A Lagos based company, Johnson Products Nigeria Limited, has filed an application before a Lagos High Court, sitting in Ikeja, to set aside the execution of a judgmnent which granted possession of a property located at Plot B, Ikosi Road, Oregun Industrial Estate, Ikeja to Jagal Nigeria Limited.
In a Motion on Notice supported with an affidavit of urgency before Justice Olabisi Ogungbesan, the firm is praying the court to restore the status quo ante pending the hearing and determination of a pending application before the Court of Appeal.
Joined as second defendant in the suit was, Chief Samuel Agboola Akintan, who was said to have earlier leased the property to Wire Manufacturing (Nigeria) Limited for 20 years, having had a Deed of Conveyance dated 1971.
Justice Ayotunde Phillips, (now a retired Chief Judge of Lagos State), had on July 11, 2008 delivered a judgment in suit no. ID/1466/98 in which judgment was given in favour of Jagal Nigeria Limited concerning the Oregun Industrial Estate property.
Jagal Nigeria Limited and Johnson Products claimed to have executed a Memorandum of Agreement on April 17, 1980, under which Jagal was said to have assigned its ‘unexpired interest in the said property to Johnson Products for a consideration of N1, 340, 000: 00 (One Million, Three Hundred and Forty Thousand Naira).
However, Jagal claimed at the lower court that the Memorandum of Agreement entered into with Johnson Products in 1980 was ‘inchoate and transferred no interest in the property’ to Johnson Products; that the N1, 340, 000:00 paid by the Johnson Products to Jagal was in consideration of the sublease of 1982; and that Johnson Products holds the property only as tenant/sub-leasee and not as an assignee.
It was this premise that Jagal claimed at the lower court.
However, while Jagal claimed that its relationship with Johnson Products was that of a landlord and tenant, Johnson Products claimed that the relationship was that of an assignee and assignor.
But Johnson Products averred at the lower court 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: 00; that Jagal issued a receipt No. 1351 dated 2 June 1982, which ‘clearly stated that the payment is for the assignment of the property in question.
Johnson Products further averred that Jagal acknowledged its ownership of the property in a letter addressed to Ault and Wilborg (Nig) Limited.
Delivering judgment on the matter at the lower court, Justice Ayotunde Philips (as then was) of the Lagos High Court, held the claims of Jagal as the court affirmed that the Memorandum of Agreement ‘transferred no interest in the property to Johnson Products.’
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.
The matter assumed a new dimension on December 8, 2010 when the matter slated for hearing by the appellate court, was struck out for lack of legal representation for the appellant, Johnson Products.
Consequent upon the new development, and alleged ‘misrepresentation’ of its position to the Court of Appeal, Johnson Products Limited applied for a relisting of the suit at the Court of Appeal.
However, while waiting for the relisting to be done, Jagal Nigeria Limited, obtained a Writ of Possession of the Lagos High Court, Ikeja to effect the 2008 judgment of Justice Philips against the first defendant (Johnson Products).
In a letter to the Administrative Judge of Lagos State, dated May 4, 2015, counsel to Johnson Products, Dr. Wale Olawoyin (SAN) claimed that Jagal’s action was “contrary to trite principle of law’, urging the court to set aside the claimant’s (Jagal Nigeria Limited) execution order and further execution of the judgment.
”The staff of the first defendant (Johnson Products) no longer have any office space to work from and are now constrained to operate from the personal office of its Chairman in GRA, Ikeja.
“We have now filed a Motion on Notice together with an Affidavit of Urgency to set aside the claimant’s execution and further execution of the judgment and restore the status quo ante pending the hearing and determination of the pending application before the Court of Appeal,” the letter read in part.
At the fresh sitting on the new application last Friday, Justice Ogungbesan urged all parties in the suit, including an inter-pleader, Olayiwola Dada, to file their responses to Jagal’s application and other applications already filed before the court.
Dada, who joined in the fresh suit, told the court through his counsel, Emmanuel Ogbitisen that although the previous judgment of the court did not affect him, but he urged the court for an order to “allow us to maintain the machines and have access to them so as to service them”.
Counsel to the claimant (Jagal), Qudus Mumuneey, however, opposed any order of the court until he replied to all applications before the court. Mumuneey averred that as far as his client is concerned, “the case is technically dead”. He further told the court of his client’s intention to move a preliminary objection on the jurisdiction of court to hear the fresh application.
But counsel to Johnson Products, represented by J.O. Omisade, his client was misrepresented before the Court of Appeal that his client ‘had not been diligent in prosecuting the appeal by its failure to file its Brief of Argument.
“However, as shown in our Motion before the court and contrary to the misrepresentation of the claimant to the Court of Appeal, the 1st defendant (Appellant) had filed and served its Brief of Argument since 8 December 2010,” he said.
Justice Ogungbesan has, however, adjourned the matter till tomorrow to address all the applications by the parties.
Johnson Products Limited, in its brief of argument before the Court of Appeal listed four main issues for determination in line with its ground of appeal and the facts and circumstance of the case.
It asked the court to determine “whether the trial judge was right in holding that the Memorandum of Agreement dated April 17, 1980 and admitted as exhibit 8, has not conveyed any interest recognisable in law to the appellant; whether the learned judge was right in holding that the appellant”s payment to the first respondent was not payment under exhibit P8 when the payment receipt, exhibit D2, clearly states that the payment was for the assignment of the first respondent’s unexpired residue”.
The company also asked the court to determine “whether the appellant failed to prove its allegation of fraud against the first respondent at the lower court considering that the whole evidence adduced by the appellant in proof of the fraud was wrongly rejected by the trial judge” and “whether from the totality of evidence presented before the lower court, the trial judge was right in holding that the relationship between the first respondent and the appellant was landlord and tenant’s and not that of assignor and assignee.
On the first issue, the appellant, citing authorities to support its argument, submitted that on the basis of exhibit P8, obtained valid and subsisting equitable interest in the subject matter of the appeal and urged the court to so hold.
It further submitted that the payment of N1,340,000 by the appellant to the first respondent evidenced in Exhibit D2 was validly made and stands as the consideration under exhibit P8.
It argued that the trial judge was wrong in holding that the first respondent is entitled to possession of the res, arrears of rent and mesne of profit and urged the court to so hold.
The appellant urged the court to sustain its appeal and reverse the judgment of the lower court on the ground that the memorandum of agreement conveyed equitable interest in the property, subject matter of the appeal, to the appellant contrary to the decision of the trial judge; that the sum of N1.340,000 paid to the first respondent and acknowledged by the first respondent, is a valid payment under exhibit P8 and was never converted to any other purpose.
It further submitted that the evidence adduced by the appellant in proof of its allegation of fraud was improperly evaluated by the trial judge and that occasioned miscarriage of justice and emphasised that by the totality of evidence adduced before the trial judge, the relationship between the first respondent and the appellant is that of assignor and assignee.
