By Adebisi Onanuga
The suit filed by the Trustees of the Estate of late Madam Iyalode Efunroye Tinubu at the Court of Appeal Lagos challenging the decision of Justice Wasiu Animashaun of a Lagos High Court, on a disputed Ijora land was stalled due to the absence of the Justices of the Appellate Court.
The hearing could not go on as scheduled in the matter because the date coincided with the day set aside for the valedictory session organised in honour of the retired Court of Appeal President, Justice Zainab Bulkachuwa in Lagos.
Justice Bulkachuwa, had on March 6, 2020 retired from the bench having attained the statutory mandatory retirement age of 70 years.
Justice Animahaun had in his ruling delivered on January 23, 2019 dismissed the appellant’s counter claim filed on June 8, 2017 in suit N0, M/5/2009 on the ground that it was an abuse of court process.
Dissatisfied with the lower court’s ruling, the Trustees had through their lawyer, Ayoyinka Roberts filed the appeal, prayng the court to set aside the entire ruling of the lower court made on January 23, dismissing the appellant’s counter claim filed on June 8, 2017 in suit N0, M/5/2009.
In the appeal marked CA/LAG/CV/589/2019 and filed through their attorney, Adamakin Investment and Work Limited, the Trustees, is also praying the court for an order reinstating to the cause list of the lower court, the counter-claim in the same suit dismissed by the lower court.
They are praying the court for an order for the trial of their counter claim before another court within the same jurisdiction as constituted before the lower court.
In a 12-paragrahs affidavit in support of the appeal and deposed to by one Ayoyinka Roberts, a legal practitioner of Reliance Solicitors, Lagos, the Trustees also prayed the Appellate Court to stay further proceeding on the matter pending the determination of the appeal, stressing that taking further proceeding in the matter will foist a situation of helplessness on the court of appeal and render the appeal nugatory.
According to the appellant, the lower court erred in law when it decided that their counter claim was an abuse of court process despite acknowledging that the counter claim in the suit before him was the earlier in time.
They also contended that the lower court erred in law when it held that they are precluded from bringing an action against Oba Abdul-Fatai Aremu Aromire, Chief Fatai Adio Suleiman, Prince Olayiwola Oluwa, (5th to 7th respondents), following the provision of section 16 of the limitation law (Cap L67) Laws of Lagos State by stating that for the 37 years of litigation before competent court of law, forms part of the limitation period against them despite acknowledging that the said litigation ended with the supreme court’s judgment delivered on April 3, 2009.
They further argued that the trial court erred in law when it dismissed their counter claim in its entirety notwithstanding the fact that the appellant has a counter claim against the Adeyemi Olusina Savage, Mrs. Roseline Yeside Roberts, Kolawole Akinleye Savage, the first and third respondents whose parcel of land falls outside the purview of the land owned by the 5th- 7th respondent following the interpretation of the composite plan drawn by the office of the surveyor general and which report was dated January 31, 2018.
But the respondents averred that the counter claimant’s action was an attempt to reopen the issue litigated upon in the previous suit, which amounted to abuse of court process.
They argued that the counter claimant and 6th defendant in the suit are caught by the principle of Estoppel by conduct, having not joined the previous suit that lasted 37 years in court, despite having constructive notice of the pendency of the suit.
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