooms respectively and a single
storey 2 bedroom apartment at No 2, Ayilara Street, Ojuelegba, Lagos without
probate.
6.
The Claimants aver that the late Chief
Dr. Flavious Abiola Akerele had Six Children from his beloved wife late chief
Mrs. Virginia Iyabode Olatilewa Akerele namely: Mrs Virginia Obafunke Coker,
Dr. Flavious Abiola Babajide Akerele, Ms. Theresa Olayinka Akerele, Mr
Wenceslaus Koshoniola Akerele, Dr Michael Bolade Akerele and Mr Domingo Bodunrin
Akerele of which the Claimants are the 2nd and 4th
Children respectively while the 1st Defendant is the 1st
Child.
7. Both the 2nd Claimant
and the Defendants along with one other child of the deceased who resides in
the USA; are executors of the last will of Chief (Dr.) Flavious Abiola Akerele
(otherwise known as Chief Dr. F. A. Akerele (deceased) who died testate on 28th
day of July, 1987.
8. That one of the properties of the
deceased and of which the Claimants are beneficiaries as Tenants-in-common is
No 2, Ayilara Street, Surulere, Lagos. The Testator’s Will concerning the said
property provide as follows:
“the
Property at No. 2 Ayilara Street, Surulere, Lagos State to my Children by my
wife Mrs. Virginia Iyabode Akerele as tenants in common”
9. The Claimants aver that the
Defendant independently obtained probate in her sole name concerning the said
property and caused same to be sold without recourse to the Claimants.
10.The Claimants aver that it is
inappropriate and incompetent at Law of the Defendant to single handedly obtain
probate to the said property in her sole name even when the 2nd
Claimant was available within Jurisdiction and willing to act as executor.
11.The Claimants aver further to the
above that the 1st Defendant lacks the vires nor legal capacity to
act alone and cannot be acting alone being the Estate of the deceased testator
by her unilateral dispositions of the testator’s estate i.e No 2 Ayilara
Street, Surulere which is vested on the testator’s children including the
Claimants as Tenants-in-common.
12.The Claimants further aver that
being beneficiaries of No. 2 Ayilara Street Surulere, Lagos which is held as
Tenants-in-common the unilateral disposal of the said property by the Defendant
cannot but be void having discountenanced the interest of the Claimants.
13. However
without probate, the 2nd Defendant by letter dated 16th
November, 2010 informed the 2nd Claimant that the property was sold
to Messrs GKS Real Properties Limited for the sum of N25,000,000.00 (Twenty
Five Million Naira). The letter dated 16th November, 2010 is hereby
pleaded.
14. The
Claimants aver that when the probate was obtained on the 17th day of
October, 2013 and on a perusal of the said probate, it was observed that the
administration of the Real and Personal Property of the Estate of Chief (Dr.)
Flavious Abiola Akerele (Deceased) was granted by the High Court of Lagos State
to the 1st Defendant alone based on the fraudulent misrepresentation
of facts by the 1st Defendant to the High Court of Lagos State.
PARTICULARS
OF FRAUD
(i)
As at when the 1st
Defendant submitted the application form for probate to the High Court of Lagos
State, the 2nd Claimant, resided in Nigeria.
(ii) From
when the Application form for probate was processed up till when the Probate
was eventually obtained, the 2nd Claimant resided in Nigeria.
(iii) The
2nd Claimant is always residing in Nigeria and is presently residing
in Nigeria.
(iv)The attention
of the 1st and 2nd Claimants was never drawn to the
application for probate by the 1st Defendant.
(v) The
consent of the Claimants were not sought and obtained by the 1st
Defendant before and after the application form for Probate was submitted.
(vi)Therefore, the
statement “power being reserved for the 2nd Executor Dr. Flavious
Abiola Babajide Akerele and 4th Executor Mr. W. K. Akerele who both
reside abroad to apply for similar grant on return to Nigeria” on the probate
No. PHC/25,912was fraudulently inserted so as to shut out the Claimants who are
also Executors of the last Will of Chief (Dr.) Flavious Abiola Akerele
(Deceased) from being named as the administrators of the real and personal
properties of the Deceased.
15. WHEREOF,
the Claimants claim against the Defendants jointly and severally as follows:
(i) A Declaration that the issuance and grant of probate
No. PHC/25,912 to Mrs. V. O. Coker concerning the last Will of Chief (Dr.)
Flavious Abiola Akerele (Deceased) and power being reserved for the 2nd
Executor Dr. Flavious Abiola Babajide Akerele and 4th Executor, Mr.
W. K. Akerele purportedly said to both resided abroad whereas the said
Executor, Mr. W. K. Akerele was residing in Nigeria at the material time of the
application and issuance of the probate and is still residing in Nigeria, is
unlawful in every circumstance.
(ii)
A Declaration that the sale of the
subject property comprising of 2 No tenement building of 10 rooms and 4 rooms
respectively, and a single storey 2 bedroom apartment at No. 2 Ayilara Street,
Ojuelegba before the grant of Probate No PHC/25,912 to Mrs V. O. Coker listing
the said subject property and seeking to regularise the purported earlier sale
is invalid and unlawful.
(iii) AN ORDER of
the Honourable Court setting aside the grant of Probate No. PHC/25,912
concerning the Last Will of Chief (Dr.) Flavious Abiola Akerele (otherwise
known as Chief (Dr.) F. Akerele (Deceased) as same was fraudulently obtained
without the consent and approval of other Executors of the last Will of Chief
(Dr.) Flavious Abiola Akerele (Deceased).
(iv) AN ORDER of
the Honourable Court setting aside the fraudulent, invalid and unlawful sale of
the subject property comprising of 2 No Tenement Building of 10 rooms and 4
rooms respectively and a single storey 2 bedroom apartment at No 2 Ayilara
Street, Ojuelegba, subject property listed in Probate No. PHC/25,912 issued to
Mrs. V. O. Coker concerning the Last Will of Chief (Dr.) F. A. Akerele
(deceased).
(v) AN ORDER OF PERPETUAL INJUNCTION restraining
the Defendants, either by themselves or through their agents, men, servants,
privies and/or officers howsoever described from selling, leasing, assigning or
dealing in the subject property comprising of 2 No tenement building of 10
rooms and 4 rooms respectively and a Single Storey 2 bedroom apartment at No 2
Ayilara Street, Ojuelegba , Lagos without the consent and approval of the
Claimants herein.
Dated
this …………………… day of ………………………….. 2015
___________________________
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