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Tag: Court

  • Family asks court to set aside consent judgment on father’s estate

    Family asks court to set aside consent judgment on father’s estate

    Children of the late Dr Oladipupo Popoola Sogbetun have approached a Lagos High Court, Igbosere, for an  order to set aside the consent judgment entered by Justice Oluyinka Gbajabiamila on October 5, 2010.

    The children, who alleged fraud in the process of securing the consent judgment,  also asked the court to set aside  steps taken concerning  their late father’s estate.

    Some of them, who are claimant in the suit are , Mrs Bolaji Delano; Mrs Omolara Bamgbose; Mrs Foluso Ishola; Ms Sumbo Sogbetun and Ms Debola Sogbetun.

    Joined as defendants are: Ms Adeola Sogbetun (first defendant); Mr Osokayode Sogbetun (second defendant); Barin Epega&Co (third defendant)  and Probate Registrar (fourthdefendant). They also included anyone acting through defendants, or on their behalf, to deposit in court the title documents of all properties forming part of the estate of late Dr  Sogbetun.

    The consent judgment, which they want the court  to set aside, provided that the estate of the deceased should be wound up and all the properties( excluding those expressly mentioned) sold and proceeds from the said sale shared equally amongst the beneficiaries named in the Will dated August 17, 1979 upon, which Probate NO. PHC/27574 dated November 15,1996, was granted by the High Court of Lagos State.

    The judgment amongst others provided that the joint firms of Clarks & Moore and Yinka Mosanya & Co (counsel to all parties) shall, in relation to the estate, deal with all legal matters in Nigeria and all title documents to the properties be handed over to the Solicitors for safekeeping

    In a motion on notice brought pursuant to Order 39 of the Lagos State Civil Procedure Rules 2012, the claimants/applicants are asking  the court to restrain the defendants/respondents, their privies acting through them or on their behalf, from managing, administering, interfering, dealing or selling/entering into possession of any property forming part of the estate of the deceased pending the determination of the suit.

    The claimants, in the motion filed on August 11, by their counsel, Kennedy Atuenyi of J.D Oloyede’s Law Chambers, want the court to appoint an administrator pendente lite to oversee the estate, pending the determination of the suit.

    They also prayed the court for an order directing the defendants to deposit the title documents of all properties forming part of the estate of the late Dr  Sogbetun in court.

    In an affidavit in support of the motion deposed to by Lateef  Ayeni, a counsel from Oloyede’s chambers, the claimants averred that they, together with the second defendant, had instituted an action against the first defendant, in Suit N0; M/548/07, to seek the court’s intervention and respite to check the wrongful administration and management of their late father’s estate.

    In the earlier suit,  they were represented by the law firm of Clark & Moore as applicants, while  Yinka Mosanya &Co represented  the defendants.

    According to them, both parties were disposed to settling the matter amicably, which resulted  into the purported terms of settlement dated September 20, 2010, prepared by their counsels.

    They, however, contended that the purported  terms, which was filed in court, was at variance with the true intendment of the parties and therefore, alleged it to be a fraud.

    The terms of settlement, according to them, was signed by the claimants’ counsel in that suit without their authorisations and that both parties were not privy to the said terms before the same was filed on their behalf.

    They further contended that the said  terms of settlement was moved to be entered as judgment in that suit by the parties’ counsel without the instruction and/or consent of the claimants,

    They also contended that  the said  terms of settlement was entered as the judgment of the court on October 5, 2010.

    They averred that despite several admonitions by the claimants to the third defendants (Barin Epega &Co) not to go ahead with the sale of the properties comprising the estate of their late father, the third defendant went on with the sale of the properties and has in fact, sold one of the properties at Itire with the collusion of first and second defendants regardless of the claimants herein’s objection to same.

    They, therefore, want a declaration that the consent judgment entered pursuant to the aforesaid  terms of settlement on October 5,2010 by Justice Gbajabiamila in the aforesaid suit No. M/548/07 is null, void and of no effect whatsoever, because it was obtained or procured fraudlently.

    They further want an order of perpetual injunction, amongst others, to restrain the defendants and/or anyone acting through them or on their behalf from managing, administering, interfering, dealing in and/or selling any property, forming part of the estate of late Dr Oladipupo Popoola Sogbetun and a penalty of N1 million against the first, second and third defendants. Also, in a letter to the third defendant, Barin Epega and  Company by the claimants’ counsel,  the law firm was asked to refrain from any further attempt at selling or dealing in properties comprised in the estate pending the outcome of proceedings taking out to nullify the consent judgment.

    The law firm, in its reply dated October 29, 2013, said the facts culminating in the consent judgment as well as an examination of the case filed belied the facts raised by the claimants that  the winding up of the Estate was a germane trust of their instruction to counsel.

     

     

  • Rights violation: Court penalises Nigerian Army, two officials

    The Nigerian Army (NA) and two of its officials have been penalised by a Federal High Court in Lokoja, Kogi State for unjustly detaining a man, Samson Owonla for about two months without presenting before the police or court for information.

    Justice Phoebe Ayua, in a judgment in a fundamental rights enforcement suit marked: FHC/LKJ/CS/02/2014 instituted by Owonola, deprecated the conduct of the Commander, Headquarters Command, Army Records, Chari Maigumeri Barracks, Lokoja, Maj.-Gen Alphonsus Chukwu and Warrant Officer Two, S. A. Ndaji ( sued with the NA) in detaining the applicant for an unspecified crime.

    Ndaji, according to court documents, had engaged the applicant to “wire his house at Otokiti New Layout, behind Mammy Market, Lokoja,” which he did and was paid for his services. Few days later, the house was burgled and the wires stolen.

    The soldier, suspecting that Owonola was behind the theft, led a group of soldiers to arrest him on November 7, last year and had Owonola held in a cell in the Chari Maigumeri Barracks, with a condition that he would only regain freedom should he pay N48,000 being the cost of the stolen wire and what he was paid for installing the wire.

    The respondents held on to the applicant despite letters from his lawyer, Lawrence John and the state’s Police Commissioner, requesting that he either be released to the police or taken before the court. The applicant, who said he was tortured and subjected to degrading treatment while in detention, stated that he was only released by the respondents on January 10 upon being served with court processes.

    The respondents, represented by A. U Olubiyi did not deny detaining the applicant. They claimed to have detained him with the intention of eventually handing him to the police, which has the constitutional power to prosecute for criminal offences.

    They denied any wrong doing, but were unable to establish that, beyond mere suspicion, the applicant stole the wire. They were also unable to state the offence the applicant committed.

    Justice Ayua held that by their conduct, the respondents violated the applicant’s fundamental rights as provided under sessions 34(1), 35(1), (4), (5)(a) and 41 of the Constitution and Articles 4 and 5 of the African Charter on Human and People’s Rights Act.

    “It is the finding of this court, and as deposed in the affidavit in support of this application and also admitted by the respondents in paragraph 4 of their counter affidavit, that the applicant was detained by the respondents in their cell at Army Records, Chari Maigumeri barracks, Lokoja from November 7, 2013 to January 10, 2014 without bringing him to court,” the judge held.

    Justice Ayua further held that even though the respondents could arrest the applicant, they lacked the power to have him detained for over two months. He also held that the respondents failed to adduce any reason to establish the legality of their arrest and detention of the applicant.

    “In my considered opinion therefore, the respondents have failed to show any reasonable grounds for suspecting that the applicant was involved in the alleged criminal offence.

     

     

     

     

  • Court declares compulsory retirement unlawful

    This appeal is against the judgment of the Federal High Court, Abuja Judicial Division (Coram; Oloto, J.) in suit No. FHC/ABJ/CS/277/2011 delivered on December 14, 2012, dismissing the case of the Appellant against the Respondents for unlawful retirement from the service of the 2nd Respondent. The Appellant was transferred from the service of Sokoto State Government to the service of the 2nd Respondent in 1990 and he rose to the rank of Comptroller of Customs. On 21st December 2009, the Appellant, along with 31 other Comptrollers of Customs, was compulsorily retired from the service of the 2nd Respondent. Aggrieved by the turn of events the Appellant, along with another Comptroller, sued the Respondents at the Federal High Court, Abuja Division claiming as follows: a declaration that the purported retirement of the Plaintiff from the services of the 2nd Defendant is unlawful, malicious, irregular and a flagrant violation of the Plaintiff’s right of employment until the mandatory retirement age; an order of the Honourable Court setting aside the purported retirement of the plaintiff by the 1st, 2nd and 4th Defendants through a public notice as unlawful, malicious, irregular and a flagrant violation of the plaintiff’s right of employment until the mandatory retirement age; an order of the Honourable Court to the Defendants allowing the Plaintiffs to resume back to work and maintain their positions as Comptroller of Customs and to be paid all their benefits and emoluments therein and also to enjoy their lawful promotions; and an order awarding the sum of N20, 000,000 (Twenty Million Naira Only) to the Plaintiffs as general damages for the trauma, of forceful loss of job occasioned by the 1st and 2nd Defendants. The trial Court dismissed the case on account of service reform of the 2nd Respondent. Dissatisfied by the turn of events, the Appellant appealed to the Court of Appeal. In his brief of argument, Counsel for the Appellant formulated five issues for the Court’s determination of the appeal and the Respondent formulated two issues. The Court, however, determined the appeal on the issues as formulated by the Respondent. The issues are:

    1. Whether the learned trial judge was right when she held that the appellant was properly retired from the service of the 2nd respondent and accordingly dismissed his suit?

    2. Whether the trial judge was right to hold that the respondents’ witness statements on oath need not be amended notwithstanding the amendment of the statement of defence?”

    The Appellant’s Counsel arguing the appeal referred to the findings of the trial court in its judgment that the Appellant’s retirement in 2010 was premature going by his date of birth and date of retirement and submitted that the trial court misdirected itself in falling back on the policy guidelines on the Nigerian Customs Service Reform.

    It was his submission that it contradicted Section 8 and Chapter 16, Section 1, paragraph 160001 and 160103 of the Nigerian Public Service Rules and Conditions of Service of Nigeria Customs Service. On the question whether the policy guidelines on the reform can be used to circumvent the supremacy of the Public Service Rules 2000 and 1999 Constitution of the Federal Republic of Nigeria and whether the trial judge was right to have arrived at the judgment delivered on December 14, 2012 on the basis of policy guideline on extended 10 years as Comptroller of Customs, counsel submitted that for public policy to be effective, it must operate within the milieu of the law.

    He cited and relied on SONNAR LTD. v. NORDWIND (1987) 4 NWLR (66) 520; (1987) LPELR-3494(SC) and EDET V. CHAGOON (2008) 2 NWLR (1070) 85, 108; (2007) LPELR-8164(CA) to strengthen his submission. It was his further submission that the Appellant’s employment enjoys statutory flavour. On this, he referred to Section 8 paragraph 0200810 (1) of the Public Service Rules and Section 2 paragraph 2 of the Conditions of Service of the Nigerian Customs Service. He finally urged the court to allow the appeal and grant the reliefs of the appellant.

    The Respondent’s Counsel in arguing the appeal affirmed that the learned trial judge was right when she held that the Appellant was properly retired from the service of the 2nd Respondent and accordingly dismissed his suit. He stated that the 4th Defendant is a creation of statute pursuant to Section 1 (1) of the Nigerian Customs Service Board Act, Cap N 100 Laws of the Federation of Nigeria, 2004. Referring to Sections 3 (1) (a) and 4 (2) and (b) of the Act, he submitted that the Board is vested with the power and authority to issue policy guidelines to Reform and Modernise Nigeria Customs Service.

    He noted that as at 21/12/2009 when he was retired, the Appellant had served as a comptroller of customs for over 11 years. It was his further submission that court generally defer to the executive on matters within the exclusive knowledge of that arm of government, particularly on policy matters bordering on national security, environmental interest, economic and revenue issues. He, therefore, asserted that the trial court was right to decline to interfere with the Appellant’s retirement based on the policy guidelines of the 4th Respondent. He urged the court not to interfere with the findings of the trial court.

    In determining the appeal, the court noted that it is a common ground between the parties that the Appellant’s service was transferred from the Sokoto State government to the service of the 2nd Respondent and that the Appellant rose to the position of Comptroller of Customs. It was also common ground that the Appellant was compulsorily retired from service sometime in December, 2009.

    The Court stated that the trial court dismissed the case of the Appellant placing reliance on Exhibit 24- Policy Guidelines on the Nigeria Customs Service Reform. The guidelines were stated to have been made in line with the powers conferred on the 4th Respondent by the Nigerian Customs Service Board Act Cap. 100 and the Customs and Excise Management Act, Laws of the Federation of Nigeria, 2004. The court noted that the 4th Respondent has the power to formulate general policy guidelines for the Nigeria Customs Service. See Section 3 (a) of the Nigerian Customs Service Board Act.

    The court agreed with counsel for the Respondent that the Board had power to issue Exhibit 24- Policy Guidelines on the Nigeria Customs Service Reform. The court further noted that by Chapter 2, Section 8 and paragraph 020810 (1) of the Public Service Rules, the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier and this applies to the 2nd Respondent by virtue of Chapter 16, Section 1, paragraph 160103 and Section 4, paragraph 160401 (a) of the Public Service Rules.

    The Court held that a statement of policy, general or otherwise, cannot overrule or wipe away specific provision of the public service rules especially where such policies are not written into the terms of the contract of the employee, as in the instant case. The Court agreed with Appellant’s counsel that a decision of court based solely on policy, as in this instance, leads to uncertainty in the law. See SONNAR LTD. v. NORDWIND (1987) 4 NWLR (66) 520; (1987) LPELR-3494(SC) and EDET V. CHAGOON (2008) 2 NWLR (1070) 85, 108; (2007) LPELR-8164(CA).

    Examining Exhibit 24- Policy Guidelines on the Nigeria Customs Service Reform the court noted that one of the grounds for recommendation for the disengagement by the Board is in respect of officers, who have served for extended periods of time on the same grade, to allow for the innovative potentials of young and hardworking officers and Exhibit 24 does not set out the exact number of years spent on the same grade to qualify an officer for recommendation for disengagement.

    The court further noted that in paragraph 7 of the amended statement of defence, it was averred that about 30 Comptrollers including the Appellant, who had spent between 10 – 21 years on the same rank of Comptroller, were retired in line with the reform of the service. The court stated that the trial court found that the Appellant was promoted to the rank of comptroller with effect from 15/6/2000. The Appellant was retired on 21/12/2009. And this means that as at the date of his compulsory retirement, he still had about 6 months to clock 10 years as a Comptroller. He was thus not qualified for compulsory retirement going by the criteria used by the 2nd Respondent.

    The Court held that the Appellant’s employment had statutory flavour and so he did not hold office at the pleasure of the 2nd Respondent and his premature retirement was therefore, unlawful, null and void. He is entitled to be re-instated in the service. See IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2006) 133 LRCN 217; (2005) LPELR-1420(SC) and OLORUNTOBA-OJU V. ABDULRAHEEM (2009) 13 NWLR (1157) 83; (2009) LPELR-2596(SC).

    On the whole, the court held that the appeal succeeds and the judgment of the trial court in suit No. FHC/ABJ/CS/277/2011 delivered on December 14, 2012 was thereby set aside.

    •Edited by LawPavillion

    LawPavilion Citation: (2014) LPELR-23367(CA)

     

     

  • Fake DSS operative returns to Osogbo court Sept 12

    Fake DSS operative returns to Osogbo court Sept 12

    •Ex-Ilesa West council chair arraigned

    The charge of impersonation against a young man, Victor Aladegbolu, will come before an Osogbo Magistrate’s Court for hearing on September 12.

    Aladegbolu, 22, was accused of parading himself as an operative of the Department of State Security (DSS) during the last Osun State governorship poll.

    The court, last week, ordered that the accused person be remanded in Ilesa prison custody till the adjourned date.

    The prosecutor, Mr. Biodun Badiora, told the court that the accused person conspired with others now at large to commit the offence on August 9, 2014 at about 12:00 p.m at City Hall, Ile-Ife.

    Badiora said the accused person, with others, was caught wearing a T-shirt with an inscription of Police logo in the front and DSS at the back, claiming to be DSS officers.

    He was apprehended by police officers.

    He alleged that the accused person disrupted the conduct of the August 9 election in Ile-Ife and its environs.

    He said the offence committed by the accused person was contrary to and punishable under Sections 517 and 109 of the Criminal Code Cap 34, Vol.11 Laws of Osun State, 2003.

    Badiora, announcing his appearance, said the state’s Attorney General was taking over the matter from the police to ensure diligent prosecution.

    Defence counsel Nnenna Ngwu did not object to the application by the state to take over prosecution.

    She said the court had been saved the rigour of stretched trial with the suspect pleading guilty to the two-count charges against him.

    The Magistrate, Mr. Olusola Aluko, who rejected the bail application for the suspect, urged defence counsel to apply for bail formally.

    He also ordered that the accused person be remanded in prison custody and adjourned the matter

    Aladegbolu, who was initially held in police custody before the poll, was released and later re-arrested.

    Both the state government and the state chapter of the All Progressives Congress (APC) had before and during the election raised the alarm over the presence of hoodlums impersonating men of the Nigerian Army, the Police, DSS and other security agencies.

    The Chairman of the Independent National Electoral Commission, Prof. Attahiru Jega, last Wednesday, said  the election was nearly rigged and condemned the presence of hooded security agents.

    Also arraigned by the police was a former Chairman of Ilesa West Local Government, Mr. Ibukun Fadipe, who allegedly attacked APC members.

    Fadipe was last Thursday arraigned over a case of attack on some people in Ilesa in 2009.

    The former chairman, who appeared before Chief Magistrate A.O. Ijiyode, was accused of assaulting Alhaja Mulikat Odeyemi and others as well as damaging the speakers and engine of Isokun Social Elite Club in Ilesa on May 28, 2009.

    The accused pleaded not guilty to the charge.

    The defence counsel, Oluwaseun Ajoba, urged the court to dismiss the case as all the complainants who were victims of the assault were in court, saying they had withdrawn the case.

    The prosecuting counsel, Promise Akanwa, opposed the move as he said the proper procedure was for the counsel to apply for bail.

    After much argument, counsel to the accused pleaded for bail, Fadipe could not jump bail as he was an immediate past council chairman.

    Ajoba argued that all the complainants, who were direct victims of the alleged assault, could stand as surety for the accused.

    The Chief Magistrate thereafter granted the accused bail in the sum of N500, 000 and two sureties, who must be residents in Ilesa.

  • Father’s will tears apart doctor, High Court Judge

    Children of the late monarch of Umuoji community in Idemili North Local Government Area of Anambra State, Igwe Michael Nweze, are fighting over his property.

    It was gathered that since three years after their father’s death, there have been accusations and counter accusations between the two brothers, who are highly placed in the society, over the content of their father’s will.

    Operatives of the Police Special Fraud Unit (PSFU), Alagbon, Lagos, who are investigating the matter, are disturbed as it appears that one of the sons of the late monarch is allegedly frustrating investigation using the judiciary.

    The late Igwe Nweze’s eldest son, Dr. Michael Chukwuemeka Nweze, a United States-based paediatrician, alleged that his younger brother, Justice Joseph Ifeanyi Nweze of Anambra State Judiciary and his sister, Mrs. B.O. Mbamalu (Nee Nweze), have doctored their father’s will to deny him of his entitlement.

    Dr. Nweze also alleged that his siblings forged his signature in order to pass a board resolution removing him as a director in their late father’s two companies, stating that his name was substituted with that of his brother’s wife.

    The alleged fake documents were served to the Onitsha branch of a new generation bank, which changed the signatories.

    Investigation also revealed that the companies’ original certificate of incorporation with the Corporate Affairs Commission (CAC) still has the name of Dr M.C. Nweze as a member of the board.

    It was gathered that detectives from the PSFU invited Justice Nweze for interrogation. The documents that manifested through the purported board resolutions were said to have been investigated forensically and were discovered not to be original copies.

    A source said: “The doctor was away in the U.S. when all these documents were forged with the aim of taking over everything their father left. The same documents were used by the Judge to take over the companies’ accounts and to open and operate new ones.”

    Police investigation revealed that when all efforts by the investigating officers to amicably settle the matter between the brothers failed, a retired Supreme Court Justice and a prominent Onitsha physician, who are friends of the family decided to intervene.

    A peace meeting was held at the Onitsha GRA residence of the Justice. However, after hearing from the two parties, they directed that a new manager be appointed to administer the companies, pending when the letters of administration of the estate would be ready.

    It is instructive to state that our correspondent had obtained a letter of indemnity from Dr. Michael Chukwuemeka Nweze on the matter.

    It was gathered that the estate management firm of J. Okoro and Associates were appointed to manage the companies, even as documents were signed to this effect.

    However, two months after taking up the job of managing the estate, Okoro demanded an up-to-date account of all funds received, but he was not obliged. Rather, it was alleged that the firm was accused of fraudulently taking over the estate.

    A lawsuit against the firm at the behest of Justice Nweze was dismissed. But prior to its dismissal, Justice Nweze allegedly took back the management of the estate.

    Police sources said: “Arrest warrant was executed three years ago on Justice Nweze and his sister. They were questioned and released on their personal recognition. At that time, the parties agreed to a forensic audit of the companies. A letter to that effect was said to have been written to the Institute of Chartered Accountants of Nigeria (ICAN) which assigned the case to the accounting firm of Sola Oyetayo.

    “It commenced work but stopped when Justice Nweze allegedly refused to agree to use the estate fund to pay him. Justice Nweze allegedly complained about digging up evidence against him and dared the anti-fraud unit to meet him in court.

    Since then, several frivolous lawsuits have been initiated to intimidate his elder brother, Dr. Nweze, who is the head of the family and to distract the police.”

    When Justice Nweze did not pick calls from our correspondent for comments on the matter, a text message was sent to him.

    Reacting to the allegations, Justice Nweze, through his lawyer, A.O. Emodi Esq. in a text message entitled “False and sponsored allegations by Michael Chukwuemeka Nweze”, said: “We have seen your SMS which suggests an intention to further libel and interfere with court proceedings. We assume that Dr M.C. Nweze also brought to your notice the fact that there is a claim for one billion Naira damages against him for libel and false allegation in a suit no 0/306/2013 at the High Court, Onitsha.

    “There is an application in suit No 0/493M/2011 against him for instigating the police by the same false allegations. There is also a suit No FHC/AWK/CS/48/2014 at the Federal High Court Awka, to direct the police to charge him for giving them information which they found to be false.

    “We must not fail to observe that we do not understand your interest or that of your public in any private disagreement between brothers. It may easily be understood as part of a sponsored campaign against our client which you want to capitalise on to increase the sale and circulation of your newspaper for which our client may seek legal redress.

    “You are advised before proceeding on that course to demand a letter of indemnity from Dr Michael Chukwuemeka Nweze. That is if you are not already aware of the above facts, but decide to proceed because of the financial benefits to you no matter whose ox is gored.”

    Spokesperson for the PSFU Friday Archibong, a Superintendent of Police (SP), confirmed they are investigating the matter.

    One of the investigating officers said Justice Nweze was using lawsuit to try to stop and intimidate police investigators to hands-off the case. But “we are not deterred by these,” he said, adding that even the Chief Judge of Anambra State had been notified of the matter through an official letter.

  • Court adjourns armed robbery suspect’s trial to Sept. 25

    Court adjourns armed robbery suspect’s trial to Sept. 25

    An Ikeja magistrate court has adjourned the trial of an armed robbery suspect,  Adebola Oladipupo, 20, till September 25.

    The court, presided by Magistrate I.M. Dan Oni, adjourned trial to enable the suspect prepare for his defence.

    Magistrate Oni, who stood in for the substantive magistrate of the court, Oshodi Makanjuola, told the defendant to be prepared  to counter the charges preferred  against him by the police at the adjourned date.

    Oladipupo is facing a three-count charge of conspiracy, illegal possession of fire arms and armed robbery.

    The police alleged that the defendant, on May 31, at T. Junction, Epe, Lagos, conspired to commit felony to wit, obtaining an AK47 rifle and thirty (30) rounds of live ammunition and thereby committing an offence.

    He said the offence is punishable  under Section 1(2)(a) of the armed robbery and firearms (special provision) Act, Cap. 398, Vol.XXII, Laws of the Federation of Nigeria 1990 as amended.

    Prior to the adjournment, Inspector Nurudeen Thomas alleged that the defendant conspired with others at large to obtain an AK47 rifle and 30 rounds of live ammunition from Bethuel Thomas.

    The defendant was also alleged to have stolen an Ak47 rifle being the property of Bethuel Thomas.

    The defendant pleaded not guilty when the three-count charges were read to him.

    The trial magistrate ordered that the defendant be remanded in prison custody till the next date of hearing.

    She adjourned the matter till September 25 for hearing.

  • I’m married to trouble, man tells court

    A traditional medical practitioner, Olatunde Salia, is seeking to divorce his  wife, Ganiyat, because of alleged attempted murder, rudeness and constant fighting.

    Salia, who said he remarried to kill loneliness, told the Customary Court in Alagbado, a Lagos suburb: “I thought I had passed the stage of child nursing. I never knew I was wrong. I wanted peace but I found trouble.”

    Salia, who said the 12-year-old union was contracted under Native and Customary Law, added: “My wife knows the nature of my job, but she complains bitterly whenever I attend to female clients. She is very temperamental. The last time I tried to avoid her trouble, she ate rat killer. Out of fear, I hurriedly took her to a nearby hospital at night.

    “My wife and I wash separately to the extent of fighting over clothesline. She lacks respect and embarrasses me publicly. We have children but from different spouses. We married to support each other in times of distress. What else do I want from a woman who doesn’t listen to me? I can’t bear the pain anymore; I don’t mind dissolution.”

    Ganiyat, however, told the court: “How can another woman buy foodstuffs into our home when I am still alive? He told me to leave his house if I was tired of him. I slightly pushed him because of the provocative statement. My husband swathed his leg and told his friends that I intentionally wanted to destroy his leg. He is quick to anger. He punched my eyes because I accused him of selling on credit; I have been in pains for over two weeks now.”

    “ I lied to have taken a rat poison because my presence in the house wasn’t noticed. I don’t regret my actions. My stubborn attitude has brought me this long in the marriage. I am sorry for the trouble I have caused him. At this level, death should be the only thing separating us.”

    The Court President, Mr Olubode Sekoni, advised them to cease fighting and maintain peace since they still live together. The case was adjourned till Thursday for judgment.

  • Tenancy at Will: Court of Appeal rules on adequacy of quit notice

    The Appellant as claimant in this case brought an action at the High Court of Lagos State against the respondent as defendant claiming a declaration that the claimant is a joint owner of and has a valid and subsisting interest in the property known as and situate at Block 141, Flat 1, LSDPC Medium Cost Housing Estate, Ogba, Lagos State; a declaration that the Defendant is not entitled to sell, lease, transfer, alienate or otherwise deal with the property without the consent of the claimant; a perpetual order of injunction restraining the defendant by himself, servants, agents or assigns from selling, leasing, transferring, alienating or dealing with the property situate at Block 141, Flat 1, LSDPC Medium Cost Housing Estate, Ogba, Lagos with the consent and approval of the claimant; and a perpetual order of injunction restraining the defendant by himself, servants, agents or assigns from removing or ejecting the claimant and her children from the property. The appellant and the respondent were married couples living in the property until the dissolution of their marriage. The appellant after the dissolution of their marriage continued to live in the house with their three children of the marriage whereby she claimed to have a right as part owner of the premises. At the High Court the Appellant had sought to retain the property in issue, claiming that she was a joint owner of the property. The respondent put in his defence and counterclaimed that he is the owner of the property. He tendered all the documents showing how he purchased the property in issue. At the end of the trial, the Lagos State High Court found as a fact that the claimant had no claims to the property. The High Court declared the Respondent owner of the property in issue who has an inextinguishable right to do whatsoever he desired with his property. The respondent thereafter gave the appellant notice to quit. The claimant was dissatisfied with the judgment, hence this appeal. The appellant filed her brief in which two (2) issues were formulated for the determination of the appeal as follows:

    i. Whether a tenant at will is legally entitled to be served a notice to quit the premises as well as a seven days notice of intention to recover possession before the tenant can be legally evicted.

    ii. Whether a clamant is required to include a document on its list of documents before such a document can be admissible at trial.

    The respondent adopted the issues as formulated by the appellant for the determination of the appeal.

    Arguing issue 1, learned counsel to the appellant submitted that in order to legally evict a tenant from the premises, the tenancy must first be determined by the service on the tenant of a notice to quit. By virtue of the Rent Control and Recovery of Residential Premises Law of Lagos State Cap R6 Laws of Lagos State 2003, the required length of notice necessary to determine a tenancy at will is seven days. Counsel further submitted that to recover possession from a tenant at will a landlord is required to issue two statutory notices. The first is a notice to quit, which determines the tenancy. The second is a notice of intention to apply to court to recover possession. Counsel stated that this requirement is fundamental to any action to recover possession and non-compliance invalidates the said action. Counsel referred the court to Odutola vs. Papersack (Nig.) Ltd. (2006) NWLR (Pt. 1012) 470; (2006) LPELR-2259(SC). Counsel argued that a tenant at will is to be served with the notice to quit which as stipulated in the law, is a week’s notice, after which the tenant can be given the seven days notice of the landlord’s intention to apply to the court to recover possession of the premises.

    Counsel to the respondent submitted that the only notice required of a landlord in the case of a tenant at will is seven days notice of intention of the landlord to recover possession. That the law states that a tenancy is determined by only seven days notice and not two statutory notices as contended by defendant’s counsel. Counsel submitted that the respondent gave the appellant 14 days notice more than the seven days stipulated in Section 14 of the Rent Control and Recovery of Residential Premises Law of Lagos State 2003. Learned counsel submitted that the appellant, the tenant, is not a rent paying one and as such was she entitled to be served any notice. Counsel aligned himself to the decision in Odutola vs. Papersack (Nig.) Ltd. (2006) Odutola vs. Papersack (Nig.) Ltd. (2006) NWLR (Pt. 1012) 470; (2006) LPELR-2259(SC) and stated that there was no where the Supreme Court specifically stated that two notices were required in respect of a Tenant at will. Counsel, therefore, urged the court to hold that the notice issued on the appellant is proper notice and resolve this issue in favour of the respondent.

    In determining this issue the court stated that both parties at the trial court agreed that the tenancy was one at will. Citing the case of Odutola vs. Papersack (Nig.) Ltd. (2006) NWLR (Pt. 1012) 470; (2006) LPELR-2259(SC) the court stated that in a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (the landlord) can send him packing at any time the lessor pleases, subject only to issuance of proper notice by the lessor. The court stated further that the trial court had already declared the Respondent the safe owner of the premises and the appellant invariably knew that at any moment that the respondent would give her seven days notice to quit. The court noted that the Respondent by a letter dated November 7, 2007, Exhibit P16, gave the appellant a notice that he would repossess the property on November 20, 2007 and the notice gave more than seven days. The court stated that the landlord, vide Exhibit P16, had given the statutory seven days notice to the appellant to quit and his intention to repossess his property. The court held that the respondent did comply with Section 14(1)(a) of the Rent Control Law in giving the appellant adequate notice to quit or intention to repossesses his property. This issue was resolved against the appellant.

    On issue 2, learned counsel to the Appellant submitted that the trial Judge erred in law when she struck out the Appellant’s claim in the lower Court and went ahead to still rely on Exhibit P16 filed by her. Counsel argued that the said Exhibit P16 was not listed by the respondent in this appeal. Counsel referred the Court to Order 3 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 which requires all originating processes to be accompanied by copies of all documents to be relied on at the trial.

    Counsel argued that the respondent did not file Exhibit P16 along with his pleadings and the trial Judge had not otherwise ordered or directed that Exhibit P16 was admissible for special reasons. Counsel, therefore, urged the court to discountenance Exhibit P16 and refuse to admit it in evidence and resolve issue 2 in favour of the appellant. In response, the learned counsel to the respondent submitted that Exhibit P16 was properly admitted in evidence without any objection by the Appellant’s counsel. That the trial court properly admitted Exhibit P16 and, therefore, need not make any further direction or order concerning it. Since the appellant’s counsel did not object to the tendering of Exhibit P16, the issue that the Exhibit was wrongly admitted can no longer be raised on appeal. Counsel argued further that Exhibit P16 is a relevant document to the Respondent’s case so it was properly admitted. See Oyediran v. Alebiosu (1992) 5 NWLR (Pt. 249) pg. 550; (1992) LPELR-2868(SC). Counsel, therefore, urged the Court to hold that Exhibit P16 was properly admitted by the lower court. The fact of not listing as part of the documents sought to be relied on is just a mere irregularity. Counsel urged the court to resolve this issue in favour of the respondent.

    The court held that what determines admissibility or otherwise of a particular piece of evidence or document at the court of law is the Evidence Act. See Klifco (Nig) Ltd. v. NSITFMB (2005) 6 NWLR (Pt. 922) pg. 4; (2004) LPELR-5788(CA). That the appellant had already listed the document and it formed part of the case of the appellant. When she did not lead evidence, the Respondent, therefore, tendered it and was received in evidence without objection. The court held that Exhibit P16 was rightly presented and received in evidence as P16. This issue was resolved against the appellant.

    The two issues articulated by the Appellant were resolved against her. This appeal was held to be unmeritorious and therefore, was dismissed. The judgment of the lower Court was affirmed.

     

    Edited by LawPavilion

    LawPavilion Citation: (2014)

    LPELR-23358(CA)

     

     

  • Court of Appeal declares title of Ajiwe land in favour of family

    The Olumegbon family of Ajahland, Lagos has lost the right to the title of the sprawling Ajiweland to the Ajiwe family, courtesy of the Court of Appeal.

    The appellate court sitting in Lagos  reaffirmed the title of the descendants of Ajiwe family as the authentic owners of Ajiwe village.

    The appellate court, in a  judgement delivered in the appeal between Taiwo Elemoro and Chief Fatai Abiodun, the Olumegbon of Lagos, upturned the judgment of a Lagos High Court on the matter.

    The appellate court  apart from restraining the Olumegbon family against selling or doing anything to the land without first informing the Ajiwe family also awarded the sum of N50,000 to be paid as cost in favour of the Ajiwe family.

    The appellants as claimants had sued the respondent as defendant at the High Court of Lagos State along with other trespassers.

    The High Court of Lagos presided by Justice Beatrice Adesuwa Oke-Lawal  had in her judgment delivered on February 2, 2012 in suit No. ID/2638/2001, in which Chief Olumegbon was sued as the second defendant, declared that the land measuring 21.886 hectares belong to the Olumegbon family.

    The lower court, while refusing the claim of the appellants, declared that the respondent is the overlord of Ajah and environ.

    But the Ajiwe family had through their lawyer, Mr. Gbenga Ojekunle, gone to Appeal Court to assert their rights following the forceful seizure of Ajiwe village land ,which the Lagos State Government had excised to the Appellants vide the Lagos State Official Gazette No. 9, Vol. 9, of 28th March, 1996, The appellants as claimants sued the respondent as defendant at the High Court of Lagos State along with other trespassers.

    However the Court of Appeal in its judgment delivered by Justice Abimbola Osarugue Obaseki-Adejumo, Justice Amina Augie and Justice Y. B Nimpar set aside the lower court judgment.

    The Appellate Court declared that the appellants have  proved that they are entitled to a declaration of title over the land excised to Ajiwe village indigenes by the Lagos State government.

    “Following from the above resolution of issues one and two in favour of the Appellants, the appeal succeeds and the judgement of Hon. Justice Beatrice Adesuwa Oke-Lawal delivered on February2, 2012 is hereby set aside. The appellants proved that they are entitled to a declaration of title over the land excised to Ajiwe Village indigenes by the Lagos State Government.” The Court of Appeal declared.

    “The claim of the appellants succeeds and therefore, a declaration is hereby made that the land measuring 21.886 hectares of land which is the land area covered by the excision belongs to the claimants to hold same in trust for the descendants of Ajiwe village.” The Court of Appeal further declared.

    The Appeal Court upheld the argument of the appellants that the controversial land having previously been acquired by the Lagos State Government extinguished all previous rights over the land stressing that the alleged right of the respondent also went away with that acquisition.

    “It is beyond doubt that once there is a compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition and when the acquired land is returned as in this case, a new root of title by grant will be created.

    “This means therefore that the compulsory acquisition of the 823 square meters of land in the Lekki Peninsula by the government of Lagos State had extinguished the previous right of both claimant to the land. That furthermore, the excision of several villages including Ajiwe has created a new root of title for the people of Ajiwe village and those other villages and therefore the issue of having their root of title traced to Ogunsemo and or Olumegbon is uncalled and ineffective as those roots are gone with the acquisition and the root of Ajiwe village is now rooted in the Lagos State government” the appeal court stressed

    On the claim by the respondents that they are indigenes of Ajiwe which the appellants denied, the court held that there is a distinction between residency and indigeneship pointing out that one can be an indigene of a place but not resident there and one can also reside in a place and not be indigenous to it.

    “On this score, the trial court erred when it held that the excision was not to the claimants after finding that there was indeed an excision. The gazette says to indigenes and that is not a single person’s name, that the names of the appellant can be said not to correspond. Indigene is a group of people who are natives to Ajiwe because it is a grant from government, it must not necessarily be to the original owners of the land but could be to strangers and in this case it was to the people who are native to Ajiwe. The claimants are native to Ajiwe”, the Appeal court further stated.

    The Appeal Court held that the appellants have  proved that they are entitled to a declaration of title over the land excised to Ajiwe village indigenes by the Lagos State Government and issued a perpetual injunction restraining the respondents from encroaching on the land and doing such acts as selling, building, developing any part thereof without the consent and permission of the appellants, i.e the Ajiwe family

    Restraining the respondents, the Court of Appeal stated: “Again a perpetual injunction restraining the Respondent, his agents, servants, assigns, successors in title or anybody whosoever, claiming through, by or for him from trespassing on the Appellants’ land and from disturbing the appellants from peaceful and quiet enjoyment of their excised land. The appeal succeeds. Cost of N50,000.00 to the Appellants”

  • Appeal Court reinforces precedent on suing of non-juristic parties

    The Respondent in this appeal was a supernumerary police officer working at the Nigeria Police (SPY) Shell Police Command Ogunu Warri. He was posted to work on night shift at one of the 1st Respondent’s Offices on 27th August 2000. At the close of his shift that night he went home but upon returning to the office on 28th August 2000 to collect his keys which he forgot, he was arrested on the allegation that there was an attempt to break into one of the offices the previous night that he was on duty. He was eventually released on 30th August 2000 after an orderly room trial which recommended his dismissal. Peeved by the turn of events, the Respondent instituted proceedings at the the Warri Judicial Division of the High Court of Delta State, the Respondent herein, as Plaintiff before the lower court claiming a declaration that his purported discharge and dismissal from service by the Respondents/Defendants was illegal; a declaration that the Plaintiff is still in the service and still in the employment of the 1st Defendant; payment of all the Plaintiff salaries and all entitlements from September 2000 till date; and the sum of N100,000,000.00 (One Hundred Million Naira) for his unlawful, illegal and wrongful detention by the Defendants. The parties filed and exchanged pleadings and the action was contested on the pleadings as filed. The Respondent testified for himself in proof of his case and did not call any other witness while one witness testified for the Appellants in defence of the action. In its judgment delivered on the 11th day of November 2005, the High Court of Delta State entered judgment in favour of the Respondent with a declaration that the purported discharge and dismissal of Plaintiff from the services of the Defendants was illegal, null and void and of no legal effect whatsoever; an award of the sum of N85,000,000.00 (Eighty Five Million Naira only) to the Plaintiff, as damages for his unlawful, illegal and wrongful detention by the Defendants from 28/8/2000 to 30/8/2000. The Appellant being dissatisfied with the judgment lodged an appeal against the same at the Court of Appeal.

    The Appellants distilled three issues as arising for determination in their brief of argument, the Respondent also distilled three issues for the determination of the appeal. The Court after duly considering the issues as formulated by the parties considered and determined this appeal on the following issues:

    1. Whether or not the learned trial judge had the jurisdiction to entertain and determine the suit of the Respondent?

    2. Whether by the evidence before the trial court, the Respondent proved his case so as to entitle him to judgment?

    In arguing issue number one, the Appellants presented their postulations in two facets, viz., absence of jurisdiction on account of the action being against the Nigeria Police Force which is an agency of the Federal Government and lack of jurisdiction on account of the Appellants as sued not being juristic persons. The contention of the Appellants was that the Respondent’s claim falls within Section 251(1)(q) and (r) of the 1999 Constitution which vests exclusive jurisdiction in the Federal High Court in respect of civil causes and matters dealing inter alia, with interpretation of the Constitution as it affects the Federal Government or any of its agencies and for any action or proceedings affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

    On the issue of the juristic capacity of the Appellants, it was submitted that the names of the Appellants as reflected in the Writ of Summons are not persons known to law, in consequence of which the court did not have the competence to adjudicate between the parties. The Appellants argued that the name of the 1st Appellant as disclosed in the writ does not disclose that the 1st Appellant is a legal person and that being a limited liability company registered under the Companies and Allied Matters Act, the 1st Appellant cannot be sued except in its incorporated name which by Section 29 of the Companies and Allied Matters Act must end with the word “Limited”. It was then contended that the 1st Appellant as sued lacks the capacity to be sued, consequent upon which the action was liable to be struck out. The case of ATAGUBA vs. GURA (2005) 126 LRCN 982 at 985 ratio 1; (2005) LPELR-584(SC) was relied upon. It was submitted that the Respondent purporting to regularize the name of the 1st Appellant in the Further Amended Statement of Claim without leave of court to amend the process did not confer on the 1st Appellant the status of a legal person to be sued in law. The Appellants concluded that since they were non-juristic persons the lower court lacked jurisdiction to entertain the suit.

    In reply, the Respondent submitted that it is the claim before the court that determines the jurisdiction of the court and that the reliefs claimed were predicated on contract of employment between the 1st Appellant and the Respondent, damages resulting from breach of the contract by the 1st Appellant and the tortuous liability of the Appellant for the wrongful and unlawful detention of the Respondent. It was posited that the reliefs claimed were outside the jurisdiction of the Federal High Court. The case of ONUORAH vs. KRPC LTD (2005) 6 NWLR (PT. 921) 392; (2005) LPELR-2707(SC) was referred to. The Respondent maintained that the reliefs claimed did not fall within Section 251(1) of the 1999 Constitution and that the fact that a party to an action is an agency of the Federal Government cannot ipso facto clothe the Federal High Court with jurisdiction; and that all matters which did not fall within Section 251 of the 1999 Constitution were still within the jurisdiction of a State High Court.

    On the submission that the Appellants were not juristic persons, the Respondent contended that the Further Amended Statement of Claim had referred to the 1st Appellant’s name with the word “Limited” added thereto and that though the word “Limited” was inadvertently omitted in the writ of summons, the defect was cured in the Further Amended Statement of Claim which supersedes the writ of summons. The Respondent stated that the Appellants did not oppose the amendment to the pleading and that issues were never joined as to whether the 1st Appellant was not a juristic person, The Respondent maintained that the Appellants can therefore not be heard to complain about the legal status of the 1st Appellant on appeal since they failed to object to the amendment to cure the omission at the trial court. The case of N.U.B. LTD vs. SAMBA PET. CO. LTD (2006) 12 NWLR (PT 993) 98 at 123; (2006) LPELR-5974(CA) was relied upon.

    On the question of whether the cause of action falls within the jurisdiction of the Federal High Court, the Court held that as rightly submitted by the Respondent’s counsel it is the claim before the Court that determines the jurisdiction of the Court. See OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT 1085) 1 at 23; (2008) LPELR-2595(SC). The Court having given an insightful consideration to the reliefs claimed by the Respondent, was satisfied that they are not in respect of matters that fall within the provisions of Section 251(1) of the 1999 Constitution, wherein exclusive jurisdiction has been vested in the Federal High Court.

    On juristic capacity, the Court held that neither of the Appellants is a juristic person and the Respondent did not commence the action against proper parties. The Court held that it is hornbook law that a Court cannot engage in adjudication when the proper parties are not before it. The Court held that there was absolutely nothing to show that either of the Appellants, in the name sued, is a juristic person and their lack of jural capacity robbed the Court of jurisdiction to entertain the action. See OLORIODE vs. OYEBI (1984) 1 SCNLR 390; (1984) LPELR-2591(SC) and ZAIN NIGERIA LTD vs. ILORIN (2012) LPELR (9249) 1. This issue was partly resolved in favour of the Appellants as it relates to their juristic capacity.

    On issue two, the Court held that an appellate Court is duty bound to interfere with and reverse the decision of a trial Court arrived upon a wrong premise or which is otherwise perverse. See ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410; (1992) LPELR-95(SC). The decision of the lower Court was held to be neither founded on sound legal principle nor supported by the facts on record. The Court held that the lower Court got it wrong on the existence of an employer/employee relationship between the 1st Appellant and the Respondent. And the lower Court equally got it wrong on the liability for unlawful arrest and detention. The Court held that the decision of the lower Court was clearly perverse and cannot be allowed to stand. Accordingly, issue two was resolved against the Respondent.

    In a summation the Court held that the appeal was immensely meritorious and it was allowed. The judgment of the lower Court delivered on 11th day of November 2005 was set aside. The Respondent’s action was thereby dismissed.

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23325(CA