A journalist, Olorunleke Moses, has asked an Ikeja High Court to declare as declare as illegal, null and void the sale of his late father’s house in Ikeja by some members of his family to a business man, Alhaji Kunle Owonifari.
The disputed property built by his late father, Ilori Moses, is situated at 37, Ipodo Street, Ikeja, Lagos.
In a suit filed by his counsel, Morufu Bello, before Justice Babajide Candide-Johnson, the claimant is asking the court for an order setting aside the sale of the property.
He also prayed the court for an order putting ‘caveat emptor’ on the property and another order mandating the Registrar of Title, not to register the governor’s consent of the new purchaser, Alhaji Kunle Owonifari.
The defenders in the suit are: Taiwo Moses, Modupe Moses, Olajumoke Moses, Alhaji Kunle Owonifari, The Probate Registrar, High Court of Lagos State and Registrar of Titles, Lagos State Land Registry are first, second, third, fourth, fifth and sixth defendants respectively.
In a 16-paragraph statement of claim deposed to in support of the writ, Olorunleke Moses averred that the disputed property was given to Iwalere Moses on the one hand and Taiwo and Kehinde Moses, on the other hand as stated in the will of his late father, Ilori Moses who died November 20, 1988.
He averred that by the content of the will, Iwalere Moses was given the entire upstairs of the one storey building while Taiwo and Kehinde Moses were given exclusive possession of the apartments downstairs.
He averred that Iwalere Moses, Taiwo Moses and Kehinde Moses are step brothers, adding that Iwalere in addition has other siblings including himself, the claimant.
He stated that Iwalere died May 21, 1991 without any issue and that upon his death, his interest in the property reverted to his other siblings including the claimant.
He stated that not long after the death of Iwalere Moses, his step brother, Kehinde Moses, disappeared and efforts to locate him proved abortive.
The claimant further averred that after the death of Iwalere Moses, the first defendant, Taiwo Moses, unilaterally sold the property to the exclusion of the siblings of Iwalere Moses and without any grant of probate.
He averred that the unilateral decision of the first defendant, Taiwo Moses, was allegedly done in collusion with the executors of the will of their late father, Modupe Moses and Olajumoke Moses, the second and third defendants respectively.
He stated that his request made in writing, through his counsel, Morufu Bello, for a reversal of the sale of the property was ignored and not complied with by the defendants.
However, in their Notice of Preliminary objection to the suit filed through their counsel, A.A. Oyewole, the first, second, third and fourth defendants jointly asked the court to strike out the suit filed against them by Olorunleke Moses on grounds of gross incompetence, irredeemable irregularity, want of jurisdiction and breach of rules of the court.
They also prayed the court for an order striking out the suit for failure, refusal and neglect of the claimant to accompany the originating process with verifying affidavit to verify the content of the high court processes as provided for by Order 6, Rule 5 of the High Court of Lagos State Civil Procedure Rules 2012.
They predicated their objection on 10 grounds.
They claimed for instance that there was no written Memorandum caused by the claimant/respondent and or their solicitors setting out their claims and option for settlement as deposed to in paragraph 3 of the deposition contained in Form 01 and deposed to on April 30, 2018 which they also stated was defective and void.
They cited the condition precedent to the assumption of jurisdiction in the decided case of Madukolu Vs Nkemdilim 1862 1 ALL N.L.R. (PT 4) 557 which they claimed has neither been met nor satisfied by the claimant.
They averred that there is no evidence of the attempts made by the claimant/respondent to settle the matter out of court as stated on page 152 of the High Court of Lagos State Civil Procedure Rules 2012.
Citing breach of the rules of the court, they contended that the court is duty bound to enforce the provision of the rules to the letter amongst litigants for certainty and regularity of proceedings.
But in their counter affidavit in opposition to the defendants preliminary objections, deposed to by one Benson Ugboduma, it was contended that the fact that the claimant did not attach a verifying affidavit to the suit is not enough to warrant striking it out.
It was stated that a pre action Form 01 was deposed to on April 30, 2018 in support of the action of the claimant and that it was done in compliance with the rules of the court.
They averred that the arguments of the defendants was cosmetic and a mere academic exercise which they contended was not enough to strike out the suit.
The claimant insisted that justice in the matter lies in dismissing the application of the defendants as it is lacking in merit and an over reach brought to rob them of their right.
Justice Candide-Johnson has fixed December 11 for hearing of the matter.
