A Lagos based company, Johnson Products Nigeria Limited, has told a Lagos High Court sitting in Ikeja that it has jurisdiction to hear its application seeking to set aside the writ of execution obtained by a judgement-debtor, Jagal Nigeria Limited over a property located at Plot B, Ikosi Road, Oregun Industrial Estate, Ikeja.
The company through its counsel, Gabriel Olawoyin (SAN) stated this at the commencement of hearing of a motion of notice which was supported with an affidavit of urgency filed before the court presided by Justice Olabisi Ogungbesan.
The firm is also praying the court to restore them to status quo ante as at April 29, 2015, pending the hearing and determination of its application for re-listing in the Court of Appeal.
Joined as second defendant in the suit is Chief Samuel Agboola Akintan, who is said to have earlier leased the property to Wire Manufacturing (Nigeria) Limited for 20 years, having had a Deed of Conveyance dated 1971.
Olawoyin urged the court to disregard the preliminary objection raised by the defendant’s counsel, Qudus Mumuni, which it said, has no basis in law.
The learned silk told the court that the order of the Court of Appeal upon which the writ of execution was predicated was obtained by deceit, adding that it was obvious that the court was misled on the matter.
He argued that as at the time the defendants rushed to obtain the writ of execution, they already had applications seeking for re-listing of their appeal before the Court of Appeal.
He said the defendants were duly served with copies of the application and that they duly acknowledge receipt of the documents.”We have three applications, including brief of argument, pending before the Court of Appeal and they filed a counter to every application, which means they have been served”.
Olawoyin said his client has eight grounds for bringing its application for stay of the writ of execution before the court and that all the averments in the supporting affidavit of its various processes listed the events in the Court of Appeal that led to the higher court’s order.
He submitted that since the averments were not controverted by the defendants, they should be taken as the true position of things.
“Lawyers are officers of the court. We have a duty to tell the court the truth and only the truth. Judges are not magicians and can only rely on what they are told”, he said and submitted, “even if the Court of Appeal has dismissed our appeal, we still have gotten the right to have it re-listed” and cited the decided case of COMPTECH versus Federal Housing Authority (FHA) to buttress his submission.
Responding, Mumuni in his preliminary objection contended that the application filed by the judgment debtor is not known to law.
He said the judgment debtor’s reasons for filing such application is erroneous, adding that unknown to them, the court of appeal not only struck out their matter on February 5, 2015, but also deleated the appeal number.
Mumuni said the issue before the court was not only the proceedings of February 5, 2015 when the Court of Appeal struck out the appeal of he appellant but the entire proceeding that started in 2009.
He described the action of the applicant as an invitation to review the order of the Court of Appeal adding, “may calamity never befall our jurisprudence when a lower court would sit to review the order of a superior court”.
But Olawoyin insisted that the issue before the court was the writ of execution for which they are praying the court to be set aside pending the determination of their application for re-listing of their appeal against the judgment of Justice Ayotunde Phillips, now a retired Chief Judge of Lagos State), which in 2008 granted possession of the disputed property located in Oregun Industrial Estate, Ikeja to Jagal Nigeria Limited.
Justice Odugbesan has, however, fixed June 11, 2015 for ruling on the matter.
Johnson Products had dragged Jagal Nigeria Limited before Justice Ayotunde Phillips of a Lagos State High Court over the ownership of the disputed property.
The firm had averred that the Memorandum of Agreement executed by the two parties on April 17, 1980 “effectively transferred Jagal’s interest in the property” to it upon the payment of N1, 340, 000 and that Jagal issued a receipt No.1351 dated June 2, 1982, which stated that the payment is for the assignment of the property in question.
Johnson Products had further averred that Jagal acknowledged its (Johnson Products) ownership of the property in a letter addressed to Ault and Wilborg (Nig) Limited.
But Justice Phillips, in her judgment delivered on July 11, 2008 in the suit delineated ID/1466/98, held that the Memorandum of Agreement transferred no interest in the property to Johnson Products and affirmed Jagal as the owner of the property.
Not satisfied with the decision of the court, Johnson Products Limited, appealed against the judgment on July 16, 2008 and claimed to have filed its Brief of Argument as at December 8, 2010.
However, the matter assumed a new dimension in February 2015 when the matter slated for hearing by Appeal Court, was struck out for want of diligent prosecution.
Johnson Products re-approached the appellate court, asking the matter to be relisted but while the process was ongoing, the defendant (Jagal Nigeria Limited) obtained a Writ of Possession of the court to effect the judgment of Justice Philips against Johnson Product which also affected some interpleaders.
